(HC) Carmony v. Mayberg, et al, No. 2:2007cv02793 - Document 20 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 10/7/2010. It is ordered that petitioner's Requests for Order to Show Cause and Judicial Notice be DENIED; and RECOMMENDED that petitioner's 1 Application for Writ of Habeas Corpus and remaining Requests be denied. Within 21 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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(HC) Carmony v. Mayberg, et al Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HAROLD E. CARMONY, 11 12 13 14 15 16 Petitioner, No. CIV S-07-2793-FCD-TJB vs. STEPHEN MAYBERG, Director, DEPARTMENT OF MENTAL HEALTH, and NORMAL KRAMER, Executive Director, Coalinga State Hospital, ORDER, FINDINGS AND RECOMMENDATIONS Respondents. 17 / 18 I. INTRODUCTION 19 Petitioner Harold E. Carmony proceeds pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 civil recommitment as a sexually 21 violent predator (SVP) under California’s Sexually Violent Predator Act (SVPA). CAL. WELF. & 22 INST . CODE §§ 6600 et seq. For the following reasons, (1) it is recommended that the petition 23 and other miscellaneous requests be denied; and (2) Petitioner’s requests for an order to show 24 cause and judicial notice are denied. 25 26 II. FACTUAL AND PROCEDURAL HISTORY The record reflects the following chronology of relevant proceedings: 1 Dockets.Justia.com 1 1. On March 26, 1982, Petitioner was convicted of various sexual offenses, including 2 multiple violations of Section 288a of the California Penal Code, a sexually violent, 3 predatory offense within the meaning of Sections 6600(b) and 6600.1 of the 4 California Welfare and Institutions Code. Lodged Doc. 12, at 2.1 Petitioner’s 5 victims were four adolescent boys, aged eleven, thirteen, and fifteen. Id. The 6 Sacramento County Superior Court found Petitioner was not a mentally disordered 7 sex offender, and ultimately sentenced him to state prison for a term of thirty-four 8 years and four months. Id. 9 2. On May 3, 2000, the Superior Court sustained a petition to commit Petitioner to the 10 California Department of Mental Health (DMH) as an SVP. Lodged Doc. 4, at 2.2 11 The California Court of Appeal, Third Appellate District, affirmed. Id.; see People 12 v. Carmony, 99 Cal. App. 4th 317, 328, 120 Cal. Rptr. 2d 896 (2002), review denied, 13 2002 Cal. LEXIS 5945, at *1 (Cal. Aug. 28, 2002).3 14 3. On April 12, 2002, the first petition to recommit Petitioner from May 2002 to May 15 2004 was filed. Lodged Doc. 4, at 3. “A probable cause hearing was held on May 1, 16 June 17, and June 18, 2002.” Id. 17 1 18 19 20 21 These facts are from the California Court of Appeal’s opinion issued on June 13, 2002. See Lodged Doc. 12, at 2. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a determination of fact by the state court is presumed to be correct unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). 2 These facts are from the California Court of Appeal’s opinion issued on January 4, 2007. See supra n.1. 22 3 23 24 25 26 Petitioner challenged his 2000 civil commitment in a previous federal habeas petition filed on May 5, 2003. Carmony v. Hunter, No. CIV S-03-0927-DFL-JFM, 2006 WL 3762110, at *1 (E.D. Cal. Dec. 20, 2006). On December 20, 2006, it was recommended that the petition be denied. See id. at 16. On October 1, 2007, the district court adopted the findings and recommendations in full. Carmony v. Hunter, No. CIV S-03-0927-RRB-JFM, 2007 WL 2904090, at *1 (E.D. Cal. Oct. 1, 2007). On March 14, 2008, the district court denied issuing a Certificate of Appealability. Carmony v. Hunter, No. CIV S-03-0927-RRB-JFM, 2008 WL 744234, at *1 (E.D. Cal. Mar. 17, 2008). 2 1 4. On June 28, 2002, the Superior Court found probable cause to recommit Petitioner as 2 an SVP. Id. Trial on the first recommitment petition was set for September 23, 3 2002. Id. “For reasons not reflected on the record, the trial date was continued to 4 January 27, 2003.” Id. 5 5. recommitment petition was vacated and reset to June 26, 2003. Id. 6 7 6. 7. 8. 14 15 On January 22, 2004, the second petition to recommit Petitioner from May 2004 to May 2006 was filed. Id. 12 13 On October 28, 2003, the trial date for the first recommitment petition was vacated and reset to March 2, 2004. Id. 10 11 On June 26, 2003, the trial date for the first recommitment petition was rescheduled to the following day, when the trial was set for October 28, 2003. Id. 8 9 On January 27, 2003, by agreement of the parties, the trial date for the first 9. On January 23, 2004, a probable cause hearing on the second recommitment petition was set for February 17, 2004. Id. 10. On February 17, 2004, the probable cause hearing on the second recommitment 16 petition was continued to April 2, 2004, which