Fergason v. Johnson

• Court: District Court, D. Nevada
• Decided: September 30, 2021
• Docket: 2:19-cv-00946
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 BRYAN MICHAEL FERGASON, Case No. 2:19-cv-00946-GMN-BNW 12 Petitioner, ORDER 13 v. 14 BRIAN WILLIAMSON, et al., 15 Respondents. 16 17 I. Introduction 18 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the court are two 19 motions. Petitioner Bryan Fergason has filed a motion for leave to conduct discovery. ECF No. 20 34. Respondents have filed a motion to dismiss. ECF No. 42. The court grants the motion to 21 dismiss in part because one ground is procedurally defaulted and because one ground is a claim of 22 a violation of the Fourth Amendment that is not addressable in federal habeas corpus. Two other 23 grounds, in their current form, are procedurally defaulted, but discovery and Fergason's 24 investigation might transform the grounds such that Fergason can overcome the procedural 25 default. The court denies the motion to dismiss regarding these two grounds. The court finds that 26 Fergason has shown good cause to conduct discovery, and the court grants that motion. 27 28 1 II. Procedural History 2 After a jury trial in state district court, Fergason was convicted of one count of conspiracy 3 to possess stolen property and/or to commit burglary and 25 counts of possession of stolen 4 property. Ex. 98 (ECF No. 45-18). Fergason appealed. Ex. 82 (ECF No. 45-2). The Nevada 5 Supreme Court affirmed. Ex. 112 (ECF No. 45-32). 6 Fergason filed a proper-person post-conviction habeas corpus petition. Ex. 117 (ECF No. 7 45-37). The state district court denied the petition. Ex. 130 (ECF No. 46-10). Fergason appealed 8 for the first time. Ex. 122 (ECF No. 46-2). The Nevada Supreme Court reversed and remanded 9 for appointment of counsel. Ex. 149 (ECF No. 46-29). The state district court appointed counsel. 10 Ex. 156 (ECF No. 46-36). Fergason then filed a counseled supplemental petition. Ex. 157 (ECF 11 No. 46-37). The state district court held an evidentiary hearing. Ex. 164 (ECF No. 47-4). The 12 state district court denied the petition. Ex. 166 (ECF No. 47-6). Fergason appealed for the 13 second time. Ex. 168 (ECF No. 47-8). One of the issues that he raised was that the state district 14 court addressed only the claims in the supplemental petition, ignoring the claims in the original 15 petition. Ex. 179 (ECF No. 47-19). The Nevada Supreme Court transferred the appeal to the 16 Nevada Court of Appeals. Ex. 182 (ECF No. 47-22). The Nevada Court of Appeals dismissed 17 the appeal. Ex. 184 (ECF No. 47-24). That court ruled that the district court did not address all 18 of Fergason's claims, that the district court's order thus was not a final order, and that Fergason 19 thus was appealing from a non-appealable order. Id. The state district court entered an amended 20 decision. Ex. 200 (ECF No. 48). Fergason appealed for the third time. Ex. 190 (ECF No. 47- 21 30). The Nevada Supreme Court affirmed. Ex. 214 (ECF No. 47-14). 22 III. Legal Standard 23 A. Exhaustion of State-Court Remedies 24 Before a federal court may consider a petition for a writ of habeas corpus, the petitioner 25 must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for 26 relief, the petitioner must fairly present that ground to the state’s highest court, describing the 27 operative facts and legal theory, and give that court the opportunity to address and resolve the 28 ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 1 U.S. 4, 6 (1982). "[S]tate prisoners must give the state courts one full opportunity to resolve any 2 constitutional issues by invoking one complete round of the State's established appellate review 3 process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 4 B. Fourth-Amendment Claims 5 If the petitioner had a full and fair opportunity in state court to litigate a claim of a 6 violation of the Fourth Amendment, then that claim is not addressable in federal habeas corpus. 7 Stone v. Powell, 428 U.S. 465, 494 (1976). 8 C. Discovery 9 Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts 10 ("Habeas Rules") states, "A judge may, for good cause, authorize a party to conduct discovery 11 under the Federal Rules of Civil Procedure and may limit the extent of discovery." If, through 12 "specific allegations before the court," the petitioner can "'show reason to believe that the 13 petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to 14 relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate 15 inquiry.'" Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 16 286, 300 (1969)). The Court noted that while the facts of Bracy made it an abuse of discretion 17 not to allow discovery, "Rule 6(a) makes it clear that the scope and extent of such discovery is a 18 matter confided to the discretion of the District Court." Bracy, 520 U.S. at 909. 