Gibbs v. LeGrand et al

Filing 68

ORDER. Attorney General for the State of Nevada answer due 4/28/2016; Robert LeGrand answer due 4/28/2016. Signed by Judge Kent J. Dawson on 3/14/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GEORGE W. GIBBS,
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Petitioner,

Case No. 2:11-cv-00750-KJD-CWH

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vs.

ORDER

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ROBERT LeGRAND, et al.,
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Respondents.
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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a
Nevada state prisoner represented by counsel.
By order filed July 23, 2012, this Court granted respondents’ motion and dismissed this

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action with prejudice as untimely. (ECF No. 47). Judgment was entered on July 24, 2012. (ECF

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No. 48). Petitioner appealed. (ECF No. 49). On September 17, 2014, the United States Court of

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Appeals for the Ninth Circuit filed a memorandum opinion reversing this Court’s dismissal of the

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action. (ECF No. 57). The Court of Appeals reversed this Court’s order dismissing the petition as

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untimely, and remanded for consideration of the petition on the merits. (Id.). By order filed April

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10, 2015, this Court directed respondents to file an answer addressing the merit of each ground of

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the amended petition. (ECF No. 63).

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Respondents have filed a motion seeking a ruling on the Fourth Amendment claim in

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Ground 1 of the amended petition. (ECF No. 65). Petitioner has filed no opposition to respondents’

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motion. Ground 1 of the first amended petition alleges that petitioner’s Fourth Amendment rights

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were violated by a warrantless search and seizure of items found during a search of petitioner’s

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residence. (ECF No. 28, at pp. 10-12). Respondents assert that Ground 1 of the amended petition is

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barred by the decision in Stone v. Powell, 428 U.S. 465 (1976).

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Where a state has provided a defendant with a full and fair opportunity to litigate a Fourth

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Amendment claim, “a state prisoner may not be granted federal habeas corpus relief on the ground

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that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v.

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Powell, 428 U.S. 465, 495 (1976); see also Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986). The

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Supreme Court has determined that excluding Fourth Amendment claims from habeas corpus

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review created no danger that the courts would deny a safeguard against compelling an innocent

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man to suffer an unconstitutional loss of liberty because a convicted defendant seeking review of a

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Fourth Amendment claim on collateral review is “usually asking society to redetermine an issue that

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has no bearing on the basic justice of his incarceration.” Kuhlmann, 477 U.S. at 447.

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Ground 1 of the first amended petition alleges that petitioner’s Fourth Amendment rights

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were violated by a warrantless search and seizure of items found during a search of petitioner’s

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residence. (ECF No. 28, at pp. 10-12). It is clear from the record that petitioner was given a full

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and fair opportunity to litigate his Fourth Amendment claim before the state courts. See Terrovona

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v. Kinchloe, 912 F.2d 1176 (9th Cir. 1990); Abell v. Raines, 640 F.2d 1085 (9th Cir. 1981).

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Specifically, petitioner filed two motions to suppress the evidence found during the search of his

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residence in which he alleged violation of his Fourth Amendment search and seizure rights.

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(Exhibits 11 & 16). Petitioner’s motions to suppress evidence were denied by the state district

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court. (Exhibits 15 & 19). Petitioner also raised the Fourth Amendment claim in his opening brief

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on direct appeal to the Nevada Supreme Court. (Exhibit 30). The Nevada Supreme Court

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considered and rejected petitioner’s Fourth Amendment claim. (Exhibit 34). The Fourth

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Amendment claim raised in Ground 1 of the federal habeas petition was exhaustively litigated in the

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state courts below. Because petitioner had the opportunity to fully and fairly litigate the Fourth

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Amendment claim that he now presents in Ground 1 of his first amended petition, this Court is

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precluded from reviewing that claim and it will be dismissed.

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IT IS THEREFORE ORDERED that Ground 1 of the amended petition, alleging violation

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of petitioner’s Fourth Amendment search and seizure rights, is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that respondents SHALL FILE AND SERVE AN

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ANSWER to Grounds 2, 3, and 4 of the amended petition within forty-five (45) days from the date

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of entry of this order. The answer shall include substantive arguments on the merits as to Grounds

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2, 3, and 4 of the amended petition. In filing the answer, respondents shall comply with the

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requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts

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under 28 U.S.C. §2254 regarding providing relevant transcripts and the state court record. To the

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extent that respondents may seek to raise procedural defenses to any grounds of the amended

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petition, such arguments shall be included in the answer. No further motions to dismiss will be

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entertained in this case.

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IT IS FURTHER ORDERED that petitioner SHALL FILE AND SERVE A REPLY to
the answer, within forty-five (45) days after being served with the answer.
IT IS FURTHER ORDERED that the parties SHALL PROVIDE courtesy copies of all

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exhibits previously filed with the Court in this action, even if courtesy copies of such exhibits were

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previously provided to the Court. The hard copy of all exhibits shall be forwarded, for this case, to

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the staff attorneys in Reno, Nevada and shall be submitted not later than when the answer and reply

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are filed.

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IT IS FURTHER ORDERED that any further exhibits filed by the parties shall be filed

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with a separate index of exhibits identifying the exhibits by number or letter. The CM/ECF

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attachments that are filed shall be identified by the number or numbers (or letter or letters) of the

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exhibits in the attachment. The hard copy of all exhibits shall be forwarded, for this case, to the

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staff attorneys in Reno, Nevada.

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Dated this ______ day of March, 2016.
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UNITED STATES DISTRICT JUDGE

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