Ahud Chaziza v. Stammerjohn

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2021
• Docket: 19-17506
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AHUD CHAZIZA, No. 19-17506

Plaintiff-Appellant, D.C. No. 3:17-cv-00247-MMD-WGC v.

STAMMERJOHN, Caseworker; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted May 3, 2021 Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,** District Judge.

Ahud Chaziza appeals the district court’s grant of summary judgment

dismissing his claim under 42 U.S.C. § 1983. Chaziza alleges that defendants

violated his rights under the Fourteenth Amendment’s Due Process Clause when

they improperly calculated his parole eligibility date in Nevada. The district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. held that Chaziza possessed no constitutionally protected liberty interest in parole

eligibility. We review de novo a district court’s grant of summary judgment. Moser

v. Las Vegas Metro Police Dep’t, 984 F.3d 900, 904 (9th Cir. 2021). We affirm.

A Nevada prisoner “may be paroled when the prisoner has served the

minimum term or minimum aggregate term of imprisonment imposed by the

court.” Nev. Rev. Stat. § 213.120(2). “When a prisoner becomes eligible for

parole . . . the Board shall consider and may authorize the release of the prisoner on

parole as provided in this chapter.” Nev. Rev. Stat. § 213.140(1). “No person,”

however, “has a right to parole,” nor does parole “create any such right or interest

in liberty or property.” Nev. Rev. Stat. § 213.10705.

Nevada awards prisoners 20 days of good-time credit for each month a

prisoner commits “no serious infractions” and “performs in a faithful, orderly and

peaceable manner the duties assigned to the offender.” Nev. Rev. Stat.

§ 209.4465(1). Good-time credits are “deducted from the maximum term or the

maximum aggregate term imposed by the sentence,” id. § 209.4465(7)(a), and

“[a]pply to eligibility for parole unless the offender was sentenced pursuant to a

statute which specifies a minimum sentence that must be served before a person

becomes eligible for parole.” Id. § 209.4465(7)(b).

In 2015, the Nevada Supreme Court explained in an unpublished opinion

that, when calculating the parole eligibility date of a prisoner sentenced to a

2 “minimum-maximum” sentence, the Nevada Department of Corrections (NDOC)

must deduct the prisoner’s good-time credits from his minimum sentence.

Vonseydewitz v. LeGrand, 131 Nev. 1360, at *2 (2015). In 2017, the Nevada

Supreme Court reiterated this holding in a published decision. Williams v. State

Dep’t of Corr., 133 Nev. 594, 595 (2017).

In 2009, Chaziza pleaded guilty to first degree kidnapping and robbery. A

state trial court sentenced Chaziza to a “minimum-maximum” term of

imprisonment for 60 to 80 months for each offense, to be served consecutively.

Chaziza completed his first sentence in April 2014 and immediately began serving

his second sentence. In April 2016, Chaziza asked defendants, based on

Vonseydewitz, to deduct Chaziza’s good-time credits from his minimum sentence

for count two when calculating his parole eligibility date. Defendants denied

Chaziza’s request, noting that Vonseydewitz was an unpublished decision. Chaziza

made the same request in a state habeas petition, which a state trial court denied.

After the Nevada Supreme Court’s published decision in Williams, the state

trial court reconsidered Chaziza’s petition and ruled that the NDOC must deduct

Chaziza’s good-time credits from his minimum sentence to determine his parole

eligibility date. In March 2018, the NDOC adjusted Chaziza’s sentence, resulting

in a parole eligibility date in February 2016, rather than April 2019. The parole

board held a hearing for Chaziza in May 2018 but denied Chaziza parole.

3 Chaziza argues that the district court erred in finding that he failed to

establish a Fourteenth Amendment violation. The Fourteenth Amendment prohibits

states from depriving “any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. A state violates the Fourteenth Amendment

when it deprives a person “of a constitutionally protected liberty or property

interest” without affording “adequate procedural protections.” McQuillion v.

Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (quoting Brewster v. Bd. of Educ. of

Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)).

“[A] liberty interest may arise from the Due Process Clause or be created by

state law . . . .” Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Whether due

process protections exist for a plaintiff’s claimed interest depends on the “nature of

the interest at stake,” specifically, whether a person has “a legitimate claim of

entitlement to the interest,” rather than “an abstract need or desire for” or

“unilateral expectation” of the interest. Bd. of Regents v. Roth, 408 U.S. 564, 570-

71, 577 (1972); accord. Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974).

“The Constitution does not, itself, guarantee a liberty interest in parole.”

Miller v. Or. Bd. of Parole & Post-Prison Supervision, 642 F.3d 711, 714 (9th

Cir. 2011); see also Swarthout v. Cooke, 562 U.S 216, 220 (2011). State law,

however, may establish a liberty interest in parole when the state statutes or

regulations create an “expectation of parole.” See, e.g., Bd. of Pardons v. Allen,

4 482 U.S. 369, 373 (1987); Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

442 U.S. 1, 12, (1979); Miller, 642 F.3d at 714.

Because Nevada has explicitly disclaimed a liberty interest in parole, see

Moor v. Palmer, 603 F.3d 658, 660-62 (9th Cir. 2010) (“Nevada law does not

create a liberty interest in parole . . . .”); see also Nev. Rev. Stat. § 213.10705,

Chaziza argues that he possesses a liberty interest in parole eligibility. Supreme

Court precedent, however, precludes Chaziza’s argument. “Process is not an end in

itself.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). If the substantive interest a

person seeks to vindicate (here, parole) is left to the state’s unfettered discretion,

state statutes creating formal procedures (here, parole eligibility) surrounding that

unfettered discretion do not create a liberty interest. Id.; see also Dist. Att’y’s

Office v. Osborne, 557 U.S. 52, 67-68 (holding that a prisoner lacked a liberty

interest in “procedures available to vindicate an interest in state clemency” because

clemency is discretionary).

A “state-created right can, in some circumstances, beget yet other rights to

procedures essential to the realization of the parent right.” Conn. Bd. of Pardons v.

Dumschat, 452 U.S. 458, 463 (1981). Even then, however, “the underlying right

must have come into existence before it can trigger due process protection.” Id.

5 Here, Chaziza possesses no constitutionally protected liberty interest in parole

eligibility in Nevada.1

AFFIRMED.

1 We also grant Chaziza’s Motion for Judicial Notice (Dkt. 31).