Green v. LeGrand et al

Filing 56

ORDER. IT IS THEREFORE ORDERED that 14 respondents' motion to dismiss is GRANTED, as follows: 1) To the extent that any part of the federal petition can be read as alleging a substantive Fourth Amendment violation, those allegations are DISMISSED WITH PREJUDICE. 2) Grounds 19 & 20 of the federal petition are DISMISSED WITHOUT PREJUDICE for failing to state a cognizable federal habeas claim. 3) Grounds 1-20 of the federal petition are unexhausted, in part or whole, as specified in t his order. IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either: (1) inform this Court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this Court in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust his unexhausted claims; OR (3) file a motion for a stay an d abeyance, asking this Court to hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief, respondents may respond to such motion as provided in Local Rule 7-2. See Order for further details. Signed by Judge Andrew P. Gordon on 2/13/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DUSHON N. GREEN,
Petitioner,
vs.

Case No. 2:14-cv-01388-APG-NJK
ORDER

ROBERT LeGRAND, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

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by a Nevada state prisoner. Before the Court is respondents’ motion to dismiss certain grounds of

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the petition. (ECF No. 14).

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I. Background

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Pursuant to a jury verdict, petitioner was convicted of multiple counts of sexual assault and

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lewdness against seven different victims, two of whom were minors at the time of the incidents.

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Petitioner was found guilty of eleven counts of sexual assault, two counts of lewdness with a minor

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under the age of fourteen, and four counts of sexual assault with the use of a deadly weapon.

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(Exhibits 166, 167, 212).1 Petitioner was sentenced to multiple terms of life in prison. (Id.).

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The exhibits referenced in this order are found in the Court’s record at ECF Nos. 15-26.

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Petitioner appealed and raised three issues on direct appeal. (Exhibits 172 & 205).

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Petitioner challenged the state district court’s denial of a motion to suppress DNA evidence and

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latent fingerprint evidence that led to his arrest. (Exhibit 205, at pp. 5-14). Petitioner also argued

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that the state district court abused its discretion by consolidating all the charges into a single trial.

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(Id., at pp. 14-19). Petitioner also alleged a claim of cumulative error. (Id., at p. 19).

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The Nevada Supreme Court affirmed petitioner’s conviction. (Exhibit 212). The Nevada

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Supreme Court found that the state district court did not err in denying the motion to suppress

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because, although the State did not have a basis for collecting petitioner’s DNA specimen at the

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time, the collection of the sample was not done for investigative purposes with respect to the case.

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(Id., at pp. 3-7). The Nevada Supreme Court found that the good faith exception to the exclusionary

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rule applied and did not require suppression of the DNA evidence and the latent fingerprint

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evidence. (Id., at pp. 3-7). Next, although the Nevada Supreme Court found that the state district

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court abused its discretion by consolidating all the charges into a single trial, it found that error to

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be harmless because of the overwhelming evidence of petitioner’s guilt demonstrated it was likely

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that petitioner would have been convicted on all counts even if his trial was severed. (Id., at pp. 7-

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10). The Nevada Supreme Court denied relief on the cumulative error claim. (Id., at pp. 10-11).

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Petitioner then filed a post-conviction habeas petition in state district court and sought the

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appointment of counsel. (Exhibits 214, 215, 218, 219). The state district court granted the motion

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for appointment of counsel and petitioner’s counsel supplemented the petition with various claims

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of ineffective assistance of counsel. (Exhibits 246 & 258). An evidentiary hearing was held on

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petitioner’s post-conviction habeas claims. (Exhibit 260). After the evidentiary hearing, the state

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district court denied the petition. (Exhibit 262). Petitioner appealed. (Exhibits 267 & 268). On

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appeal, petitioner raised the following issues: (1) counsel was ineffective for failing to further

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investigate allegations of coercion between Las Vegas Metropolitan Police Department (LVMPD)

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and the Department of Parole and Probation (DPP) with respect to the collection of petitioner’s

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DNA and that counsel was ineffective for failing to stipulate to the fact that DPP did not act in “bad

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faith” when collecting a buccal swab from petitioner without lawful authority to do so (Exhibit 292,
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at pp. 24-27; (2) counsel was ineffective for failing to call various unidentified witnesses at trial in

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support of a theory that LVMPD framed petitioner as the perpetrator of a series of unsolved rapes

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(Exhibit 292, at pp. 27-29); and (3) cumulative error denied petitioner the right to effective

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assistance of counsel (Exhibit 292, at p. 29).