19 IV. Discussion 20 A. Grounds Two(B), Two(C), and Two(D) Are Unexhausted 21 1. Ground Two(B) 22 Ground Two(B) is a claim that trial counsel provided ineffective assistance. After the jury 23 announced its verdict, the state district judge commented about Fergason's criminal history. The 24 judge made similar comments at Fergason's sentencing hearing as well as at hearings of 25 Fergason's co-defendants. Fergason claims that trial counsel should have sought recusal of the 26 judge before sentencing. Fergason raised this claim in his proper-person state post-conviction 27 habeas corpus petition. Ex. 117 (ECF No. 45-37 at 13-14). Fergason did not raise this claim in 28 1 the final post-conviction appeal. Ex. 206 (ECF No. 48-6). Fergason admits that he has not fairly 2 presented Ground Two(B) to the state courts. ECF No. 33 at 12. Ground Two(B) is unexhausted. 3 2. Grounds Two(C) and Two(D) 4 Ground Two(C) is a claim that trial counsel failed to hire an expert to provide a valuation 5 for the stolen property. Fergason raised this claim as Ground One(B) of his original proper- 6 person state post-conviction petition. Ex. 117 (ECF No. 45-37 at 15-16). This claim was one of 7 the claims that the state district court did not address in its second denial of the state post- 8 conviction petition. In the appeal from that denial, Fergason argued that the proper-person 9 petition raised issues of cumulative error that warranted relief, and he mentioned this claim as one 10 of many examples. Ex. 179 at 39 (ECF No. 47-19 at 45). The Nevada Court of Appeals 11 dismissed the appeal because the state district court had not entered a final order that addressed 12 all of Fergason's claims. Ex. 184 (ECF No. 47-24). The state district court then entered an 13 amended decision that addressed the claim. Ex. 200 (ECF No. 48). In the appeal from that 14 denial, Fergason did not raise this claim as an issue. Ex. 206 (ECF No. 48-6). 15 Ground Two(D) is a claim that trial counsel failed to object to PowerPoint slides that the 16 prosecutor used in the opening statement that contained photographs of Fergason and co- 17 defendants with the word "GUILTY" superimposed over the photographs. Fergason raised this 18 claim as Ground Four of his supplemental state petition. Ex. 157 (ECF No. 46-37 at 87-95).1 19 The state district court addressed this claim in its second denial of the post-conviction petition: 20 Trial counsel was adamant in her testimony that if photos on the State's opening PowerPoint would have flashed the word "guilty" across any faces, she would 21 have acted accordingly. Additionally, the State has correctly pointed out that Defendant's first Petition makes no mention of this occurring at opening, and only 22 notes it happening during closing arguments. The Court finds that no photos with the word "guilty" superimposed were shown during State's opening argument. 23 24 Ex. 166 at 7 (ECF No. 47-6 at 8). Fergason did raise this issue on appeal from the second denial. 25 Ex. 179 at 47-51 (ECF No. 47-19 at 53-57). The Nevada Court of Appeals dismissed the appeal 26 because the state district court had not entered a final order that addressed all of Fergason's 27 1 In the original proper-person state petition, Fergason alleged that the prosecution showed these slides to the jury 28 during closing argument, not the opening statement. Ex. 117 (ECF No. 45-37 at 14). 1 claims. Ex. 184 (ECF No. 47-24). The state district court then entered an amended decision 2 accordingly. Ex. 200 (ECF No. 48). In the appeal from that denial, Fergason did not raise this 3 claim as an issue. Ex. 206 (ECF No. 48-6). 4 Petitioner initially stated that, along with Ground Two(B), he has not fairly presented 5 Grounds Two(C) and Two(D) to the state courts. ECF No. 33 at 12. He now argues that he 6 presented Grounds Two(C) and Two(D) to the state courts in his second post-conviction appeal. 7 ECF No. 56 at 6. 8 The court disagrees. "[S]tate prisoners must give the state courts one full opportunity to 9 resolve any constitutional issues by invoking one complete round of the State's established 10 appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Even if Fergason 11 fairly presented the claims now in Ground Two(C) and Two(D) to the Nevada appellate courts in 12 his second post-conviction appeal, the Nevada Court of Appeals dismissed the appeal because the 13 state district court had not yet entered a final order that disposed of all of Fergason's claims. Ex. 14 184 (ECF No. 47-24). Fergason characterizes the order dismissing the appeal as a remand for the 15 state district court to explicitly resolve all of his claims. ECF No. 56 at 7. Either way, the 16 outcome is the same. At that point in the proceedings, Fergason had not yet gone through one 17 complete round of state post-conviction proceedings. See Boerckel, 526 U.S. at 845. 