Patterson v. State of Nevada et al

Filing 16

ORDERED that respondents' motion to dismiss (ECF No. 9 ) is GRANTED in part as specified herein (see order for speclfics). Petitioner's motion to stay (ECF No. 14 ) is DENIED without prejudice. Petitioner shall have until 3/5 /2017 to either: (1) file a sworn declaration to abandon the unexhausted grounds; OR (2) file a declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust; OR (3) file a motion for a stay and abeyance. If petitioner elects to abandon unexhausted grounds, respondents answer to remaining grounds due 30 days after service of declaration; petitioner shall have 30 days following service of respondents' answer in which to file a reply. Signed by Judge Howard D. McKibben on 2/3/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEMEITRUS PATTERSON,

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Case No. 3:15-cv-00392-HDM-WGC
Plaintiff,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Defendants.
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Demeitrus Patterson’s pro se habeas petition under 28 U.S.C. § 2254 is bef ore

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the court on respondents’ motion to dismiss several grounds as unexhausted or

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duplicative (ECF No. 9). Patterson did not file an opposition, but filed what he styled as

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a motion to stay these proceedings (ECF No. 14). Respondents opposed the motion to

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stay (ECF No. 15).

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I.

Procedural History and Background

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On August 25, 2010, a jury convicted Patterson of counts I and II: robbery with the

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use of a firearm; count III: burglary; and count IV: unlawful possession of a firearm with

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an obliterated serial number (exhibit 30).1 The state district court sentenced him as

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follows: count 1 – 48 to 180 months, with a consecutive term of 24 to 120 months for

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the elder enhancement; count II - 48 to 180 months, with a consecutive term of 24 to

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120 months for the elder enhancement; count III – 48 to 120 months; and count IV – 12

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to 34 months, with counts I, II, and III to run consecutively and count IV to run

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 9, and are found
at ECF No. 10.

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concurrently with counts I-III. Exh. 37. Judgment of conviction was entered on October
28, 2010. Id.
On appeal, the Nevada Supreme Court reversed Patterson’s conviction in part,
ordering the district court to vacate the elder enhancement originally applied to count II.
Exh. 53, pp. 2-3. The state supreme court affirmed the remaining convictions and
sentences. Id. at 3. The state district court filed a corrected judgment of conviction on
October 4, 2011. Exh. 60.
On November 7, 2011, Patterson filed a pro per state postconviction petition for
habeas corpus. Exh. 63. The state district court appointed counsel, and Patterson f iled
a supplemental petition. Exh. 70. After an evidentiary hearing, the state district court
denied the petition. Exh. 89. The Nevada Supreme Court affirmed the denial of the
petition on November 12, 2014, and remittitur issued on December 8, 2014. Exhs. 105,
106.
On or about November 2, 2015, Patterson dispatched his federal habeas petition
(ECF No. 7). Respondents now argue that several grounds are duplicative or
unexhausted (ECF No. 9).
II.

Legal Standard for Exhaustion

State prisoners seeking federal habeas relief must comply with the exhaustion rule
codified in § 2254(b)(1):

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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 unless it
appears that –
(A) The applicant has exhausted the remedies available in the court so the
State; or

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(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
The purpose of the exhaustion rule is to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to
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the federal court, and to “protect the state courts’ role in the enf orcement of federal law.”
Rose v. Lundy, 455 U.S. 509, 518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844
(1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains
unexhausted until the petitioner has given the highest available state court the
opportunity to consider the claim through direct appeal or state collateral review
proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v.
McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
A habeas petitioner must “present the state courts with the same claim he urges
upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal
constitutional implications of a claim, not just issues of state law, must have been raised
in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481
(D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court
must be “alerted to the fact that the prisoner [is] asserting claims under the United
States Constitution” and given the opportunity to correct alleged violations of the
prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b)
“provides a simple and clear instruction to potential litigants: before you bring any claims
to federal court, be sure that you first have taken each one to state court.” Jiminez v.
Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520
(1982)). “[G]eneral appeals to broad constitutional principles, such as due process,
equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations om itted). However,
citation to state case law that applies federal constitutional principles will suffice.
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc ).
A claim is not exhausted unless the petitioner has presented to the state court the
same operative facts and legal theory upon which his federal habeas claim is based.
Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The

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exhaustion requirement is not met when the petitioner presents to the federal court facts
or evidence which place the claim in a significantly different posture than it was in the
state courts, or where different facts are presented at the federal level to support the
same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge
v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455,
458 (D. Nev. 1984).
I.