was the next available date for 17 defense counsel and an evaluator. Id. 18 11. On March 2, 2004, the trial date for the first recommitment petition was vacated and 19 reset to April 2, 2004, to join with the probable cause hearing on the second 20 recommitment petition. Id. 21 12. On April 2, 2004, a probable cause hearing for the second recommitment petition 22 was commenced, but it was not concluded because a prosecution witness was 23 testifying in another case. Id. at 3-4. “At the conclusion of testimony that day, the 24 parties agreed to coordinate their schedules and advise the court of the next date they 25 would be available to continue the probable cause hearing.” Id. at 4. “Although the 26 trial of the first recommitment petition was set for that same date, neither the parties 3 1 nor the court addressed it.” Id. 2 13. On July 27, 2004, the probable cause hearing for the second recommitment petition 3 resumed. Id. “At the conclusion of the hearing, the Superior Court determined that 4 probable cause existed.” Id. “In consideration of both counsels’ trial and personal 5 schedules, the trial on the second recommitment petition was set for January 4, 6 2005.” Id. 7 14. Dated September 1, 2004, Petitioner’s first habeas petition, No. 04F08151, relevant 8 to this proceeding was filed in the Sacramento County Superior Court. See Lodged 9 Docs. 15-17. In this petition, Petitioner “challenge[d] having future mental health 10 examinations that do not meet the Civil Discovery Act of 1986, as well as the use of 11 prior mental health examinations in the extension proceeding in Case No. CR 12 61422.” Lodged Docs. 16-17; see Lodged Doc. 15, at 3-4.1. 13 15. Dated September 8, 2004, Petitioner’s second habeas petition, No. 04F08383, 14 relevant to this proceeding was filed in the Sacramento County Superior Court. See 15 Lodged Doc. 17. In this petition, Petitioner challenged: (1) “[t]he vagueness of the 16 SVP Act which gives no guidance as to when the trial must take place;” and (2) the 17 “delaying of trial.” Id. at 3-4. 18 16. In an order dated October 12, 2004, the Superior Court denied Petititioner’s first and 19 second habeas petitions. See Lodged Docs. 16-17. The Superior Court found that 20 Petitioner raised issues “that could be addressed and raised by petitioner’s counsel in 21 Case No. CR 61422, and not by petitioner . . . .” Id. 22 17. On October 27, 2004, Petitioner filed his third habeas petition, No. 04F09535, 23 relevant to this proceeding, in the Sacramento County Superior Court. See Lodged 24 Doc. 13. Petitioner argued that: (1) “[t]he trial court does not have statutory 25 authority to join SVP proceedings” in Case No. CR 61422, violating his due process 26 rights; and (2) “[t]he court lacks jurisdiction to accept a new SVP petition.” 4 1 2 Id. at 3-4. 18. In an order dated November 3, 2004, the Superior Court denied Petitioner’s third 3 habeas petition. See Lodged Doc. 14. The Superior Court determined, again, that 4 Petitioner raised issues “that could be addressed and raised by petitioner’s counsel in 5 Case No. CR61422, and not by petitioner . . . .” Id. 6 19. On December 28, 2004, Petitioner filed a habeas petition in the California Court of 7 Appeal, Third Appellate District. See Lodged Doc. 10. Petitioner raised eleven 8 grounds for relief, including: (1) his “Constitutional Right to petition the courts,” (2) 9 violations of the Civil Discovery Act of 1986, “United States and California 10 Constitutions,” in that Petitioner was not afforded protections “when seeking a 11 mental evaluation;” (3) failure to receive proper notice so he “could object to the 12 mental examination or to limit its scope,” violating his due process rights; (4) use of 13 “old information[] to make a current diagnosis, violating his due process rights “to a 14 fair and impartial hearing;” (5) “vagueness of the [SVPA];” (6) failure to “balanc[e] . 15 . . process due;” (7) “[d]elaying of trial;” (8) joining an SVP proceeding “with 16 another civil commitment,” thereby violating due process; (9) violations of due 17 process and equal protection because “all . . . long term commitments in California 18 have a clear time frame within which the trial must take place EXCEPT for the 19 SVPA;” (10) joinders “are not acceptable remedies for late trials;” and (11) lack of 20 jurisdiction “to accept a new petition for recommitment.” Id. at iii-xiii. 21 22 20. On January 4, 2005, the trial on the second recommitment petition was continued for two days because the prosecutor was ill. Lodged Doc. 4, at 4. 23 21. On January 6, 2005, the trial on the second recommitment petition was continued to 24 January 10, 2005. Id. Also on January 6, 2005, the California Court of Appeal, 25 Third Appellate District, summarily denied Petitioner’s appeal for habeas relief. See 26 Lodged Doc. 11. 