United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
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
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
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.
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.
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.
STANDARD OF REVIEW
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;
(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).
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
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
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.
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?
Q. There were no problems during the arrest?
Q. If there had been something, you would have noted that in