Instant Petition

Ground 1
In ground 1, Patterson raises eight claims that ineffective assistance of trial counsel
violated his Sixth and Fourteenth Amendment rights (ECF No. 7, pp. 3-4). Respondents
argue that the following sub-parts are unexhausted. Patterson contends that trial
counsel rendered ineffective assistance by failing to: ground 1.1 - present a defense
during trial; ground 1.2 - properly investigate his case; ground 1.3 - interview witness
Antonio Davis; ground 1.4 - dedicate appropriate time to Patterson’s trial; ground 1.6 have the firearms in the case tested for fingerprints or DNA; and ground 1.7 - file a
motion to dismiss based on inconsistent identification evidence from the victims. Id.
On appeal of the denial of his state postconviction petition, Patterson presented two
ineffective assistance of trial counsel claims to the Nevada Supreme Court: counsel
failed to call either alibi witness at trial and counsel failed to put on any mitigating
evidence at sentencing. Exh. 101, pp. 14-16.
Therefore, respondents are correct that Patterson did not present f ederal grounds
1.1. 1.2, 1.3, 1.4, 1.6, and 1.7 to the Nev ada Supreme Court. Accordingly, these subparts of ground 1 are unexhausted.
Respondents do not challenge the remaining claims in ground 1 as unexhausted.
Thus, to clarify, the sole claim in ground 1 (which Patterson sets forth redundantly as
ground 1.5 and ground 1.8) that is exhausted is the claim that defense counsel was
ineffective for failing to call Patterson’s two alibi witnesses to testify (ECF No. 7, p. 4).

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Ground 2

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Patterson argues that his Sixth and Fourteenth Amendment fair trial rights were
violated because the evidence of the victims’ identification of Patterson was inconsistent
(ECF No. 7, p. 6).

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Patterson raised the following claims on direct appeal: I – the trial court erred by
denying his motion for a continuance just prior to trial; II – no evidence supported the
elder enhancement as to one of the two victims; and III – insufficient evidence
supported his conviction for possession of a firearm with an obliterated serial number.
Exh. 50. Respondents are correct that Patterson never presented federal ground 2 to
the Nevada Supreme Court. See exhs. 50, 101. Ground 2 is, therefore, unexhausted.

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Ground 3

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Patterson contends that his Sixth and Fourteenth Amendment fair trial rights were
violated when: ground 3.1 - defense counsel failed to call Davis as a witness; ground
3.2 - the victims provided inconsistent testimony about the color of one firearm used in
the robbery; grounds 3.3, 3.5, 3.6 - the victims provided inconsistent testimony
identifying Patterson as one of the robbers; and ground 3.4 – defense counsel failed to
call Patterson’s two proposed alibi witnesses (ECF No. 7, p. 8).

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Ground 3.1 is duplicative of ground 1.3. Grounds 3.3, 3.5, and 3.6 are duplicativ e of
ground 2. Thus, grounds 3.1, 3.3, 3.5, and 3.6 are all dism issed as duplicative of
grounds raised in ground 1 and ground 2.2

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Ground 3.4 is duplicative of the claims set forth in grounds 1.5 and 1.8. Ground 3.4
is dismissed as duplicative.

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Respondents are correct that the remaining claim in ground 3, ground 3.2, is
unexhausted.

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These grounds are all also unexhausted. See discussion, infra of federal grounds 1 and 2.

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Ground 4
Patterson argues that his Sixth and Fourteenth Amendment fair trial rights were
violated because insufficient evidence supported the verdict (ECF No. 7, pp. 10-11).
Specifically, he contends: grounds 4.1, 4.4, 4.5 – insufficient evidence was presented
that he possessed a firearm; and grounds 4.2 and 4.3 – there was insufficient evidence
establishing Patterson’s presence in the victim’s apartment.
Patterson did not present grounds 4.2 and 4.3 to the Nevada Supreme Court, and
they are unexhausted. See exh. 50.
Respondents also argue that grounds 4.1, 4.4, and 4.5 were not properly presented
to the Nevada Supreme Court as federal constitutional claims (ECF No. 9, pp. 9-10). In
his direct appeal, Patterson raised the claim that insufficient evidence supported his
possession of the shotgun with obliterated serial numbers. While he cited only a
Nevada case, Berry v. State, 212 P.3d 1085 (Nev. 2009), the Berry case invoked state
case law that relied on Jackson v. Virginia, 443 U.S. 307 (1979), for the well-established
sufficiency of the evidence inquiry: “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” This court concludes that grounds
4.1, 4.4, and 4.5 were fairly presented as federal constitutional claims to the Nevada
Supreme Court. See Peterson, 319 F.3d at 1158 (citation to state case law that applies
federal constitutional principles will suffice to apprise state courts of the federal
constitutional nature of a claim). These three sub-parts of ground 4 are, therefore,
exhausted.
Ground 5
As ground 5.1, Patterson contends that his Sixth and Fourteenth Amendment fair
trial rights were violated when the trial court denied his motion for a continuance just
prior to trial (ECF No. 7, p. 13). In grounds 5.2 and 5.3, he argues again that the