18 The court is not persuaded by Fergason's argument that the Nevada Court of Appeals 19 could have construed the state district court's order as summarily denying any claims not 20 explicitly mentioned. ECF No. 56 at 8. When the state district court denied the petition at the 21 end of the evidentiary hearing, Fergason's counsel asked respondents' counsel, who was preparing 22 the decision, to include the denials of all the grounds in the proper-person petition. Ex. 164 at 56 23 (ECF No. 47-4 at 57). Then, on appeal, Fergason argued that the state district court did not 24 include those denials. Ex. 184 at 1 (ECF No. 47-24 at 2). The Nevada Court of Appeals 25 dismissed the appeal based upon Fergason's argument. Ex. 179 at 26-41 (ECF No. 47-19 at 32- 26 47). This court cannot now say that the Nevada Court of Appeals had and passed on the 27 opportunity to rule on fairly presented claims when that court did exactly what Fergason asked. 28 1 B. Grounds Two(B), Two(C), and Two(D) Are Procedurally Defaulted 2 If Fergason were to return to state court to exhaust these grounds, he would face the state- 3 law procedural bars for an untimely and successive petition. See Nev. Rev. Stat. §§ 34.726, 4 34.810. A state district court can excuse those procedural bars if Fergason can demonstrate cause 5 and prejudice. 6 A procedural default of a claim of ineffective assistance of trial counsel may be excused 7 "where (1) the claim of 'ineffective assistance of trial counsel' was a 'substantial' claim; (2) the 8 'cause' consisted of there being 'no counsel' or only 'ineffective' counsel during the state collateral 9 review proceeding; (3) the state collateral review proceeding was the 'initial' review proceeding in 10 respect to the 'ineffective-assistance-of-trial-counsel claim'; and (4) state law requires that an 11 'ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral 12 proceeding.'" Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 13 13-16 (2012)). "The rule of Coleman [v. Thompson, 501 U.S. 722 (1991)] governs in all but the 14 limited circumstances recognized here. The holding in this case does not concern attorney errors 15 in other kinds of proceedings, including appeals from initial-review collateral proceedings, 16 second or successive collateral proceedings, and petitions for discretionary review in a State's 17 appellate courts." Martinez, 566 U.S. 1 (2012) (emphasis added). 18 Fergason has no argument for cause and prejudice other than Martinez. He acknowledges 19 that Martinez does not apply for procedural defaults that occurred because claims are not raised 20 on post-conviction appeal. ECF No. 56 at 10. He also notes that Nevada has not adopted 21 Martinez for its procedural bars. Id. (citing Brown v. McDaniel, 331 P.3d 867 (Nev. 2014)). For 22 Ground Two(B), he has no proposal how Martinez might excuse the procedural default. The 23 court thus dismisses Ground Two(B). 24 C. The Court Denies in Part the Motion to Dismiss Regarding Grounds Two(C) 25 and Two(D), and the Court Grants the Motion for Leave to Conduct Discovery 26 Fergason has a proposal for Grounds Two(C) and Two(D) not being exhausted. First, he 27 is trying on his own to obtain an expert valuation for the stolen property, and he is seeking 28 discovery to require respondents to turn over the PowerPoint slides showing his photograph with 1 the word "GUILTY" superimposed over it. ECF No. 56 at 10. That evidence would make 2 Grounds Two(C) and Two(D) new claims that the state courts would not have considered. Id. 3 Grounds Two(C) and Two(D) would be unexhausted not because Fergason failed to raise them on 4 appeal, but because Fergason's post-conviction counsel did not raise them in the state district 5 court. Grounds Two(C) and Two(D) also would be procedurally defaulted and technically 6 exhausted, because the state courts will not consider Fergason's Martinez argument. Then this 7 court could consider Fergason's Martinez argument. Then, if the court agrees with Fergason's 8 Martinez argument, he can get de novo review of Grounds Two(C) and Two(D) in federal court, 9 without ever presenting the new claims to the state courts. In effect, Fergason is not trying to 10 save his claims from procedural default, but he is intentionally trying to procedurally default his 11 claims to take advantage of Martinez. 