5 1 22. On January 10, 2005, the Superior Court granted the State’s motion to consolidate 2 the trials on the two recommitment petitions and denied Petitioner’s motion for 3 separate trials. Lodged Doc. 4, at 4. The Superior Court acknowledged Petitioner’s 4 claim that he “has been objecting to continuances,” but stated that it “has reviewed 5 the court’s files over the matter and finds in the files no specific objection by 6 [Petitioner] to the continuances on the specific grounds of unreasonable delay or 7 denial of speedy resolution.” Id. (internal quotation marks omitted). The Superior 8 Court distinguished this case from Litmon v. Superior Court, 123 Cal. App. 4th 9 1156, 1176-77, 21 Cal. Rptr. 3d 21 (2004), in which the SVP specifically objected to 10 the delay, and in which a further delay was granted solely to accommodate 11 consolidation. Lodged Doc. 4, at 4. 12 23. “In January 2005, a jury found true the allegation that, by reason of a diagnosed 13 mental disorder, Petitioner is an SVP who is a danger to the health and safety of 14 others because he is likely to engage in sexually violent predatory criminal behavior 15 if released.” Id. at 1. “Based on the jury finding, Petitioner’s commitment to the 16 DMH was extended to May 2006.” Id. at 1-2. 17 24. On October 5, 2005, Petitioner filed a habeas petition in the California Supreme 18 Court. See Lodged Docs. 8A-8D. Petitioner raised the same eleven grounds for 19 relief as raised in the Court of Appeal. See Lodged Doc. 8A, at iii-xiii. 20 25. On November 8, 2005, Petitioner directly appealed his recommitment to the 21 California Court of Appeal, Third Appellate District. See Lodged Doc. 1. Petitioner 22 alleged that: (1) “the consolidation of two recommitment petitions, after the previous 23 commitment under the Sexually Violent Predator Act had expired, violated 24 [Petitioner’s] due process rights;” and (2) there was insufficient evidence to support 25 the jury verdict that he was likely to reoffend. Id. at ii. 26 26. On June 7, 2006, Respondents filed a response to Petitioner’s appeal on his 6 1 recommitment, see Lodged Doc. 2, and Petitioner filed a reply on August 1, 2006. 2 See Lodged Doc. 3. 3 27. On December 14, 2005, the California Supreme Court denied the habeas petition 4 without a written opinion, only citing In re Robbins, 18 Cal. 4th 770, 780, 77 Cal. 5 Rptr. 2d 153, 959 P.2d 311 (1998), In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 6 855 P.2d 729 (1993), and In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953). Lodged 7 Doc. 9. 8 9 10 28. On January 4, 2007, the Court of Appeal issued a reasoned opinion affirming the recommitment. See Lodged Doc. 4. 29. In his petition for review dated February 14, 2007, Petitioner directly appealed his 11 recommitment in the California Supreme Court. See Lodged Doc. 5. Petitioner also 12 filed an Application and Declaration of Counsel in Support of Relief from Default, 13 dated February 14, 2007. See Lodged Doc. 6. In his application, Petitioner asked the 14 Supreme Court “to grant relief from default from the failure to timely file his Petition 15 for Review.” Id. at 1. Petitioner acknowledged that any petition for review was “due 16 for filing between February 3 and 13, 2007,” and “it was counsel’s inadvertence that 17 he failed to calendar the due dates on his office calendar.” Id. at 2. 18 30. In a letter dated February 15, 2007, the California Supreme Court denied Petitioner’s 19 application for relief from default and directed that the petition for review be 20 returned to Petitioner. See Lodged Doc. 7. 21 31. On December 27, 2007, Petitioner filed the instant federal habeas petition. 22 32. Respondents filed an answer to the petition on June 6, 2008, to which Petitioner filed 23 24 25 26 a traverse on June 26, 2008. III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 7 1 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 2 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 3 This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, 4 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 5 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under 6 AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in 7 state court proceedings unless the state court’s adjudication of the claim: 8 9 10 11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 12 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 13 Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). 14 In applying AEDPA’s standards, the federal court must “identify the state court decision 15 that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). 