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Grigsby v. Williams

United States District Court, D. Nevada

October 18, 2019

DENNIS MARC GRIGSBY, Petitioner
v.
BRIAN E. WILLIAMS SR., et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         Dennis Marc Grigsby, a Nevada prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. I deny Grigsby's habeas petition, deny him a certificate of appealability, and direct the Clerk of the Court to enter judgment accordingly.

         I. BACKGROUND

         Grigsby's convictions are the result of events that occurred in Clark County, Nevada, on April 2, 2008. In its order affirming the denial of Grigsby's post-conviction petition for a writ of habeas corpus, the Supreme Court of Nevada described the crime, as revealed by the evidence at trial, as follows:

In late March 2008, Grigsby kicked his wife, Tina Grigsby, out of their apartment because he believed that she was dating another man. Several days later, Tina moved in with her boyfriend, Anthony Davis, who lived in the same apartment complex as Grigsby. On the night of April 2, 2008, Grigsby got into an argument with Davis outside of Davis' apartment. Tina heard the exchange from inside Davis' apartment. The argument ceased after a few minutes; Tina heard gunshots about 10 to 15 minutes later. When the police arrived shortly thereafter, she relayed this information to police officers, who knocked on Grigsby's door. There was no answer. While police were still investigating the crime scene, Grigsby's mother, Mildred Grigsby, appeared, asking to gain entry into Grigsby's apartment to retrieve unidentified items. She was not allowed into the apartment but provided a key, which Grigsby had given her, to police officers so that they could determine if Grigsby was in the apartment; he was not in the residence. Subsequently, the police secured a search warrant, search Grigsby's apartment, and seized several items.

ECF No. 18-13 at 3.

         Grigsby was convicted of first-degree murder with the use of a deadly weapon and possession of a firearm by an ex-felon. ECF No. 15-10 at 2. He was sentenced to life without the possibility of parole for the first-degree murder conviction plus a consecutive term of 60 to 240 months for the deadly weapon enhancement. He also was sentenced to 16-72 months for the possession of a firearm by an ex-felon conviction. Id. at 3. Grigsby appealed, and the Supreme Court of Nevada affirmed. ECF No. 15-14.

         Grigsby filed a pro per state habeas corpus petition, a counseled supplemental petition, a pro per first-amended petition, a pro per supplemental first-amended petition, a pro per second-amended petition, a pro per third-amended petition, and a pro per superseding petition. ECF No. 15-16, 16-1, 16-3, 16-4, 16-5, 16-7, 17-6. The state district court denied Grigsby's petition. ECF No. 17-10. Grigsby moved for reconsideration and filed a notice of appeal. ECF No. 17-11, 17-12, 17-13. Due to Grigsby's appeal, the state district court noted that it did not have jurisdiction regarding Grigsby's motion for reconsideration. ECF No. 18-3. Grigsby moved to stay his appeal at the Supreme Court of Nevada pending resolution of the motion for reconsideration at the state district court. ECF No. 18-4. The Supreme Court of Nevada denied the motion for stay indicating that “[i]f the [state] district court is inclined to grant reconsideration, the [state district] court shall so certify its intention to [the Supreme Court of Nevada], and the matter may be remanded for the limited purpose of allowing the [state] district court to enter an order.” ECF No. 18-5. The state district court granted the motion for reconsideration and set a date for an evidentiary hearing. ECF No. 18-10. Before the evidentiary hearing could be held, the Supreme Court of Nevada affirmed the denial of Grigsby's state habeas corpus petition. ECF No. 18-13. Grigsby petitioned for rehearing and a stay of remittitur stating that an evidentiary hearing was pending and its order was premature. ECF No. 18-14. The state district court vacated the evidentiary hearing finding that it was moot following the Supreme Court of Nevada's order. ECF No. 18-15. The Supreme Court of Nevada denied rehearing and issued the remittitur. ECF No. 18-16, 18-17.

