Michael Patton v. Daniel E. Cueva

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL PATTON, No. 20-55308
Petitioner-Appellant, D.C. No.
2:17-cv-00181-CJC-PVC
v.
DANIEL E. CUEVA, Warden, MEMORANDUM*
Respondent-Appellee,
and
ROB BONTA, Attorney General of the State
of California,
Respondent.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted January 12, 2023
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Petitioner Michael Patton appeals the district court’s order denying his
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 1291and § 2253, and we affirm. Because the parties are familiar with the facts and the
procedural history of this case, we recount them only as necessary to explain our
disposition.
Patton was charged with shooting David Johnston in Los Angeles in 2013.
Johnston had been shot five times. Patton’s defense at trial was that he was not the
shooter. A jury found Patton guilty of attempted murder, assault with a firearm,
and prohibited possession of a firearm and ammunition. The trial court found that
Patton had previously been convicted of two serious or violent felonies, see Cal.
Penal Code §§ 667(a)(1), (b)–(i), § 1170.12, and sentenced him to imprisonment
for a term of 60 years to life. Patton unsuccessfully appealed his conviction.
Then, Patton filed ten unsuccessful pro se habeas petitions in state court. He also
filed a habeas petition pursuant to 28 U.S.C. § 2254 in federal district court, which
the district court denied. This appeal followed.
1. Petitioner argues that the district court erred in denying his motion for
appointment of counsel. We review such a denial for abuse of discretion. Duckett
v. Godinez, 67 F.3d 734, 750 n.8 (9th Cir. 1995). Petitioner requested counsel
three times. Each time, the district court reviewed the operative petition and the
record, and concluded both that no evidentiary hearings were required and that the
2
“interests of justice” did not require the appointment of counsel. 28 U.S.C.
§ 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Based on our independent review of the
record, we conclude that the district court did not abuse its broad discretion in
declining to appoint counsel. See Knaubert v. Goldsmith, 791 F.2d 722, 728–30
(9th Cir. 1986) (explaining that § 3006A and due process do not require counsel
where a district court properly declines an evidentiary hearing).
2. As relevant to this appeal, Petitioner argues that his trial counsel
rendered ineffective assistance in violation of his Sixth Amendment right to
counsel. Petitioner contends on appeal that his trial counsel was ineffective in
three ways: first, by failing to investigate and obtain mental health evidence to
present insanity and imperfect self-defense theories; second, by failing to advise
him of his maximum sentencing exposure at trial were he to reject the State’s plea
offer; and third, by failing to call available witnesses who could have testified in
support of a lesser-included instruction on attempted voluntary manslaughter.
We review the district court’s denial of a habeas petition de novo. Stanley v.
Schriro, 598 F.3d 612, 617 (9th Cir. 2010). Federal habeas relief is unavailable
unless a petitioner has exhausted his claims in state court. 28 U.S.C.
§ 2254(b)(1)(A).1 We find that Petitioner has not exhausted any of his claims.
1
A petitioner does not have to exhaust his claims in state court if “there is an
absence of available State corrective process” or pursuing such process would be
3
As to the first claim, the relevant state court petition merely refers to
Petitioner’s “two nervous breakdowns at L.A. county psych hospital) (1989?)” and
“prior (1st) time hospitalize” [sic]. Petitioner’s claim on appeal necessarily relies
on the psychological evaluation of his mental state at the time of shooting, while
the claim in state court relied on evidence of his hospitalization more than twenty
years before the shooting—and did not mention how this evidence (like nervous
breakdowns) would directly connect to either insanity or imperfect self-defense.
The state court petition’s reference to “superior court filing by trial counsel” does
not help Patton, because a state court need not look beyond the “four corners” of
the petition before it. Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005).
Moreover, a habeas petitioner must describe “both the operative facts and the
federal legal theory on which his claim is based” to give the state court a fair
opportunity to consider the claim. Id. at 998–99 (quoting Kelly v. Small, 315 F.3d
1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481
F.3d 1143 (9th Cir. 2007))). Because Patton did not present the operative facts
providing the basis for his claim, it cannot be considered exhausted. See id. at
futile. 28 U.S.C. § 2254(b)(1)(B). Patton does not make any argument that state
court remedies were unavailable to him or that pursuing them would have been
futile.
4
999–1000.2
Patton claims on appeal that trial counsel was ineffective for failing to
advise him—when discussing the State’s thirty-eight-year plea offer—of his
maximum sentencing exposure at trial.3 Patton did not exhaust this claim in state
court. In state court, Patton claimed that his trial counsel entirely failed to inform
him of the thirty-eight-year plea offer: “her exact words [were that] the offer was
in the Double Digits (without Precisely Disclosing 38 years).”4 Patton’s state
petition also stated that “Counsel grossly Mischaracterized or Misinformed
Probable Sentence on Guilty Plea offer.” But the state habeas petition did not
2
As a result of our determination that these claims were not exhausted in
state court, we do not need to reach the State’s alternate grounds for affirmance—
including “whether there is any reasonable argument that” counsel rendered
adequate assistance or petitioner “fell short” of showing actual prejudice.
Harrington v. Richter, 562 U.S. 86, 105, 112 (2011).
3
Patton’s opening brief is somewhat vague, but his reply brief is clearer.
Patton had earlier turned down a plea offer of 38 years, as
his counsel had not advised him of his sentencing exposure
should he go to trial.
***
Patton exhausted his claim regarding counsel’s failure to
advise him of his sentencing exposure should he reject the
38-year plea offer and go to trial . . . .
4
Patton even attached to his state court petition the trial court record stating
that he “REJECT[ed] THE PEOPLE’S 38 YEAR STATE PRISON OFFER” with
his handwritten annotation: “My Attorney never told me about this.”
5
sufficiently advise the California Supreme Court of the factual basis for any
ineffective assistance claim based on counsel’s supposed failure to inform Patton
of the maximum sentence he faced were he convicted at trial.
Patton also claims that trial counsel was ineffective for failing to call
witnesses who could have supported the requested alternative instruction on
attempted voluntary manslaughter. This claim was not presented in any petition to
the California Supreme Court. The mere mention that his trial counsel did not
present witnesses—buried in a long explanation of facts to support an entirely
different claim in his seventh petition—did not suffice to put the state court on
notice of the ineffective assistance claim he was trying to make.
AFFIRMED.
6