16 Where more than one state court has adjudicated a petitioner’s claims, a federal habeas court 17 analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) 18 (finding presumption that later unexplained orders, upholding judgment or rejecting same claim, 19 rests upon same ground as prior order)). Thus, a federal habeas court looks through ambiguous 20 or unexplained state court decisions to the last reasoned decision to determine whether that 21 decision was contrary to or an unreasonable application of clearly established federal law. Bailey 22 v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). “The question under AEDPA is not whether a 23 federal court believes the state court’s determination was incorrect but whether that 24 determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 25 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). When no state court 26 reached the merits of a claim, the federal court must review that claim de novo. See Chaker v. 8 1 Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005), cert. denied, 547 U.S. 1128 (2006) (applying de 2 novo standard of review to claim in habeas petition that was not adjudicated on merits by state 3 court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (same); Pirtle v. Morgan, 313 F.3d 4 1160, 1167 (9th Cir. 2002) (“[W]hen it is clear that a state court has not reached the merits of a 5 properly raised issue, we must review it de novo.”). 6 7 IV. CLAIMS FOR REVIEW Petitioner raises: (1) seven grounds for relief; (2) a request for an order to show cause; 8 (3) a request for judicial notice; and (4) other miscellaneous requests. Petitioner’s seven grounds 9 for relief include the following: 10 1. “California denies indigent pro se litigants with appointed trial counsel the 11 constitutional right to redress their grievances through habeas corpus until after all trial 12 and appeal proceedings are completed.” Pet’r’s Supplemental Pet. 3, ECF No. 2 13 (emphasis omitted). 14 2. “The [s]tate evaluators and the D.A. ignored the ground rules set up by the Civil 15 Discovery Act (CDA), [Code of Civil Procedure §§ 2016 through 2036] as well as the 16 SVPA,” thereby denying “Petitioner his right to due process under both the United 17 States and California Constitutions.” Pet’r’s Pet. 5, ECF No. 1. 18 19 20 3. “The vagueness of the California SVPA statute does not delineate when a trial must take place.” Pet’r’s Supplemental Pet. 3 (emphasis omitted). 4. “The lengthy delays California permits in bringing Petitioner to trial for a civil 21 commitment determination violates Petitioner’s constitutional due process of law 22 rights under both the United States and California Constitutions.” Id. 23 24 5. “SVPA Civil Commitment Hearing[s] . . . may not be joined with another civil commitment,” violating Petitioner’s due process rights. Id. 25 6. “The court lacked jurisdiction to accept a new petition for recommitment” because 26 “[b]y the time the second petition for recommitment was filed[,] this Petitioner’s 9 1 original commitment had expired and he was being held by a petition to recommit . . . 2 .” Pet’r’s Pet. 7. 3 7. “[T]here was insufficient evidence of a current mental disorder to support a finding 4 that Petitioner was a current danger and likely to commit a predatory violent criminal 5 offense if released.” Pet’r’s Supplemental Pet. 4. 6 A. Procedural Default 7 Respondents contend that Petitioner procedurally defaulted all seven grounds raised in the 8 instant habeas petition. See Resp’ts’ Answer 8, ECF No. 15. Respondents maintain that 9 “[e]xhaustion and procedural default must be addressed as a preliminary matter.” Id. at 13. 10 Respondents allege “there remains no available state remedy and Petitioner’s claims have thereby 11 satisfied the exhaustion requirement.” Id. at 14. However, Respondents argue that the following 12 procedural defaults bar Petitioner’s claims: 1. Untimeliness applies to claims six and seven.4 Id. (“Claims six and seven . . . were 13 14 4 15 The record reveals that Petitioner’s seven grounds for relief were raised at the following levels: 16 17 18 19 20 21 22 23 24 25 26 1. Ground one (right to petition) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal, and California Supreme Court. See Lodged Doc. 8A, at iii (California Supreme Court habeas petition); Lodged Doc. 10, at iii (Court of Appeal habeas petition); Lodged Doc. 13, at 20 (asking Superior Court, in third habeas petition, to “issue a writ of habeas corpus); Lodged Doc. 15, at 12 (same request in first Superior Court habeas petition); Lodged Doc. 17, at 17 (same request in second Superior Court habeas petition); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring district courts to liberally construe pro se petition). 