United States District Court, D. Nevada
before the court are petitioner's motion for leave to
file second amended petition (ECF No. 79), motion to seal
exhibit (ECF No. 81), and motion for stay and abeyance (ECF
seeks to add three claims to his pending habeas petition -
all premised on an allegation that the State of Nevada is
refusing to observe petitioner's correct date of birth,
thereby depriving him the benefit of Nev. Rev. Stat. §
213.12135. Made effective on October 1, 2015, the statute
mandates that a person sentenced as an adult for an offense
committed when he or she was younger than 18 years old is
eligible for parole after serving 15 years if the crime did
not result in death, or after 20 years if it did. Nev. Rev.
Stat. § 213.12135. Petitioner is currently serving a
life sentence without possibility of parole on a first degree
murder conviction and claims to have already served twenty
has filed a petition for writ of mandamus in the Nevada
courts that, if granted, would compel the Nevada Department
of Corrections to recognize petitioner's claimed date of
birth and determine him eligible for parole. ECF No. 80-17.
He asks this court to stay proceedings in this habeas case
and hold them in abeyance until he completes his state court
litigation. For reasons that follow, this court will deny
relating to state sentencing law generally are not cognizable
on federal habeas review. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state-court decisions on
state-law grounds.”). Nonetheless, a state court's
misapplication of state sentencing law may violate due
process if “[the error] is so arbitrary or capricious
as to constitute an independent due process” violation.
Richmond v. Lewis, 506 U.S. 40, 50 (1992). Here,
petitioner's allegations do not establish that the State
has misapplied Nevada's sentencing laws. Instead, they
merely show that there is a factual dispute as to
petitioner's actual date of birth.
importantly, to the extent petitioner is asking this court to
require the State of Nevada recognize his parole eligibility,
such relief is not available by way of a federal habeas
petition. “Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a §
1983 action.” Nettles v. Grounds, 830 F.3d
922, 927 (9th Cir. 2016) (internal quotations and citations
omitted). A habeas petition is the exclusive vehicle for
claims brought by state prisoners that fall within “the
core of habeas.” Id. Conversely, “a
§ 1983 action is the exclusive vehicle for claims
brought by state prisoners that are not within the core of
habeas corpus.” Id. Where success on a
petitioner's habeas claim would not necessarily lead to
his immediate or earlier release from custody, the claim does
not fall within “the core of habeas corpus.”
Id. at 934-35.
Nettles, a prison inmate serving an indeterminate
life sentence with the possibility of parole was found guilty
of a disciplinary infraction and, as a result, had thirty
days of good time credits revoked. 830 F.3d at 927. The
inmate filed a habeas petition in federal district court
seeking restoration of the loss of good time credits and
expungement of the rule violation report that led to the loss
of good time credits. Id.
Ninth Circuit held that the district court lacked
jurisdiction over the inmate's claim because expunging
his rules violation report “would not necessarily lead
to immediate or speedier release because the expungement of
the challenged disciplinary violation would not necessarily
lead to a grant of parole.” Id. at 934-35.
Although a rule violation is relevant to whether a prisoner
is suitable for parole, “the presence of a disciplinary
infraction does not compel the denial of parole, nor does an
absence of an infraction compel the grant of parole.”
Id. Accordingly, the Ninth Circuit held that the
inmate's challenge to the rules violation report did not
lie “at the core of habeas.” Id.
in this case, petitioner's mere eligibility for parole
does not result, perforce, in his immediate or speedier
release. Instead, “[t]he decision of whether or not to
grant parole lies within the discretion of the parole board
and the creation of standards does not restrict the Parole
Board's discretion to grant or deny parole.”
Wydeven v. Warden, Lovelock Corr. Ctr., 238 P.3d 867
(Nev. 2008) (citing Nev. Rev. Stat. § 213.1099(2)).
Thus, under Nettles, this court lacks jurisdiction
over the claims petitioner seeks to add to his habeas
petition. Accordingly, the court must deny petitioner's
motion for leave to amend his petition and his motion for
stay and abeyance.
THEREFORE ORDERED that petitioner's motion for leave to
file second amended petition (ECF No. 79) and motion for stay
and abeyance (ECF No. 83) are both DENIED.
FURTHER ORDERED that petitioner's motion for leave to
file exhibit under seal (ECF No. 81), respondents' motion
for extension of time (ECF No. 84), and motion for late
filing (ECF No. 85) are all GRANTED nunc pro tunc as
of their respective filing dates.
 Brian E. Williams is substituted for
Anthony Scillia as warden of High Desert State Prison.
See Fed. ...