Munoz v. Smith et al

Filing 81

ORDER - Respondents' motion to dismiss (ECF No. 76 ) is DENIED. Petitioner's motion to strike or, in the alternative motion for leave to file a surreply (ECF No. 79 ) is DENIED. Answer/response to ECF No. 69 First amended petition due by 11/12/2016; reply due 45 days after service of answer. Signed by Judge Larry R. Hicks on 9/27/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PETER J. MUNOZ, JR.,

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Petitioner,

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vs.

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Case No. 3:11-cv-00197-LRH-RAM

GREGORY SMITH, WARDEN, et al.,

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ORDER

Respondents.

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Before the court are the first amended petition for writ of habeas corpus (ECF No. 69),

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respondents’ motion to dismiss (ECF No. 76), petitioner’s opposition (ECF No. 77), respondents’

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reply (ECF No. 78), petitioner’s motion to strike or, in the alternative motion for leave to file a

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surreply (ECF No. 79), and respondents’ opposition to that motion (ECF No. 80). The motion to

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dismiss concerns only ground 1 of the first amended petition. The court denies the motion because

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ground 1 is ripe for review and because it is exhausted. However, the recent decision of Nettles v.

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Grounds, ___ F.3d ___, 2016 WL 4072465 (9th Cir. July 26, 2016) (en banc), indicates that ground

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1 is not addressable in federal habeas corpus. The parties have not had the opportunity to address

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Nettles. Instead of allowing petitioner to file a surreply, and then allowing respondents to file a

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subsequent brief, the court will deny petitioner’s motion. Respondents may raise the issue of

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Nettles in a new motion to dismiss, if they wish.

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Petitioner pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to one

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count of lewdness with a child under the age of 14. Among other penalties, the trial court imposed a

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special sentence of lifetime supervision, required by Nev. Rev. Stat. § 176.0931. Petitioner has

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been released from prison. Just before his release, the parole board set out the conditions of lifetime

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supervision pursuant to Nev. Rev. Stat. §§ 213.1243 and 213.290. Ex. 71 (ECF No. 72-9).

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In ground 1 of the first amended petition, petitioner argues that application of those

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conditions violates his constitutional guarantees of due process of law, violates the constitutional

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protection from ex post facto laws, and impairs a contract. In the motion to dismiss, respondents

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argue that petitioner has not exhausted his state-court remedies for ground 1, that ground 1 is not

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ripe for review, and that the parts of ground 1 that invoke the Constitution of Nevada are not

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addressable in federal habeas corpus.

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Respondents now concede that ground 1 is ripe for review because petitioner has been
released from prison, and the conditions of lifetime supervision have been set.

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Regarding exhaustion, a petitioner must fairly present that ground to the state’s highest

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court, describing the operative facts and legal theory, and give that court the opportunity to address

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and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v.

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Harless, 459 U.S. 4, 6 (1982).

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The court will not address respondents’ arguments why the claims in ground 1 are not

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exhausted, because it appears that no corrective process remains in the state courts. The Nevada

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Supreme Court has held that a person who has been released from prison and is subject to lifetime

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supervision is not a person under a sentence of imprisonment, which is a prerequisite for filing a

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post-conviction habeas corpus petition under Nev. Rev. Stat. § 34.724(1). Coleman v. State, 321

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P.3d 863, 866-67 (Nev. 2014). The Nevada Supreme Court noted that the State acknowledged that

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a person who wants to challenge the conditions of lifetime supervision can pursue injunctive relief

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under Nev. Rev. Stat. § 33.010. The Nevada Supreme Court also noted that a person can challenge

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the validity of the conditions of lifetime supervision as a defense to a prosecution for violation of

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those conditions under Nev. Rev. Stat. § 213.1243(8), that a person can seek release from lifetime

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supervision under Nev. Rev. Stat. § 176.0931(3), and that a person can challenge the

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constitutionality of the conditions in a civil rights action pursuant to 42 U.S.C. § 1983. 321 P.3d at

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867.

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The state-law remedies that the Nevada Supreme Court lists do not persuade this court that

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state-court remedies are available. Petitioner cannot challenge the conditions of lifetime supervision

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as a defense to a charge of violating those conditions under Nev. Rev. Stat. § 213.1243(8) because

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petitioner is not being prosecuted for violating those conditions. Furthermore, the court will not

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require that petitioner intentionally commit another crime to exhaust his available state-court

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remedies. Petitioner cannot petition for release from lifetime supervision under Nev. Rev. Stat.

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§ 176.0931(3) because not enough time has passed since his release from prison. Seeking injunctive

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relief under Nev. Rev. Stat. § 33.010 is a possibility, but unless the Nevada Supreme Court holds

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that such a process actually exists, instead of repeating a statement by the State with which it might

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disagree later, this court is not willing to assume that petitioner could obtain relief by seeking an

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injunction.