12 This case is in a posture where dissenting opinions in two cases provide more guidance 13 than the majority opinions. The Supreme Court held that a federal court's review of a state court's 14 decision of a claim on the merits under 28 U.S.C. § 2254(d)(1) is limited to the record before the 15 state court at the time of the decision. Cullen v. Pinholster, 563 U.S. 170 (2011). In dissent, 16 Justice Sotomayor noted that this created a problem. She gave a hypothetical example of a person 17 who claimed in state court that the prosecution had withheld exculpatory witness statements in 18 violation of Brady v. Maryland, 373 U.S. 83 (1963). The state court denied the claim because the 19 known withheld evidence was not material under Brady. The person then finds that the 20 prosecution had withheld other exculpatory statements, but under state law the person could not 21 present the new evidence in a successive petition. Pinholster, 563 U.S. at 214-15 (Sotomayor, J., 22 dissenting). Justice Sotomayor noted that if the person never had presented the Brady claim at all 23 to the state courts, then it would be procedurally defaulted, and the person could try to show cause 24 and prejudice to excuse the default. Id. at 215. However, under the hypothetical she presented, 25 the state courts denied the Brady claim on the merits, and while it might have been a reasonable 26 application of Brady based upon the state record as it existed then, it might no longer be 27 reasonable when considering both the old evidence and the new evidence. Id. With the decision 28 in Pinholster, under 28 U.S.C. § 2254(d)(1) a federal court would be prohibited from considering 1 the new evidence in determining whether the state-court decision was reasonable. Id. Thus, she 2 concluded, "suggests the anomalous result that petitioners with new claims based on newly 3 obtained evidence can obtain federal habeas relief if they can show cause and prejudice for their 4 default but petitioners with newly obtained evidence supporting a claim adjudicated on the merits 5 in state court cannot obtain federal habeas relief if they cannot first satisfy 28 U.S.C. § 2254(d)(1) 6 without the new evidence." Id. In other words, if there is newly obtained evidence, it is better for 7 the petitioner that the claim be procedurally defaulted instead of adjudicated on the merits in state 8 court. 9 The majority suggested that Justice Sotomayor's hypothetical might be a new claim that 10 the state courts had not adjudicated on the merits. 563 U.S. at 186 n.10. She responded that new 11 evidence in the hypothetical she described usually is not considered a new claim but additional 12 proof in support of an existing claim. Id. at 216. She noted again that such a new claim would 13 mean that a petitioner could obtain de novo federal review if the petitioner could demonstrate 14 cause and prejudice, instead of the deferential review of § 2254(d)(1) that Congress intended. Id. 15 Later, after the Supreme Court decided Martinez, the Ninth Circuit held that a petitioner 16 who presented a new claim of ineffective assistance of trial counsel could obtain de novo review 17 of that claim if the claim was procedurally defaulted and if the ineffective assistance of post- 18 conviction counsel was the cause for that default. Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 19 2014) (en banc). If newly discovered evidence puts a claim already adjudicated on the merits in 20 state court into a "significantly different and stronger evidentiary posture," then it is unexhausted. 21 Id. at 1318 (quoting Aiken v. Spalding, 841 F.2d 881 (9th Cir. 1988)). The ground then would be 22 procedurally defaulted because the state courts—Arizona in Dickens, Nevada in this case—have 23 not adopted Martinez as an excuse for their state-law procedural bars. The state courts would 24 apply the procedural bars to dismiss the state petition, and thus returning to the state courts to 25 exhaust the claims would be futile. Then the petitioner could demonstrate cause and prejudice in 26 federal court by showing that post-conviction counsel was ineffective under Martinez. Then the 27 petitioner can obtain de novo review of the claim in federal court. Judge Callahan noted that this 28 holding turned the cases that Dickens relied upon completely around. In Aiken and Nevius v. 1 Sumner, 852 F.2d 463 (Nev. 1988), the Ninth Circuit told the petitioners that they needed to 2 present their new evidence to the state courts first before presenting that evidence to the federal 3 courts. Now, Dickens' application of Aiken and Nevius means that a petitioner can obtain de 4 novo review without even trying to present the evidence to the state courts. Dickens, 740 F.3d at 5 1330-32 (Callahan, J., dissenting in part). 6 That is the situation now before the court. Again, Fergason is not trying to use Martinez 7 to save procedurally defaulted claims from dismissal. Fergason is trying to procedurally default 8 his grounds to use Martinez to gain de novo review of the claims.2 Yet, what Fergason proposes 9 would result in nothing different in what Dickens held and Pinholster suggested in its footnote 10. 