United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
Procedural History and Legal Background
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
claims that at the plea hearing for his 1999 criminal
charges, the prosecution verbally promised that credits would
apply toward his parole eligibility. According to Orr, his
accrued credits were not applied toward parole eligibility
for either of the two consecutive sentences in 99C158563-1.
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),  and then reaffirmed this