United States District Court, D. Nevada
DUSHON N. GREEN, Petitioner,
ROBERT LeGRAND, et al., Respondents.
P. GORDON UNITED STATES DISTRICT JUDGE
action is a pro se petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada
state prisoner. Before the Court is respondents' motion
to dismiss certain grounds of the petition. (ECF No. 14).
to a jury verdict, petitioner was convicted of multiple
counts of sexual assault and lewdness against seven different
victims, two of whom were minors at the time of the
incidents. Petitioner was found guilty of eleven counts of
sexual assault, two counts of lewdness with a minor under the
age of fourteen, and four counts of sexual assault with the
use of a deadly weapon. (Exhibits 166, 167,
212). Petitioner was sentenced to multiple terms
of life in prison. (Id.).
appealed and raised three issues on direct appeal. (Exhibits
172 & 205). Petitioner challenged the state district
court's denial of a motion to suppress DNA evidence and
latent fingerprint evidence that led to his arrest. (Exhibit
205, at pp. 5-14). Petitioner also argued that the state
district court abused its discretion by consolidating all the
charges into a single trial. (Id., at pp. 14-19).
Petitioner also alleged a claim of cumulative error.
(Id., at p. 19).
Nevada Supreme Court affirmed petitioner's conviction.
(Exhibit 212). The Nevada Supreme Court found that the state
district court did not err in denying the motion to suppress
because, although the State did not have a basis for
collecting petitioner's DNA specimen at the time, the
collection of the sample was not done for investigative
purposes with respect to the case. (Id., at pp.
3-7). The Nevada Supreme Court found that the good faith
exception to the exclusionary rule applied and did not
require suppression of the DNA evidence and the latent
fingerprint evidence. (Id., at pp. 3-7). Next,
although the Nevada Supreme Court found that the state
district court abused its discretion by consolidating all the
charges into a single trial, it found that error to be
harmless because of the overwhelming evidence of
petitioner's guilt demonstrated it was likely that
petitioner would have been convicted on all counts even if
his trial was severed. (Id., at pp. 7-10). The
Nevada Supreme Court denied relief on the cumulative error
claim. (Id., at pp. 10-11).
then filed a post-conviction habeas petition in state
district court and sought the appointment of counsel.
(Exhibits 214, 215, 218, 219). The state district court
granted the motion for appointment of counsel and
petitioner's counsel supplemented the petition with
various claims of ineffective assistance of counsel.
(Exhibits 246 & 258). An evidentiary hearing was held on
petitioner's post-conviction habeas claims. (Exhibit
260). After the evidentiary hearing, the state district court
denied the petition. (Exhibit 262). Petitioner appealed.
(Exhibits 267 & 268). On appeal, petitioner raised the
following issues: (1) counsel was ineffective for failing to
further investigate allegations of coercion between Las Vegas
Metropolitan Police Department (LVMPD) and the Department of
Parole and Probation (DPP) with respect to the collection of
petitioner's DNA and that counsel was ineffective for
failing to stipulate to the fact that DPP did not act in
“bad faith” when collecting a buccal swab from
petitioner without lawful authority to do so (Exhibit 292, at
pp. 24-27; (2) counsel was ineffective for failing to call
various unidentified witnesses at trial in support of a
theory that LVMPD framed petitioner as the perpetrator of a
series of unsolved rapes (Exhibit 292, at pp. 27-29); and (3)
cumulative error denied petitioner the right to effective
assistance of counsel (Exhibit 292, at p. 29).
Nevada Supreme Court denied relief on the appeal of
petitioner's post-judgment habeas petition. (Exhibit
299). The Court found that petitioner failed to establish
that counsel's performance was objectively unreasonable
and that he suffered actual prejudice regarding the related
Fourth Amendment issue because counsel merely stipulated to
the fact that he could not find evidence of collusion between
LVMPD and DPP, and petitioner failed to produce any reliable
evidence to the contrary. (Id., at pp. 2-3). Second,
the Court found that petitioner failed to show counsel's
performance was objectively unreasonable regarding the
decision not to call witnesses in support of a theory that
petitioner was being framed, rather than attempting to attack
other weaknesses in the State's case, because that
decision was a reasonable strategy decided upon after
thorough investigation of the case. (Id., at pp.
3-5). Finally, the Court rejected the cumulative error claim.
(Id., at p. 5). Specifically, the Court refused to
consider any claims that petitioner did not expressly
articulate in his appellate briefs and that the two claims
presented in petitioner's briefing did not articulate any
errors that could be cumulated. (Id.).
has filed a pro se federal habeas petition in the
instant case that alleges twenty grounds for relief. (ECF No.
8). Respondents seek dismissal of certain grounds in the
federal petition. (ECF No. 14). Petitioner has filed an
opposition to the motion to dismiss. (ECF No. 39).
Respondents have filed a reply. (ECF No. 46). By order filed
October 6, 2016, the Court granted petitioner's motion to
file a surreply. (ECF No. 52). The Court granted petitioner
21 days in which to file his surreply and granted respondents
14 days thereafter to file a surrebuttal. (ECF No. 52).
Petitioner did not file a surreply. As such, the Court deems
the motion to dismiss as fully briefed.
Fourth Amendment Claims
seek to dismiss any part of the petition that can be
construed as a claim alleging a substantive Fourth Amendment
violation. Where a state has provided a defendant with a full
and fair opportunity to litigate a Fourth Amendment claim,
“a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his
trial.” Stone v. Powell, 428 U.S. 465, 495
(1976); see also Kuhlmann v. Wilson, 477 U.S. 436,
446-47 (1986). The Supreme Court has determined that
excluding Fourth Amendment claims from habeas corpus review
created no danger that the courts would deny a safeguard
against compelling an innocent man to suffer an
unconstitutional loss of liberty because a convicted
defendant seeking review of a Fourth Amendment claim on
collateral review is “usually asking society to
redetermine an issue that has no bearing on the basic justice
of his incarceration.” Kuhlmann, 477 U.S. at
law provides a mechanism for filing a pretrial motion to
suppress evidence seized in violation of the Fourth
Amendment. See NRS 179.085. Petitioner filed a
motion to suppress evidence obtained through the collection
of his DNA and fingerprints, which he alleged violated his
Fourth Amendment rights. (Exhibit 23). After the state
district court denied the motion to suppress, petitioner
pursued appellate relief on this issue, which the Nevada
Supreme Court denied. (Exhibits 27, 205, 212). It is clear
from the record that petitioner was given a full and fair
opportunity to litigate his Fourth Amendment claims before
the state courts. To the extent that any part of the federal
petition can be read as alleging a substantive Fourth
Amendment violation, those allegations are precluded from
review by this Court and are therefore dismissed. See
Stone v. Powell, 428 U.S. at 495; Terrovona v.
Kinchloe, 912 F.2d 1176 (9th Cir. 1990);
Abell v. Raines, 640 F.2d 1085 (9th Cir.