2. Ground two (Civil Discovery Act and SVPA violations) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal, and California Supreme Court. See Lodged Doc. 8A, at iv (California Supreme Court habeas petition); Lodged Doc. 10, at iv (Court of Appeal habeas petition); Lodged Doc. 15, at 3-4.1, (1)-(4), 1.-11. (raising in first Superior Court habeas petition, inter alia, “[v]iolations of [s]tatutory [l]aw (Civil Discovery Act of 1986)” and “statutory violations in the evaluation process”); see also Haines, 404 U.S. at 520. 3. Ground three (vagueness) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal, and California Supreme Court. See Lodged Doc. 8A, at vii (California Supreme Court habeas petition); Lodged Doc. 10, at vii (Court of 10 1 raised on direct review, but . . . were presented to the California Supreme Court in an 2 untimely petition.”). 3 2. Waiver under In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953), applies to claims one 4 through five.5 Resp’ts’ Answer 14 (“Claims one through five . . . were not presented 5 on direct review . . . .”); see Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) 6 (“In California, a convicted defendant desiring to bring claims in a state habeas 7 Appeal habeas petition); Lodged Doc. 17, at 3 (second Superior Court habeas petition). 8 9 10 11 12 13 14 15 16 17 18 19 4. Ground four (trial delay) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal, and California Supreme Court. See Lodged Doc. 8A, at ix (California Supreme Court habeas petition); Lodged Doc. 10, at ix (Court of Appeal habeas petition); Lodged Doc. 17, at 4 (second Superior Court habeas petition). 5. Ground five (trial consolidation) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal and California Supreme Court. See Lodged Doc. 8A, at x, xii (California Supreme Court habeas petition); Lodged Doc. 10, at x, xii (Court of Appeal habeas petition); Lodged Doc. 13, at 3 (third Superior Court habeas petition). Ground five was also raised on direct appeal to the Court of Appeal and California Supreme Court. See Lodged Doc. 1, at ii (Court of Appeal direct appeal); Lodged Doc. 5, at i (California Supreme Court direct appeal). 6. Ground six (jurisdiction) was raised in Petitioner’s habeas petitions to the Superior Court, California Court of Appeal, and California Supreme Court. See Lodged Doc. 8A, at xiii (California Supreme Court habeas petition); Lodged Doc. 10, at xiii (Court of Appeal habeas petition); Lodged Doc. 13, at 4 (third Superior Court habeas petition). Arguably, ground six was also raised on direct appeal to the Court of Appeal, see Lodged Doc. 1, at 25-26 (asserting, in Petitioner’s opening brief to California Court of Appeal, that “[t]he delay and resulting lack of a valid commitment to extend could not be remedied by the filing of a subsequent petition to recommit”), but not on direct appeal to the California Supreme Court. See Lodged Doc. 5, at 22-27 (California Supreme Court direct appeal). 20 21 7. Ground seven (insufficient evidence) was raised on direct appeal to the California Court of Appeal and California Supreme Court. See Lodged Doc. 1, at ii (Court of Appeal direct appeal); Lodged Doc. 5, at ii (California Supreme Court direct appeal). 22 23 24 25 26 Thus, claims five and seven, and not claims six and seven as Respondents assert, were the grounds that Petitioner attempted to raise on direct review. See supra n.4. Respondents, therefore, probably mean that claims five and seven, and not claims six and seven, are procedurally barred by untimeliness. See supra n.4. 5 Claims one, two, three, four, and six were not presented on direct review. See supra n.4. Thus, Respondents probably mean that these claims are procedurally barred by waiver under In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953). See supra n.4. 11 1 petition, must, if possible, have pursued the claims on direct appeal from his 2 conviction. . . . This requirement is called the Dixon rule.). 3 3. The successive petition rule applies to claims one through five.6 Resp’ts’ Answer 14 4 (“Claims one through five . . . were presented in a piecemeal fashion via several state 5 habeas petitions . . . .”); see In re Clark, 5 Cal. 4th at 769, 21 Cal. Rptr. 2d 509, 855 6 P.2d 729 (“It is the policy of this court to deny an application for habeas corpus which 7 is based upon grounds urged in a prior petition which has been denied, where there is 8 shown no change in the facts or the law substantially affecting the rights of the 9 petitioner.”). 