Morris v. Neven
| Decision Date | 18 September 2017 |
| Docket Number | Case No. 3:15-cv-00277-RCJ-WGC |
| Parties | BRENT ELI MORRIS, Petitioner, v. DWIGHT NEVEN, Respondents. |
| Court | U.S. District Court — District of Nevada |
Petitioner Brent Eli Morris' pro se habeas petition is before the court for a decision on the merits (ECF No. 2).
A jury convicted Morris of two felony counts of commission of a fraudulent act in a gaming establishment and four gross misdemeanor counts of entry of a gaming establishment by an excluded person (Exhibit 7A).1 The state district court sentenced him on the four misdemeanor counts to four concurrent terms of 12 months in the Clark County Detention Center. Id. The court adjudicated Morris a habitual criminal for the felony counts and sentenced him to two concurrent terms of 8-20 years, concurrent with the misdemeanor sentences. Id. Judgment of conviction was filed on July 7, 2011. Id.
Morris states that he was housed at Warm Springs Correctional Center (WSCC) when he received a notice of charges on May 7, 2014 (ECF No. 2, p. 3; exhs. 7B, 7F). WSCC personnel suspected that Morris was communicating with inmates at otherNevada Department of Corrections (NDOC) facilities and had received payments for providing legal services. Morris was charged with G14: failure to follow rules and regulations; MJ31: unauthorized use of equipment or mail; and MJ29: fees for legal services. Id. At the preliminary inquiry the same day, Morris stated that he was not guilty of the charges. Exh. 7C.
On May 31, 2014, prison personnel conducted a formal disciplinary hearing. See Exhs. 7D, 7F. At the disciplinary hearing, evidence was presented that Cali Phan, sister of inmate Huy Phan, had sent JPay letters to Morris on January 31, February 21, and February 28, 2014. See exh. 7F (part 1). Each letter only included one word: the first letter said "hi," the second said "thanks," and the third said "thanks." Id. Corresponding deposits were made to Morris's accounts on those dates in the amounts of $300, $60, and $200. Id. Reports from law library staff indicated that on February 9, February 11, and March 3, 2014, legal mail was sent by Huy Phan with assistance from Morris. Id. Morris denied receiving payment for legal work, but asserted that Cali Phan had sent him the payments in exchange for jewelry he sold to her. Id. Morris was found guilty of two of the charged counts—MJ31 and MJ29—and was sentenced to 18 months of disciplinary segregation and referred for a loss of 180 days of statutory credits. Exhs. 7Dk, 7F. The NDOC approved the forfeiture and deducted 180 days of statutory credits. Exh. 7E.
On July 31, 2014, Morris filed a petition for a writ of habeas corpus in the state district court, Exh. 3. The court denied the petition. Exh. 11. The Nevada Court of Appeals affirmed the denial of his petition on April 14, 2015, and remittitur issued on May 12, 2015. Exhs. 24, 25.
On May 18, 2015, Morris mailed his federal petition for a writ of habeas corpus to this court (ECF No. 2). Respondents answered the petition, and Morris replied (ECF Nos. 7, 11).
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:
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, 693-694 (2002). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86 (2011). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Culler, v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398 (2011) () (internal quotation marks and citations omitted).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A state prisoner is entitled to federal habeas relief only if he is being held in custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). That is, a writ of habeas corpus is the appropriate remedy only when a petitioner is challenging the fact or the length of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973). "[H]abeas jurisdiction is absent, and a § 1983 actionproper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Thus, a challenge to placement in segregated housing that precludes the earning of credits fails to raise a federally cognizable claim. Id.; Preiser, 411 U.S. at 487-489; see also Burton v. Adams, 415 F. App'x 816, 817 (9th Cir. 2011).
In his petition, Morris claims that the disciplinary proceedings violated his constitutional rights because (1) he did not receive timely notice of the charges, (2) there was no evidence to show that he was guilty, (3) the hearing officer refused to call witnesses to testify in his defense, and (4) the punishment for his violation amounts to cruel and unusual punishment (ECF No. 2).
Respondents are correct that Morris's claims are only cognizable in federal habeas corpus to the extent that he challenges the loss of 180 days of statutory credit. His placement in disciplinary segregation is not subject to challenge in a federal habeas petition. See, e.g., Ramirez, 334 F.3d at 859.
Morris contends that he did not receive timely notice of the charges against him in violation of his Fifth and Fourteenth Amendment due process rights (ECF No. 2, pp. 3-5). Morris received the notice of charges on May 7, 2014, for an incident that occurred on March 11, 2014. See exh. 7B. He argues that NDOC Administrative Regulation (AR) 707 required that NDOC provide him with a notice of charges within ten days of the violation (ECF No. 2, p. 5).
Prisoners retain certain due process rights, though such rights are restricted by the nature of institutional confinement. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). When a prisoner in state custody faces a disciplinary proceeding that may result in the loss of statutory good-time credits, procedural due process requires that the prisoner receive: "(1) advance written notice of the disciplinary charges; (2) an opportunity, whenconsistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). In addition, the disciplinary decision must be supported by at least "some evidence." Hill, 472 U.S. at 455.
The Nevada Court of Appeals affirmed the denial of this claim:
First, Morris claimed that he did not receive timely notice of the disciplinary charges against him. Morris' claim lacked merit. Prison officials must provide notice of the disciplinary charges an inmate faces at least 24 hours before the disciplinary hearing. Wolff,...
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