ORDER

LARRY R. HICKS, District Judge.

This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss. (ECF No. 93.)

Background

Petitioner Peter Munoz challenges his 2006 Nevada state conviction, pursuant to an Alford plea, of attempted lewdness with a child under the age of 14 and a special sentence of lifetime supervision imposed by the judgment of conviction.

Ground 1 of the first amended petition raised a number of issues regarding the special sentence of lifetime supervision. (ECF No. 69, at 8-12.) On respondents' first motion to dismiss, the Court held that Ground 1 of the first amended petition (a) was ripe for decision because the conditions of lifetime supervision had been set following Munoz' release from physical custody and (b) was not subject to dismissal for lack of exhaustion due to an absence of then-available state corrective process. (ECF No. 81, at 1-3.) The Court directed further briefing, on a second motion to dismiss, on the issue of whether the claims in Ground 1 challenged only the conditions of rather than the fact of confinement — i.e., challenged only certain conditions of the sentence of lifetime supervision and not the sentence itself — and thus were cognizable instead only under 42 U.S.C. § 1983. (Id., at 4-5.)

In the briefing on the second motion to dismiss, Munoz conceded that some of the claims in Ground 1 challenged only lifetime supervision conditions and therefore were not cognizable; but he maintained that other claims therein challenged the validity of lifetime supervision itself. The Court, in turn, agreed with respondents that Ground 1 consisted of a vague assortment of claims of different constitutional violations. The Court granted the motion to dismiss in part and gave Munoz an opportunity to file an amended petition "that abandons the claims for relief that are not available under habeas corpus and that enumerates each claim for relief that does remain." (ECF No. 86.)

In the second amended petition, Munoz presents an amended Ground 1 with four subgrounds. As backdrop to the individual claims, he alleges, inter alia, that: (1) at the time of his plea, sentencing and judgment of conviction in 2006, the then-existing lifetime supervision statute, N.R.S. 213.1243, as amended through 2005 Laws, ch. 507, § 35, did not identify any specific conditions of such lifetime supervision; (2) under N.R.S. 213.290, the conditions of lifetime supervision are not established until just prior to the inmate's release from physical custody, via a proceeding as to which Munoz did not receive either prior notice or an opportunity to be heard; and (3) he thus did not learn what specific conditions were imposed until April 3, 2013, following his release from physical custody. (ECF No. 89, at 10-14.)

In Ground 1(a), Munoz alleges that Nevada's lifetime supervision laws are void for vagueness in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments because the Nevada statutes do not provide fair notice to a defendant such as Munoz of the lifetime supervision conditions that will be imposed until after he has completed his prison sentence, as the statutes did not specify what conditions may be imposed and what lifetime supervision thus meant. He alleges that the failure of the statute to define lifetime supervision renders the sentence of lifetime supervision unconstitutional. (Id., at 14-15.)

In Ground 1(b), Munoz alleges that Nevada's lifetime supervision laws violate constitutional prohibitions against ex post facto laws and impairment of contracts because they retroactively vary the terms contained in plea bargains, including his own. He alleges that "an Ex Post Facto violation occurs where the law at the time of crime contained no definition of lifetime supervision, and seven years after the crime, the State defined lifetime supervision as [containing numerous specific conditions]." He concludes that "[b]ecause Munoz's sentence of lifetime supervision violates the Ex Post Facto clause, it is unconstitutional and Munoz is entitled to immediate release from lifetime supervision." (Id., at 15-16.)

In Ground 1(c), Munoz alleges that the failure to advise him of the potential conditions of his lifetime supervision at the time of his plea renders his plea unknowing and involuntary. He alleges further that "[t]he lifetime supervision conditions operate as a substantial impairment to the preexisting contractual relationship between the state and Munoz as set forth in his plea bargain by imposing new terms not negotiated with drastically increased lifetime supervision conditions in violation of Article I, § 10, of the United States Constitution." (Id., at 16.)

In Ground 1(d), Munoz alleges that: (1) under the recent decision in McNeill v. State, 375 P.3d 1022, 1026 (Nev. 2016), the parole board cannot impose conditions of lifetime supervision that are not specifically enumerated in N.R.S. 213.1243; (2) the State therefore could not lawfully impose any conditions of lifetime supervision on Munoz because no specific conditions were enumerated in N.R.S. 213.1243 at the time of his conviction; (3) this clarification of state law must be applied retroactively to Munoz' case under Fiore v. White, 531 U.S. 225, 228 (2001); and (4) Munoz additionally has a constitutionally protected liberty interest in having Nevada law applied to him in the same manner as it is applied to similarly situated litigants, under Hicks v. Oklahoma, 447 U.S. 343, 347 (1980). He concludes that "[s]ince no conditions of lifetime supervision may be imposed, Munoz is entitled to immediate release from lifetime supervision." (Id., at 16-17.)

In the motion to dismiss, respondents contend that: (1) Ground 1(d) is duplicative of Grounds 1(a) and 1(b); (2) Grounds 1(b) and 1(d) are not cognizable; and (3) Ground 1(d) is not exhausted.

Discussion

Allegedly Duplicative Claims

Respondents contend that Ground 1(d) is duplicative because (1) Ground 1(d) alleges "that because no conditions were enumerated in the statute at the time of [Munoz'] conviction, no conditions may be imposed on him now," while (2) Ground 1(a) "challenges the statute in place at the time of Munoz's conviction" and Ground 1(b) "challenges the application of new conditions on Munoz's lifetime supervision." (ECF No. 93, at 3.) The Court is not persuaded. These three claims all clearly present distinct legal claims arising under different constitutional guarantees. The fact that the distinct legal claims all arise from a common core of operative fact — the imposition of conditions of lifetime supervision despite no conditions being enumerated in the statute at the time of the conviction and/or the time of the offense — does not make the claims duplicative claims when they are based on different legal theories. The Court told Munoz that he needed to specifically enumerate his claims, and he did so. No duplicative legal claims are presented.