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The Nevada Supreme Court denied relief on the appeal of petitioner’s post-judgment habeas

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petition. (Exhibit 299). The Court found that petitioner failed to establish that counsel’s

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performance was objectively unreasonable and that he suffered actual prejudice regarding the

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related Fourth Amendment issue because counsel merely stipulated to the fact that he could not find

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evidence of collusion between LVMPD and DPP, and petitioner failed to produce any reliable

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evidence to the contrary. (Id., at pp. 2-3). Second, the Court found that petitioner failed to show

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counsel’s performance was objectively unreasonable regarding the decision not to call witnesses in

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support of a theory that petitioner was being framed, rather than attempting to attack other

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weaknesses in the State’s case, because that decision was a reasonable strategy decided upon after

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thorough investigation of the case. (Id., at pp. 3-5). Finally, the Court rejected the cumulative error

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claim. (Id., at p. 5). Specifically, the Court refused to consider any claims that petitioner did not

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expressly articulate in his appellate briefs and that the two claims presented in petitioner’s briefing

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did not articulate any errors that could be cumulated. (Id.).

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Petitioner has filed a pro se federal habeas petition in the instant case that alleges twenty

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grounds for relief. (ECF No. 8). Respondents seek dismissal of certain grounds in the federal

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petition. (ECF No. 14). Petitioner has filed an opposition to the motion to dismiss. (ECF No. 39).

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Respondents have filed a reply. (ECF No. 46). By order filed October 6, 2016, the Court granted

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petitioner’s motion to file a surreply. (ECF No. 52). The Court granted petitioner 21 days in which

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to file his surreply and granted respondents 14 days thereafter to file a surrebuttal. (ECF No. 52).

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Petitioner did not file a surreply. As such, the Court deems the motion to dismiss as fully briefed.

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II. Discussion

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A. Fourth Amendment Claims

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Respondents seek to dismiss any part of the petition that can be construed as a claim

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alleging a substantive Fourth Amendment violation. Where a state has provided a defendant with a
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full and fair opportunity to litigate a Fourth Amendment claim, “a state prisoner may not be granted

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federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or

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seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 495 (1976); see also Kuhlmann

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v. Wilson, 477 U.S. 436, 446-47 (1986). The Supreme Court has determined that excluding Fourth

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Amendment claims from habeas corpus review created no danger that the courts would deny a

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safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty because a

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convicted defendant seeking review of a Fourth Amendment claim on collateral review is “usually

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asking society to redetermine an issue that has no bearing on the basic justice of his incarceration.”

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Kuhlmann, 477 U.S. at 447.

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Nevada law provides a mechanism for filing a pretrial motion to suppress evidence seized in

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violation of the Fourth Amendment. See NRS 179.085. Petitioner filed a motion to suppress

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evidence obtained through the collection of his DNA and fingerprints, which he alleged violated his

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Fourth Amendment rights. (Exhibit 23). After the state district court denied the motion to

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suppress, petitioner pursued appellate relief on this issue, which the Nevada Supreme Court denied.

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(Exhibits 27, 205, 212). It is clear from the record that petitioner was given a full and fair

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opportunity to litigate his Fourth Amendment claims before the state courts. To the extent that any

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part of the federal petition can be read as alleging a substantive Fourth Amendment violation, those

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allegations are precluded from review by this Court and are therefore dismissed. See Stone v.

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Powell, 428 U.S. at 495; Terrovona v. Kinchloe, 912 F.2d 1176 (9th Cir. 1990); Abell v. Raines, 640

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F.2d 1085 (9th Cir. 1981).

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B. Grounds 19 & 20

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Respondents seek to dismiss Grounds 19 and 20 on the basis that they are conclusory and do

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not state claims for relief. A state prisoner is entitled to federal habeas relief only if he is being held

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in custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. §

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2254(a). Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a federal habeas

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petition must specify all grounds for relief and “state the facts supporting each ground.” Rule 2(c)

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requires specific pleading of facts that, if proven to be true, would entitle the petitioner to federal

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habeas relief. Claims based on conclusory allegations are not a sufficient basis for federal habeas
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relief. See Mayle v. Felix, 545 U.S. 644, 655-56 (2005) (acknowledging that notice pleading is

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insufficient to satisfy the specific pleading requirement for federal habeas petitions).

