Witherow v. Donat et al, No. 3:2008cv00321 - Document 12 (D. Nev. 2009)

Court Description: ORDER. IT IS ORDERED that the Petition for WHC shall be DENIED with prejudice on the merits. Clk shall enter final judgment accordingly, dismissing this action with prejudice on the merits. FURTH ORD that a CoA is DENIED, as jurists of reason would not find the denial of the petition to be either debatable or wrong. CERTIFICATE OF APPEALABILITY IS DENIED BY THIS ORDER. FURTH ORD that Clk shall serve a copy of this order and the final judgment upon Rs by cert mail to the AG Office, Criminal Division (sent by cert mail on 1/20/2009; receipt #7003 2260 0003 9700 6685). No response is required from the Rs in this matter, but the Rs should note that the present matter bears relationship to No. 3:07-cv-00630-LRH-VPC, in which the Rs have appeared and which is currently on appeal. Signed by Judge Larry R. Hicks on 1/16/2009. (Copies have been distributed pursuant to the NEF - PM)
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Witherow v. Donat et al Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 10 JOHN WITHEROW, 11 Petitioner, 3:08-cv-00321-LRH-VPC 12 vs. ORDER 13 14 WILLIAM DONAT, et al., 15 Respondents. 16 17 This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry into 18 whether the petitioner exhausted the federal constitutional claim presented and as to whether the parole- 19 related claim in any event is subject to dismissal on the merits for lack of a protected liberty interest. 20 This order follows upon the Court’s earlier show cause order (#7) and the petitioner’s response (## 8 21 & 9) thereto.1 22 23 24 25 26 27 28 1 Petitioner filed an earlier petition in No. 3:07-cv-00630-LRH-VPC that raised a due process challenge vis-àvis the same July 24, 2002, parole hearing, albeit on different specific grounds. The Court dismissed that petition for lack of a protected liberty interest in an order and judgment filed on December 4, 2008, and petitioner has appealed. It does not appear at this point that successive petition and/or res judicata rules necessarily bar the present petition because the judgment in No. 3:07-cv-00630 was filed only recently and that case is on appeal. Petitioner requests consolidation of the two matters at page 8 of #8, which was filed on December 2, 2008, but it does not appear that he ever filed a separate motion to consolidate the matters in either case. Petitioner should not assume that requests for relief incorporated in other filings, or in a notice that is not presented as a motion with a prayer for relief, will timely come to the attention of and/or be acted upon by the Court. If petitioner wants specified relief in a case, he should file a motion specifically for that relief with a prayer for that relief, such as, in this instance, a motion for consolidation. Dockets.Justia.com 1 Petitioner John Witherow is not seeking to set aside his judgment of conviction, his adjudication 2 as a habitual criminal, or his sentence. He instead raises a challenge directed to a Nevada parole hearing 3 held on or about July 24, 2002. Petitioner alleges that he was denied due process of law in violation 4 of the Fourteenth Amendment because the state parole board allegedly violated the Nevada Open 5 Meeting Law in conjunction with the hearing. 6 The Court will assume, arguendo, that the federal due process claim asserted in the petition is 7 exhausted, as the Court exercises its discretion to deny the claim on the merits under 28 U.S.C. § 8 2254(b)(2) notwithstanding any failure to exhaust.2 The Court further will assume, arguendo, that the 9 petition potentially could present a cognizable federal due process claim based upon a failure to follow 10 state law. The Court makes this latter arguendo assumption despite substantial doubts as to whether 11 the failure to comply with state law, here the state open meeting law, would constitute a federal due 12 process violation even if petitioner otherwise could demonstrate a protected liberty interest. 13 In the context presented in this case, petitioner must establish that he was deprived of a protected 14 liberty interest as a fundamental threshold prerequisite to any such due process claim. See,e.g., 15 Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). It is well-established law that 16 a state parole statute does not create a protected liberty interest for purposes of federal constitutional 17 due process protections unless the state statute mandates that parole “shall” be granted following the 18 fulfillment of specified requirements. See Greenholtz v. Inmates of Nebraska Penal and Correctional 19 Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Baumann v. Arizona Dep't of Corrections, 20 754 F.2d 841, 844 (9th Cir.1985). 