United States District Court, D. Nevada
M. NAVARRO, UNITED STATES DISTRICT JUDGE
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.
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.
Factual Background and Procedural History
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).
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).
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 Arnbristerowned the house. Her
daughter, Donna Hayborn, lived with her.
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.
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
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.
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
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).
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).
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
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
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
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,
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.
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.
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.
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
remaining grounds of the amended petition are 1.2, 1.3, 1.15,
7, and 8.
Court Denies the Motions for Discovery and for an Evidentiary
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)).
U.S.C. § 2254(e) places limits on this court holding an
(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
(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.
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 ...