Grigsby (Dennis) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DENNIS MARC GRIGSBY, No. 68783
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUN 1 7 2016
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Kathleen E. Delaney, Judge.
In his pro se postconviction petition, appellant Dennis Marc
Grigsby argued that trial and appellate counsel were ineffective on three
grounds.' To prevail on a claim of ineffective assistance of counsel, a
petitioner must show that counsel's performance was deficient because it
fell below an objective standard of reasonableness and the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). We give deference to the court's factual findings if supported by
'The district court appointed counsel to represent Grigsby in the
postconviction proceeding. See NRS 34.750. Subsequently, Grigsby filed a
motion to represent himself with standby counsel. The district court
granted the motion in part, allowing Grigsby to represent himself without
standby counsel.
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substantial evidence and not clearly erroneous but review the court's
application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, Grigsby argued that trial counsel were ineffective for
not seeking to suppress evidence collected during an unlawful search of
his residence. 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, searched Grigsby's apartment, and seized several items.
Grigsby argued that the search of his apartment was improper
because even though Mildred was the leaseholder of the apartment, she
had no authority to allow police into his apartment as she did not reside
there. The district court rejected his trial-counsel claim, determining that
Mildred had actual authority to consent to a search of Grigsby's apartment
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and therefore he assumed the risk of Mildred consenting to a search of the
apartment. See Taylor v. State, 114 Nev. 1071, 1079, 968 P.2d 315, 321
(1998). Moreover, the district court concluded, the search warrant was
properly issued based on Tina's statements to the police and the initial
entry into the apartment was not the "but-for cause" of the discovery of the
evidence in Grigsby's apartment. Rather, the initial entry into the
apartment was simply to look for Grigsby and the seized evidence was
obtained after a search warrant had issued. Therefore, trial counsel were
not ineffective for not seeking to suppress the seized evidence. We
conclude that the district court did not err by denying this claim.
Second, Grigsby argued that appellate counsel was ineffective
for not challenging the prosecutor's comment to the jury that a guilty
verdict is permissible so long as the determination of guilt is unanimous
even if the jurors were not unanimous as to the theory of guilt, as the jury
was not instructed on that legal principle before deliberations. Because
the prosecutor's comment was a correct statement of the law, see Schad v.
Arizona, 501 U.S. 624, 631 (1991); Holmes v. State, 114 Nev. 1357, 1364,
n.4, 972 P.2d 337, 342 n.4 (1998), Grigsby failed to demonstrate that
appellate counsel was ineffective for failing to challenge the comment on
appeal. Accordingly, the district court properly denied this claim.
Third, Grigsby argued that appellate counsel was ineffective
for not raising a claim that the district court erred by providing a
supplemental instruction to the jury several hours after deliberations had
begun. However, the record shows that the district court did not give the
jury a supplemental instruction after deliberations began. Because
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Grigsby failed to show that appellate counsel was ineffective for not
raising this claim on appeal, the district court properly denied this claim.
Having considered Grigsby's claims and concluded that they
lack merit, we
ORDER the judgnwzt of the district court AFFIRMED. 2
J.
Douglas
Gibbons
cc: Hon. Kathleen E. Delaney, District Judge
Dennis M. Grigsby
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 Because Grigsby did not demonstrate error, his contention that
cumulative error requires reversal of his conviction and sentence lacks
merit. Therefore, the district court properly denied this claim. We further
conclude that the district court did not err by denying Grigsby's petition
without conducting an evidentiary hearing. See Mann v. State, 118 Nev.
351, 354, 46 P.3d 1228, 1239 (2002) (observing that a postconviction
petitioner is entitled to evidentiary hearing when the petitioner asserts
claims supported by specific factual allegations not belied by the record
that, if true, would entitle him to relief).
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