Volpicelli v. Warden of LCC

• Court: District Court, D. Nevada
• Decided: January 21, 2020
• Docket: 3:17-cv-00690
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 FERRILL J. VOLPICELLI, Case No. 3:17-cv-00690-MMD-WGC

7 Petitioner, ORDER v. 8 WARDEN, et al., 9 Respondents. 10 11 I. SUMMARY 12 This habeas matter is before the Court on Petitioner Ferrill J. Volpicelli’s Motion to 13 Reconsider (“Motion”) (ECF No. 40). Respondents have opposed (ECF No. 46), and 14 Petitioner has replied (ECF No. 46). For the reasons discussed below, the Court will deny 15 Petitioner’s Motion. 16 II. BACKGROUND1 17 Petitioner is a Nevada state prisoner currently serving a sentence of life with the 18 possibility of parole arising out of Second Judicial District Court Case No. CR03-1263. 19 Petitioner began serving his current sentence only after discharging several shorter 20 sentences imposed in case numbers CR98-2160, CR02-0147 and CR02-0148. 21 Petitioner initiated this case with a petition for writ of habeas corpus pursuant to 28 22 U.S.C. § 2254. He then filed an amended petition (ECF No. 8), which alleges the Nevada 23 Department of Corrections violated his due process and equal protection rights by: (1) 24 failing to apply 30 meritorious time credits he earned toward his minimum and maximum 25 sentences in CR98-2160; (2) failing to retroactively apply 20 statutory good-time credits to 26

27 1This procedural history is derived from the exhibits located at ECF Nos. 23–24 of the Court’s docket. The prior dismissal order further outlines the relevant background. 28 (ECF No. 38.) 1 his current and past sentences pursuant to the “AB 510” amendments to NRS § 209.4465; 2 and (3) failing to record meritorious and program credits he has earned and is earning. 3 Respondents moved to dismiss the amended petition as untimely, unexhausted, 4 procedurally defaulted, and for failing to state a cognizable habeas claim in part. (ECF 5 No. 22.) The Court dismissed the amended petition on June 20, 2019, for failure to state 6 any claim that is cognizable on federal habeas review. (ECF No. 38 (“dismissal order”).) 7 The Court also denied Petitioner’s motions for appointment of counsel and to proceed in 8 forma pauperis (“IFP”). The dismissal order explained that, because his claims are not 9 core habeas claims, they must be brought, if at all, under 42 U.S.C. § 1983. (Id. at 4–5 10 (citing Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (“[A] § 1983 action is the 11 exclusive vehicle for claims brought by state prisoners that are not within the core of 12 habeas corpus.”) (en banc)).) The Court further stated: 13 While the Court can in some cases convert a habeas petition to a § 1983 complaint, it may do so only if the petition is convertible on its face, meaning 14 it names the correct defendants, asserts the correct claims, and seeks the appropriate relief. Because it is not clear that the petition has named the 15 correct defendant, the Court will not exercise its discretion to convert the petition in this case. 16 17 (Id. at 5.) 18 Petitioner now moves this Court to reconsider the dismissal order because, he 19 argues, it is premature to conclude that this action cannot be converted to a § 1983 claim. 20 (ECF No. 40.) He contends that an amendment can easily correct the “minor deficiency” 21 of naming the wrong defendant. 22 Respondents oppose the motion, asserting that the Court reached the right result 23 in dismissing Petitioner’s Petition. (ECF No. 43.) Respondents contend that Petitioner fails 24 to identify, let alone satisfy, the legal standard for reconsideration. (Id. at 2.) Furthermore, 25 if the Court is inclined to reconsider the dismissal order, they urge the Court to reach the 26 arguments initially set forth in their motion to dismiss.2 Respondents argue that Petitioner 27 2In the dismissal order, the Court expressly declined to reach any of Respondents’ 28 arguments from their motion to dismiss other than cognizability. 1 cannot bring any cognizable claim regarding time-credits for his expired sentences in case 2 numbers CR98-2160, CR02-0147, and CR02-0148—either in habeas or § 1983— 3 because the expiration of a term of imprisonment moots any error in the calculation of a 4 sentence.3 Respondents further argue that time-credits do not apply to Petitioner’s current 5 sentence in Case No. CR03-1263 because Petitioner is serving an indeterminate life- 6 sentence. (Id. at 3–4 (citing Williams, 402 P.3d at 1262-64.) Thus, they maintain that 7 Petitioner’s claims are facially deficient whether they are brought in a habeas petition or 8 civil rights complaint. 9 Petitioner replies that he has met the standard for reconsideration and urges the 10 Court to convert his habeas petition to a civil rights action. (ECF No. 46.) He claims “there 11 is manifest injustice from the legal error” of the dismissal order and dismissal without leave 12 to amend was improper at this early stage of the proceeding. (Id. at 4.) Additionally, he 13 asserts that dismissal will prejudice him because he may be procedurally barred from 14 commencing a new § 1983 action. (Id.) 15 III. DISCUSSION 16 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or 17 amend a judgment must be filed no later than 28 days after the entry of the judgment.” 18 Fed. R. Civ. P. 59(e). A post-judgment motion for reconsideration in a habeas proceeding, 19 filed within 28 days of entry of the judgment, is properly construed as a motion to alter or 20 amend the judgment under Rule 59(e). Rishor v. Ferguson, 822 F.3d 482, 489–90 (9th 21 Cir. 2016) (citation omitted). 22 /// 23 /// 24 3See Williams v. State Dep’t. of Corr., 402 P.3d 1260, 1265 n.7 (Nev. 2017) 25 (“Because the application of credits under NRS [§] 209.4465(7)(b) only serves to make an 26 offender eligible for parole earlier, no relief can be afforded where the offender has already expired the sentence . . . or appeared before the parole board on the sentence.”) (citing 27 to Johnson v. Dir., Nev. Dep’t of Prisons, 774 P.2d 1047, 1049 (1989) (providing that “any question as to the method of computing” a sentence is rendered moot when the sentence 28 is expired). 1 Here, Petitioner filed his Motion on July 11, 2019. Because it was filed 21 days after 2 entry of the judgment on June 20, 2019, the Court treats the request as a motion to alter 3 or amend judgment under Rule 59(e). 4 As the Ninth Circuit has recognized, “a Rule 59(e) motion is an ‘extraordinary 5 remedy, to be used sparingly in the interests of finality and conservation of judicial 6 resources.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). Absent 7 highly unusual circumstances, reconsideration under Rule 59(e) is “available only when 8 (1) the court committed manifest errors of law or fact, (2) the court is presented with newly 9 discovered or previously unavailable evidence, (3) the decision was manifestly unjust, or 10 (4) there is an intervening change in the controlling law.” Rishor, 822 F.3d at 491-92 11 (citation omitted).4 12 The Court’s dismissal order is not clearly erroneous or manifestly unjust. Petitioner 13 concedes that his claims are not cognizable on habeas review. In Nettles, the Ninth Circuit 14 held that “a district court may construe a petition for habeas corpus to plead a cause of 15 action under § 1983.” 830 F.3d at 935-36 (emphasis added). Nettles does not require this 16 Court to recharacterize the Petition as a § 1983 complaint or to provide him an opportunity 17 to amend so he can attempt to state colorable § 1983 claims. In fact, because such 18 recharacterization may disadvantage the petitioner, Nettles specifically cautioned district 19 courts against doing so without the petitioner’s express consent. Id. 20 Petitioner is advised that there are several significant differences between a habeas 21 matter and a civil rights action. For example, the filing fee for a habeas petition is $5.00, 22 and that fee is waived if the prisoner receives permission to proceed IFP. For civil rights 23 cases, however, the prisoner is required to pay a $350.00 filing fee pursuant to the 24