10 Federal courts “will not review a question of federal law decided by a state court if the 11 decision of that court rests on a state law ground that is independent of the federal question and 12 adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 730 (1991); see Harris 13 v. Reed, 489 U.S. 255, 260-62 (1989). “For a state procedural rule to be ‘independent,’ the state 14 law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 15 F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). For a 16 state procedural rule to be “adequate,” it must be “clear, consistently applied, and 17 well-established.” Calderon v. U.S. District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996), 18 cert. denied, 520 U.S. 1204 (1997). Even if there is an independent and adequate state ground 19 for the decision, the federal court may still consider the claim if the petitioner can demonstrate: 20 (1) cause for the default and actual prejudice resulting from the alleged violation of federal law; 21 or (2) a fundamental miscarriage of justice. See Harris, 489 U.S. at 262 (citing Murray v. 22 Carrier, 477 U.S. 478, 485, 495 (1986)). 23 Although a procedural bar issue in a habeas corpus proceeding ordinarily should be 24 25 26 6 Claims one through six were raised in the Superior Court through multiple habeas petitions. See supra n.4. Thus, Respondents probably mean that claims one through six are procedurally barred by the successive petition rule. See supra n.4. 12 1 considered first, it is grounded in concerns of comity and federalism and is not jurisdictional. 2 See Coleman, 501 U.S. at 730; see also Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997). 3 Thus, the procedural default issue may be bypassed in the interest of judicial economy whenever 4 the merits are clear but the procedural default issues are not. See Lambrix, 520 U.S. at 525 (“We 5 do not mean to suggest that the procedural-bar issue must invariably be resolved first [given 6 constraints of judicial economy]; only that it ordinarily should be.”); Franklin v. Johnson, 290 7 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than 8 the merits issues presented by the [habeas petition], so it may well make sense in some instances 9 to proceed to the merits if the result will be the same.”); see generally Petrocelli v. Angelone, 248 10 F.3d 877, 886 (9th Cir. 2001) (“Ninth Circuit case law on [procedural default] is complex.”). For 11 that reason, it is assumed that Petitioner’s claims are not defaulted, and the merits of Petitioner’s 12 claim will be addressed. 13 B. Merits of Petitioner’s Claims 14 Some of Petitioner’s seven grounds for relief overlap. To the extent possible, the grounds 15 resolved by binding authority are grouped together. Some grounds are referenced more than once 16 as they refer to separate issues. The remaining grounds are reviewed in seriatim. Accordingly, 17 Petitioner’s grounds are addressed as follows: 18 1. Grounds One, Three, and Four: Trial Delay; 19 2. Ground One: Counsel’s Failure to Make Objections; 20 3. Ground One: Violation of the Right to Petition for State Habeas Relief; 21 4. Ground Two: Violations of the California Civil Discovery Act and SVPA; 22 5. Ground Three: Vagueness; 23 6. Ground Five: Trial Consolidation; 24 7. Ground Six: Jurisdiction; and 25 8. Ground Seven: Insufficient Evidence. 26 For the following reasons, Petitioner’s grounds for relief are without merit. 13 1 2 3 4 1. Grounds One, Three, and Four: Trial Delay In grounds one, three, and four, Petitioner’s claims are understood as allegations that his trial delay violated his rights to (1) due process; (2) equal protection; and (3) a speedy trial. a. Due Process Claim 5 In ground one, Petitioner alleges he was denied “his constitutional right to due process 6 and access to the courts in a meaningful time and in a meaningful manner.” Pet’r’s Mem. 15, 7 ECF No. 3. In ground three, Petitioner claims he was denied his due process rights because “the 8 SVPA has no statutory time for when the (re)commitment trial must take place.” Id. at 36. In 9 ground four, Petitioner argues that “the delay in bringing petitioner to trial violated his 10 constitutional right to due process of law.” Pet’r’s Pet. 6. 11 i. Legal Standard for Due Process Claim 12 The California Supreme Court in People v. Superior Court (Ghilotti), 27 Cal. 4th 888, 13 902-05, 119 Cal. Rptr. 2d 1, 44 P.3d 949 (2002), presents a detailed overview of the SVPA. 14 CAL. WELF. & INST . CODE §§ 6600 et seq. That legislation, effective January 1, 1996, “provides 15 for the involuntary civil commitment of certain offenders, following completion of their prison 16 terms, who are found to be SVP’s because they have previously been convicted of sexually 17 violent crimes and currently suffer diagnosed mental disorders which make them dangerous in 18 that they are likely to engage in sexually violent criminal behavior.” Ghilotti, 27 Cal. 4th at 902, 19 119 Cal. Rptr. 2d 1, 44 P.3d 949; see CAL. WELF. & INST . CODE § 6600(a)(1). 20 The SVPA codifies a process involving several administrative and judicial stages to 21 determine whether a convicted sex offender meets the requirements for civil commitment. 