Dante Pattison v. Cole Morrow

FILED
NOT FOR PUBLICATION
OCT 31 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANTE HANALEI PATTISON, No. 15-16455
Petitioner-Appellant, D.C. No.
2:12-cv-00315-KJD-PAL
v.
COLE MORROW; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted June 12, 2017
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,** District
Judge.
This habeas appeal arises from Petitioner-Appellant Dante Pattison’s
Nevada state convictions for three counts of murder and one count of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
manslaughter. Pattison pleaded not guilty by reason of insanity. Pattison argues
that the prosecution violated his Fifth and Fourteenth Amendment rights by using
evidence from his stay at a mental health facility to prove that Pattison was sane at
the time of the killings. The district court denied the petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
At trial, Pattison called expert witnesses to testify that he suffered from a
form of schizophrenia that would induce delusions. The experts relied on records
from Pattison’s roughly twenty-month stay at the mental health facility, where
Pattison had been evaluated to determine competency to stand trial. The
prosecution countered Pattison’s defense by calling staff from the mental health
facility and its own expert, who had examined the facility records. The
prosecution relied on these witnesses to argue that Pattison’s delusions at the time
of the killings were caused by drug use, rather than schizophrenia.
The Nevada Supreme Court’s 2007 decision affirming Pattison’s conviction
was not contrary to, or an unreasonable application of, clearly established federal
law, as determined by the United States Supreme Court; nor was it an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254(d). Pattison’s Fifth Amendment claim fails
because Pattison’s reliance on records from the mental health facility to prove his
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insanity justified the prosecution’s reliance on such evidence to rebut the insanity
defense. See Buchanan v. Kentucky, 483 U.S. 402, 422–23 (1987). Pattison’s due
process claim is that the evidence from the mental health facility should have been
excluded as excessively prejudicial. This is foreclosed by this court’s 2009
decision in Holley v. Yarborough, where we concluded that the Supreme Court of
the United States “has not yet made a clear ruling that admission of irrelevant or
overtly prejudicial evidence constitutes a due process violation sufficient to
warrant issuance of the writ.” 568 F.3d 1091, 1101 (9th Cir. 2009).
Pattison also argues that his conviction and sentence are invalid because the
prosecution took advantage of Pattison’s post-arrest silence, in violation of the
Fifth and Fourteenth Amendments. Even assuming that Pattison adequately raised
this claim below, he cannot prevail on the merits. His claim is that even if the state
can rely on records from the mental health facility to show what Pattison said or
did during the evaluation, see Buchanan, 483 U.S. at 422–23, it cannot rely on
what the records show he did not say or do. No clearly established law supports
making this distinction. Pattison’s reliance on Wainwright v. Greenfield, 474 U.S.
284 (1986), is misplaced. Greenfield did not involve a situation where the
prosecution relied on evidence that had already been used by the defense to argue
insanity. The Nevada Supreme Court’s decision in this case was therefore not
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contrary to, or an unreasonable application of, Greenfield or any other Supreme
Court law.
The district court properly denied Pattison’s habeas petition.
AFFIRMED.
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FILED
Pattison v. Morrow
OCT 31 2017
No. 15-16455
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Judge N.R. Smith, concurring in part and concurring in the judgment:
I join the majority with respect to its analysis and disposition of Pattison’s
Fifth and Fourteenth Amendment claims relating to the introduction of evidence
from his stay at the mental health facility. I do not join its analysis of Pattison’s
claim that his conviction and sentence are invalid because the prosecution took
advantage of Pattison’s post-arrest silence, in violation of the Fifth and Fourteenth
Amendments. I would decline to reach the merits of this claim. Pattison raised
this claim in the state courts and in the district court within the context of an
ineffective assistance of counsel claim. He never pleaded this claim independent
of his ineffective assistance of counsel claim, as he now does on appeal. We
declined to grant Pattison a certificate of appealability on any of his ineffective
assistance of counsel claims. Therefore, this claim is not properly before us.
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