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Patterson v. Crowther

United States District Court, D. Utah

March 7, 2018

SCOTT KIRBY PATTERSON, Petitioner,
v.
SCOTT CROWTHER, Respondent.

MEMORANDUM DECISION & ORDER GRANTING RHINES STAY

          DAVID NUFFER, CHIEF JUDGE

         On November 2, 2016, with the help of appointed counsel, Petitioner filed a Third Amended Petition under 28 U.S.C.S. § 2254 (2018). (Docket No. 47.) Petitioner raises claims of ineffective assistance of counsel and prosecutorial misconduct.

         Noting the petition contains exhausted and unexhausted claims, Respondent moved the Court to dismiss the petition while Petitioner pursues state post-conviction relief on the unexhausted claims. (Docket No. 49.) Respondent opposes dismissal, arguing instead for a Rhines stay. (Docket No. 52.)

         The Court denies dismissal and grants a Rhines stay.

         PROCEDURAL HISTORY

         • March 18, 2010 Petitioner sentenced in Utah state court.

         • January 10, 2013 Utah Court of Appeals affirmed conviction. State v. Patterson, 2013 UT App 11, 294 P.3d 662.

         • May 16, 2013 Utah Supreme Court denied certiorari review. State v. Patterson, 304 P.3d 469 (Utah 2013) (table).

         • August 14, 2014 Federal habeas petition filed and pending here (brought pro se)

         • October 22, 2015 This Court appoints pro bono counsel for Petitioner. (Docket No. 23.)

         • October 28, 2016 State post-conviction petition filed and pending.

         • November 2, 2016 Third Amended Petition filed in this Court. (Docket No. 47.)

         LEGAL STANDARDS

         A federal habeas petition “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.S. § 2254(b)(1)(A) (2018); see also Rose v. Lundy, 455 U.S. 509, 522 (1982) (requiring total exhaustion). Moreover, an inmate must present claims in ...


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