Orr v. Williams
| Decision Date | 24 September 2019 |
| Docket Number | Case No. 2:17-cv-02908-RFB-EJY |
| Parties | STEVEN DANIEL ORR, Petitioner, v. BRIAN WILLIAMS, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
Before the Court are Petitioner Steven Orr's ("Orr") amended petition for a writ of habeas corpus, Respondents' Motion to Dismiss, and Orr's Motion for Leave to Amend Petition for Writ of Habeas Corpus. ECF Nos. 6, 1, 46. Orr's Motion for Leave to Amend moots the argument in Respondent's motion that Orr has not exhausted his grounds for relief in state court. The Court rejects Respondents' other arguments in the Motion to Dismiss and denies the motion.
The alleged facts of this case are as follows. Orr, Jeda Greene, and Anthony Redmond plotted to rob a bar. Greene gained entry to the bar by pretending to be a customer and ringing the doorbell. Orr followed Greene into the bar with a gun. The bartender, on Orr's orders, gaveOrr the cash from the cash register. Orr then ordered the bartender, two customers, and Greene to the back room of the bar. The bartender, again on Orr's orders, gave Orr more cash. Orr left the bar, got into a car driven by Redmond, and went away. Soon after the robbery, the police caught Orr and Redmond. Greene confessed, and Orr and Redmond made incriminating statements. Ex. 27, ECF No. 15-2 at 15-19.
Orr originally was charged with one count of burglary while in possession of a firearm, one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, three counts of first-degree kidnaping with the use of a deadly weapon, one count of carrying a concealed weapon, and one count of possession of stolen property. Ex. 27, ECF No. 15-2, at 4-8.
On April 30, 1999, in the Las Vegas Justice Court, Orr waived a preliminary hearing. Ex. 25, ECF No. 14-25. He agreed that the case would be bound over to the Eighth Judicial District Court of the State of Nevada, where he would plead guilty to one count of conspiracy to commit robbery and one count of robbery with the use of a deadly weapon. Id. at 2, ECF No. 14-25, at 3. The prosecution agreed not to oppose an agreement that the sentences would run concurrently with another case. Id.
On May 10, 1999, in the state district court, Case No. 99C158563-1, Orr executed a plea agreement. The written plea agreement stated that the prosecution would not oppose concurrent time with another state district court case, Case No. 98C150664-1, and that the prosecution would not oppose the dismissal of two justice court cases at rendition of sentence. Ex. 30, ECF No. 16-1. Orr pleaded guilty in a hearing that same day. Ex. 32, ECF No. 16-3.
Orr was sentenced on June 23, 1999. Ex. 37, ECF No. 16-8. On July 8, 1999, the state district court entered the judgment of conviction. For the count of conspiracy to commit robbery, the state district court sentenced Orr to prison with a minimum term of 24 months and a maximum term of 60 months. For the count of robbery with the use of a deadly weapon, the state district court sentenced Orr to prison with a minimum term of 72 months and a maximum term of 180 months, plus a consecutive prison sentence with a minimum term of 72 months and amaximum term of 180 months. The sentences for the two counts ran concurrently. Ex. 39, ECF No. 16-10.2
Orr appealed. He argued that he received ineffective assistance of trial counsel. Ex. 48, ECF No. 17-1. The Nevada Supreme Court dismissed the appeal because a claim of ineffective assistance of trial counsel should be raised in post-conviction proceedings. Ex. 51, ECF No. 17-4.
On April 4, 2005, Orr had a parole hearing on the first of the two consecutive sentences for robbery with the use of a deadly weapon. ECF No. 46-1, at 10. The parole board denied parole on that sentence until its expiration on April 5, 2008. Id. Orr then started serving the second consecutive sentence. On May 27, 2015, Orr had a parole hearing on the second consecutive sentence. Ex. 200 (ECF No. 38-5, at 18). The parole board granted Orr parole, effective August 1, 2015. Id.
On January 26, 2016, Orr was charged with crimes that occurred on or about December 31, 2015: One count of conspiracy to commit burglary, one count of burglary while in possession of a firearm, one count of conspiracy to commit robbery, one count of robbery with the use of a deadly weapon, two counts of assault with a deadly weapon, one count of ownership or possession of firearm by prohibited person, and one count of possession of stolen property. Ex. 185, ECF No. 37-1, at 5-8. On February 9, 2016, in the Eighth Judicial District Court, Case No. C-16-312479-1, Orr agreed to plead guilty to one count of robbery with the use of a deadly weapon. Both parties stipulated to a habitual-criminal sentence with a minimum of 60 months and a maximum of 150 months. Ex. 188, ECF No. 37-4. The state district court entered judgment accordingly on May 3, 2016. Ex. 196, ECF No. 38-1.
