Kelch v. Director, Nevada Dept. of Prisons, 93-15081

• Citation: 10 F.3d 684
• Decision Date: 01 December 1993
• Docket Number: No. 93-15081,93-15081
• Parties: Robert Maxwell KELCH, Petitioner-Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, and Ron Angelone, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 684

10 F.3d 684

Robert Maxwell KELCH, Petitioner-Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, and Ron Angelone Respondents-Appellees.

No. 93-15081.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1993.

Decided Dec. 1, 1993.

Stewart L. Bell, Bell, Davidson & Myers, Las Vegas, NV, for petitioner-appellant.

William P. Henry, Sr. Deputy General, Las Vegas, NV, for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: BOOCHEVER, THOMPSON and O'SCANNLAIN, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

This is an appeal from the district court's denial of a petition for habeas corpus filed pursuant to 28 U.S.C. Sec. 2254 (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988), and we affirm. We hold that the Nevada Board of Pardons Commissioners ("the Board") did not deny Robert Maxwell Kelch, a Nevada state prisoner, substantive due process under the Fourteenth Amendment when it rescinded its earlier commutation of his sentence.

FACTS

In 1985, Kelch pleaded guilty to second degree murder of his wife. The trial court sentenced him to twenty years in prison, the maximum penalty for this offense under Nevada law. After he had served two years, he applied to the Nevada Board of Pardons Commissioners for a pardon or commutation of his sentence. At the request of Kelch's attorney, a Board member scheduled a hearing for May 12, 1987. Although notice was sent to the district attorney one day after the hearing was scheduled, the chosen date gave the district attorney only twelve days notice of the hearing, instead of the thirty days prescribed by statute. No Board member made an explicit determination that there was "good cause" to reduce the notice period.

At the May 12, 1987 hearing, the Board heard evidence that included Kelch's educational pursuits, assistance to other prisoners, and model behavior during his incarceration. The Nye County District Attorney did not attend the hearing, nor did he respond in any way to the notice he had received twelve days earlier. As a result, the Board heard no evidence against Kelch's requested commutation. After the hearing, the Board issued an order commuting Kelch's sentence from twenty to five years.

Before Kelch's release, the Nye County District Attorney filed a motion for reconsideration. The Board granted the motion and held a second hearing on November 23, 1987. At this hearing the District Attorney appeared and asked the Board to reinstate the original sentence.

At the second hearing, the Board heard dramatically different evidence from that presented at the first hearing. At the first hearing, Kelch told the Board that he accidentally shot his wife when he moved the gun he killed her with from one room to another, and that the gun was five feet from her when it discharged. Kelch's lawyer argued there was no evidence that Kelch had intentionally killed his wife.

In contrast, at the second hearing, the Board learned that the gun was only two feet from Kelch's wife when it discharged, and Kelch had previously told his wife he "was going to shoot her between the eyes one of these days." Kelch killed his wife by a shot in the eye.

The Board also heard evidence at the second hearing that Kelch's wife's daughter, who was present when Kelch shot his wife, stated that Kelch "walked up to [his wife], pointed a gun at her face, and said, 'Do you want to see something funny?' " That's when the shot that killed her was fired.

At the first hearing, Kelch's attorney represented that Kelch was "not a violent person;" Kelch had not been physically violent with his wife in the past; they had a "loving relationship;" and his wife had not been afraid of him. At the second hearing, the Board heard evidence that Kelch was a violent person with "an explosive temper;" Kelch and his wife argued frequently; the couple had been asked to leave a bar because Kelch then filed a petition for a writ of habeas corpus in the United States District Court for the District of Nevada. That court denied the petition because Kelch had not exhausted his state court remedies. Kelch returned to state court. The Supreme Court of Nevada denied his habeas petition. That court held that although he had obtained a liberty interest when the Board commuted his sentence, the Board had provided him with due process in the rescission of that commutation. Kelch v. Director, Nev. Dept. of Prisons, 107 Nev. 827, 822 P.2d 1094 (1991).

they created a scene fighting; his wife was contemplating divorce at the time of her murder; Kelch beat his wife; she had expressed fear of him; and three days before the shooting he publicly tried to choke her. The second hearing also revealed that Kelch had a history of substance abuse, his own mother had obtained a restraining order against him, and he had threatened other people with the same caliber weapon his wife was shot with. Based upon the evidence presented at the second hearing, the Board rescinded the commutation of Kelch's sentence by a vote of six to one.