25 4Rishor instructs that a district court presented with a Rule 59(e) motion for reconsideration must first determine whether the motion should be construed as a second 26 or successive petition. 822 F.3d at 492. Because Petitioner’s motion seeks to leave to convert this habeas proceeding to a civil rights action under 42 U.S.C. § 1983, it does not 27 raise new habeas claims and the Court concludes that the motion is not a second or 28 successive petition and proceeds to consider the merits of the motion. 1 Prisoner Litigation Reform Act by way of monthly payments from the prisoner’s trust 2 account —even if a court grants IFP status.5 28 U.S.C. § 1915(b)(1). A prisoner who might 3 be willing to file a habeas petition when he would not be required to pay a filing fee might 4 feel differently about a civil rights complaint for which $350 would be deducted from his 5 account in monthly payments. He is obligated to pay the full $350, even if the Court 6 dismisses the civil rights complaint, and payments will continue until the balance is paid in 7 full. See Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1051–52 (9th Cir. 2016). 8 Also, a civil rights complaint that is dismissed as malicious, frivolous, or for failure to state 9 a claim will count as a “strike” under 28 U.S.C. § 1915(g), which is not the same for habeas 10 cases. Based on the marked differences between habeas and civil rights cases, rather 11 than construe a petition as a civil rights action, courts routinely dismiss without prejudice 12 so that a petitioner may assert § 1983 claims in a new case, if he chooses. 13 Petitioner raises an argument the first time in his reply brief, asserting that he will 14 be prejudiced by the Court’s failure to recharacterize his Petition as a § 1983 complaint 15 because he may be “procedurally barred” from bringing his § 1983 claims in a new action. 16 “Normally, a party should not raise new grounds for his motion in his reply.” Gordon v. 17 Higgs, 716 F. Supp. 1351, 1353 (D. Nev. 1989). This improperly deprives the opposing 18 party from an opportunity to respond. “The district court need not consider arguments 19 raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 20 2007) (holding that district court did not commit clear error in declining to address 21 argument raised for the first time in a reply brief on Rule 59(e) motion). Petitioner’s vague 22 and conclusory allegation of a procedural bar is unavailing. He fails to specify what 23 procedural bar could potentially impede a new action, and the Court will not speculate. 24 In sum, Petitioner has not stated a meritorious reason to reconsider the dismissal 25 order and alter the judgment. Should Petitioner still desire to bring § 1983 claims related 26 5The Court’s standard filing fee in all civil actions is $400, which consists of a $350 27 base fee and a $50 administrative fee. Pursuant to § 1915, the $50 administrative fee does not apply to prisoners granted IFP status. Thus, IFP prisoners are only required to pay the 28 $350 base fee. 1 || to his time-credits, he must initiate a new action with a civil rights complaint and a new 2 || application. However, this Court makes no finding or representation that his § 1983 claims 3 || are not subject to dismissal for failure to state a colorable claim under Rule 12(b)(6) of the 4 || Federal Rules of Civil Procedure or any other procedural defects. 5 || IV. CONCLUSION 6 Based on the foregoing reasons, it is therefore ordered that Petitioner Ferrill J. 7 || Volpicelli’s Motion to Reconsider (ECF No. 40) is denied. 8 DATED THIS 21* day of January 2020. 9 / Cla 10 MIRANDA M. DU 4 CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28