Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Orr v. Williams

United States District Court, D. Nevada

September 24, 2019

STEVEN DANIEL ORR, [1] Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. Introduction

         Before the Court are Petitioner Steven Orr’s (“Orr”) amended petition for a writ of habeas corpus, Respondents’ Motion to Dismiss, and Orr’s Motion for Leave to Amend Petition for Writ of Habeas Corpus. ECF Nos. 6, 1, 46. Orr’s Motion for Leave to Amend moots the argument in Respondent’s motion that Orr has not exhausted his grounds for relief in state court. The Court rejects Respondents’ other arguments in the Motion to Dismiss and denies the motion.

         II. Procedural History and Legal Background

          The alleged facts of this case are as follows. Orr, Jeda Greene, and Anthony Redmond plotted to rob a bar. Greene gained entry to the bar by pretending to be a customer and ringing the doorbell. Orr followed Greene into the bar with a gun. The bartender, on Orr’s orders, gave Orr the cash from the cash register. Orr then ordered the bartender, two customers, and Greene to the back room of the bar. The bartender, again on Orr’s orders, gave Orr more cash. Orr left the bar, got into a car driven by Redmond, and went away. Soon after the robbery, the police caught Orr and Redmond. Greene confessed, and Orr and Redmond made incriminating statements. Ex. 27, ECF No. 15-2 at 15-19.

         Orr originally was charged with one count of burglary while in possession of a firearm, one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, three counts of first-degree kidnaping with the use of a deadly weapon, one count of carrying a concealed weapon, and one count of possession of stolen property. Ex. 27, ECF No. 15-2, at 4-8.

         On April 30, 1999, in the Las Vegas Justice Court, Orr waived a preliminary hearing. Ex. 25, ECF No. 14-25. He agreed that the case would be bound over to the Eighth Judicial District Court of the State of Nevada, where he would plead guilty to one count of conspiracy to commit robbery and one count of robbery with the use of a deadly weapon. Id. at 2, ECF No. 14-25, at 3. The prosecution agreed not to oppose an agreement that the sentences would run concurrently with another case. Id.

         On May 10, 1999, in the state district court, No. 99C158563-1, Orr executed a plea agreement. The written plea agreement stated that the prosecution would not oppose concurrent time with another state district court case, No. 98C150664-1, and that the prosecution would not oppose the dismissal of two justice court cases at rendition of sentence. Ex. 30, ECF No. 16-1. Orr pleaded guilty in a hearing that same day. Ex. 32, ECF No. 16-3.

         Orr was sentenced on June 23, 1999. Ex. 37, ECF No. 16-8. On July 8, 1999, the state district court entered the judgment of conviction. For the count of conspiracy to commit robbery, the state district court sentenced Orr to prison with a minimum term of 24 months and a maximum term of 60 months. For the count of robbery with the use of a deadly weapon, the state district court sentenced Orr to prison with a minimum term of 72 months and a maximum term of 180 months, plus a consecutive prison sentence with a minimum term of 72 months and a maximum term of 180 months. The sentences for the two counts ran concurrently. Ex. 39, ECF No. 16-10.[2]

         Orr appealed. He argued that he received ineffective assistance of trial counsel. Ex. 48, ECF No. 17-1. The Nevada Supreme Court dismissed the appeal because a claim of ineffective assistance of trial counsel should be raised in post-conviction proceedings. Ex. 51, ECF No. 17-4.

         On April 4, 2005, Orr had a parole hearing on the first of the two consecutive sentences for robbery with the use of a deadly weapon. ECF No. 46-1, at 10. The parole board denied parole on that sentence until its expiration on April 5, 2008. Id. Orr then started serving the second consecutive sentence. On May 27, 2015, Orr had a parole hearing on the second consecutive sentence. Ex. 200 (ECF No. 38-5, at 18). The parole board granted Orr parole, effective August 1, 2015. Id.

         On January 26, 2016, Orr was charged with crimes that occurred on or about December 31, 2015: One count of conspiracy to commit burglary, one count of burglary while in possession of a firearm, one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, two counts of assault with a deadly weapon, one count of ownership or possession of firearm by prohibited person, and one count of possession of stolen property. Ex. 185, ECF No. 37-1, at 5-8. On February 9, 2016, in the Eighth Judicial District Court, No. C-16-312479-1, Orr agreed to plead guilty to one count of robbery with the use of a deadly weapon. Both parties stipulated to a habitual-criminal sentence with a minimum of 60 months and a maximum of 150 months. Ex. 188, ECF No. 37-4. The state district court entered judgment accordingly on May 3, 2016. Ex. 196, ECF No. 38-1.

         On March 1, 2016, the parole board revoked Orr’s parole in No. 99C158563-1 until the expiration of the sentence. The sentence expired on November 9, 2016.

         The sentence in No. C-16-312479-1 runs consecutively to the sentence in No. 99C158563-1. Nev. Rev. Stat. § 176.035(3). It commenced on November 10, 2016.

         Orr’s habeas claims are based in part on the law governing accrual of credits toward his sentences and the application of those credits toward parole eligibility. At the time, Orr earned 10 days of credit toward his sentence each month for good behavior under section 209.4465(1) of the Nevada Revised Statutes (“NRS”). Nev. Rev. Stat. § 209.4465(1) (1997). Section 209.4465 also stated:

7. Credits earned pursuant to this section: . . .
(b) Apply 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.

         Orr claims that at the plea hearing for his 1999 criminal charges, the prosecution verbally promised that credits would apply toward his parole eligibility.[3] According to Orr, his accrued credits were not applied toward parole eligibility for either of the two consecutive sentences in 99C158563-1.

         The Nevada Supreme Court has held that the Nevada Department of Corrections had been interpreting § 209.4465(7)(b) incorrectly during this time period. It first so held in the unpublished decision Vonseydewitz v. LeGrand, 2015 WL 3936827 (Nev. June 24. 2015), [4] and then reaffirmed this holding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.