United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
the Court are Petitioner's motion for reconsideration
(ECF No. 29), Respondents' opposition (ECF No. 30), and
Petitioner's reply (ECF No. 31). The Court denies
summarize the relevant facts, Petitioner received two
consecutive sentences. The first sentence expired fully at
the end of December 19, 2013. (ECF No. 19-22 (Ex. 22).)
Petitioner has been serving the second sentence since
December 20, 2013. Later, the Nevada Supreme Court held under
the version of NRS § 209.4465(7)(b) in effect at the
time of Petitioner's crimes, his accrued credits should
apply toward his parole eligibility. Williams v.
State, 402 P.3d 1260, 1262 (Nev. 2017). In state habeas
corpus proceedings, Petitioner received relief on his second
sentence, and his parole eligibility date has been adjusted.
The Nevada Supreme Court held that any request for relief on
the first sentence was moot because that sentence had
expired. This Court also held that Petitioner's request
for relief was moot. First, Petitioner could not receive
retroactive parole, because Nevada law does not recognize
retroactive parole. Second, Petitioner's sentence had
expired, and he could not be paroled from an expired
sentence. Third, Petitioner had no right to parole that was
protected by the Due Process Clause of the Fourteenth
Amendment. (ECF No. 26.)
argues that the Court misconstrued his entire argument. He
argues that he should have been considered for parole on his
first sentence earlier. Because the parole board did not
consider him for parole on his first sentence earlier, he
lost the opportunity to start his second sentence earlier.
That, in turn, means that he lost the opportunity to complete
his second sentence 6-8 months earlier. (ECF No. 29 at 2.)
Court understood Petitioner's argument. The Court denied
relief because the Court could not grant Petitioner relief
even if everything he argued was correct. To repeat, first,
Nevada does not have retroactive parole. Niergarth v.
Warden, 768 P.2d 882, 883-84 (Nev. 1989). Second,
Petitioner's first sentence expired long before he
commenced this action. He cannot be paroled from an expired
sentence. Johnson v. Dir., Nev. Dep't of
Prisons, 774 P.2d 1047, 1049 (Nev. 1989). Third,
Petitioner does not have a right to parole protected by the
Due Process Clause of the Fourteenth Amendment. Moor v.
Palmer, 603 F.3d 658, 662-63 (9th Cir. 2010). This Court
cannot order that Petitioner should have been granted parole
closer examination of Petitioner's custody record shows
that Petitioner was discharged from his first
sentence to his second sentence. (ECF No. 19-22 (Ex. 22).) He
was not paroled from his first sentence to his
second sentence. In other words, the parole board denied
Petitioner parole until his first sentence expired. This
strengthens the Court's conclusion that the action is
moot. The issue no longer is whether Petitioner could have
been granted parole earlier, and started his second sentence
earlier. Instead, the issue is only when the parole board
would have denied Petitioner parole. No matter what,
Petitioner would have been denied parole until the expiration
of his first sentence.
Petitioner argues that the Court should have issued a
certificate of appealability on its determination that
Petitioner is subject to 28 U.S.C. § 2254, because the
circuits have split on the issue. (ECF No. 29 at 6.) No split
exists. The Eleventh Circuit decision that Petitioner cites,
Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004), is
based upon an earlier decision that the Ninth Circuit also
has adopted. See Frantz v. Hazey, 533 F.3d 724,
735-36 (9th Cir. 2008) (en banc). Regardless of how
Petitioner wishes to title his Petition, he is subject to the
restrictions of 28 U.S.C. § 2254 because he is in
custody pursuant to a state-court judgment of conviction, and
nobody would dispute that.
extent that a certificate of appealability is necessary from
this decision, reasonable jurists would not find the
Court's determinations to be debatable or wrong. The
Court will not issue a certificate of appealability.
therefore ordered that Petitioner's motion for
reconsideration (ECF No. 29) is denied.
further ordered that a certificate of appealability will not
Petitioner also has had a parole
hearing on his second sentence. The parole board denied
further consideration for parole until March 1, 2020.