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Prisoner pro se pleadings are understandably given the benefit of liberal construction.

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a federal court is not required to

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construct legal arguments for a pro se petitioner. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.

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1993). A habeas corpus petition must state specific, particularized facts entitling the petitioner to

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relief for each ground specified, with the factual portions of the petitioner sufficiently detailed to

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enable the district court to determine, from the face of the petition, whether the petition merits

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further review. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). A petition may be

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summarily dismissed if the allegations in it are “vague, conclusory, palpably incredible, patently

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frivolous or false.” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990); see also Blackledge v.

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Allison, 431 U.S. 63, 74 (1977) (“The subsequent presentation of conclusory allegations

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unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the

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record are wholly incredible.”).

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In Grounds 19 and 20 of the federal petition, petitioner incorporates by reference the claims

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his appointed attorney made in the supplemental petitions that were filed in state court. (ECF No.

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8, at pp. 39, 41). Respondents argue that because petitioner did not attach the supplemental

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petitions to his federal petition, Grounds 19 and 20 should be dismissed for failing to specifically

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plead a federal claim for relief. It is permissible for pro se petitioners to incorporate claims by

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reference when the petition includes specific references to a document that is attached to the federal

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petition. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curium) (applying Fed. R. Civ. P. 10(c) in habeas

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proceeding). However, there is no authority permitting a federal habeas petitioner to incorporate

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claims from documents not attached to the petition. In this case, petitioner did not attach the

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supplemental state petitions to his federal petition. (ECF No. 8). Petitioner’s failure to attach the

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supplemental state petitions to his federal petition means that petitioner failed to present the Court

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with facts that, if proven to be true, would establish that petitioner is entitled to relief on those

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grounds. Thus, Grounds 19 and 20 are conclusory and must be dismissed without prejudice.

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C. Unexhausted Claims

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1. Grounds 1-18

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Respondents contend that the claims of ineffective assistance of appellate counsel in

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Grounds 1-18 of the federal petition are not exhausted. Under 28 U.S.C. § 2254(b)(1)(A), a habeas

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petitioner first must exhaust state court remedies on a claim before presenting that claim to the

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federal courts. To satisfy the exhaustion requirement, the claim must have been fairly presented to

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the state courts completely through to the highest court available, in this case, the Nevada Supreme

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Court. See, e.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Yang v.

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Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the

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specific federal constitutional guarantee and must also state the facts that entitle the petitioner to

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relief on the federal constitutional claim. Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000).

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Fair presentation requires that the petitioner present the state courts with both the operative facts

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and the federal legal theory upon which the claim is based. See, e.g. Castillo v. McFadden, 399

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F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement ensures that the state courts, as a matter

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of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of

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federal constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 731 (1991).

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In Grounds 1 through 18, petitioner incorporates claims that his trial counsel were

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ineffective in a variety of ways, as set forth in the habeas petition that was filed in state court. (ECF

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No. 8, at pp. 3-37; Exhibit 214). Additionally, in Grounds 1 through 18 of the federal petition,

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petitioner alleges that his appellate attorney was ineffective on direct appeal for failing to raise the

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claim incorporated into those grounds for relief during petitioner’s direct appeal. (ECF No. 8, at pp.

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3-37). Respondents argue that petitioner did not present the Nevada Supreme Court with any

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claims that his counsel on direct appeal was ineffective. The record indicates that, in the opening

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brief on appeal from the denial of his state habeas petition, petitioner did not include any arguments

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that his counsel on direct appeal was ineffective. (Exhibit 292, at pp. 24-29). At the end of

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petitioner’s “Statement of Relevant Facts” in the opening brief, petitioner alleges that his appellate

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attorney, Martin Hart, “failed to cite authority for the proposition that an evidentiary hearing should

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have been ordered” with respect to the claim that the state district court improperly denied his
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motion to suppress DNA and latent fingerprint evidence. (Exhibit 292, at pp. 23-24). In a footnote

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in its order of affirmance, the Nevada Supreme Court addressed petitioner’s allegations as

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potentially raising a claim that appellate counsel was ineffective: “To the extent that appellant

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argues that his appellate counsel, Mr. Martin Hart, was ineffective to for failing to provide authority

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for an argument that an evidentiary hearing should have been conducted on the motion to suppress

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and motion to reconsider, appellant fails to demonstrate his appellate counsel was ineffective.”

