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Combs v. State

United States District Court, D. Nevada

September 30, 2019

BRETT COMBS, Petitioner,
STATE OF NEVADA, et al., Respondents.



         Before the court are petitioner's motion to conduct discovery and allow expansion of the record (ECF No. 113), petitioner's motion for evidentiary hearing (ECF No. 114), respondents' opposition to both motions (ECF No. 120), and petitioner's reply (ECF No. 122). The court denies both motions.

         Also before the court are the amended petition for a writ of habeas corpus (ECF No. 23), respondents' answer (ECF No. 111), and petitioner's reply (ECF No. 112). The court finds that petitioner is not entitled to relief, and the court denies the amended petition.

         I. Factual Background and Procedural History

         On November 17, 2008, petitioner robbed the Sorrel Sky Gallery in Durango, Colorado. He aimed a pistol at Julie Huffman, and employee of the gallery, and he emptied the cases of Ben Nighthorse jewelry. Ex. 30, at 53 (ECF No. 63-1, at 54). Barbara Longfellow, the manager, confirmed that each piece of jewelry that eventually was recovered had a value greater than $2, 500.00. Id. at 70-82 (ECF No. 63-1, at 71-83). On December 8, 2008, petitioner robbed the Rabbit Hole smoke shop, also in Durango. He restrained Margaret Bannatyne, the owner, and took the shop's entire inventory, valued in excess of $2, 500.00. Id., at 104-15 (ECF No. 63-1, at 105-16).[1]

         On January 7, 2009, officers of the Las Vegas Metropolitan Police Department (Metro) went to the Red Rock Casino in Las Vegas, where security had detained two women suspected of trying to cash a fraudulent check. One woman told officers that petitioner was planning to rob an armored car when it stopped at the Timbers bar at the intersection of Cheyenne Avenue and Fort Apache Road in Las Vegas. The reporting officer later learned that petitioner matched the description that the woman gave, and that he was on parole or probation. The officer also learned that a coin truck was scheduled to stop at Timbers on Thursdays, between 10:00 a.m. and 12:00 Noon. Because this was consistent with the information that the woman gave, Metro arranged surveillance of Timbers on January 8, 2009. Ex. 120 (ECF No. 70-3, at 115-17).

         Parole and Probation officer Adriana Lindquist testified at trial that on January 8, 2009, petitioner's residence was 9421 Shellfish Court, near the intersection of Desert Inn Road and Fort Apache Road in Las Vegas. Ex. 30, at 141-42 (ECF No. 63-1, at 142-43). Joan Arnbrister[2]owned the house. Her daughter, Donna Hayborn, lived with her.

         Lindquist gave voir dire testimony outside of the presence of the jury. On the morning of January 8, 2009, petitioner's former parole officer received a fax from petitioner stating that his address had changed from 5127 Sparkling Vine, Las Vegas, to 9421 Shellfish Court. Ex. 30, at 134 (ECF No. 63-1, at 135). That same morning, before petitioner's former parole officer gave Lindquist the address-change fax, a Metro detective called Lindquist asking for information about petitioner because petitioner might have been planning a robbery. Lindquist, who had recently been assigned petitioner's case, said that she could not provide much information. Id. at 136 (ECF No. 63-1, at 137). After that phone call, petitioner's former parole officer gave Lindquist the fax. Id. at 137 (ECF No. 63-1, at 138). Lindquist and the Metro detective spoke again, and she told the detective about the change in address. Id. at 138 (ECF No. 63-1, at 139). Based on the information that the detective gave Lindquist, she assembled other parole officers, with Metro officers in support, to search petitioner's new residence. Id. at 135 (ECF No. 63-1, at 136). Lindquist herself did not go on the search. Id.

         Metro apparently set up surveillance and two Timbers locations close to each other. One was at 9180 West Cheyenne Avenue, at the intersection of Fort Apache road. The other was at 3370 Novat Street, about two miles to the west, near the interchange of West Cheyenne Avenue and Clark County 215.[3] ECF No. 72, at 81. An entry at 11:02 states, "Drop been made, surv poss ending shortly." An entry at 11:11 a.m. states, "Per car to car drop will be done in 15 mins, will come out 1 at a time." Id. The last entry in the dispatch log is at 11:23 a.m. Id.

