United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE.
who is a prisoner in the custody of the Nevada Department of
Corrections, has submitted a petition for a writ of habeas
corpus and an application to proceed in forma
pauperis (ECF No. 1). Both the petition and the
application are on state-court forms. However, the court will
not require petitioner to file a new application and an
amended petition. Instead, the court has reviewed the
petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts. Petitioner's
claims are without merit no matter what form he uses. The
court dismisses the action.
to a guilty plea agreement in state district court,
petitioner was convicted of attempted burglary. On January
10, 2019, that court sentenced petitioner to a maximum term
of 48 months and a minimum term of 19 months, with 254 days
of credit for time served before conviction. ECF No. 1-1, at
claims that with the credit for time served, plus the time
that he has spent in prison after his conviction, means that
more than 40% of his minimum term has passed. Petitioner thus
argues that his sentence has expired and that he should be
released from the custody of the Nevada Department of
Corrections. ECF No. 1-1, at 6. Petitioner bases his
claim upon a misunderstanding of Nevada law.
without any aggravating factor, is a category B felony with a
penalty of imprisonment for a maximum term not more than 10
years and a minimum term of not less than 1 year. Nev. Rev.
Stat. § 205.060(2) (2013). An attempt to commit a
category B felony with a maximum term of 10 years or less is
punished as a category C felony. Nev. Rev. Stat. §
193.330(1)(a)(3) (2013). A category C felony has a penalty of
imprisonment for a maximum term of not more than 5 years and
a minimum term of not less than 1 year. Nev. Rev. Stat.
§ 193.130(2)(c) (1999). A minimum term may not be more
than 40% of the maximum term. Nev. Rev. Stat. §
has misinterpreted § 193.130(1). The 40% requirement
does not mean that petitioner needs to serve only 40% of the
minimum term. Instead, the 40% requirement means that the
minimum term must not be more than 40% of the maximum term.
In petitioner's case, this requirement is satisfied
because the minimum term of 19 months is slightly less than
40% of the maximum term of 48 months. Furthermore, the
minimum term is when petitioner becomes eligible for parole.
Nev. Rev. Stat. § 213.120(2). The credits for time
served apply to petitioner's minimum term. Nev. Rev.
Stat. § 176.055(1) (2013). Credits earned under Nev.
Rev. Stat. § 209.4465 might also apply to
petitioner's minimum term. Nevertheless, petitioner's
sentence does not expire until he has completed the maximum
term, taking into account all applicable credits. The court
received the petition on November 7, 2019. Even taking the
credits for time served and credits possibly earned under
§ 209.4465 into account, petitioner's maximum term
could not have expired by then. Consequently, petitioner is
imprisoned because his sentence still is active and, assuming
that the parole board has considered his case, because the
parole board has determined that petitioner should not
receive parole. Petitioner's claim that he is being
held after expiration of his sentence is without merit.
also complains about food poisoning. This is a claim
regarding the conditions of his confinement. A civil rights
action, not a habeas corpus petition, is the appropriate
method for presenting this claim. Badea v. Cox, 931
F.2d 573, 574 (9th Cir. 1991).
jurists would not find the court's conclusions to be
debatable or wrong, and the court will not issue a
certificate of appealability.
THEREFORE IS ORDERED that the application to proceed in
forma pauperis (ECF No. 1) is GRANTED
IT FURTHER IS ORDERED that the clerk of the court file the
petition for a writ of habeas corpus, currently in the docket
at ECF No. 1-1.
FURTHER IS ORDERED that the petition for a writ of habeas
corpus is DENIED. The clerk of the court
shall enter judgment accordingly and close this action.
FURTHER IS ORDERED that a certificate of appealability will
FURTHER IS ORDERED that that the clerk shall add Aaron Ford,
Attorney General for the State of Nevada, as counsel for
FURTHER IS ORDERED that the clerk shall electronically serve
upon respondents a copy of this ...