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Carmichael v. Gentry

United States District Court, D. Nevada

September 25, 2019

RICHARD LEE CARMICHAEL, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This is 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.

         BACKGROUND

         Carmichael 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.

         The 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.

         I. State Administrative and Court Proceedings

         On 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.[1]ECF Nos. 29-2 at 62–69, 84–86, 88–89, 91–106, 108.

         On May 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.

         II. Federal Habeas Proceedings

         On May 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.

         The FPD 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.

         Carmichael 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.

         Rather 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. Id.

         In 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.

         The 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.

         Carmichael 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 ...


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