         Around the same time, parole officers and Metro officers assembled to check on 9421 Shellfish Court. Parole officers knocked on the front door, but nobody answered it. Parole officer Jason Buratczuk went around the back of the house. Ex. 30, at 144 (ECF No. 63-1, at 145). He saw petitioner through a window. Id. Buratczuk entered the house. Id. He asked petitioner where his bedroom was. Id. Petitioner indicated the sole bedroom on the first floor. Id. Buratczuk went there and found a pistol underneath the bed's mattress. Id. at 145-46 (ECF No. 63-1, at 146-47). Buratczuk then handed the matter over to the police. Id. at 146 (ECF No. 63-1, at 147).

         Metro officer Justin Zinger secured the house. Ex. 30, at 165 (ECF No. 63-1, at 166). Then he obtained a telephonic search warrant. Id. at 165-66 (ECF No. 63-1, at 166-67). In the first-floor bedroom, he saw photographs of petitioner and Hayborn hanging on the wall. Id. 168-70 (ECF No. 63-1, at 169-71). He located the gun that parole officer Buratczuk had found. Id. at 170 (ECF No. 63-1, at 171). Metro officer Thomas Farris also searched the first-floor bedroom. He found petitioner's wallet on a desk. Id. at 158 (ECF No. 63-1, at 159). Officer Zinger found some of the jewelry stolen from the Sorrell Sky Gallery and items stolen from the Rabbit Hole. Id. at 172- 174-75 (ECF No. 63-1, at 173, 175-76).

         When Metro officers learned that the jewelry had been stolen from Durango, Metro detective Chris Boddie communicated with Durango detectives Peter Berryhill and Robert Brammer. Boddie sent them photographs of petitioner. Ex. 30, at 179 (ECF No. 63-1, at 180).

         Huffman did two photographic lineups. In the first lineup, petitioner's photograph was not included, and Huffman did not identify anyone. In the second lineup, petitioner's photograph was included, and she identified petitioner as the robber of the Sorrel Sky Gallery. Ex. 30, at 60 (ECF No. 63-1, at 61. Bannatyne did one photographic lineup. She identified Richard Price as the robber. At trial, she identified petitioner as the robber. However, she insisted that petitioner was the person she selected in the photographic lineup. Ex. 30, at 115-18 (ECF No. 63-1, at 116-19).

         Petitioner's relation of the facts differs considerably. The court reproduces it in full:

Petitioner's residence was 5127 Sparkling Vine, Las Vegas “(Sparkling Vine”) until he was arrested. This address was verified by Department of Public Safety, Division of Parole & Probation (“P&P”) in November 2008, was seen by Officer Gilbert at this residence on December 3, 2008 (Ex. 3, pg. 4), water utility bills (ECF 72, Ex. 14), and Sparkling Vine was listed as his residence in Scope (ECF 23, Ex. X). Petitioner never sent a fax to P&P changing his address to 9421 Shellfish, Las Vegas, Nevada (“Shellfish”) (see Ex. 2). P&P rules on change of address are clear, in that you had to receive prior authorization from your parole officer before changing your address (NAC 213.620(b)), Petitioner knew this, and this was testified to by Officer Buratczuk in the first day of Petitioner's Federal trial (ECF 82, pg. 204).
Petitioner spent the night at Hayborn's residence and left Shellfish some time between 5 am and 6 am on January 8, 2009 in his white Chevy Tahoe. At the time of his arrest on January 8, 2009, Petitioner had not registered the vehicle (Tahoe) in his name, though the title and bill of sale were in the console of the vehicle on that date.
While driving down Desert Inn Road, just after he passed Fort Apache (the “Intersection”), his vehicle was “cornered” (front, back, and driver's side) by three unmarked vehicles, two cars and a Dodge truck.
Per dispatch records at 10:52 am: police ran license plate of the white Chevy Tahoe; Petitioner was stopped by LVMPD ROP officers at this time; DMV records showed registered owner of the white Chevy Tahoe was Jeffrey Merrill.
Two men exited the vehicles (5 to 6 men total in the 3 vehicles), both wearing ski masks, in plain clothes (no hang badges identifying them as police) with assault rifles drawn and pointing at Petitioner. The police officer on the driver's side had the assault rifle pointed at his head. Petitioner was taken out of his truck and placed into a vehicle (which he remembers to be a Chrysler 300 or something similar). A man was in the driver's seat (assumed to be another officer, no identifying clothing or other item) and the second officer got in on the passenger side front seat and held the assault rifle close to Petitioner's face (distance between front passenger seat and back seat).
Dispatch records shows at 11:11 am: “per car to car drop will be done in 15 mins., will come out 1 at a time”).
LVMPD ROP officers took Petitioner to Shellfish (approximately 2 blocks from the Intersection), took him in the backyard at gunpoint, and he was ordered to lay face down on the back patio. After approximately 10 minutes, he was placed into a chair. An officer brought Petitioner's wallet and the $2, 469 in cash he had in his vehicle to him (officer placed these items in a plastic bag) and set the bag down between his feet. Petitioner heard officers stating that they needed to get him out of there so they could work the girl. (He believes he was at Shellfish for approximately 20 minutes total).
Petitioner was taken by Officer Raymond and another officer to an area behind Walgreen's (at the Intersection). Petitioner was placed into another unmarked vehicle and taken to CCDC and booked on a parole violation at 1200 hours.
Temporary Custody Records shows Petitioner arrived at CCDC at 1200 hours and was officially booked at 1341 hours (ECF 72, Ex. 20).
While being booked by Officer Raymond, Officer Raymond took Petitioner's wallet and cash and told Petitioner's it was parole evidence (when asked by Petitioner why he was not giving his property to property officer). Petitioner's wallet was planted at Shellfish on the desk in Hayborn's room (Ex. 4).
Petitioner was not the robber of either the Sorrel Sky Gallery nor the Rabbit Hole as alleged by Respondent. In fact, those charges have been dismissed by the State of Colorado (Ex. 5).

ECF No. 113, at 6-8. This is not petitioner's only explanation of what happened. The finding of the pistol led to a federal criminal case in this court. United States v. Combs, No. 2:10-cr-00173-KJD-RJJ. In that case, he argued in proper-person filings that the government's facts all were false because he was arrested on January 7, 2009, and thus he was in custody on January 8, 2009, when all this supposedly happened. Id., ECF No. 44.

         In the case at issue, petitioner was convicted in state courts of 21 counts of possession of stolen property. Ex. 45 (ECF No. 64-15). Petitioner's direct appeal and post-conviction habeas corpus petition were unsuccessful.

         This court dismissed ground 5 of the amended petition (ECF No. 23) because it was a claim of a violation of the Fourth Amendment, and petitioner received a full and fair opportunity to litigate the claim in state court. ECF No. 87. Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the court will not issue a certificate of appealability for ground 5.

         The court also found that petitioner had not exhausted most of his grounds for relief. ECF No. 87. The court dismissed those grounds. ECF No. 103. Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the court will not issue a certificate of appealability for ground 5.

         The remaining grounds of the amended petition are 1.2, 1.3, 1.15, 7, and 8.


         The Court Denies the Motions for Discovery and for an Evidentiary Hearing

         Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts states, "A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." If, through "specific allegations before the court," the petitioner can "'show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.'" Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).

         28 U.S.C. § 2254(e) places limits on this court holding an evidentiary hearing:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

         Petitioner seeks discovery, an evidentiary hearing, and expansion of the record, to prove the following:

(1) Petitioner was not at the Shellfish residence as was testified to by Respondent's witnesses; (2) Petitioner was arrested at the Intersection; (3) that petitioner was not in possession of any firearm at the time of his arrest and not in violation of his parole; (4) that petitioner was in custody at CCDC prior to the service of the search warrant at Shellfish; (5) the State had no probable cause or reasonable suspicion to arrest Petitioner for the false tip that Petitioner was planning the robbery of a coin truck at Timber on January 8, 2009 because that tip was false; and (6) that Officer Zinger lied throughout the court proceedings, in the state case and federal case, in his reports, the telephonic search warrant about who the tipster was, the gun, Petitioner's residence, and falsified his reports stating the tipster said the stolen property was at ...

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