                                                                            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                           NOT FOR PUBLICATION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


                                           3
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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