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Green v. LeGrand

United States District Court, D. Nevada

February 13, 2017

DUSHON N. GREEN, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This 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).

         I. Background

         Pursuant 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).[1] Petitioner was sentenced to multiple terms of life in prison. (Id.).

         Petitioner 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).

         The 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).

         Petitioner 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).

         The 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.).

         Petitioner 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.

         II. Discussion

         A. Fourth Amendment Claims

         Respondents 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 447.

         Nevada 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. 1981).

         B. ...


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