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Gibbs v. Legrand

United States District Court, D. Nevada

May 10, 2018

GEORGE W. GIBBS, Petitioner,
v.
ROBERT LEGRAND, WARDEN, et al., Respondents.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE

         This 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. 89).[1]

         Background

         Petitioner 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 & 27).[2] Petitioner challenges many, but not all, of these convictions in the instant habeas petition.

         On 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).

         Deussen 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).

         The 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?
A. No.
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?
A: No.
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).

         Deussen 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).

         Standard

         28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits of the petition in this case:

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; or
(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.

         AEDPA “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.)

         A state 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)).

         A state 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).

         To the 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 more deference:

.... [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.

         Under 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.

         As the 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 ...


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