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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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EDDIE JAMES THOMAS, JR.,

Case No. 3:21-cv-00096-MMD-WGC

Petitioner,

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ORDER

v.
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BRIAN WILLIAMS,
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Respondent.
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I.

SUMMARY

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This is a habeas corpus action under 28 U.S.C. § 2254. Previously, the Court

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directed Petitioner Eddie Thomas to file an amended petition. (ECF No. 5.) Thomas has

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filed an amended petition. (ECF No. 7 (“Petition).) The Court has reviewed it under Rule

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4 of the Rules Governing Section 2254 Cases in the United States District Courts. The

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Court denies the Petition because it lacks merit.

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II.

BACKGROUND

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After a jury trial in the state district court, Thomas was convicted of five counts of

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statutory sexual seduction. The state district court adjudicated Thomas as a habitual

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criminal under NRS § 207.010(1)(a) (1997). The state district court imposed three

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consecutive prison sentences with minimum terms of 96 months and maximum terms of

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240 months (counts I-III) and two prison sentences with minimum terms of 96 months and

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maximum terms of 240 months (counts IV-V) that run concurrently with counts I-III.

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Thomas v. State, Case No. 49486 (Nev. Dec. 10, 2007).1

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In 2013, the Nevada Legislature passed a law that created aggregate sentencing

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for some offenses, effective July 1, 2014. NRS § 176.035(1), (2) (2013). Thomas, who

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1http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=17256.

takes judicial notice of the on-line docket of the Nevada Supreme Court.

The Court

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had been sentenced before July 1, 2014, could make an irrevocable election on or after

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that date to aggregate his consecutive sentences. NRS. § 213.1212(3) (2013) (now NRS

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§ 213.1212(5)). Two exceptions applied to Thomas' sentences. First, while in prison

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Thomas was convicted of battery by a prisoner. He must serve that sentence

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consecutively to any other sentences, and that sentence may not be aggregated. NRS

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§ 176.035(3). Second, if Thomas "has been considered for parole on one or more of the

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sentences, the Department of Corrections shall aggregate only the sentences for which

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parole has not been considered." NRS § 213.1212(3)(b) (2013) (now NRS

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§ 213.1212(5)(b)).

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On October 2, 2013, the parole board considered Thomas' first consecutive

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sentence and the two concurrent sentences. The parole board deferred any action

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because it first wanted Thomas to undergo an evaluation. (ECF No. 8 at 18.)

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On January 16, 2014, the parole board again considered Thomas' first consecutive

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sentence and the two concurrent sentences. The parole board took no action because

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Thomas "indicates an interest in aggregating his/her consecutive sentence(s). No action

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is taken to allow the inmate time to research and make a determination whether to opt-

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in." (ECF No. 8 at 20.)

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No later than April 14, 2014, Thomas sent to the Nevada Department of

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Corrections (“NDOC”) a request for aggregation of his consecutive sentences. (ECF No.

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8 at 22.)

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On April 17, 2014, the parole board again considered Thomas' first consecutive

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sentence and the two concurrent sentences. This time, the parole board denied Thomas

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parole from those sentences. (ECF No. 8 at 24.)

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On July 1, 2014, the aggregate-sentencing law went into effect.

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On December 11, 2014, the NDOC aggregated Thomas' sentences, "beginning

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with Level 2." (ECF No. 8 at 22.)

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At the end of February 13, 2017, Thomas' first consecutive sentence and the two

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concurrent sentences expired. Thomas started serving his remaining two consecutive,

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aggregated sentences on February 14, 2017. (ECF No. 8 at 55.)

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Thomas earned credits toward his sentence pursuant to the version of NRS

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§ 209.4465 (2003) in effect at the time. At the time, § 209.4465(7) stated, "Credits earned

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pursuant to this section: (a) Must be deducted from the maximum term imposed by the

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sentence; and (b) Apply to eligibility for parole unless the offender was sentenced

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pursuant to a statute which specifies a minimum sentence that must be served before a

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person becomes eligible for parole." However, another law stated, at the time, "Except as

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otherwise provided in NRS 213.1213 and as limited by statute for certain specified

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offenses, a prisoner who was sentenced to prison for a crime committed on or after July

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1, 1995, may be paroled when he has served the minimum term of imprisonment imposed

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by the court. Any credits earned to reduce his sentence pursuant to chapter 209 of NRS

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while the prisoner serves the minimum term of imprisonment may reduce only the

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maximum term of imprisonment imposed and must not reduce the minimum term of

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imprisonment." NRS § 213.120 (1995). The NDOC did not apply good-time credits toward

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Thomas' minimum terms.

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On October 5, 2017, the Nevada Supreme Court held that the NDOC was

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interpreting the statutes incorrectly. Good-time credits apply to sentences like Thomas',

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because the statute under which Thomas was sentenced did not specify a minimum term

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before becoming eligible for parole. Williams v. State, 402 P.3d 1260 (Nev. Oct. 5, 2017);

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e.g.,

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§ 207.010(1)(b)(2), (3) (1997) ("eligibility for parole beginning when a minimum of 10

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years has been served").

compare

NRS

§ 207.010(1)(a)

(1997)

(a

"minimum

term")

with

NRS

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The NDOC was not alone in its interpretation. For example, the state district court

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in Thomas' case used "minimum term" and "eligibility for parole beginning when a

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minimum" interchangeably. The sentence for each count in his judgment of conviction

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states, "TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM
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Parole Eligibility of NINETY-SIX (96) MONTHS." Thomas v. Baca, Case No. 3:13-cv-

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00043-MMD-WGC (ECF No. 23) (italics added, capitalization in original). However, NRS

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§ 207.010(1)(a) says nothing about parole eligibility.

