United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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. Consequently, credits should be applied to
Petitioner's minimum terms.
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 ...