Opinion
2:09-cv-1324-RCJ-RJJ.
April 21, 2010
ORDER
This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Roderick Hymon, a Nevada prisoner. Before the court is respondents' Motion to Dismiss (docket #9) and petitioner's Opposition (docket #13).
I. Background and Procedural History
Petitioner was sentenced on April 3, 2003, in a Nevada court to two concurrent and one consecutive terms of ten years to life on convictions for Robbery with the Use of a Deadly Weapon, Larceny from the Person and Assault with a Deadly Weapon. Exhibit A. Petitioner filed a state post-conviction petition on October 21, 2008, challenging the computation of the time he had served pursuant to his judgment of conviction and alleging violations of his due process and equal protection rights. Exhibit B. The state opposed the petition. Exhibit C. On January 2, 2009, the state district court denied the petition and petitioner timely appealed. Exhibits D. The Nevada Supreme Court affirmed the state district courts decision on July 21, 2009. Exhibit E.
The exhibits referenced in this Order were submitted by respondents in support of the Motion to Dismiss and are found in the court's docket at 10.
Petitioner submitted his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 21, 2009 and it was filed on September 18, 2009 after the administrative matters were resolved. Docket #4. Petitioner claims a due process violation for an alleged miscalculation of his good time credits. Id. Respondents now move to dismiss the petition on the grounds the petitioner does not attack the validity of his conviction or sentence and fails to raise a federal constitutional question and is not subject to review by this court (docket #9).
II. Federal Habeas Corpus Standards
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), provides the legal standard for the Court's consideration of a state criminal conviction on a petition for writ of habeas corpus:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Ground One
In Ground One, petitioner claims a violation of the Fourteenth Amendment of the Constitution based on a recent change in Nevada law which changes the amount of good time credit an inmate is entitled to received under certain circumstances. Petitioner is actually challenging the interpretation and application of a Nevada statute as it has been applied to his sentence.
Although a prisoner has no constitutional right to be conditionally released before the expiration of a valid sentence, state early release statutes can create a liberty interest protected by Fourteenth Amendment due process guarantees. See Greenholtz v. Inmates of the Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). State statutes that combine mandatory language, such as "shall" and "must," with substantive predicates create a protected liberty interest. Hewitt v. Helms, 459 U.S. 460, 471-72 (1983).
The statute at issue here NRS 209.4465 provides for a mandatory award of good time credits, so long as the inmate meets certain requirements. However, the interpretation of that law and its application are the purview of the Nevada Supreme Court. See, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Oxborrow v. Eikenberry, 877 F.2d 1395 (9th Cir. 1989) (deference to state court only suspended if that court's interpretation is "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation").
Here, the Nevada Supreme Court determined that petitioner's sentence has been properly calculated based upon the statutes limited retroactive application and the specific crimes for which he was convicted. The Court said:
These amendments to NRS 209,4465 had a very limited retroactive effect — only the provision relating to application of statutory good time credits to a minimum term for purposes of parole eligibility had any retroactive effect, and this retroactive benefit applied only to certain offenders. 2007 Nev. Stat., ch. 525 § 21, at 3196; NRS 209.4465(8)(d). An offender convicted of a Category A felony was entitled to receive 20 days of statutory good time credits beginning July 1, 2007, and those credits must be deducted from the maximum term to be served and would apply to eligibility for parole unless the offender was sentenced pursuant to a statute specifying a minimum terms. NRS 209.4465(1), (7), (8); see also 2007 Nev. Stat., ch. 525 § 21 at 3196.
The credit history report provided in the record on appeal indicates that statutory credits were correctly applied. Appellant was convicted of a Category A felony, habitual criminal adjudication pursuant to NRS 207.010(1)(b), and thus, he was not entitled to any retroactive application of the 2007 amendatory provisions of NRS 209.4465. Appellant failed to demonstrate a violation of any constitutional rights. Therefore, we affirm the order of the district court.
Exhibit E. Petitioner's argument to the contrary, the state court's interpretation of this state statute is not untenable and is, in fact, supported by the legislative history as cited. Petitioner has not demonstrated that the interpretation is an effort at subterfuge to avoid federal review. The petition must be dismissed, as it fails to present a federal constitutional issue which this court may review.
III. Certificate of Appealability
In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. ( quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability.
IT IS THEREFORE ORDERED that the Motion to Dismiss (docket #9) is GRANTED.
The petition is DISMISSED WITH PREJUDICE. IT IS THEREFORE ORDERED that the Clerk shall ENTER JUDGMENT ACCORDINGLY. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.