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Tripp v. Nevada State Parole Board

United States District Court, D. Nevada

July 2, 2018

WALTER TRIPP, Petitioner,
NEVADA STATE PAROLE BOARD, et al., Respondents.



         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 7) comes before the Court for consideration on the merits. Respondents have answered the Petition (ECF No. 9), and Petitioner has replied (ECF No. 13). Following an order from this Court, Respondents filed a supplemental answer (ECF No. 24), and Petitioner filed a supplemental reply (ECF No. 26).[1]


         Petitioner, a state court prisoner who is serving three life sentences with eligibility for parole after five years, challenges the Nevada State Parole Board's (“Board”) decision to deny him parole. (ECF No. 7.)

         In 1991, Petitioner pleaded guilty to three counts of sexual assault on boys between the ages of seven and twelve. (ECF Nos. 10-1, 10-2, 10-3.[2]) Petitioner was sentenced in 1992 to three life sentences with eligibility for parole after five years; two sentences ran concurrently while the third ran consecutively to the first two. (ECF No. 10-4.) Petitioner asserts that he received parole on the first two sentences after serving fourteen years. (ECF No. 7 at 4-5.) He has been denied parole on his current sentence several times, including in 2012, 2014, and 2016. (See ECF No. 10-5, ECF No. 10-7; ECF No. 13 at 2.) Petitioner submitted letters to the Nevada Board of Parole Commissioners seeking reconsideration of the 2012 and 2014 decisions, which requests were denied. (See ECF No. 7 at 23, 34-35.[3])

         Petitioner filed a state habeas petition on February 19, 2015. (ECF No. 10-9.) The state court denied the petition on the grounds that Petitioner's claims were not cognizable on habeas review and on the independent ground that none had merit. (See ECF No. 10-12.) The Nevada Court of Appeals affirmed. (ECF No. 10-14 at 2-3.)

         Petitioner dispatched the instant federal petition for writ of habeas corpus on December 31, 2015. (ECF No. 7 at 1.) Respondents have answered, arguing that the Petition is untimely and without merit.


         In actions challenging a denial of parole, the limitations period for a § 2254 petition begins to run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” See Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). In this case, Petitioner learned of the factual predicate of his claim when he received notice that the Board was not considering his request for reconsideration of the decision to deny him parole.[4] It appears that Petitioner received notice of the Board's refusal to reconsider in or around mid-to-late November 2014. (See ECF No. 7 at 35 (letter indicating that the Board declined to consider Petitioner's letter request regarding the 2014 denial).)

         The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2). Petitioner filed a state habeas petition on February 19, 2015, when no more than five months of the federal limitations period had elapsed, and proceedings remained pending on the petition until January 15, 2016, by which point Petitioner had filed the instant federal habeas petition.[5]Thus, if the state habeas petition constitutes a “properly filed application for State post-conviction or other collateral review, ” the Petition in this case is timely.

         Respondents argue that the Petition was not “properly filed” because it stated no claims cognizable in a post-conviction petition for writ of habeas corpus pursuant to NRS § 34.724 and the state courts denied relief on that ground. (ECF No. 10-14.) Respondents argue that because the Petition did not comply with the requirements for a habeas petition under NRS § 34.724, it was not “properly filed.”

         A state petition is properly filed “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Such rules typically include “the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee” and can include “preconditions imposed on particular abusive filers . . . or on all filers generally . . . .” Id. at 8-9. “[I]n common usage, the question whether an application has been ‘properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Id. at 9.

         On the arguments and showing made, the Court is not persuaded that the Petition was not “properly filed.” The state courts accepted and filed the petition and, in addition to denying it on the merits, also dismissed it as failing to state a claim for relief under NRS § 34.720. Stating a cognizable claim is more a condition for obtaining relief than it is a condition for filing. See Ramirez v. Yates, 571 F.3d 993, 999 (9th Cir. 2009) (holding that petition for writ of coram nobis was “properly filed” because state requirement that petitioner show due diligence was a condition to obtaining relief, not a condition to filing the petition). The Court therefore concludes that the state habeas petition was “properly filed, ” and thus the limitations period was tolled from February 19, 2015, when Petitioner filed his state habeas petition, until the time Petitioner filed the instant Petition. The Petition is not therefore untimely. It is, however, without merit.

         III. MERITS

         28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits of the Petition in this case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This court's ability to grant a writ is limited to cases where “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted) (describing the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt”).

         A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Andrade, 538 U.S. 63 (first quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000); then citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” Id. at 973. Rather, AEDPA requires substantially more deference:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.

         As the state courts reached the merits of most of Petitioner's claims, their decisions on those claims are entitled to deference under AEDPA and may not be disturbed unless they were ones “with which no fairminded jurist ...

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