On May 26, 1992, Kelch filed his second federal habeas petition in the district court. He contended that the Nevada Supreme Court erred by not evaluating the rescission of his commuted sentence under the requirements of substantive due process. The district court denied the petition. It held that Kelch had a liberty interest in the commutation of his sentence, but that the Board had not denied him procedural due process in its rescission, nor had the Board violated his substantive due process rights. This appeal followed.

ANALYSIS

A. The Board's Jurisdiction to Rescind the Commutation

Whether the Nevada Board of Pardons Commissioners had jurisdiction to rescind the commutation of Kelch's sentence is a question of state law, separate from the due process issue.

Article 5, section 14 of the Nevada constitution and section 213.010 of the Nevada Revised Statutes establish the Nevada Board of Pardons Commissioners. The Board has the power to commute sentences "upon such conditions and with such limitations and restrictions as they may think proper." Nev.Const. art. V, Sec. 14. However, neither the Nevada constitution nor Nevada statutory law states whether, or under what circumstances, the Board may revoke a commutation, once granted.

Nor has any Nevada court, including the Nevada Supreme Court that heard Kelch's state habeas petition, directly addressed the issue whether the Nevada Board of Pardons Commissioners has jurisdiction to rescind its grant of a commutation of a sentence. We must, therefore, predict how the Nevada Supreme Court would rule if it were to address this issue. S & R Metals, Inc. v. C. Itoh & Co., 859 F.2d 814, 816 (9th Cir.1988) ("In the absence of ... express guidance, we must interpret and apply the law as we predict the state's highest court would interpret and apply it.") (citing Fiorito Bros. v. Fruehauf Corp., 747 F.2d 1309, 1314 (9th Cir.1984)).

We predict that if the Nevada Supreme Court were to consider the issue, it would hold that the Board has jurisdiction to rescind its commutation of a sentence, as the Board did in this case. Indeed, the Nevada Supreme Court decided this question by implication when it denied Kelch's state habeas petition. If the Board had lacked jurisdiction to rescind its commutation of Kelch's sentence, the Nevada Supreme Court would have said so. It did not. Moreover, Justice Young in his dissent in Kelch confirmed that the majority implicitly held the Board had jurisdiction to rescind the commutation of Kelch's sentence. Justice Young wrote: "Respectfully, I dissent. I conclude that the Nevada Board of Pardons Commissioners (Board) did not have jurisdiction to rescind the commutation of a sentence." Kelch, 822 P.2d at 1099 (Young, J. dissenting) (emphasis added).

Our prediction is further buttressed by the fact that under Nevada law the Nevada Board of Pardons Commissioners is an executive board. State v. District Court, 85 Nev.

                485, 488, 457 P.2d 217, 218 (1969) ("In this state the granting of any relief from punishment after incarceration in the state prison is an executive function authorized by the legislature and performed by the state board of parole commissioners, or by the state board of pardons commissioners.");  State v. Clark, 90 Nev. 144, 147, 520 P.2d 1361, 1363 (1974) ("In this State the granting of relief from incarceration is authorized by the legislature and performed by the state board as an executive function.")   The Supreme Court of Nevada has held that "administrative agencies have an inherent authority to reconsider their own decision, since the power to decide in the first instance carries with it the power to reconsider."  L & T Corp. v. City of Henderson, 98 Nev. 501, 504, 654 P.2d 1015, 1017 (1982) (quoting Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir.1980))
                

We conclude that, under Nevada state law, the Board of Pardons Commissioners is an executive board and had jurisdiction to rescind its commutation of Kelch's sentence.

B. Substantive Due Process

Although the Nevada Board of Pardons Commissioners had the power to rescind the commutation of Kelch's sentence, we must determine whether its exercise of that power violated Kelch's right to substantive due process.

The district court found no violation of Kelch's right to procedural due process, and Kelch does not contest this. Instead, he argues that at the moment the Board commuted his sentence to five years he obtained a vested, substantive due process right to be released in accordance with that commuted sentence, and regardless of the procedures the Board afforded, that right could not be taken away. See Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir.1989) (substantive due process protects individuals against governmental acts "that are prohibited 'regardless of the fairness of the procedures used to implement them.' ") (quoting Daniels v. Williams, ...