21 //// 22 2 23 24 25 26 27 28 It is not likely that the claims are exhausted. To exhaust his federal constitutional Fourteenth Amendment procedural due process claim, petitioner must have fairly presented the claim both in the state district court and the Supreme Court of Nevada. See authorities cited in #7, at 2. The passing vague references to federal claims or general federal constitutional guarantees in petitioner’s filings in the Supreme Court of Nevada were insufficient to fairly present a Fourteenth Amendment procedural due process claim to the state high court. See Castillo v. McFadden, 399 F.3d 993, 998-99 (9 th Cir. 2005). Petitioner’s state supreme court filings argued Nevada state law and exclusively Nevada state law. See #8, Exhibits “H” and “I”. Petitioner refers to his state district court filings. It is established law, however, that the Supreme Court of Nevada was not required to comb through the state district court record looking for federal constitutional claims that were not articulated within the four corners of the briefing in the state supreme court. Castillo, 399 F.3d at 999-1000. It is unnecessary for either this Court or the Court of Appeals to tarry over the exhaustion issue, however, given that the petitioner’s claim plainly is without merit due to the absence of a protected liberty interest. -2- 1 The Nevada legislature expressly has stated that release on parole is an “act of grace of the 2 State” and that “it is not intended that the establishment of standards relating thereto create any such 3 right or interest in liberty.” N.R.S. 213.10705; see also Severance v. Armstrong, 96 Nev. 836, 838-39 4 620 P.2d 369, 370 (Nev.1980)(Nevada parole statutes provide “no legitimate expectation of parole 5 release”). This Court accordingly has held, repeatedly over the span of several decades, that inmates 6 have no protected liberty interest in Nevada parole hearings under the Greenholtz standard. See,e.g., 7 Garcia v. Nevada Board of Prison Commissioners, 2008 WL 818981, at *7 (D.Nev., Mar. 24, 2008); 8 Cooper v. Sumner, 672 F.Supp. 1361, 1366-67 (D.Nev. 1987); Kelso v. Armstrong, 616 F.Supp. 367, 9 369 (D.Nev. 1985); Austin v. Armstrong, 473 F.Supp. 1114, 1116-17 (D.Nev. 1979). If petitioner 10 cannot establish a protected liberty interest, he cannot establish a Fourteenth Amendment due process 11 violation in an alleged failure to comply with the state open meeting law in conjunction with the July 12 24, 2002, parole hearing. 13 Petitioner seeks to avoid the application of the above authorities to his case by arguing that he 14 instead is challenging the denial of his right to “apply” for parole. Petitioner’s argument turns upon 15 nothing more than semantics, and the argument is wholly unpersuasive and frivolous. Petitioner’s 16 challenge is based not upon a failure to allow him to apply for parole but instead upon an alleged 17 procedural defect in the hearing on his application – the alleged failure to follow the state open meeting 18 law at the hearing. His petition is based upon a defect in the hearing process not the application process 19 and clearly is subject to the rule of Greenholtz and decades of following authority. To the extent that 20 the Supreme Court of Nevada considered petitioner’s federal due process claim and rejected the claim 21 on the merits, that rejection was neither contrary to nor an unreasonable application of clearly 22 established federal law. To the extent that the state high court did not consider the, likely unexhausted, 23 federal constitutional claim, the claim, on de novo review, is wholly without merit. 24 IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus shall be DENIED 25 with prejudice on the merits. The Clerk of Court shall enter final judgment accordingly, dismissing this 26 action with prejudice on the merits. 27 IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason 28 would not find the denial of the petition to be either debatable or wrong. The Clerk of Court shall -3- 1 include in the docket entry for this order a clear designation that a certificate of appealability also is 2 denied by this order. 3 IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 2254 4 Cases, the Clerk of Court shall serve a copy of this order and the final judgment upon respondents by 5 sending same by certified mail to the Office of the Attorney General, Criminal Division, 100 North 6 Carson St., Carson City, NV 89701-4717. No response is required from the respondents in this matter, 7 but the respondents should note that the present matter bears a relationship to No. 3:07-cv-00630-LRH- 8 VPC, in which the respondents have appeared and which currently is on appeal.3 9 DATED this 16th day of January, 2009. 10 11 12 ___________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Petitioner has made multiple requests to the Clerk of Court to advise him of the dates when documents were filed, and he further requests a copy of the docket sheet. The record reflects that petitioner has been provided notices of electronic filing when documents were filed in the case. Petitioner is not proceeding in forma pauperis, as he paid the filing fee in this matter. If petitioner wants dated file-stamped copies of his documents returned to him, he must submit an additional “conform copy” of his filings to the Clerk with the original at the time of filing. If he wants a copy of the docket sheet, he must pay the Clerk the required charges for same. The Clerk provided the petitioner notice as to when documents were filed when it sent him notices of electronic filing. The Clerk generally will not provide additional notice as to the date that documents were filed over and above the notices of electronic filing. -4-