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Patterson v. Williams

United States District Court, D. Nevada

February 3, 2017

DEMEITRUS PATTERSON, Plaintiff,
v.
BRIAN WILLIAMS, et al., Defendants.

          ORDER

          HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE

         Demeitrus Patterson's pro se habeas petition under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss several grounds as unexhausted or duplicative (ECF No. 9). Patterson did not file an opposition, but filed what he styled as a motion to stay these proceedings (ECF No. 14). Respondents opposed the motion to stay (ECF No. 15).

         I. Procedural History and Background

         On August 25, 2010, a jury convicted Patterson of counts I and II: robbery with the use of a firearm; count III: burglary; and count IV: unlawful possession of a firearm with an obliterated serial number (exhibit 30).[1] The state district court sentenced him as follows: count 1 - 48 to 180 months, with a consecutive term of 24 to 120 months for the elder enhancement; count II - 48 to 180 months, with a consecutive term of 24 to 120 months for the elder enhancement; count III - 48 to 120 months; and count IV - 12 to 34 months, with counts I, II, and III to run consecutively and count IV to run 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 filed 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):

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
(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 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 omitted). 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 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

         Grou ...


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