Thomas v. Williams

Filing 9

ORDER - The amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 8 ) is denied. The Clerk of the Court is directed to enter judgment accordingly and to close this action. It is further ordered that a certificate of appealability will not issue. Signed by Chief Judge Miranda M. Du on 7/15/2021. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 EDDIE JAMES THOMAS, JR., Case No. 3:21-cv-00096-MMD-WGC Petitioner, 7 ORDER v. 8 BRIAN WILLIAMS, 9 Respondent. 10 11 I. SUMMARY 12 This is a habeas corpus action under 28 U.S.C. § 2254. Previously, the Court 13 directed Petitioner Eddie Thomas to file an amended petition. (ECF No. 5.) Thomas has 14 filed an amended petition. (ECF No. 7 (“Petition).) The Court has reviewed it under Rule 15 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The 16 Court denies the Petition because it lacks merit. 17 II. BACKGROUND 18 After a jury trial in the state district court, Thomas was convicted of five counts of 19 statutory sexual seduction. The state district court adjudicated Thomas as a habitual 20 criminal under NRS § 207.010(1)(a) (1997). The state district court imposed three 21 consecutive prison sentences with minimum terms of 96 months and maximum terms of 22 240 months (counts I-III) and two prison sentences with minimum terms of 96 months and 23 maximum terms of 240 months (counts IV-V) that run concurrently with counts I-III. 24 Thomas v. State, Case No. 49486 (Nev. Dec. 10, 2007).1 25 In 2013, the Nevada Legislature passed a law that created aggregate sentencing 26 for some offenses, effective July 1, 2014. NRS § 176.035(1), (2) (2013). Thomas, who 27 28 1 takes judicial notice of the on-line docket of the Nevada Supreme Court. The Court 1 had been sentenced before July 1, 2014, could make an irrevocable election on or after 2 that date to aggregate his consecutive sentences. NRS. § 213.1212(3) (2013) (now NRS 3 § 213.1212(5)). Two exceptions applied to Thomas' sentences. First, while in prison 4 Thomas was convicted of battery by a prisoner. He must serve that sentence 5 consecutively to any other sentences, and that sentence may not be aggregated. NRS 6 § 176.035(3). Second, if Thomas "has been considered for parole on one or more of the 7 sentences, the Department of Corrections shall aggregate only the sentences for which 8 parole has not been considered." NRS § 213.1212(3)(b) (2013) (now NRS 9 § 213.1212(5)(b)). 10 On October 2, 2013, the parole board considered Thomas' first consecutive 11 sentence and the two concurrent sentences. The parole board deferred any action 12 because it first wanted Thomas to undergo an evaluation. (ECF No. 8 at 18.) 13 On January 16, 2014, the parole board again considered Thomas' first consecutive 14 sentence and the two concurrent sentences. The parole board took no action because 15 Thomas "indicates an interest in aggregating his/her consecutive sentence(s). No action 16 is taken to allow the inmate time to research and make a determination whether to opt- 17 in." (ECF No. 8 at 20.) 18 No later than April 14, 2014, Thomas sent to the Nevada Department of 19 Corrections (“NDOC”) a request for aggregation of his consecutive sentences. (ECF No. 20 8 at 22.) 21 On April 17, 2014, the parole board again considered Thomas' first consecutive 22 sentence and the two concurrent sentences. This time, the parole board denied Thomas 23 parole from those sentences. (ECF No. 8 at 24.) 24 On July 1, 2014, the aggregate-sentencing law went into effect. 25 On December 11, 2014, the NDOC aggregated Thomas' sentences, "beginning 26 with Level 2." (ECF No. 8 at 22.) 27 28 2 1 At the end of February 13, 2017, Thomas' first consecutive sentence and the two 2 concurrent sentences expired. Thomas started serving his remaining two consecutive, 3 aggregated sentences on February 14, 2017. (ECF No. 8 at 55.) 