FL 

NOV 2 2018 

c.:LERX 

134 Nev., Advance Opinion act( 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

TRACEY W. VICKERS, 

Appellant, 

vs. 

JAMES E. DZURENDA, DIRECTOR, 

NEVADA DEPARTMENT OF 

CORRECTIONS; AND HAROLD 

WICKHAM, WARDEN, WARM 

SPRINGS CORRECTIONAL CENTER, 

Respondents. 

No. 72352-COA 

Pro se appeal from a district court order dismissing a 

postconviction petition for a writ of habeas corpus.' First Judicial District 

Court, Carson City; James E. Wilson, Judge. 

Affirmed. 

Tracey W. Vickers, Lovelock, 

in Pro Se. 

Adam Paul Laxalt, Attorney General, and Heather D. Procter, Senior 

Deputy Attorney General, Carson City, 

for Respondents. 

BEFORE SILVER, C.J., TAO and GIBBONS, JJ. 

'This appeal has been submitted for decision without oral argument. 

NRAP 34(0(3). 

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OPINION 

PER CURIAM: 

In this opinion, we consider whether an offender who is willing 

and able to work but who has not been assigned a job by the Nevada 

Department of Corrections (NDOC) is entitled to labor credits pursuant to 

NRS 209.4465(2). We also consider whether the change in the ability to 

apply credits to minimum sentences brought about by the 2007 

amendments to NRS 209.4465 violated the Equal Protection Clauses of the 

United States and Nevada Constitutions. For the reasons discussed below, 

we answer "no" to both questions. 

FACTS 

In February 2014, appellant Tracey W. Vickers struck his 

victim with a cane. He subsequently pleaded guilty to battery with the use 

of a deadly weapon, a category B felony. See NRS 200.481(2)(e)(1). He was 

sentenced to 48 to 120 months, which was suspended, and he was placed on 

probation for five years. Vickers' probation was revoked the following year. 

The district court imposed the original sentence and credited him with 134 

days for time spent in presentence confinement, but it did not credit him 

with time spent on probation. Vickers admits he has not worked since he 

has been in NDOC's custody. 

ANALYSIS 

Labor credits 

Vickers contends he is entitled to labor credits pursuant to NRS 

209.4465(2) because he is ready and willing to work. He points out NDOC 

does not have enough jobs for all inmates who want to work. Vickers argues 

crediting offenders who want to work, but for whom NDOC does not have a 

job, furthers the legislative intent behind labor credits—promoting early 

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release and incentivizing inmates to remain trouble-free. Accordingly, 

Vickers argues, he is entitled to 10 days per month labor credit for each 

month he is willing and able to work, regardless of whether he actually 

works. Vickers presents a question of statutory interpretation. 

The meaning of a statute is a question of law and is thus 

reviewed de novo. State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 

(2004). A statute's plain meaning informs us of the Legislature's intent, 

and where the language is clear and unambiguous, we must give effect to 

the apparent intent. Hobbs v. State, 127 Nev. 234, 237, 251 P.3d 177, 179 

(2011). 

The plain meaning of NRS 209.4465(2) belies Vickers' 

arguments. NRS 209.4465(2) grants NDOC's Director the discretion to 

"allow not more than 10 days of credit each month for an offender whose 

diligence in labor and study merits such credits." (Emphasis added.) 

"Diligence" is "a persevering application." Merriam-Webster's Collegiate 

Dictionary 350 (11th ed. 2014) (emphasis added). Thus, to be diligent in 

labor one must actually apply oneself to the labor. The legislative intent is 

clear: Where an inmate has not engaged in any labor, he has not been 

diligent in labor, and accordingly, the Director has no discretion under NRS 

209.4465(2) to award labor credits. The Department's administrative 

regulations are in accord with this intent. See NDOC AR 563.01(2)(A) 

(providing for verification to "ensure that inmates who are not assigned to 

work or study do not receive work credits"). Here, Vickers admits he has 

not worked. Therefore, he is not entitled to labor credits. 

Equal protection 

Vickers contends the failure to apply statutory good-time 

credits he earns pursuant to NRS 209.4465(1) to his parole eligibility 

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violates his right to equal protection as guaranteed by the Fourteenth 

Amendment to the United States Constitution and Article 4, Section 21 of 

the Nevada Constitution. Vickers asserts offenders convicted of the same 

category of felony receive disparate treatment under NRS 209.4465 based 

upon the date they committed their offenses. 

At the heart of the Equal Protection Clauses is the idea that all 

people similarly situated are entitled to equal protection of the law. Gaines 

v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000); see Armijo v. State, 

111 Nev. 1303, 1304, 904 P.2d 1028, 1029 (1995) ("[T]he standard of the 

Equal Protection Clause of the Nevada Constitution [is] the same as the 

federal standard . . . ."). Thus, the threshold question is whether a statute 

treats similarly situated people disparately. Rico v. Rodriguez, 121 Nev. 