22 Generally, the Department of Corrections screens sex offender inmates at least six months before 23 their scheduled release dates. CAL. WELF. & INST . CODE § 6601(a)(1). “If officials find the 24 inmate is likely to be an SVP, he is referred to the Department . . . for a ‘full evaluation’ as to 25 whether he meets the criteria in section 6600.” Ghilotti, 27 Cal. 4th at 903, 119 Cal. Rptr. 2d 1, 26 44 P.3d 949 (quoting Hubbart v. Superior Court, 19 Cal. 4th 1138, 1145, 81 Cal. Rptr. 2d 492, 14 1 969 P.2d 584 (1999)). Using appropriate assessment protocols, if at least two practicing 2 psychiatrists or psychologists designated by the Director of Mental Heath concur “that the person 3 has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence 4 without appropriate treatment and custody, the Director shall forward a request for a 5 [commitment] petition . . . to the county” where the offender was convicted of the predatory sex 6 crime. CAL. WELF. & INST . CODE § 6601(b)-(d). If the county’s legal counsel agrees with the 7 request, a petition for commitment is filed in the Superior Court Id. § 6601(h)-(i). 8 9 “The filing of the petition triggers a new round of proceedings” under the SVPA. Ghilotti, 27 Cal. 4th at 904, 119 Cal. Rptr. 2d 1, 44 P.3d 949 (citation and internal quotation 10 marks omitted). First, the superior court holds a hearing, at which the alleged predator is entitled 11 to assistance of counsel, to determine whether there is probable cause to believe that the 12 individual is likely to engage in sexually violent, predatory criminal behavior after release. CAL. 13 WELF. & INST . CODE § 6602(a). If the superior court determines that probable cause exists, the 14 court must order the individual to remain in custody pending a civil commitment trial. Id.; see 15 Carty v. Nelson, 426 F.3d 1064, 1066-67 (9th Cir.), amended, 431 F.3d 1185, 1186 (9th Cir. 16 2005) (changing “the San Diego County District Attorney contends” to “the State contends” 17 (internal quotation marks omitted)), cert. denied, 547 U.S. 1130 (2006). 18 At trial, the individual is entitled to “the assistance of counsel, to the right to retain 19 experts or professional persons to perform an examination on his or her behalf, and to have 20 access to all relevant medical and psychological records and reports.” CAL. WELF. & INST . CODE 21 § 6603(a). Either party may demand and receive trial by jury. Id. § 6603(a)-(b). The trier of fact 22 “shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” 23 Id. § 6604. 24 “[W]here the requisite SVP findings are made, ‘the person shall be committed for two 25 years to the custody of the . . . Department . . . for appropriate treatment and confinement in a 26 secure facility . . . .’” Ghilotti, 27 Cal. 4th at 904, 119 Cal. Rptr. 2d 1, 44 P.3d 949 (citing CAL. 15 1 WELF. & INST . CODE § 6604).7 Under the pre-2006 statutory revisions pertinent here and 2 described in Ghilotti, any recommitment term “shall also be for two years.” Id. at 905, 119 Cal. 3 Rptr. 2d 1, 44 P.3d 949 (citing CAL. WELF. & INST . CODE § 6604.1(a)).8 The recommitment term 4 “shall commence on the day the previous term expires,” after implementing the same codified 5 procedural safeguards accompanying the initial civil commitment proceedings. Id. 6 Rejecting due process challenges to the SVPA, the Ninth Circuit held that California’s 7 SVPA is similar to the Kansas civil commitment statute upheld in Kansas v. Hendricks, 521 U.S. 8 346 (1997). See Hubbart v. Knapp, 379 F.3d 773, 781 (9th Cir. 2004). In Hendricks, the 9 Supreme Court held that state civil commitment schemes must follow “proper procedures and 10 evidentiary standards” and require proof of dangerousness to one’s self or to others, coupled with 11 proof of some additional factor such as a “mental illness” or “mental abnormality.” 521 U.S. 12 346, 357-58 (1997). Procedural safeguards under the SVPA “include requirements that accused 13 sexually violent predators receive diagnoses from two psychiatrists or psychologists, assistance 14 of counsel, and trial by jury on proof beyond a reasonable doubt.” Hubbart, 379 F.3d at 781. The 15 Supreme Court rejected “that the State’s use of procedural safeguards traditionally found in 16 criminal trials makes the proceedings here criminal rather than civil.” Hendricks, 521 U.S. at 17 364. 18 ii. Analysis of Due Process Claim 19 Here, the record does not show that Petitioner was denied any of these procedural 20 protections. Petitioner was also accorded all procedural protections identified in Vitek v. Jones, 21 445 U.S. 480, 494-97 (1980), i.e., (1) written notice; (2) a hearing at which evidence is disclosed; 22 23 24 25 26 7 The SVPA was revised in 2006, modifying the predicate offense requirement so that a person only needs a conviction of a sexually violent offense against one or more victims, rather than two or more victims as previously defined. See CAL. WELF. & INST . CODE § 6600(a)(1). The 2006 revisions also provided for an indeterminate term of commitment upon an SVP finding rather than renewable two-year terms. Id. § 6604. 