955 F.2d 47 (9th Cir. 1992), 90-16830, Clyde v. Demosthenes

Docket Nº:90-16830.
Citation:955 F.2d 47
Party Name:Barry Warren CLYDE, Petitioner-Appellant, v. Pete DEMOSTHENES, Warden of the Nevada State Prison, and Brian Mckay, Attorney General of the State of Nevada, Respondents-Appellees.
Case Date:February 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 47

955 F.2d 47 (9th Cir. 1992)

Barry Warren CLYDE, Petitioner-Appellant,

v.

Pete DEMOSTHENES, Warden of the Nevada State Prison, and Brian Mckay, Attorney General of the State of Nevada, Respondents-Appellees.

No. 90-16830.

United States Court of Appeals, Ninth Circuit

February 20, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Aug. 14, 1991.

Appeal from the United States District Court for the District of Nevada; No. CV 89-00748-LDG, Lloyd D. George, District Judge, Presiding.

D.Nev.

AFFIRMED.

Before JAMES R. BROWNING, FARRIS and LEAVY, Circuit Judges.

MEMORANDUM [*]

Barry Warren Clyde, a Nevada state prisoner, appeals the district court's denial of his petition for writ of habeas corpus, 28 U.S.C. § 2254. Clyde was convicted by a jury of one count of conspiracy to sell a controlled substance and two counts of trafficking in a controlled substance. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

I. Constitutional Challenges to Nev.Rev.Stat. § 453.3405(2)

Clyde contends Nev.Rev.Stat. § 453.3405(2) violates the United States Constitution. He makes three separate constitutional challenges to the statute. First, Clyde argues section 453.3405(2) is impermissibly vague because it does not include explicit standards for controlling its application by law enforcement. According to Clyde, without such standards the statute may be applied in an arbitrary and discriminatory manner; thus, the statute should be declared void for vagueness.

A statute or ordinance is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972). Section 453.3405(2) is not applied by law enforcement officials; rather, it is a sentencing statute for a trial judge. The statute gives no authority or power to law enforcement officials whatsoever. The statute cannot impermissibly encourage arbitrary arrests and convictions, or fail to give an ordinary person of average intelligence fair notice that contemplated conduct is forbidden. We conclude the statute is not impermissibly vague.

Next, Clyde contends the application of section 453.3405(2) "improperly chilled and needlessly burdened" his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to...

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