United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Petitioner Richard Lee Carmichael, a Nevada
prisoner who is represented by counsel. Currently before the
Court is Respondents’ Motion to Dismiss (ECF No. 28).
Carmichael has opposed (ECF No. 37), and Respondents have
replied (ECF No. 46). Also before the Court is
Carmichael’s Motion for Leave to File Supplemental
Exhibit (ECF No. 44). No. response was filed and the deadline
for doing so has expired. For the reasons discussed below,
both motions are granted.
is incarcerated by the Nevada Department of Corrections
(“NDOC”) pursuant to two murder convictions.
First, in September 1983, he was convicted of second-degree
murder in the Fifth Judicial District Court for Mineral
County and sentenced to life in prison. ECF No. 30-4. Second,
in April 1984, he was convicted of second-degree murder in
the Seventh Judicial District Court for White Pine County and
sentenced to life in prison. Id. Carmichael was not
eligible for parole consideration until he served a minimum
of five years. Id. Accordingly, he has been
parole-eligible for many years.
subject of this habeas proceeding is the disciplinary action
NDOC imposed on Carmichael in 2013 for an alleged conspiracy
to smuggle drugs into High Desert State Prison.
State Administrative and Court Proceedings
August 20, 2013, Carmichael received a notice of charges
alleging two disciplinary violations: MJ31 –
unauthorized use of equipment or mail, and MJ26 –
possession of contraband. ECF Nos. 29-2 at 44. The second
charge was later revised to MJ53 – possession,
introduction or sales of any narcotics, drugs, alcohol, or
other intoxicants. Id. at 48. Carmichael pleaded not
guilty. Id. at 46. The prison held a hearing on the
charges in September 2013. ECF No. 30-3 at 13–17. A
hearing officer found Carmichael guilty on both charges and
imposed multiple sanctions, including the loss of 180 days of
statutory good time. Id. at 18, 20. Carmichael twice
appealed the hearing officer’s decision, but prison
officials affirmed the decision and sanctions.ECF Nos. 29-2 at
62–69, 84–86, 88–89, 91–106, 108.
14, 2014, Carmichael filed a pro se petition for
writ of habeas corpus (“state petition”) in the
Seventh Judicial District Court (“state court”)
seeking post-conviction relief. ECF No. 29-2. Carmichael
alleged eleven due process violations in relation to the
disciplinary hearing. Id. Respondents moved to
dismiss the state petition, and Carmichael opposed. ECF Nos.
30-2, 30-5. The state court granted Respondents’ motion
and denied the state petition in December 2014. ECF No.
30-13. Carmichael filed a state habeas appeal. ECF No. 30-15.
The Nevada Court of Appeals affirmed the state court’s
denial of relief. ECF No. 30-16. Remittitur issued on June
16, 2015. ECF No. 30-17.
Federal Habeas Proceedings
20, 2016, Carmichael initiated this federal habeas proceeding
pro se. ECF No. 1. His memorandum of points and
authorities in support of the petition requested (1) a
declaratory order finding due process violations, (2)
restoration of the statutory good time credits, and (3)
expungement of the disciplinary charges from his record. ECF
No. 4-1 at 50. The Court appointed the Federal Public
Defender (“FPD”) to represent Carmichael and
entered its standard scheduling order, giving counsel 90 days
to file an amended petition. ECF Nos. 8, 13.
filed a Motion to Reconsider Scheduling Order (ECF No. 14),
asserting that the filing of an amended petition would be
premature, in light of the Ninth Circuit’s decision in
Nettles v. Grounds, 830 F.3d 922 (9th Cir.
2016) (en banc):
Based on Nettles-which the Ninth Circuit issued
after Mr. Carmichael submitted his pro se petition in this
matter-the respondents may argue that Mr. Carmichael’s
claims are unsuitable for a federal habeas proceeding.
Instead, the respondents may take the position that
Nettles requires Mr. Carmichael to litigate these
claims through a 42 U.S.C. § 1983 action.
ECF No. 14 at 2.
acknowledged that his situation was analogous to the
petitioner in Nettles: both were prisoners serving
indeterminate life sentences who filed petitions raising
various due process challenges to prison disciplinary
convictions and their effect on parole eligibility and the
loss of good time credits. Id. at 4. Carmichael
noted, “it is unclear whether a favorable ruling on the
merits of Mr. Carmichael’s claims would
‘necessarily affect the length of time to be
served.’” Id. (quoting Nettles,
830 F.3d at 929). Carmichael further acknowledged,
“Nettles might suggest that Mr. Carmichael
should litigate his claims through a Section 1983 proceeding,
as opposed to a federal habeas proceeding, ” but
maintained that the outcome was not entirely clear.
Id. at 5.
than ordering him to file an amended petition at that time,
Carmichael asked the Court to order Respondents to state
their position regarding whether this action may proceed as a
federal habeas action in light of Nettles.
response, Respondents stated they did “not intend to
argue that Carmichael’s case may not proceed as a
federal habeas corpus action, ” but would move to
dismiss the petition as untimely and certain claims as
non-cognizable. ECF No. 16 at 1. Respondents stated they
“may make other arguments after seeing the amended
petition.” Id. at 2.
Court denied Carmichael’s motion on March 13, 2018,
finding it “more appropriate to litigate such issues
within the framework of the existing scheduling order.”
ECF No. 19 at 1. The Court indicated it would “decide
the issue of whether the action arises in habeas or instead
under § 1983 based upon actual specific pleadings and
motions filed by counsel rather than anticipatorily in the
abstract.” Id. at 3.
filed his Amended Petition (ECF No. 24) in October 2018. He
alleges one ground for relief: “The prison did not
provide Mr. Carmichael due process during the disciplinary
hearing and appeal process, in violation of his rights under
the Fifth and Fourteenth Amendments to the United States
Constitution.” ECF No. 24 at 9. Ground one further
alleges four subclaims: (A) “There was no evidence to
support the finding of a violation;” (B) “The
hearing officer refused to let Mr. Carmichael call witnesses,
‘stipulated’ to their testimony, and disbelieved
it;” (C) “The hearing officer didn’t turn
over the key recording (or other information about the
recording, or the lack thereof); and (D) “The
administrative appeals process upheld the violation based on
new evidence ...