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Wirth v. Baker

United States District Court, D. Nevada

June 20, 2019

CHARLES WIRTH, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court are Petitioner's amended petition for a writ of habeas corpus (ECF No. 11), Respondents' motion to dismiss (ECF No. 18), Petitioner's opposition (ECF No. 20), and Respondents' reply (ECF No. 21). Because the Court is unable to give Petitioner any relief, the Court will grant the motion to dismiss.

         II. BACKGROUND

         The court takes judicial notice of Wirth v. Legrand, No. 2:17-cv-00027-RFB-VCF (“Legrand”), for the background to this case. Petitioner was convicted in the Fifth Judicial District of the State of Nevada, Nye County. The counts and sentences were:

Count 1: Open or gross lewdness, Nev. Rev. Stat. § 201.210, a gross misdemeanor, 12 months in jail;
Count 2: Open or gross lewdness, Nev. Rev. Stat. § 201.210, a category D felony, minimum term of 19 months and maximum term of 48 months in prison;
Count 3: Attempted sexual assault, Nev. Rev. Stat. §§ 193.330, 200.366, a category B felony, minimum term of 96 months and maximum term of 240 months in prison.

         All sentences were to be served consecutively. See Legrand, Ex. 77 (ECF No. 20-6 in that action). Petitioner challenges the validity of the judgment of conviction in that action.

         In this action, Petitioner challenges the validity of the application of credits toward his sentence, under the version of NRS § 209.4465 in effect at the relevant time.

         On December 27, 2016, Petitioner filed a habeas corpus petition in the state district court, raising these claims. (Ex. 2 (ECF No. 19-2).) The state district court denied the petition. (Ex. 5 (ECF No. 19-5).) Petitioner appealed. Meanwhile, the Nevada Supreme Court decided Williams v. State, 402 P.3d 1260 (Nev. 2017). In Williams, the Nevada Supreme Court held:

[Nev. Rev. Stat. §] 209.4465(7) provides that credits earned pursuant to [Nev. Rev. Stat. §] 209.4465: (a) “[m]ust be deducted from [a prisoner's] maximum term” of imprisonment and (b) “[a]pply to eligibility for parole unless the offender was sentenced pursuant to a statute which specifies a minimum sentence that must be served before a person becomes eligible for parole.” The first part of subsection 7(b) establishes a general rule-that credits earned pursuant to [Nev. Rev. Stat. §] 209.4465 apply to eligibility for parole. The second part of subsection 7(b) sets forth a limitation-the general rule does not apply if the offender “was sentenced pursuant to a statute which specifies a minimum sentence that must be served before a person becomes eligible for parole.” Thus, if the sentencing statute did not specify a minimum sentence that had to be served before parole eligibility, credits should be deducted from a prisoner's minimum sentence, making an inmate eligible for parole sooner than he or she would have been without the credits.

402 P.3d at 1262. A statute that sets forth a minimum term but is silent on parole eligibility does not fall within the limitation of § 209.4465(7)(b). See Id. at 1263. The statutes under which Petitioner was sentenced, NRS §§ 201.230 and 193.330, are silent on parole eligibility.[1] Consequently, credits should be applied to Petitioner's minimum terms.[2]

         In Petitioner's case, the Nevada Supreme Court vacated the state district court's denial of the petition. It noted that the state district court did not have the benefit of Williams. The Nevada Supreme Court remanded for the state district ...


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