Lyons v. Williams et al

Filing 9

ORDER Denying 8 Petitioner's Motion for Relief from Order and Judgment. Signed by Judge Gloria M. Navarro on 11/22/11. (Copies have been distributed pursuant to the NEF - EDS)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PHILIP JACKSON LYONS,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:11-CV-01379-GMN-(CWH)

Respondents.

ORDER

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The court denied the petition for a writ of habeas corpus (#5) because it lacked merit on its

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face. Petitioner has filed a motion for relief from order and judgment (#8). The court denies this

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motion as well.

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The court determined that ground 1 was without merit because, assuming that petitioner’s

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sentence actually was illegal, the state court has the power to correct an illegal sentence at any time.

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See Nev. Rev. Stat. § 176.555. Petitioner argues, “The statute makes no mention whatsoever of

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judgments of conviction and clearly does not state that a court can correct an illegally assessed

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sentence by merely amending a judgment of conviction in the absence of an already imprisoned

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defendant as was the case here.” The distinction is without a difference. The judgment reflects the

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sentence. If a court corrects an illegal sentence, it must amend the judgment to reflect that

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correction.

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Petitioner cites several cases of United States Courts of Appeals that hold that the oral

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pronouncement of the sentence is the actual sentence. These cases are unpersuasive for several

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reasons. First, the courts of appeal were acting as supervisors of federal criminal procedure, and

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they were not ruling upon questions of constitutional law. Only questions of constitutional law or

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applicable federal statutes can affect criminal procedure in state courts. See 28 U.S.C. § 2254(a).

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Second, even if these cases are applicable, in one of them, United States v. Orlando, 553 F.3d 1235,

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1240 (9th Cir. 2009), the court of appeals did what petitioner incorrectly argues a court cannot do:

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The court amended the judgment of conviction outside of petitioner’s presence. Third, in those

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cases in which the courts of appeals required a change in the written judgment to reflect the oral

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pronouncement of sentence, it was because the written judgment was harsher than the oral

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pronouncement. As this court has already noted, when the state district court amended petitioner’s

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judgment of conviction, at worst petitioner suffered no harm and at best he benefitted from the

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amendment.

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The court determined that ground 2 was without merit because the statute in effect at the

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time of petitioner’s sentencing, Nev. Rev. § 200.320(2), was not vague but instead gave the

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sentencing court broad discretion in imposing a sentence. Petitioner claims that in 1991 the state

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district court imposed an illegal sentence pursuant to the wrong provision, § 200.320(1). This court

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cannot consider this part of ground 2 because, by the terms of the order that petitioner attached to

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the petition, the court of appeals did not authorize a second or successive petition to challenge the

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1991 judgment of conviction. Only the 2009 second amended judgment of conviction is at issue in

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this action. The amendment is unobjectionable for the same reason why ground 1 is without merit.

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Even if the district court imposed an illegal sentence pursuant to § 200.320(1), it could correct that

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illegal sentence at any time, and such a correction would only benefit petitioner.

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IT IS THEREFORE ORDERED that petitioner’s motion for relief from order and judgment
(#8) is DENIED.
DATED this 22nd day of November, 2011.
DATEDthis 21st day of November, 2011.

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_________________________________
Gloria M. Navarro
United States District Judge

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