4 Thomas earned credits toward his sentence pursuant to the version of NRS 5 § 209.4465 (2003) in effect at the time. At the time, § 209.4465(7) stated, "Credits earned 6 pursuant to this section: (a) Must be deducted from the maximum term imposed by the 7 sentence; and (b) Apply to eligibility for parole unless the offender was sentenced 8 pursuant to a statute which specifies a minimum sentence that must be served before a 9 person becomes eligible for parole." However, another law stated, at the time, "Except as 10 otherwise provided in NRS 213.1213 and as limited by statute for certain specified 11 offenses, a prisoner who was sentenced to prison for a crime committed on or after July 12 1, 1995, may be paroled when he has served the minimum term of imprisonment imposed 13 by the court. Any credits earned to reduce his sentence pursuant to chapter 209 of NRS 14 while the prisoner serves the minimum term of imprisonment may reduce only the 15 maximum term of imprisonment imposed and must not reduce the minimum term of 16 imprisonment." NRS § 213.120 (1995). The NDOC did not apply good-time credits toward 17 Thomas' minimum terms. 18 On October 5, 2017, the Nevada Supreme Court held that the NDOC was 19 interpreting the statutes incorrectly. Good-time credits apply to sentences like Thomas', 20 because the statute under which Thomas was sentenced did not specify a minimum term 21 before becoming eligible for parole. Williams v. State, 402 P.3d 1260 (Nev. Oct. 5, 2017); 22 e.g., 23 § 207.010(1)(b)(2), (3) (1997) ("eligibility for parole beginning when a minimum of 10 24 years has been served"). compare NRS § 207.010(1)(a) (1997) (a "minimum term") with NRS 25 The NDOC was not alone in its interpretation. For example, the state district court 26 in Thomas' case used "minimum term" and "eligibility for parole beginning when a 27 minimum" interchangeably. The sentence for each count in his judgment of conviction 28 states, "TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM 3 1 Parole Eligibility of NINETY-SIX (96) MONTHS." Thomas v. Baca, Case No. 3:13-cv- 2 00043-MMD-WGC (ECF No. 23) (italics added, capitalization in original). However, NRS 3 § 207.010(1)(a) says nothing about parole eligibility. 4 Before the Nevada Supreme Court decided Williams, Thomas had filed a habeas 5 corpus petition in the state district court. He argued that good-time credits should have 6 applied to his minimum term. The state district court initially denied Thomas' petition 7 orally, but the Nevada Supreme Court decided Williams before the state district court 8 issued its written order. The state district court reversed itself and granted Thomas' 9 petition. (ECF No. 8 at 51-54.) By that time, Thomas' first consecutive sentence had 10 expired fully, on February 13, 2017. Nevada does not have retroactive parole. Niergarth 11 v. Warden, 768 P.2d 882, 883-84 (Nev. 1989). Additionally, Thomas could not be paroled 12 from an expired sentence. Johnson v. Dir., Nev. Dep’t of Prisons, 774 P.2d 1047, 1049 13 (Nev. 1989). The grant of relief thus applied to the aggregated minimum term for Thomas' 14 remaining two sentences. 15 On February 11, 2019, Thomas filed another habeas corpus petition in the state 16 district court. The state district court dismissed the petition as procedurally barred 17 because it was successive. On appeal, the Nevada Court of Appeals disagreed that the 18 petition was successive. Nevertheless, it affirmed because the state district court reached 19 the right result for the wrong reason. (ECF No. 8 at 76 (citing Wyatt v. State, 468 P.2d 20 338, 341 (Nev. 1970)).) The claim that Thomas raised is the same as what he raises now 21 in this Court. 