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evidence of the victims’ identification of Patterson were inconsistent. Id. Grounds 5.2
and 5.3 are duplicative of ground 2 and are dismissed on that basis.
II.

Petitioner’s Options Regarding Unexhausted Claims

A federal court may not entertain a habeas petition unless the petitioner has
exhausted available and adequate state court remedies with respect to all claims in the
petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both
exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the
court finds that grounds 1.1. 1.2, 1.3, 1.4, 1.6, 1.7, ground 2, ground 3.2, and grounds
4.2 and 4.3 are unexhausted. Grounds 3.1, 3.3, 3.4, 3.5, 3.6, and g rounds 5.2 and 5.3
are all dismissed as duplicative of other grounds.
Thus, the exhausted claims that are before this court are: grounds 1.5, 1.8, 4.1, 4.4,
4.5, and 5.1. Because the court finds that the petition contains unexhausted claims,
petitioner has these options:

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1.
He may submit a sworn declaration voluntarily abandoning
the unexhausted claims in his federal habeas petition, and proceed only
on the exhausted claims;
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He may return to state court to exhaust his unexhausted
claims, in which case his federal habeas petition will be denied without
prejudice; or
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He may file a motion asking this court to stay and abey his
exhausted federal habeas claims while he returns to state court to exhaust
his unexhausted claims.
With respect to the third option, a district court has discretion to stay a petition
that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005).
The Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for
the petitioner’s failure to exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his unexhausted
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claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts
of the State”).

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Rhines, 544 U.S. at 277.
In this case, Patterson has filed what he styled a motion for stay of these

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proceedings (ECF No. 14). However, in that motion, he both asks for a stay and
expresses his wish to abandon the unexhausted claims. Thus, that motion is denied
without prejudice. If petitioner wishes to ask for a stay, he must file a new motion for
stay and abeyance in which he demonstrates good cause for his failure to exhaust his
unexhausted claims in state court, and presents argument regarding the question of
whether or not his unexhausted claims are plainly meritless. Respondent would then be
granted an opportunity to respond, and petitioner to reply. Or, Patterson may file a
declaration voluntarily abandoning his unexhausted claims, as described above.
Petitioner’s failure to choose any of the three options listed above, or seek other

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appropriate relief from this court, will result in his federal habeas petition being
dismissed. Petitioner is advised to familiarize himself with the limitations periods for
filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those lim itations
periods may have a direct and substantial effect on whatever choice he makes
regarding his petition.
III.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 9)

is GRANTED in part as follows:
Grounds 1.1. 1.2, 1.3, 1.4, 1.6, 1.7, ground 2, ground 3.2, and grounds 4.2 and
4.3 are UNEXHAUSTED.
Grounds 3.1, 3.3, 3.4, 3.5, 3.6, and grounds 5.2 and 5.3 are all DISMISSED as
duplicative.
Grounds 1.5, 1.8, 4.1, 4.4, 4.5, and 5.1 are EXHAUSTED.

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IT IS FURTHER ORDERED that petitioner’s motion to stay (ECF No. 14) is
DENIED without prejudice.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either:
(1) inform this court in a sworn declaration that he wishes to formally and forever
abandon the unexhausted grounds for relief in his federal habeas petition and proceed
on the exhausted grounds; OR (2) inform this court in a sworn declaration that he
wishes to dismiss this petition without prejudice in order to return to state court to
exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking
this court to hold his exhausted claims in abeyance while he returns to state court to
exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and
abeyance, or seek other appropriate relief, respondents may respond to such motion as
provided in Local Rule 7-2.
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted
grounds, respondents shall have thirty (30) days from the date petitioner serves his
declaration of abandonment in which to file an answer to petitioner’s remaining grounds
for relief. The answer shall contain all substantive and procedural arguments as to all
surviving grounds of the petition, and shall comply with Rule 5 of the Rules Governing
Proceedings in the United States District Courts under 28 U.S.C. §2254.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following
service of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within
the time permitted, this case may be dismissed.

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DATED: 3 February 2017.

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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