10 In state court, Fergason's claim that trial counsel should have obtained an expert opinion on the 11 value of the stolen property had no evidentiary support, and his claim that trial counsel should 12 have objected to the PowerPoint slide with the word "GUILTY" superimposed over his 13 photograph had only his testimony against his former counsel's testimony. If Fergason can obtain 14 an expert valuation, which he is trying on his own, and if Fergason can obtain the PowerPoint 15 slides used in the opening statement, for which he is seeking discovery, then Grounds Two(C) 16 and Two(D) would be in significantly different and stronger evidentiary postures. They would be 17 new claims. Dickens would be controlling precedent, and Fergason could obtain de novo review 18 of the claims in this court. 19 The court thus finds that Fergason has shown good cause for discovery. See Bracy, 520 20 U.S. at 908-09. If Fergason does obtain the evidence that he is seeking, then he may move for 21 leave to amend his petition to include that evidence. If he does so move, and if the court grants 22 the motion, then the court will decide at that time how respondents should respond to the newly 23 amended petition. If Fergason does not obtain the evidence that he is seeking, then he will need 24 to file a status report stating as much, and the court will decide at that time how respondents 25 should respond again to the current amended petition (ECF No. 33). 26 27 2 The court is not saying that Fergason has held back evidence intentionally. The court is saying only that Fergason 28 is taking advantage of the distortions that the dissents in Pinholster and Dickens predicted accurately. 1 The court's leave is not necessary for obtaining the expert valuation—again, Fergason is 2 trying to obtain that on his own—but the court will set the same deadline for finding that evidence 3 in support of Ground Two(C) as it sets for the discovery in support of Ground Two(D). If 4 Fergason cannot obtain that valuation by then, he probably cannot obtain it at all. 5 The court also denies in part the motion to dismiss regarding Grounds Two(C) and 6 Two(D). If everything works out in Fergason's favor, then Grounds Two(C) and Two(D) still 7 will be procedurally defaulted, but in a way that he can overcome the procedural default through 8 Martinez. Requiring Fergason to decide what to do with Grounds Two(C) and Two(D) would be 9 premature. 10 D. Fergason's Argument Regarding State-Court Delays Is Moot 11 Fergason argues that this court should not find Grounds Two(B), Two(C), and Two(D) to 12 be unexhausted because his state post-conviction proceedings had serious delays over nearly eight 13 years, and the court should not subject him to another possible eight years if he needs to return to 14 state court. ECF No. 56 at 3-5. However, as the court has found above, Ground Two(B) is 15 procedurally defaulted and Martinez is inapplicable, and the court is dismissing it. The court is 16 deferring action on the failure to exhaust Grounds Two(C) and Two(D), so Fergason faces no risk 17 now of returning to state court. Fergason's argument about delay thus is moot. 18 E. The Court Dismisses Ground One 19 Respondents argue that Ground One, a claim of a violation of the Fourth Amendment, is 20 not addressable in federal habeas corpus because Fergason had a full and fair opportunity to 21 litigate the claim in the state courts. ECF No. 42 at 9-10 (citing Stone v. Powell, 428 U.S. at 494. 22 Fergason argues that he did not have a full and fair opportunity to litigate the issue because the 23 state district court denied his request for an evidentiary hearing for necessary fact-finding. ECF 24 No. 56 at 11-12. This issue is complicated because it involves three separate criminal cases and 25 Fergason's co-defendant Daimon Monroe. After analyzing Fergason's argument, the court 26 concludes that Fergason did have a full and fair opportunity to litigate the claim in the state 27 courts. 28 1 First, Fergason was on probation in a criminal case that otherwise is unrelated to the 2 current case. Second, Fergason and Hoyt were arrested for the burglary of the Anku Crystal 3 Palace, a shop that sold crystals and East Asian statues. The events of Fergason's detention and 4 arrest are the basis of the Fourth Amendment claim. Third, while in jail awaiting the disposition 5 of the Anku Crystal Palace case, Fergason made phone calls that were recorded. The 6 investigation that followed led to the case that is now before the court. 7 The prosecution sought to revoke Fergason's probation in the otherwise unrelated case. 8 Fergason litigated a motion to suppress regarding his detention and arrest. The arguments were 9 similar to those that he raises now in Ground One. The state district court held oral argument. 10 The state district court denied the motion to suppress without holding an evidentiary hearing. 