695, 703, 120 P.3d 812, 817 (2005). 

Between the adoption of NRS 209.4465 in 1997 and the effective 

date of its amendment in 2007, NRS 209.4465(7)(b) provided that credits 

earned pursuant to the statute "[a]ppl[ied] to eligibility for parole unless the 

offender was sentenced pursuant to a statute which specifie[d] a minimum 

sentence that must be served before a person becomes eligible for parole." 

1997 Nev. Stat., ch. 641, § 4(7)(b), at 3175. The Nevada Supreme Court has 

considered whether, for offenders sentenced for crimes committed during 

this time period, "credits earned pursuant to NRS 209.4465 apply to 

eligibility for parole as provided in NRS 209.4465(7)(b) where the offender 

was sentenced pursuant to a statute that requires a minimum term of not 

less than a set number of years but does not mention parole eligibility." 

Williams v. State, 133 Nev. , 402 P.3d 1260, 1261 (2017). It 

concluded they did. Id. 

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In 2007, NRS 209.4465 was amended to provide exceptions for 

how credits earned under the statute were to be applied. NRS 209.4465(8) 

was added, providing that offenders who had not committed felonies 

involving the use or threatened use of force, "[a] sexual offense that is 

punishable as a felony," certain violations of NRS chapter 484C that are 

punishable as a felony, and category A or B felonies would have statutory 

credits applied to their parole eligibility. See 2007 Nev. Stat., ch. 525, § 5, 

at 3177. At the same time, NRS 209.4465(7) was amended to begin, "Except 

as otherwise provided in subsection 8." Id. The exclusions in NRS 

209.4465(8) were thus clearly intended to abrogate any contrary language 

in NRS 209.4465(7). The amendments to NRS 209.4465 became effective 

on July 1, 2007. 2007 Nev. Stat., ch. 525, § 22, at 3196. 

The version of NRS 209.4465 in effect at the time an offender 

committed his or her crime is the one that governs application of credits 

toward parole eligibility. See Weaver v. Graham, 450 U.S. 24, 31-33 (1981); 

Goldsworthy v. Hannifin, 86 Nev. 252, 255, 468 P.2d 350, 352 (1970); cf. 

State v. Second Judicial Din. Court (Pullin), 124 Nev. 564, 567, 188 P.3d 

1079, 1081 (2008) ("[T]he proper penalty is the penalty in effect at the time 

of the commission of the offense. . . ."). For crimes committed after July 17, 

1997, but before July 1, 2007, whether credits apply to an offender's 

minimum sentence depends on the verbiage in the sentencing statute. For 

crimes committed on or after July 1, 2007, the applicability also depends on 

whether the offender's convictions fall within the offenses identified in NRS 

209.4465(8)(a)-(d). Thus, NRS 209.4465 has the potential to apply 

disparately to offenders convicted of similar offenses based on the date the 

offenses were committed. For example, category B felonies typically require 

a minimum term of not less than a set number of years but do not mention 

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parole eligibility. See, e.g., NRS 193.130(2)(b) ("A category B felony is a 

felony for which the minimum term of imprisonment in the state prison that 

may be imposed is not less than 1 year and the maximum term of 

imprisonment that may be imposed is not more than 20 years. . . ."); NRS 

200.481(2)(e)(1) (stating battery with the use of a deadly weapon is 

punishable as "a category B felony by imprisonment in the state prison for 

a minimum term of not less than 2 years and a maximum term of not more 

than 10 years"). Thus, a person who committed battery with the use of a 

deadly weapon on June 30, 2007, could have statutory credits applied to his 

parole eligibility, while a person who committed the same crime on July 1, 

2007, could not. 

However, legislation that has the potential to treat offenders 

disparately does not necessarily run afoul of the Equal Protection Clauses. 

See New Orleans v. Dukes, 427 U.S. 297, 304 n.5 (1976) ("Statutes create 

many classifications which do not deny equal protection; it is only 'invidious 

discrimination' which offends the Constitution." (quotation marks 

omitted)). Indeed, we presume the challenged legislation is constitutional. 

Allen v. State, 100 Nev. 130, 135, 676 P.2d 792, 795 (1984). 

Equal-protection analysis involves a two-part inquiry. This 

court first establishes what level of scrutiny the legislation receives, and 

then it examines the legislation under the appropriate level of scrutiny. 

Gaines, 116 Nev. at 371, 998 P.2d at 173. Legislation that leads to disparate 

treatment but that does not involve a suspect class or impinge upon a 

fundamental right is reviewed under the rational basis standard of review. 

