United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
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). 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.
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.
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.
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).
Legal Standard for Exhaustion
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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
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
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).
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).