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(Exhibit 299, at pp. 3-4, n.2). The fact that the Nevada Supreme Court addressed the merits of the

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claim that appellate counsel was ineffective for failing to cite authority addressing the need for an

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evidentiary hearing on the motion to suppress is sufficient to exhaust such a claim. See, e.g.

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Chambers v. McDaniel, 549 F.3d 1191, 1195-96 (9th Cir. 2008) (petitioner exhausted claims even

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though state supreme court denied the petition by stating simply that the petition and documents

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filed were considered). However, Grounds 1 through 18 of the federal petition do not present a

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claim that counsel was ineffective for failing to cite authority addressing the need for an evidentiary

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hearing on the motion to suppress. (ECF No. 8). Because each theory of ineffective assistance of

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counsel must be individually presented to the Nevada Supreme Court, but were not, the allegations

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of ineffective assistance of appellate counsel in Grounds 1 through 18 of the federal petition were

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not fairly presented to the Nevada Supreme Court. Kelly v. Small, 315 F.3d 1063, 1068 n.2 (9th Cir.

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2003) (ineffective assistance of counsel claims must be exhausted individually). Accordingly, the

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claims of ineffective assistance of appellate counsel in Grounds 1-18 of the federal petition are not

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exhausted.

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2. Ground 3
Respondents argue that Ground 3 of the federal petition is unexhausted because the claim
was not federalized in the state proceedings.

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A petitioner must alert the state courts to the fact that he is asserting a federal claim in order

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to fairly present the legal basis of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). In the

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Ninth Circuit, a petitioner must make the federal basis of the claim explicit by either referencing

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specific provisions of the federal constitution or statutes, or citing to federal case law. Castillo v.

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McFadden, 399 F.3d 993, 999; Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), as modified
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by 247 F.3d 904 (9th Cir. 2001). “In order to alert the state court, a petitioner must make reference

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to provisions of the federal Constitution or must cite either federal or state case law that engages in

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a federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021-22 (9th Cir. 2005).

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Mere similarity of claims between a state law claim and a federal law claim is insufficient for

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exhaustion purposes. See Henry, 513 U.S. at 366; see also Johnson v. Zenon, 88 F.3d 828, 830 (9th

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Cir. 1996). If a petitioner cites a state case that analyses a federal constitutional issue, that federal

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issue is fairly presented. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). A petitioner

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does not exhaust state remedies by generally appealing to a broad constitutional provision alone.

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Gray v. Netherland, 518 U.S. 152, 163 (1996). In order to present the substance of a claim to the

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state court, petitioner must reference the specific federal constitutional provision as well as a

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statement of facts that entitle the petitioner to relief. Gray, 518 U.S. at 162-63.

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Ground 3 of the federal petition is a claim that challenges the consolidation of all the

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charges against petitioner as a violation of the Fifth, Sixth, Ninth, and Fourteenth Amendments to

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the United States Constitution. (ECF No. 8, at p. 7). Petitioner presented a similar claim on direct

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appeal under state law principles. Petitioner’s claim, as set forth in the opening brief, was based on

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state law, as petitioner cited to Nevada cases and statutes. (Exhibit 205, at pp. 14-19). The Nevada

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Supreme Court addressed the claim as a state law issue, citing only Nevada state cases and statutes.

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(Exhibit 212, at pp. 7-10). Petitioner failed to present Ground 3 as a federal issue when litigating it

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in state court, thus, petitioner failed to fairly present Ground 3 to the Nevada Supreme Court.

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Accordingly, Ground 3 of the federal petition is unexhausted.

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3. Grounds 19 & 20
In Ground 19, petitioner incorporates claims raised in the first supplemental habeas petition

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filed in the state district court. (ECF No. 8, at p. 39; Exhibit 246). With the exception of two

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claims, petitioner did not present these claims to the Nevada Supreme Court in his opening brief.

