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Volpicelli v. Baker

United States District Court, D. Nevada

June 20, 2019

WARDEN BAKER, et al., Respondents.



         I. SUMMARY

         This pro se habeas petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes before the Court on Respondents' motion to dismiss.[1] (ECF No. 22.) Petitioner has also filed a motion for appointment of counsel (ECF No. 31), and application for leave to proceed in forma pauperis (ECF No. 30). Finally, Petitioner has filed a request for judicial notice, which the Court construes as a motion for leave to file a sur-reply (ECF No. 36). As further explained below, and primarily because Petitioner's claim is not cognizable on federal habeas review, the Court will grant Respondents' motion to dismiss and deny the other pending motions.


         Petitioner is a Nevada state prisoner currently serving a sentence of life with the possibility of parole arising out of Second Judicial District Court No. CR03-1263. (See Exhibits (“Exs.”) 1, 2, 4, 5; ECF No. 22 at 9:12-14.)[2] Petitioner began serving his current sentence only after discharging several shorter sentences imposed in Nos. CR98-2160, CR02-0147 and CR02-0148. (See Exs. 1, 2, 4, 5.) In this federal habeas petition, Petitioner argues that NDOC has violated his due process and equal protection rights by: (1) failing to apply 30 meritorious time credits he earned toward his minimum and maximum sentences in CR98-2160; (2) failing to retroactively apply twenty statutory good-time credits to his current and past sentences pursuant to the “AB 510” amendments to NRS § 209.4465; and (3) failing to record meritorious and program credits he has earned and is earning. (ECF No. 8 at 4-7.) Respondents move to dismiss the petition as untimely, unexhausted, procedurally defaulted, and for failing to state a cognizable claim in part. Because the petition fails to state any claim that is cognizable on federal habeas review, the Court sua sponte dismisses the petition as non-cognizable and does not reach any of the Respondents' other arguments.


         A claim is cognizable under 28 U.S.C. § 2254 only if it falls within the “core” of habeas. 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.” Nettles v. Grounds, 830 F.3d 922, 930 (9th Cir. 2016). Such claims must be brought, “if at all, ” under 42 U.S.C. § 1983. Id. at 931.

         In 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. See 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. See Id. The 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.


         a. Motion to Dismiss

         Putting aside whether Petitioner's claims related to his prior, expired sentences are otherwise viable, neither they nor his other claims fall within the core of habeas relief and thus none is cognizable on federal habeas review. Petitioner challenges the failure to apply credits to his sentences, past and current. Because Petitioner is serving an indeterminate life sentence, the only practical effect of success on his claims would be to obtain an earlier parole eligibility date, and thus an earlier parole hearing. An earlier parole hearing, however, will not necessarily lead to the petitioner's immediate or speedier release, because whether petitioner will be granted parole lies in the discretion of the parole board. See Wydeven v. Warden, Lovelock Corr. Ctr., 238 P.3d 867 (Nev. 2008) (citing Nev. Rev. Stat. § 213.1099(2)) (“The 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.”). As success on Petitioner's claims would not necessarily lead to his immediate or speedier release, they do not fall within the “core” of habeas and must be brought, if at all, under 42 U.S.C. § 1983. See Rouser v. Sullivan, 2019 WL 1934483, at *2 (E.D. Cal. May 1, 2019); Stanhope v. Ryan, 2017 WL 1163303, at *8 (D. Ariz. Mar. 29, 2017); Gordon v. Premo, 757 Fed. App'x 627, 628 (9th Cir. 2019) (unpublished disposition).

         Petitioner's claim that NDOC is not properly recording his current credits also falls outside the core of habeas and is not cognizable in this action. Petitioner is serving a life sentence and therefore has no maximum sentence to which credits may be applied. Success on this claim would lead to Petitioner's speedier release only if he also obtains some other form of relief-a speculative proposition at best. Thus, success would not “necessarily” lead to Petitioner's speedier release. Although Petitioner asserts that the failure to record his credits affects “considerations by the NDOC's committees, as well as prospective parole hearings, insofar as conduct, programming and rehabilitative efforts, ” (ECF No. 8 at 5), none of this implicates the duration or validity of Petitioner's confinement and thus also falls outside the core of habeas relief.

         Petitioner cites Garlotte v. Fordice, 515 U.S. 39 (1995) in an apparent effort to establish he has a cognizable habeas claim. In Garlotte, the petitioner was sentenced to three years on a marijuana count to run consecutively to two concurrent life sentences on other counts. See Id. at 41. The state trial court ordered that the sentence on the marijuana charge run first, which meant that by the time Petitioner filed his federal habeas petition challenging his marijuana conviction, the sentence on that charge had expired. Id. at 42. The Supreme Court held that Petitioner's consecutive sentences must be considered in the aggregate, so that as long as Petitioner remained in custody on one of his consecutive sentences, he was in custody for purposes of challenging his expired marijuana sentence. See Id. at 43-47. In the conclusion of its opinion, the Supreme Court stated:

Invalidation of Garlotte's marijuana conviction would advance the date of his eligibility for release from present incarceration. Garlotte's challenge, which will shorten his term of incarceration if he proves unconstitutionality, implicates the core purpose of habeas review. We therefore hold that Garlotte was “in ...

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