United States District Court, D. Nevada
action is a pro se petition for writ of habeas
corpus by Nevada prisoner Michael Dwayne Byars. Byars was
convicted on September 5, 2012, after a jury trial, in
Nevada's Tenth Judicial District Court in Churchill
County, of five felonies, and he was sentenced as follows:
Unlawful User of Controlled Substance Not to Possess
Merged with Count 5;
Unlawful Use or Being Under the Influence of a
18 to 48 months in prison, concurrent with Count 5;
Battery by a Prisoner in Lawful Custody or
24 to 60 months in prison, concurrent with Count 5;
Battery by a Prisoner in Lawful Custody or
24 to 60 months in prison, concurrent with Count 3;
Ex-Felon Not to Possess Firearm,
28 to 72 months in prison.
of Conviction, Exhibit 100, pp. 2-3 (ECF No. 31-4, pp. 3-4);
see also First Amended Judgment of Conviction,
Exhibit 139 (ECF No. 32-11).
unsuccessfully pursued a direct appeal to the Nevada Supreme
Court, as well as a first state post-conviction habeas corpus
action. See Opinion of the Nevada Supreme Court,
Exhibit 136 (ECF No. 32-8); Order of Affirmance, Exhibit 185
(ECF No. 33-26).
submitted his habeas petition to this Court, initiating this
case, on July 27, 2015 (ECF No. 8), and his petition was
filed on September 17, 2015, after he paid the filing fee
(ECF Nos. 6, 7). On March 4, 2016, the Court stayed this
action pending Byars' completion of a second state habeas
action. See Order of March 4, 2016 (ECF No. 18).
initiated his second state habeas action on November 17,
2015. See Petition for Writ of Habeas Corpus
(Post-Conviction), Exhibit 162 (ECF No. 33-2). The state
district court dismissed that petition, finding it to be
successive and barred by the law of the case doctrine.
See First Amended Order Dismissing Petition for Writ
of Habeas Corpus, Exhibit 188 (ECF No. 33-29). The Nevada
Supreme Court affirmed on November 18, 2016. See
Order of Affirmance, Exhibit 190 (ECF No. 33-31).
this Court, the stay was lifted on February 16, 2017 (ECF No.
24). The respondents filed a motion to dismiss on May 17,
2017 (ECF No. 27).
the Court twice sua sponte extending the time for
Byars to respond to the motion to dismiss (ECF Nos. 35, 38),
he did not respond. The failure of a party to file points and
authorities in opposition to a motion to dismiss constitutes
a consent to the granting of the motion. LR 7-2(d).
respondents' motion to dismiss is meritorious.
Respondents move for dismissal of Ground 1 as barred by the
rule of Stone v. Powell, 428 U.S. 465 1976). Under
Stone, "where the State has provided an
opportunity for full and fair litigation of a Fourth
Amendment claim, " federal habeas corpus relief is
unavailable for a claim that evidence recovered through an
illegal search or seizure was introduced at trial. The
Stone v. Powell doctrine applies to all Fourth
Amendment claims, including claims of illegal stops, arrests,
searches and seizures based on less than probable cause, and
it applies regardless of the nature of the evidence sought to
be suppressed. Cardwell v. Taylor, 461 U.S. 571,
572-73 (1983) (per curiam). In Ground 1, Byars claims the
trial court erred, under the Fourth and Fourteenth Amendments
to the United States Constitution, in admitting evidence
obtained by means of a blood draw, and evidence obtained by
means of an inventory search of his car. See
Petition for Writ of Habeas Corpus, pp. 3-3D (ECF No. 8, pp.
3-7). Byars had an opportunity for full and fair litigation
of these claims in state court, on his direct appeal, and in
his two state habeas actions. See Appellant's
Opening Brief, Exhibit 117 (ECF No. 31-21); Appellant's
Reply Brief, Exhibit 128 (ECF No. 32); Opinion of the Nevada
Supreme Court, Exhibit 136 (ECF No. 32-8); Petition for Writ
of Habeas Corpus (Post-Conviction), Exhibit 142 (ECF No.
32-14); Petition for Writ of Habeas Corpus (Post-Conviction),
Exhibit 162 (ECF No. 33-2); Appellant's Informal Brief,
Exhibit 176 (ECF No. 33-17); Appellant's Informal Brief,
Exhibit 184 (ECF No. 33-25); Order of Affirmance, Exhibit 185
(ECF No. 33-26); Order of Affirmance, Exhibit 190 (ECF No.
33-31). The Court, therefore, determines that Ground 1 of
Byars' petition is barred by the doctrine of Stone v.
IS THEREFORE ORDERED that respondents' Motion to
Dismiss (ECF No. 27) is GRANTED. Ground 1 of
the petitioner's petition for writ of habeas corpus (ECF
No. 8) is dismissed.
IS FURTHER ORDERED that, within 60 days from the
date of this order, respondents shall file an answer,
responding to the remaining claims in the petitioner's
habeas corpus petition.
IS FURTHER ORDERED that, in all other respects, the
schedule for further proceedings in this case set forth in
the order entered February 16, 2017 (ECF No. 24) shall remain
in effect (petitioner will have 60 days following the filing
of an answer to file ...