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(Exhibit 292). The Nevada Supreme Court declined to consider any claims raised in the state

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district court that were not presented in petitioner’s opening brief. (Exhibit 299, at p. 5). The two

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claims raised in the opening brief are as follows: (1) a claim that counsel inadequately investigated

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the relationship between LVMPD and the Department of Parole and probation, and that counsel
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conceded that petitioner’s probation officer did not act in bad faith when taking his DNA sample;

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and (2) a claim that counsel was ineffective for failing to present defense witnesses for the purpose

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of establishing his theory that he was being “framed” by LVMPD. (Exhibit 292, at pp. 24-29).

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Those two claims are exhausted, but the remainder of Ground 19 is unexhausted.

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In Ground 20, petitioner incorporates claims raised in the second supplemental habeas

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petition. (ECF No. 8, at p. 41; Exhibit 258). The second supplemental habeas petition contained

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two claims: (1) that counsel was ineffective for failing to move for dismissal of one of the sexual

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assault counts under the statute of limitations; and (2) that counsel was ineffective for failing to

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argue that petitioner’s probation officer acted with bad faith when taking petitioner’s DNA sample.

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(Exhibit 258). Petitioner did not present the first of those two claims to the Nevada Supreme Court

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in his opening brief. (Exhibit 292). The Nevada Supreme Court declined to consider any claims

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raised in the state district court that were not presented in petitioner’s opening brief. (Exhibit 299,

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at p. 5). Accordingly, in Ground 20 the claim that counsel was ineffective for failing to move for

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dismissal of one of the sexual assault counts under the statute of limitations is unexhausted. The

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claim that counsel was ineffective for failing to argue that petitioner’s probation officer acted with

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bad faith when taking petitioner’s DNA sample is exhausted.

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4. Petitioner’s Options Regarding Unexhausted Claims

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A federal court may not entertain a habeas petition unless the petitioner has exhausted

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available and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy,

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455 U.S. 509, 510 (1982). A “mixed” petition containing both exhausted and unexhausted claims is

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subject to dismissal. Id. In the instant case, the Court finds that part or all of Grounds 1-20 of the

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federal petition are unexhausted, but some claims appear to be exhausted. Because the Court finds

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that the petition is a “mixed petition,” containing both exhausted and unexhausted claims, petitioner

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has these options:

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1.

He may submit a sworn declaration voluntarily abandoning the unexhausted
claims in his federal habeas petition, and proceed only on the exhausted
claim;

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He may return to state court to exhaust his unexhausted claims, in which case
his federal habeas petition will be denied without prejudice; or

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3.

He may file a motion asking this Court to stay and abey his exhausted federal
habeas claims while he returns to state court to exhaust his unexhausted
claims.

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See Rose v. Lundy, 455 U.S. 509, 510 (1982); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small,

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315 F.3d 1063 (9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). Petitioner’s failure to

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choose any of the three options listed above, or seek other appropriate relief from this Court, will

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result in his federal habeas petition being dismissed. Petitioner is advised to familiarize himself

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with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as

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those limitations periods may have a direct and substantial effect on whatever choice he makes

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regarding his petition.

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III. Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 14) is
GRANTED, as follows:

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1. To the extent that any part of the federal petition can be read as alleging a

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substantive Fourth Amendment violation, those allegations are DISMISSED WITH

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PREJUDICE.

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2. Grounds 19 & 20 of the federal petition are DISMISSED WITHOUT

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PREJUDICE for failing to state a cognizable federal habeas claim.

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3. Grounds 1-20 of the federal petition are unexhausted, in part or whole, as

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specified in this order.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either: (1)

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inform this Court in a sworn declaration that he wishes to formally and forever abandon the

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unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds;

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OR (2) inform this Court in a sworn declaration that he wishes to dismiss this petition without

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prejudice in order to return to state court to exhaust his unexhausted claims; OR (3) file a motion

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for a stay and abeyance, asking this Court to hold his exhausted claims in abeyance while he returns

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to state court to exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and

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abeyance, or seek other appropriate relief, respondents may respond to such motion as provided in

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Local Rule 7-2.
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IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds,

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respondents shall have thirty (30) days from the date petitioner serves his declaration of

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abandonment in which to file an answer to petitioner’s remaining grounds for relief. The answer

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shall contain all substantive and procedural arguments as to all surviving grounds of the petition,

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and shall comply with Rule 5 of the Rules Governing Proceedings in the United States District

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Courts under 28 U.S.C. §2254.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following service
of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time
permitted, this case may be dismissed.
Dated this 13th day of February, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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