On March 1, 2016, the parole board revoked Orr's parole in Case No. 99C158563-1 until the expiration of the sentence. The sentence expired on November 9, 2016.
The sentence in Case No. C-16-312479-1 runs consecutively to the sentence in Case No. 99C158563-1. Nev. Rev. Stat. § 176.035(3). It commenced on November 10, 2016.
Orr's habeas claims are based in part on the law governing accrual of credits toward his sentences and the application of those credits toward parole eligibility. At the time, Orr earned 10 days of credit toward his sentence each month for good behavior under section 209.4465(1) of the Nevada Revised Statutes ("NRS"). Nev. Rev. Stat. § 209.4465(1) (1997). Section 209.4465 also stated:
Orr claims that at the plea hearing for his 1999 criminal charges, the prosecution verbally promised that credits would apply toward his parole eligibility.3 According to Orr, his accrued credits were not applied toward parole eligibility for either of the two consecutive sentences in 99C158563-1.
The Nevada Supreme Court has held that the Nevada Department of Corrections had been interpreting § 209.4465(7)(b) incorrectly during this time period. It first so held in the unpublished decision Vonseydewitz v. LeGrand, 2015 WL 3936827 ),4 and then reaffirmed this holding in the published decision Williams v. State Dep't of Corr.402 P.3d 1260 (Nev. 2017).
The exception for "a minimum sentence that must be served before a person becomes eligible for parole" applies only to those statutes that explicitly state that a minimum time must be served before becoming eligible for parole.5 See, e.g., Nev. Rev. Stat. § 200.030(5) (). For statutes such as robbery, like NRS 200.380, that specify only a minimum term without any mention of parole, credits apply to eligibility for parole. In so deciding, the Nevada Supreme Court clarified in Williams that:
Our interpretation of NRS 209.4465(7)(b) applies only to crimes committed on or between July 17, 1997 (the effective date of NRS 209.4465) and June 30, 2007 (the effective date of NRS 209.4465(8)).6 Because the application of credits under NRS 209.4465(7)(b) only serves to make an offender eligible for parole earlier, no relief can be afforded where the offender has already expired the sentence, seeJohnson v. Dir., Nev. Dep't of Prisons, 105 Nev. 314, 316, 774 P.2d 1047, 1049 (1989) (), or appeared before the parole board on the sentence, seeNiergarth v. Warden, 105 Nev. 26, 29, 768 P.2d 882, 883-84 (1989) ().
Williams, 402 P.3d at 1265 n.7.
On September 20, 2016, after the decision in Vonseydewitz and before the decision in Williams, Orr filed a post-conviction habeas corpus petition in the state district court. Ex. 198, ECF No. 38-3. On December 19, 2016, the state district court entered an order dismissing the petition. Ex. 203, ECF No. 38-8. The state district court dismissed the petition as moot because Orr had already appeared before the parole board and his sentence in 99C158563-1 had expired on November 9, 2016. Ex. 203 (ECF No. 38-8). Orr appealed. In his informal brief, he argued that the state district court misconstrued his petition. He argued that he was not challenging the computation of time, but claiming that the prosecution had breached the guilty plea agreement because the prosecutor had made a verbal promise at the entry of his plea that credits would apply toward his minimum terms. Ex. 224, ECF No. 39-16, at 5.7 The Nevada Court of Appeals held that if Orr was right, then his petition was barred as untimely under Nev. Rev. Stat. § 34.726(1), and as successive under Nev. Rev. Stat. § 34.810. Ex. 229, ECF No. 40-4.
Orr then filed a petition for writ habeas corpus with this Court on March 13, 2018. ECF No. 3. Orr amended the petition on July 5, 2018. ECF No. 6. In the amended petition, Orr asserts the following grounds: 1) breach of contract clause in Article 1, Section 10 of the Constitution, violations of Article 1, § 15 of the Nevada Constitution, and violations of the Fourteenth Amendment by virtue of retroactive application of NRS 209.4465(7)(b); 2) violations of the Fifth, Sixth and Fourteenth Amendments by virtue of retroactive application of NRS 209.4465(7)(b); 3)violations of the Fourteenth Amendment right to equal protection due to retroactive application of NRS 209.4465(7)(b); 4) violation of the Fourteenth Amendment right to due process-liberty interest, and 5) violation of the Eighth Amendment right to be free from cruel and unusual punishment. Id. Respo...
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