Id. Under this standard, this court will uphold the legislation so long as 

"the challenged classification is rationally related to a legitimate 

governmental interest." Id. 

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The application of statutory credits is subject only to rational 

basis review, see McGinnis v. Royster, 410 U.S. 263, 270 (1973), because 

"inmates are not a suspect class," Peck v. Zipf, 133 Nev. „ 407 P.3d 

775, 782 (2017), and as "there is no fundamental constitutional right to 

parole," Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999), there can be 

no fundamental constitutional right to receive credit to accelerate a parole 

eligibility date, see Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 

442 U.S. 1, 7 (1979) ("There is no constitutional or inherent right of a 

convicted person to be conditionally released before the expiration of a valid 

sentence."). Thus, disparate treatment under NRS 209.4465 will violate the 

Equal Protection Clauses only if the legislation "is so unrelated to the 

achievement of any combination of legitimate purposes that we can only 

conclude that the legislature's actions were irrational." Allen, 100 Nev. at 

136, 676 P.2d at 796 (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)). 

When it comes to sentencing, it seems virtually axiomatic that 

offenders may be punished differently for the same crime committed on 

different dates. As one court aptly observed, "Legislation must, of necessity, 

take effect on some specific date," and thus may "creat[e] two classes of 

offenders distinguishable by only the date of offense, conviction, plea, or 

sentencing." Doe v. Mich. Dep't of State Police, 490 F.3d 491, 504 (6th Cir. 

2007). And the United States Court of Appeals for the Ninth Circuit 

specifically held that "Where is no denial of equal protection in having 

persons sentenced under one system for crimes committed before [a specific 

date] and another class of prisoners sentenced under a different system." 

McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991) (quoting Foster v. 

Wash. State Bd. of Prison Terms et Paroles, 878 F.2d 1233, 1235 (9th Cir. 

1989)); see also Leigh v. United States, 586 F.2d 121, 123 (9th Cir. 1978) 

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(denying an equal-protection claim challenging different laws that were in 

effect depending on when a defendant's case went to trial). Other courts 

have reached a similar conclusion. See, e.g., Doe, 490 F.3d at 504-05; 

Huggins v. Isenbarger, 798 F.2d 203, 206-07 (7th Cir. 1986); Frazier v. 

Manson, 703 F.2d 30, 36 (2d Cir. 1983); State v. Nguyen, 912 P.2d 1380, 

1382-83 (Ariz. Ct. App. 1996); Robinson v. State, 584 A.2d 1203, 1206 (Del. 

1990); Bergee v. S.D. Bd. of Pardons & Paroles, 608 N.W.2d 636, 644 (S.D. 

2000). Discrepancies in the time offenders must serve, even where the 

offenders committed similar crimes, is inescapable whenever a legislature 

increases or reduces sentences. United States v. Speed, 656 F.3d 714, 720 

(7th Cir. 2011). 

The 2007 amendments to NRS 209.4465 refined the paroleeligibility calculation. See Williams, 133 Nev. at n.6, 402 P.3d at 1264 

n.6 (noting the 2007 change "set additional limitations on the application of 

credits to eligibility for parole"). And establishing the time an offender must 

spend in prison is a rational governmental purpose, cf. McQueary, 924 F.2d 

at 834 ("Improvement in sentencing is [a] rational governmental purpose." 

(quotation marks omitted)). The 2007 amendments to NRS 209.4465 were 

thus rationally related to a legitimate governmental interest. Accordingly, 

any disparate treatment resulting from the date a crime was committed 

does not deny offenders equal protection of the law under the United States 

and Nevada Constitutions. 

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CONCLUSION 

The plain language of NRS 209.4465(2) requiring "diligence in 

labor" means an offender must actually work to earn labor credits. And the 

disparate application of statutory credits to parole eligibility based on when 

an offender committed an offense is rationally related to a legitimate 

governmental interest and thus does not offend the Equal Protection 
, C.J. 

Clauses of the United States and Nevada Constitutions. For these reasons, 

we conclude the district court did not err in dismissing Vickers' petition, 

and we affirm. 2 

Silver 

Arab 

Gibbons 

/ -rt'frre' 

Tao 

J. 

2Vickers also claims he was entitled to credit for time served on 

probation. We conclude the district court did not err by denying this claim. 

See 2009 Nev. Stat., ch. 447, § 5, at 2513-14; NRS 176A.635(1); Webster v. 

State, 109 Nev. 1084, 1085, 864 P.2d 294, 295 (1993). 

We have also considered Vickers' claim that he was entitled to the 

appointment of postconviction counsel. We conclude the district court did 

not abuse its discretion in declining to appoint counsel. See NRS 34.750(1) 

(the appointment of counsel is discretionary); Renteria-Novoa v. State, 133 

Nev. „ 391 P.3d 760, 760-61 (2017). 

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