Cognizability

Respondents contend that Grounds 1(b) and 1(d) are not cognizable in habeas rather than under § 1983 pursuant to controlling case law including Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc). Respondents contend that these claims "address not the legality of the imposition and validity of lifetime supervision, but the conditions imposed upon Munoz's release on lifetime supervision." They urge that "[e]ven if this Court granted Munoz relief on [the claims], the remedy would not be immediate release from lifetime supervision, but an analysis of the conditions that could be applied to his lifetime supervision under applicable state law." (ECF No. 93, at 5.)

Respondents misread petitioner's current claims and are arguing the merits, not cognizability. Munoz clearly claims that the State can impose no lifetime supervision conditions on him because there were no conditions enumerated in the statute at what he claims is the relevant time. There thus would be no — under petitioner's theory of the case on the claims — possible permissible conditions for the Court to parse from impermissible conditions. Moreover, Munoz also clearly alleges on both claims that the alleged constitutional violations require that he be "released from lifetime supervision," not merely from certain conditions but not others. Indeed, if petitioner's claims ultimately were to prove to have merit, it would be difficult to discern a distinction with a difference between a purportedly valid sentence of lifetime supervision that could impose no conditions and an invalid sentence of lifetime supervision. Whether Munoz will be entitled to the relief requested is a matter to be determined on the merits, but he clearly has alleged claims that are cognizable in habeas. He challenges the sentence itself, not merely certain conditions.

In this same vein, respondents argue in the reply memorandum that Munoz' claims misapply state law because in McNeill the Supreme Court of Nevada applied an amended version of the statute in force after the inmate's underlying term sentence was discharged rather than the version of the statute in force at the time of either the offense or conviction. (ECF No. 97, at 4-5.)

Respondents point to what Munoz instead appears to argue is an incongruity in the McNeill decision. The relevant statute, N.R.S. 213.1243, was amended in 1997, 2005, 2007 and 2009. The statute did not enumerate any conditions of lifetime supervision until the 2007 amendment, which were thereafter expanded further in 2009.1 Both McNeill's and Munoz' offenses and convictions occurred prior to the 2007 amendment, and the conditions of their lifetime supervision sentences were imposed years later — after the 2007 amendment in McNeill's case and the 2009 amendment in Munoz' case.2 In McNeill, the Supreme Court of Nevada held that the only lifetime supervision conditions that could be imposed under Nevada state law were those set forth in the statute. The state high court did not expressly distinguish between the different amended versions over time when it discussed the statute, but it clearly applied the 2009 amended version of the statute.3 If Nevada state law requires that only conditions that are set forth by the legislature in the statute can be imposed on a defendant, then a question potentially arises as to whether, under federal constitutional law, any such conditions can be imposed on a defendant where no conditions were set forth in the statute at the time of his offense and/or conviction. It does not appear from the McNeill opinion that any such federal law issue was expressly addressed in that case. It does appear that such federal law issues are being raised in this case. Respondents again are arguing what in truth are merits issues as cognizability issues.4

Grounds 1(b) and 1(d) therefore present federal law claims that are cognizable in a federal habeas proceeding. The Court notes, however, that Munoz includes allegations in Grounds 1(a) and 1(b) regarding alleged violations of Nevada constitutional law. (See ECF No. 89, at 14, line 12, & 15, lines 20-21.) Such claims are not cognizable in a federal habeas proceeding. See 28 U.S.C. § 2254(a).

Accordingly, Grounds 1(b) and 1(d) present cognizable federal law claims, but the Nevada state constitutional law claims in Grounds 1(a) and 1(b) are not cognizable.5

Exhaustion

Respondents acknowledge the Court's prior holding that the absence of available state corrective process precludes dismissal of the claims challenging the lifetime supervision sentence for lack of exhaustion. (See ECF No. 81, at 2-3.) Respondents urge, however, that because Munoz is challenging "the Parole Board's application of non-enumerated conditions on his lifetime supervision" in Ground 1(d), he has available state remedies via a state court action under § 1983 or a petition for a writ of mandamus or prohibition. (ECF No. 93, at 6.) Again, petitioner is challenging the lifetime supervision sentence itself, not merely certain conditions under the sentence. The Court remains unpersuaded by respondents' exhaustion argument, as nothing alleged specifically in Ground 1(d) leads to a conclusion contrary to that reached previously herein with regard to exhaustion of the other claims.

Ground 1(d) is not subject to dismissal for lack of exhaustion.6

IT THEREFORE IS ORDERED that respondents' motion to dismiss (ECF No. 93) is GRANTED IN PART and DENIED IN PART such that the claims asserted under the Nevada State Constitution in Grounds 1(a) and 1(b) are DISMISSED without prejudice as noncognizable but with all other claims asserted in the second amended petition, including all federal law claims in Grounds 1(a) and 1(b), remaining before the Court.

IT FURTHER IS ORDERED that, within thirty (30) days of entry of this order, respondents shall file an answer to the remaining claims in the second amended petition and that petitioner may file a reply within thirty (30) days of service of the answer.

Given the age of this case, the Court is endeavoring even more so to resolve the matter as promptly as is possible. Any requests for extension of time based upon scheduling conflicts between this case and other cases in this District should be sought in the later-filed case, absent extraordinary circumstances.