Wirth v. Baker

— 2 — — 3 — — 4 — — 5 — 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 CHARLES WIRTH, Case No. 3:17-cv-00742-MMD-VPC 10 Petitioner, ORDER v. — 11 — RENEE BAKER, et al., — 12 — Respondents. — 13 — 14 Before the Court are Petitioner’s motion for reconsideration (ECF No. 29), 15 Respondents’ opposition (ECF No. 30), and Petitioner’s reply (ECF No. 31). The Court 16 denies Petitioner’s motion. 17 To summarize the relevant facts, Petitioner received two consecutive sentences. 18 The first sentence expired fully at the end of December 19, 2013. (ECF No. 19-22 (Ex. 19 22).) Petitioner has been serving the second sentence since December 20, 2013. Later, 20 the Nevada Supreme Court held under the version of NRS § 209.4465(7)(b) in effect at 21 the time of Petitioner’s crimes, his accrued credits should apply toward his parole eligibility. 22 Williams v. State, 402 P.3d 1260 , 1262 (Nev. 2017). In state habeas corpus proceedings, 23 Petitioner received relief on his second sentence, and his parole eligibility date has been 24 adjusted. The Nevada Supreme Court held that any request for relief on the first sentence 25 was moot because that sentence had expired. This Court also held that Petitioner’s 26 request for relief was moot. First, Petitioner could not receive retroactive parole, because 27 Nevada law does not recognize retroactive parole. Second, Petitioner’s sentence had 28 expired, and he could not be paroled from an expired sentence. Third, Petitioner had no 2 Amendment. (ECF No. 26.) 3 Petitioner argues that the Court misconstrued his entire argument. He argues that 4 he should have been considered for parole on his first sentence earlier. Because the 5 parole board did not consider him for parole on his first sentence earlier, he lost the 6 opportunity to start his second sentence earlier. That, in turn, means that he lost the 7 opportunity to complete his second sentence 6-8 months earlier. (ECF No. 29 at 2.) 8 The Court understood Petitioner’s argument. The Court denied relief because the 9 Court could not grant Petitioner relief even if everything he argued was correct. To repeat, 10 first, Nevada does not have retroactive parole. Niergarth v. Warden, 768 P.2d 882 , 88311 84 (Nev. 1989). Second, Petitioner’s first sentence expired long before he commenced 12 this action. He cannot be paroled from an expired sentence. Johnson v. Dir., Nev. Dep’t 13 of Prisons, 774 P.2d 1047, 1049 (Nev. 1989). Third, Petitioner does not have a right to 14 parole protected by the Due Process Clause of the Fourteenth Amendment. Moor v. 15 Palmer, 603 F.3d 658, 662-63 (9th Cir. 2010). This Court cannot order that Petitioner 16 should have been granted parole earlier. 17 Additionally, closer examination of Petitioner’s custody record shows that Petitioner 18 was discharged from his first sentence to his second sentence. (ECF No. 19-22 (Ex. 22).) 19 He was not paroled from his first sentence to his second sentence. In other words, the 20 parole board denied Petitioner parole until his first sentence expired. This strengthens the 21 Court’s conclusion that the action is moot. The issue no longer is whether Petitioner could 22 have been granted parole earlier, and started his second sentence earlier. Instead, the 23 issue is only when the parole board would have denied Petitioner parole. No matter what, 24 Petitioner would have been denied parole until the expiration of his first sentence.1 25 /// 26 /// 27 1Petitioner also has had a parole hearing on his second sentence. The parole board denied further consideration for parole until March 1, 2020. 28 http://parole.nv.gov/uploadedFiles/parolenvgov/content/Actions/2018/September%20201 8.pdf (report generated October 4, 2019). 1 Finally, Petitioner argues that the Court should have issued a certificate of 2 || appealability on its determination that Petitioner is subject to 28 U.S.C. § 2254 , because 3 || the circuits have split on the issue. (ECF No. 29 at 6.) No split exists. The Eleventh Circuit 4 || decision that Petitioner cites, Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004), is based 5 || upon an earlier decision that the Ninth Circuit also has adopted. See Frantz v. Hazey, 533 6 || F.3d 724, 735-36 (9th Cir. 2008) (en banc). Regardless of how Petitioner wishes to title 7 || his Petition, he is subject to the restrictions of 28 U.S.C. § 2254 because he is in custody 8 || pursuant to a state-court judgment of conviction, and nobody would dispute that. 9 To the extent that a certificate of appealability is necessary from this decision, 10 || reasonable jurists would not find the Court's determinations to be debatable or wrong. The 11 || Court will not issue a certificate of appealability. 12 It is therefore ordered that Petitioner's motion for reconsideration (ECF No. 29) is 13 || denied. 14 It is further ordered that a certificate of appealability will not issue. 15 DATED THIS 7" day of October 2019. — 16 — 17 _ f Lhd MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —