United States District Court, D. Nevada
GEORGE W. GIBBS, Petitioner,
ROBERT LEGRAND, WARDEN, et al., Respondents.
J. DAWSON, UNITED STATES DISTRICT JUDGE
counseled habeas matter comes before the Court for
consideration on the merits of the surviving claims of the
first amended petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 (ECF No. 28). Respondents have answered
(ECF No. 75), and petitioner has replied (ECF No.
was charged with and convicted of thirty counts in state
court, including one count each of manufacture or compounding
of a controlled substance, conspiracy to manufacture or
compound a controlled substance, and trafficking in a
controlled substance, nine counts of sexual assault with a
minor under fourteen years of age, eleven counts of lewdness
with a child under the age of fourteen, four counts of use of
a minor under fourteen in producing pornography, and three
counts of possession of visual presentation depicting sexual
conduct of person under fourteen years of age. (Exs. 21 &
Petitioner challenges many, but not all, of these convictions
in the instant habeas petition.
December 19, 2000, police officers responded to 2216 Port
Avenue in Las Vegas in response to an anonymous tip that
there was a methamphetamine lab at the location. (Ex. 20 (Tr.
4-5)). When officers arrived, petitioner was laying on the
couch in the living room of the house. (Id. at
18-19). After obtaining consent to search from Ronald
Deussen, the home's owner, officers located a boxed meth
lab in the master bedroom closet, next to a safe, and various
drug paraphernalia throughout the house, but mostly in the
master bedroom. (Id. at 8-11, 19-20). Officers also
located petitioner's work ID and a letter addressed to
him at 2216 Port Avenue in the master bedroom. (Id.
at 14-15). Petitioner told the officers that both he and
Deussen had access to the master bedroom and that he assisted
in cooking methamphetamine there. (Id. at 11).
told officers that the safe belonged to petitioner; when
asked whether the safe was his, petitioner initially said yes
but then asserted that he was holding it for a friend.
(Id. at 12 & 41-42). When the safe was opened,
it emitted a fairly fresh odor of methamphetamine chemical.
(Id. at 34). Inside, officers found three VHS tapes
in a plastic bag as well as paraphernalia for methamphetamine
use and paperwork. (Id. at 34-35). Officers began to
view the tapes but stopped once they discovered that they
contained child pornography involving petitioner and three
young girls. (Id. at 38). Petitioner was charged in
a single criminal complaint with both child
pornography/sexual abuse and drug charges. (See Exs.
3, 5 & 6).
three victims who appeared in the tapes testified at trial.
Two of the victims were petitioner's daughters and the
third was their friend, N.M., who was six or seven at the
time the videos were made. In part relevant to the instant
petition, N.M. testified as follows:
Q: Do you recall the defendant, Mr. Gibbs, ever putting his
penis fully inside of your vagina?
Q: So, he never had full what we would call
“intercourse” with you?
A. Yes, he never had.
Q: Okay. All right. Would the defendant ever rub his penis in
the area of your vagina?
Q: Not that you remember?
A: Not that I remember.
(Ex. 22 (Tr. 94)). N.M. was later asked by defense counsel:
“[Y]ou also indicated when Mr. Peterson was asking you
questions, that Mr. Gibbs never placed his penis inside your
vagina, correct?” N.M. responded: “That's
true.” (Id. at 96).
testified that petitioner had arrived at his house only a
week prior after spending about a month and a half in Utah
with his family. (Id. at 112-13 & 116). Deussen
further testified that petitioner had been living at
Deussen's house, on the couch, on and off for about three
or four months before going to Utah. (Id. at
116-17). But, Deussen testified, the meth lab belonged to
Deussen and petitioner had nothing to do with the lab, the
chemicals or the distribution of methamphetamine.
(Id. at 114-15). Further, Deussen testified that
petitioner's papers had been found in the master bedroom
only because petitioner had asked to store them there while
he was in Utah and he had nowhere else to put them.
(Id. at 113).
U.S.C. § 2254(d) provides the legal standards for this
court's consideration of the merits of the petition in
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
“modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This court's ability to grant a writ
is limited to cases where “there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(describing the AEDPA standard as “a difficult to meet
and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt”) (internal quotation marks
and citations omitted.)
court decision is contrary to clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254,
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's]
cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result
different from [the Supreme Court's] precedent.”
Andrade, 538 U.S. 63 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell
v. Cone, 535 U.S. 685, 694 (2002)).
court decision is an unreasonable application of clearly
established Supreme Court precedent, within the meaning of 28
U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Andrade, 538 U.S. at 74 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
clause requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
extent that the state court's factual findings are
challenged, the “unreasonable determination of
fact” clause of § 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett, 393 F.3d
943, 972 (9th Cir. 2004). This clause requires that the
federal courts “must be particularly deferential”
to state court factual determinations. Id. The
governing standard is not satisfied by a showing merely that
the state court finding was “clearly erroneous.”
Id. at 973. Rather, AEDPA requires substantially
.... [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district court
decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
state courts reached the merits of petitioner's claims,
their decisions are entitled to deference under AEDPA and may
not be disturbed unless they were ones “with which no
fairminded jurist could ...