Opinion
No. 57509.
07-13-2011
Michael Norman BERGT, Appellant, v. Brian WILLIAMS, Respondent.
Michael N. Bergt Attorney General/Las Vegas
Michael N. Bergt
Attorney General/Las Vegas
ORDER OF AFFIRMANCE
This is a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus . Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
Having reviewed the record on appeal, we conclude that substantial evidence supports the decision of the district court to deny relief and that the district court did not err as a matter of law. Riley v. State. 110 Nev. 638, 647, 878 P.2d 272, 278 (1994). We therefore affirm the denial of the petition for the reasons stated in the attached district court order. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
FFCL
CATHERINE CORTEZ MASTO
Attorney General
ADAM L. WOODRUM
Deputy Attorney General
Nevada Bar No. 10264
Office of the Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, Nevada 89101–1068
P: (702) 486–3904
F: (702) 486–2377
AWoodrum@ag.nv.gov
Attorneys for Plaintiff THE STATE OF NEVADA
DISTRICT COURT
CLARK COUNTY, NEVADA
MICHAEL NORMAN BERGT, Petitioner,
v.
BRIAN WILLIAMS, et. al., Respondents.
Case No.: A–10–624592
Dept No.: IV
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING PETITION FOR WRIT OF MANDAMUS
THIS CAUSE having come on for hearing before the Honorable KATHY HARDCASTLE, District Court Judge, on the 22nd day of November, 2010, IN CHAMBERS, the Petitioner MICHAEL NORMAN BERGT not being present, in proper person, and the Respondents, not being present, represented by CATHERINE CORTEZ MASTO, Attorney General for the State of Nevada, by and through ADAM L. WOODRUM, Deputy Attorney General, and the Court having considered the matter in chambers on the record only, without oral argument, including briefs and all pleadings and documents on file herein, now, therefore, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT:
• Petitioner is currently incarcerated in the Nevada Department of Corrections serving four sentences, arising out of the same incident, imposed in the Eighth Judicial District Court, case number C238777.
• On September 3, 2010, Petitioner filed the instant Petition claiming he was not being properly credited for completion of certain classes while incarcerated.
• Petitioner presented three certificates of completion for which he did not believe he received proper credit.
• Petitioner argued that for these “approved correctional programs” he has already received discretionary meritorious credits pursuant to NRS 209.449(2).
• Believing he has already received discretionary credit, he applied to this Court to order application of mandatory credit pursuant to NRS 209.449(1)
CONCLUSIONS OF LAW:
A. PETITIONER HAS NOT MET HIS BURDEN OF PROVING THAT HE HAS NOT RECEIVED ALL CREDIT TO WHICH HE IS ENTITLED.
• It is true that a mandatory parole statute or “good time” statute can create a liberty interest.
• However, unless a state statute mandates that parole “shall” be granted “unless” a designated exception applies, no federal due process protected interest arises. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir.1985).
• Because Nevada's credit statutes vest discretion in prison officials, “they create no due process liberty interest.” Clyde v. Hargrave, 770 F. Supp 553, 557 (D.Nev.1991).
• Regardless, Petitioner has received the full benefit of the good time credit statutes.
• Petitioner believes he was already credited with discretionary credit pursuant to NRS 209.449(2), and now should be credited with mandatory credit pursuant to NRS 209.449(1).
• Petitioner relies partly in error on NRS 209.449, which only concerns “vocational education and training.”
• None of the certificates presented qualify as “vocational education and training.”
• Petitioner's certificates are for “training programs,” or “correctional programs” or substance abuse programs.
• NRS 209.449 reads:
Credits for completion of vocational education and training or other program.
1. An offender who has no serious infraction of the regulations of the Department, the terms and conditions of his or her residential confinement, or the laws of the State recorded against the offender must be allowed, in addition to the credits provided pursuant to NRS 209.433, 209.443, 209.446 or 209.4465, a deduction of 60 days from the maximum term of the offender's sentence for the successful completion of:
(a) A program of vocational education and training; or
(b) Any other program approved by the Director.
2. If the offender completes such a program with meritorious or exceptional achievement, the Director may allow not more than 60 days of credit in addition to the 60 days allowed for completion of the program.
• Training and correctional programs are governed by NRS 209.4465(5), with credit levels being set by the Director pursuant to administrative regulation.
• NRS 209.4465(5) states “The Director may allow not more than 90 days of credit each year for an offender who engages in exceptional meritorious service.”
• According to NDOC administrators, this authority is interpreted broadly to permit NDOC to offer credit for rehabilitative programming.
• The maximum credit which can be granted for all NRS 209.4465 programs during a year is 90 days.
• There exists no authority in Nevada law or NDOC regulations to allow the NDOC to grant double credit for NRS 209.4465(5) programs.
• Petitioner improperly relies on NRS 209.449 in an attempt to significantly multiply the credit for each course in which he has participated.
• NRS 209.4465(5) makes no provision for double credit for exceptional or meritorious performance.
• Furthermore, no non-vocational program has been certified pursuant to the director's discretion for NRS 209.449(1)(b) credit.
• Substance abuse programs are awarded credit under NRS 209.448, which mandates (in part)
... a deduction of not more than 60 days from the maximum term of the offender's sentence for the successful completion of a program of treatment for the abuse of alcohol or drugs which is conducted jointly by the Department and a person who is licensed as a clinical alcohol and drug abuse counselor ...
• Like NRS 209.4465, no provision is made for double credit for NRS 209.448 programs.
B. PETITIONER HAS RECEIVED ALL CREDIT TO WHICH HE IS ENTTILED
• Petitioner received the appropriate amount of credit for each certificate presented to the Court.
• Petitioner presented three certificates of completion. Proper credit was received for each pursuant to the States' exhibits as follows:
| TITLE | CREDIT | DATE |
|---|---|---|
| SOS, Help for Emotions | 15 | Sep 2009 |
| Thinking for a Change | 15 | Feb 2010 |
| Addiction Prevention | 60 | June 2010 |
• As shown here, Petitioner has received all credit to which he is entitled for the certificates he presented.
• Petitioner is incorrect regarding the application of NRS 209 .449 to the instant circumstance.
• Petitioner presented no law or fact which would entitle him to the requested relief and therefore failed to meet his burden for issuance of a writ of habeas corpus.
Based on the foregoing:
IT IS ORDERED that Petitioner Bergt's Petition for Writ of Habeas Corpus filed September 3, 2010, should be and is hereby DENIED.
DATED this ____ day of December, 2010.
HONORABLE DISTRICT COURT JUDGE
Respectfully Submitted By:
CATHERINE CORTEZ MASTO
Attorney General
By:
ADAM L. WOODRUM
Deputy Attorney General