11 ECF No. 56 at 13. 12 In the Anku Crystal Palace case, both Fergason and Monroe made oral arguments at the 13 preliminary hearing, challenging the legality of the police stopping them. The justice court did 14 not consider the oral motions. ECF No. 56 at 13. 15 In the Anku Crystal Palace case, in the state district court, Monroe filed a motion to 16 suppress regarding the police stop. The arguments were similar to the arguments that Fergason 17 raised in Ground One. The state district court denied the motion without conducting an 18 evidentiary hearing. The state district court noted that it recently had denied Fergason's 19 analogous motion in the probation-revocation proceedings. ECF No. 56 at 13. 20 In the Anku Crystal Palace case, Monroe raised the Fourth Amendment claim on direct 21 appeal. He argued (1) that the initial traffic stop was improper and, even if it was proper, the 22 scope of the investigation exceeded the justification for the stop; (2) there was no reason for the 23 police to search the van initially as a protective sweep, during which they found a glass object 24 that they connected to the Anku break-in; and (3) the trial court had erroneously denied the 25 suppression motion without holding an evidentiary hearing, because there were disputed factual 26 issues. ECF No. 56 at 14. The Nevada Supreme Court reversed and remanded Monroe's 27 conviction. It held that the state district court should have held an evidentiary hearing on 28 Monroe's motion, instead of relying on the conclusions that it had reached during the evidentiary 1 hearing in Fergason's probation-revocation case. The mention of the evidentiary hearing was 2 erroneous, because an evidentiary hearing did not occur in Fergason's probation-revocation case. 3 Nonetheless, Monroe prevailed. Without specific factual findings, the Nevada Supreme Court 4 was unable to conclude that the prosecution had met its burden of proof. ECF No. 56 at 14. 5 In the Anku Crystal Palace Case, back in the state district court Monroe and the 6 prosecution then negotiated a guilty-plea agreement. ECF No. 56 at 15. 7 In the instant, stolen-property case, Fergason and Monroe both filed motions to suppress. 8 The state district court severed the trials of Monroe and Fergason, and Monroe's trial occurred 9 first. The court heard oral argument about both motions at the start of Monroe's trial. The state 10 district court denied the motions orally without holding an evidentiary hearing. ECF No. 56 at 11 15. 12 In the stolen-property case, on direct appeal, Fergason raised a Fourth Amendment claim. 13 The Nevada Supreme Court affirmed. ECF No. 56 at 15. 14 In the stolen-property case, on direct appeal, Monroe also raised a Fourth Amendment 15 claim. The Nevada Supreme Court affirmed. Its reasoning was materially identical to the 16 reasoning in Fergason's appeal. ECF No. 56 at 16. 17 In the instant, stolen-property case, Fergason did not argue that the state district court 18 should have held an evidentiary hearing. Ex. 101 (ECF No. 45-21). In contrast, in the Anku 19 Crystal Palace Case, Monroe did argue that the state district court should have held an evidentiary 20 hearing. P. Ex. 12 at 20 (ECF No. 57-12 at 22). It worked. The Nevada Supreme Court agreed 21 with Monroe and remanded for an evidentiary hearing. P. Ex. 15 (ECF No. 57-15). Although the 22 Nevada Supreme Court stated erroneously in Monroe's appeal that Fergason had an evidentiary 23 hearing in the probation-revocation case, Fergason easily could have corrected that error in his 24 own appellate brief, if he had raised the issue. 25 Fergason had the same opportunity as Monroe to litigate the Fourth Amendment issue. 26 Fergason did not take that opportunity. For the purposes of Stone v. Powell, it does not matter 27 that he did not avail himself of that opportunity; it only matters that the opportunity was present. 28 The court dismisses Ground One. 1 V. Conclusion 2 IT THEREFORE IS ORDERED that petitioner's motion for leave to conduct discovery 3 (ECF No. 34) is GRANTED. Petitioner must complete discovery within 60 days of the date of 4 entry of this order. 5 IT FURTHER IS ORDERED that, within 28 days of the completion of discovery, 6 petitioner must file a motion for leave to amend the petition, a status report stating that he will 7 stand on his current amended petition (ECF No. 33), or any other appropriate motion. 8 IT FURTHER IS ORDERED that respondents' motion to dismiss (ECF No. 42) is 9 GRANTED in part. The court dismisses Grounds One and Two(B) with prejudice. The court 10 DENIES in part the motion to dismiss with respect to Grounds Two(C) and Two(D).

11 DATED: September 30, 2021

12 ______________________________ GLORIA M. NAVARRO 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28