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The Nevada Supreme Court’s statement that a person could file a civil rights action under 42

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U.S.C. § 1983 raises the question whether habeas corpus relief actually is available for a challenge

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to the conditions of lifetime supervision. The parties have brought this issue to the court indirectly.

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As noted above, respondents initially argued that part of ground 1 is not addressable in federal

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habeas corpus because it claims that the Nevada Constitution was violated. Motion, at 6 (ECF No.

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76). Petitioner, in arguing that the Nevada Supreme Court’s decision in Coleman showed that no

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remedies were available in state court to challenge the conditions of lifetime supervision, noted that

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this court had agreed with that proposition in Ingebretsen v. Palmer, 2015 WL 5245133, at *2 (D.

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Nev. Sep. 9, 2015). Opposition, at 4-5 (ECF No. 77). However, Ingebretsen did not stop with the

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decision that the challenge to the conditions of lifetime supervision was technically exhausted.

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Ingebretsen also determined that a challenge to the conditions of lifetime supervision was not

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addressable in federal habeas corpus because success would not relieve Ingebretsen from the

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sentence of lifetime supervision, but only some of the conditions. 2015 WL 5245133, at *3-4.

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Petitioner did not acknowledge that holding of Ingebretsen. Respondents, however, did.

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Respondents now argue in the reply that ground 1 in its entirety is not addressable in federal habeas

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corpus because success on the merits would not terminate petitioner’s sentence of lifetime

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supervision. Reply, at 6 (ECF No. 78). Petitioner then moved to strike the reply or for leave to file
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a surreply because respondents raised a new argument in the reply. Motion to strike, at 3 (ECF No.

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79). Respondents countered that they simply relied on the same authority, Ingebretsen, that

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petitioner cited. Opposition to motion to strike, at 2 (ECF No. 80).

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After the briefing concluded, the court of appeals decided Nettles v. Grounds, ___ F.3d ___,

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2016 WL 4072465 (9th Cir. July 26, 2016) (en banc). Nettles was in prison on a determinate term

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of twelve years and a life term with the possibility of parole. He sought expungement of a prison

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disciplinary violation and restoration of credits toward an earlier release. That, Nettles argued,

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would lead to an earlier parole hearing. The court of appeals held, “if a state prisoner’s claim does

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not lie at ‘the core of habeas corpus,’ . . . it may not be brought in habeas corpus but must be

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brought, ‘if at all,’ under [42 U.S.C.] § 1983.” Id., 2016 WL 4072465, at *6 (quoting Preiser v.

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Rodriguez, 411 U.S. 475, 487 (1973), and Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). The

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“core of habeas corpus” is relief that terminates custody, accelerates the future date of release from

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custody, or reduces the level of custody, such as from incarceration to parole. Nettles, 2016 WL

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4072465, at *6 (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)).In

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Nettles’ case, success would not have necessarily led to immediate or earlier release from

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confinement, because even if the disciplinary violation was expunged, the parole board still could

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deny parole.

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Nettles at least strongly indicates that habeas corpus relief is unavailable for petitioner.

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Petitioner is challenging the constitutional validity of particular conditions of lifetime supervision,

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and he is challenging the constitutional validity of the statutes that direct the parole board to set the

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conditions, Nev. Rev. Stat. §§ 213.1243 and 213.290. He is not challenging the constitutional

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validity of the statute that requires a special sentence of lifetime supervision for sexual offenders,

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Nev. Rev. Stat. § 176.0931. It appears that if the court were to grant relief to petitioner on ground 1,

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it would only relieve him from complying with certain conditions of lifetime supervision, but it

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would not terminate the lifetime supervision itself. That relief would be outside the core of habeas

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corpus, and petitioner would need to seek the relief through a civil rights action pursuant to 42

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U.S.C. § 1983.1

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The court wants further briefing on whether ground 1 is addressable in federal habeas

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corpus. The court will deny the current motion to dismiss and petitioner’s motion to strike. The

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court will depart from its usual practice and allow respondents to file another motion to dismiss to

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fully brief the issue that Nettles presents.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 76) is
DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to strike or, in the alternative motion
for leave to file a surreply (ECF No. 79) is DENIED.

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IT IS THEREFORE ORDERED that respondents shall have forty-five (45) days from the

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date of entry of this order to answer or otherwise respond to the first amended petition (ECF No.

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69). If respondents file and serve an answer, then they shall comply with Rule 5 of the Rules

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Governing Section 2254 Cases in the United States District Courts, and then petitioner shall have

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forty-five (45) days from the date on which the answer is served to file a reply.

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DATED this 27th day of September, 2016.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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People currently are challenging the constitutional validity of Nev. Rev. Stat. § 213.1243 in
a civil rights action pursuant to 42 U.S.C. § 1983, Does 1-16 v. Laxalt, Case No. 2:15-cv-01638RFB-CWH.
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