22 III. DISCUSSION 23 Thomas argues that the NDOC should have aggregated his sentences under NRS 24 § 213.1212(3) (2013), upon submission of his request no later than April 14, 2014. That, 25 in turn, should have stopped the parole board from considering and denying parole on his 26 first consecutive sentence on April 17, 2014. If all three sentences would have been 27 aggregated, then he would have been serving the minimum aggregate term when the 28 Nevada Supreme Court decided Williams in October 2017. Then, the state district court 4 1 would have granted him relief under 2 Williams, allowing good-time credits to apply to the total minimum aggregate term for all 3 three sentences. Thomas argues that with those credits, his minimum aggregate term 4 and eligibility for parole would have been 12 years from sentencing. Instead, Thomas 5 alleges that he had to serve his first consecutive sentence through to expiration, 11 years 6 after taking good-time credits into account, and then he has another 8 years of the 7 minimum aggregate term of the two remaining consecutive sentences before becoming 8 eligible for parole.2 9 Under state law, parole is an act of legislative grace, and no person has a right to 10 be released on parole. NRS § 207.10705. The Ninth Circuit Court of Appeals thus has 11 held that a prisoner in Nevada does not have a constitutionally protected liberty interest 12 in being released on parole. Moor v. Palmer, 603 F.3d 658, 662-63 (9th Cir. 2010). 13 Additionally, a person does not have a constitutionally protected liberty interest in the 14 processes used to determine whether to grant parole. Olim v. Wakinekona, 461 U.S. 238, 15 250 (1983); see also Dist. Att'y’s Office v. Osborne, 557 U.S. 52, 67-68 (2009). 16 Consequently, despite titling his sole ground for relief as a violation of the Due 17 Process Clause, Thomas has alleged only that Respondents violated state law. However, 18 errors of state law are not addressable in federal habeas corpus. Pulley v. Harris, 465 19 U.S. 37, 41 (1984). Thomas' Petition thus is without merit. 20 Thomas' comparison of his case with Dumlao v. Daniels, 481 F. Supp. 2d 1153 (D. 21 Or. 2007), is inapposite. Dumlao, a federal prisoner, applied for the Residential Drug 22 Abuse Treatment Program under 18 U.S.C. § 3621(e). 481 F. Supp. 2d at 1154. The 23 Federal Bureau of Prisons took four months, without adequate explanation, to approve 24 his application and place him on the waiting list for the program. Id. By that time, Dumlao 25 alleged that he thus was not able to use the incentive of the one-year reduction in his 26 sentence. Id. The federal district court ordered counsel for the parties to determine 27 Dumlao's proper ranking for the waiting list as if the Bureau of Prisons had declared 28 2The Court has not verified his calculations. 5 1 Dumlao eligible on the day that he had filed a complete application with sufficient 2 documentation. Id. at 1155. 3 Dumlao has two factors that distinguish it from Thomas' case. First, Congress by 4 law authorized the Residential Drug Abuse Treatment Program. The Fifth Amendment 5 guaranteed that Dumlao could not be denied due process of that law. In contrast, as noted 6 above, parole in Nevada is not a constitutionally guaranteed liberty interest protected by 7 the Due Process Clause of the Fourteenth Amendment. Second, when Dumlao applied 8 for the Residential Drug Abuse Treatment Program, 18 U.S.C. § 3621(e) was in effect at 9 the time. The Bureau of Prisons could have acted upon Dumlao's application immediately 10 upon its completion. In contrast, Nevada's sentence-aggregation statute, NRS 11 § 213.1212, did not go into effect until July 1, 2014. The NDOC could not have acted upon 12 Thomas' election to aggregate his sentence until that date, because any aggregation 13 before then would have been illegal. Reasonable jurists would not find the Court's determinations to be debatable or 14 15 wrong, and the Court will not issue a certificate of appealability. 16 IV. It is therefore ordered that the amended petition for a writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254 (ECF No. 8) is denied. The Clerk of the Court is directed to enter judgment accordingly and to close this 19 20 CONCLUSION action. 21 It is further ordered that a certificate of appealability will not issue. 22 DATED THIS 15th Day of July 2021. 23 24 25 26 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 27 28 6

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