         Grigsby dispatched his pro se federal petition for a writ of habeas corpus on August 8, 2016. ECF No. 7. The petition asserts that his federal constitutional rights were violated due to the following alleged violations:

1. The state district court erred in not accommodating a full hearing for him to air additional reasons for his motion to dismiss counsel.
2. The state district court erred in admitting evidence of the arson of his car.
3. The State committed prosecutorial misconduct when it elicited answers that bore upon his invocation of the right to remain silent.
4. The state district court erred in allowing demonstrative evidence of a gun when no gun was recovered.
5. The state district court erred in rejecting his proposed jury instructions.
6. His trial counsel was ineffective in failing to timely move to suppress evidence recovered subsequent to an invalid warrantless search of his domicile.
7. His appellate counsel was ineffective in failing to raise a claim of prosecutorial misconduct in his direct appeal.
8. His appellate counsel was ineffective in failing to raise a claim regarding proper jury instructions in his direct appeal.
9. The Supreme Court of Nevada erred in prematurely issuing its order affirming the denial of his state habeas corpus petition because an evidentiary hearing was pending in the state district court.
10. There were cumulative errors.

         The respondents filed a motion to dismiss on April 24, 2017. ECF No. 9. Grigsby opposed the motion, and moved for the appointment of counsel, for expansion of the record, and for an evidentiary hearing. ECF Nos. 22, 23, 24, 25. I granted the respondents' motion to dismiss in part, denied Grigsby's motion for the appointment of counsel, denied Grigsby's motion for expansion of the record, and denied Grigsby's motion for an evidentiary hearing. ECF No. 28. Specifically, I dismissed Grounds 1, 2, 4, and 5 without prejudice at Grigsby's direction and dismissed Ground 9 without prejudice as non-cognizable. Id.

         On May 10, 2018, the respondents filed an answer to the remaining grounds in Grigsby's petition. ECF No. 31. Grigsby filed a reply on June 18, 2018. ECF No. 32. And the respondents filed an opposition to Grigsby's reply on June 29, 2018. ECF No. 33.

         II. STANDARD OF REVIEW

         The standard of review generally applicable in habeas corpus cases is set forth is the Antiterrorism and Effective Death Penalty Act (AEDPA):

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.

28 U.S.C. § 2254(d). 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.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (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.” Id. at 75 (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 409-10) (internal citation omitted).

         The Supreme Court has instructed that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

         III. DISCUSSION

         A. Ground 3

         In Ground 3, Grigsby argues that his federal constitutional rights were violated when the State committed prosecutorial misconduct by eliciting answers that bore upon his invocation of the right to remain silent. ECF No. 7 at 10. He explains that the State questioned the arresting officer about whether Grigsby offered a statement expressing surprise at being arrested. Id. at 11. Grigsby asserts that this question implied to the jury that he must be guilty. Id. at 12. The respondents argue that the State's questions flowed from Grigsby's cross-examination of the same witness and did not touch upon his right to remain silent. ECF No. 31 at 4. Grigsby rebuts that the officer in question did not apprehend him, so his cross-examination question of that officer did not open the door for the State's far broader questioning. ECF No. 32 at 6. In Grigsby's direct appeal, the Supreme Court of Nevada held:

Grigsby contends that the prosecution improperly elicited testimony about his post-arrest silence. We disagree. Questions concerning what a defendant says after his arrest are generally improper. Morris v. State, 112 Nev. 260, 263-64, 913 P.2d 1264, 1267 (1996) (providing prosecution forbidden from commenting upon defendant's post-arrest, pre-Miranda silence). However, Grigsby invited the line of questioning by examining the witness about Grigsby's reaction to his arrest. See Milligan v. State, 101 Nev. 627, 637, 708 P.2d 289, 295-96 (1985). Therefore, the district court did not err in overruling Grigsby's objection.

ECF No. 15-14 at 3-4.

         Dennis Serna, a special agent with the Federal Bureau of Investigation who worked as a fugitive coordinator, testified that he was tasked with locating Grigsby. ECF No. 13-1 at 28-29. After he was located in Sacramento, Grigsby was taken into custody by a SWAT team. Id. at 36. During cross-examination, Grigsby's trial counsel questioned Special Agent Serna as follows:

Q. And your report indicates that the arrest was effected [sic] without incident?
A. Correct.
Q. There were no problems during the arrest?
A. Correct.
Q. If there had been something, you would have noted that in ...

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