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Before the Nevada Supreme Court decided Williams, Thomas had filed a habeas

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corpus petition in the state district court. He argued that good-time credits should have

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applied to his minimum term. The state district court initially denied Thomas' petition

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orally, but the Nevada Supreme Court decided Williams before the state district court

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issued its written order. The state district court reversed itself and granted Thomas'

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petition. (ECF No. 8 at 51-54.) By that time, Thomas' first consecutive sentence had

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expired fully, on February 13, 2017. Nevada does not have retroactive parole. Niergarth

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v. Warden, 768 P.2d 882, 883-84 (Nev. 1989). Additionally, Thomas could not be paroled

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from an expired sentence. Johnson v. Dir., Nev. Dep’t of Prisons, 774 P.2d 1047, 1049

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(Nev. 1989). The grant of relief thus applied to the aggregated minimum term for Thomas'

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remaining two sentences.

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On February 11, 2019, Thomas filed another habeas corpus petition in the state

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district court. The state district court dismissed the petition as procedurally barred

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because it was successive. On appeal, the Nevada Court of Appeals disagreed that the

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petition was successive. Nevertheless, it affirmed because the state district court reached

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the right result for the wrong reason. (ECF No. 8 at 76 (citing Wyatt v. State, 468 P.2d

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338, 341 (Nev. 1970)).) The claim that Thomas raised is the same as what he raises now

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in this Court.

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III.

DISCUSSION

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Thomas argues that the NDOC should have aggregated his sentences under NRS

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§ 213.1212(3) (2013), upon submission of his request no later than April 14, 2014. That,

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in turn, should have stopped the parole board from considering and denying parole on his

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first consecutive sentence on April 17, 2014. If all three sentences would have been

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aggregated, then he would have been serving the minimum aggregate term when the

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Nevada Supreme Court decided Williams in October 2017. Then, the state district court
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would

have

granted

him

relief

under

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Williams, allowing good-time credits to apply to the total minimum aggregate term for all

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three sentences. Thomas argues that with those credits, his minimum aggregate term

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and eligibility for parole would have been 12 years from sentencing. Instead, Thomas

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alleges that he had to serve his first consecutive sentence through to expiration, 11 years

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after taking good-time credits into account, and then he has another 8 years of the

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minimum aggregate term of the two remaining consecutive sentences before becoming

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eligible for parole.2

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Under state law, parole is an act of legislative grace, and no person has a right to

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be released on parole. NRS § 207.10705. The Ninth Circuit Court of Appeals thus has

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held that a prisoner in Nevada does not have a constitutionally protected liberty interest

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in being released on parole. Moor v. Palmer, 603 F.3d 658, 662-63 (9th Cir. 2010).

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Additionally, a person does not have a constitutionally protected liberty interest in the

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processes used to determine whether to grant parole. Olim v. Wakinekona, 461 U.S. 238,

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250 (1983); see also Dist. Att'y’s Office v. Osborne, 557 U.S. 52, 67-68 (2009).

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Consequently, despite titling his sole ground for relief as a violation of the Due

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Process Clause, Thomas has alleged only that Respondents violated state law. However,

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errors of state law are not addressable in federal habeas corpus. Pulley v. Harris, 465

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U.S. 37, 41 (1984). Thomas' Petition thus is without merit.

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Thomas' comparison of his case with Dumlao v. Daniels, 481 F. Supp. 2d 1153 (D.

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Or. 2007), is inapposite. Dumlao, a federal prisoner, applied for the Residential Drug

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Abuse Treatment Program under 18 U.S.C. § 3621(e). 481 F. Supp. 2d at 1154. The

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Federal Bureau of Prisons took four months, without adequate explanation, to approve

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his application and place him on the waiting list for the program. Id. By that time, Dumlao

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alleged that he thus was not able to use the incentive of the one-year reduction in his

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sentence. Id. The federal district court ordered counsel for the parties to determine

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Dumlao's proper ranking for the waiting list as if the Bureau of Prisons had declared

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Court has not verified his calculations.
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Dumlao eligible on the day that he had filed a complete application with sufficient

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documentation. Id. at 1155.

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Dumlao has two factors that distinguish it from Thomas' case. First, Congress by

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law authorized the Residential Drug Abuse Treatment Program. The Fifth Amendment

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guaranteed that Dumlao could not be denied due process of that law. In contrast, as noted

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above, parole in Nevada is not a constitutionally guaranteed liberty interest protected by

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the Due Process Clause of the Fourteenth Amendment. Second, when Dumlao applied

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for the Residential Drug Abuse Treatment Program, 18 U.S.C. § 3621(e) was in effect at

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the time. The Bureau of Prisons could have acted upon Dumlao's application immediately

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upon its completion. In contrast, Nevada's sentence-aggregation statute, NRS

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§ 213.1212, did not go into effect until July 1, 2014. The NDOC could not have acted upon

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Thomas' election to aggregate his sentence until that date, because any aggregation

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before then would have been illegal.
Reasonable jurists would not find the Court's determinations to be debatable or

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wrong, and the Court will not issue a certificate of appealability.

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IV.

It is therefore ordered that the amended petition for a writ of habeas corpus

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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

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CONCLUSION

action.

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It is further ordered that a certificate of appealability will not issue.

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DATED THIS 15th Day of July 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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