8 See supra n.7. 16 1 (3) an opportunity to be heard; (4) an independent decision-maker; (5) reasoned findings; (6) 2 access to counsel; and (7) effective and timely notice of these rights. See Carty, 426 F.3d at 3 1074. As Respondents point out, there is no clearly established Supreme Court precedent 4 requiring that a trial occur within any set time period. Additionally, in the findings and 5 recommendations for Petitioner’s previous federal habeas petition, it was found that “California’s 6 SVPA provides no requirement for when the commitment trial must commence.” Carmony v. 7 Hunter, No. CIV S-03-0927-DFL-JFM, 2006 WL 3762110, at *13 (E.D. Cal. Dec. 20, 2006). 8 Thus, Petitioner’s due process claim fails. 9 10 b. Equal Protection Claim In ground three, Petitioner argues that he was denied “equal protection” because “the 11 SVPA has no statutory time for when the (re)commitment trial must take place.” Pet’r’s Mem. 12 35-36. Equal protection claims arise when a charge is made that similarly situated individuals 13 are treated differently without a rational relationship to a legitimate state purpose. See San 14 Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973). Because the SVPA’s lack of time frame 15 for a trial on a commitment application applies to everyone subject to the statute, Petitioner was 16 not treated differently than anyone who is similarly situated (i.e., subject to the SVPA). 17 Accordingly, Petitioner’s equal protection claim fails. 18 19 c. Speedy Trial Claim In ground one, Petitioner asserts that “California effectively denied Petitioner his 20 constitutional right of habeas corpus . . . more than two years after the issues arose, not the 21 speedy remedy intended.” See Pet’r’s Pet. 5. In ground three, Petitioner maintains that the 22 Superior Court never inquired if Petitioner “was okay with the lengthy delays,” and Petitioner 23 “objected to the delays at every opportunity.” Id. at 6. 24 The speedy trial argument fails because no Supreme Court authority establishes the right 25 to a speedy trial in civil commitment proceedings. See Allen v. Illinois, 478 U.S. 364, 371-72 26 (1986) (holding full panoply of rights afforded criminal defendants under Constitution are not 17 1 applicable to civil commitment proceedings); see also United States v. Perry, 788 F.2d 100, 118 2 (3d Cir. 1986) (“The speedy trial clause deals with the timeliness of criminal prosecutions, not 3 civil commitment proceedings.”); see generally United States v. Budell, 187 F.3d 1137, 1141 4 (9th Cir. 1999) (noting because commitment hearing is civil matter, constitutional rights to which 5 defendant in criminal trial is entitled do not adhere to commitment hearing); but see Atwood v. 6 Vilsack, 338 F. Supp. 2d 985, 994 (S.D. Iowa 2004) (applying Sixth Amendment speedy trial 7 right to analyze denial of speedy justice claim by pretrial detainees awaiting civil commitment 8 hearings pursuant to Iowa’s Sexually Violent Predator Act). However, even if the right to a 9 speedy trial attached to civil commitment proceedings, Petitioner cannot demonstrate that he was 10 11 12 deprived of a speedy trial. See Doggett v. United States, 505 U.S. 647, 651-52 (1992). i. Legal Standard for Speedy Trial Claim A speedy trial is a fundamental right for the accused, guaranteed by the Sixth Amendment 13 and imposed by the Due Process Clause of the Fourteenth Amendment on the states. Klopfer v. 14 North Carolina, 386 U.S. 213, 223 (1967). The Supreme Court has not devised a per se rule to 15 determine whether the right to a speedy trial is violated. Instead, courts must apply a flexible 16 functional analysis, and consider and weigh the following factors in evaluating a speedy trial 17 claim: (1) length of the delay; (2) reason for the delay; (3) the petitioner’s assertion of his right; 18 and (4) prejudice to the petitioner. Doggett, 505 U.S. at 651; Barker v. Wingo, 407 U.S. 514, 530 19 (1972). None of the four factors are either a necessary or sufficient condition for finding a 20 speedy trial deprivation. Barker, 407 U.S. at 533. They are related factors and must be 21 considered together with other relevant circumstances. Id. “[T]hese factors have no talismanic 22 qualities; courts must still engage in a difficult and sensitive balancing process.” Id. 23 24 ii. First Factor: Length of the Delay The first factor of the Barker test, i.e., length of the delay, is actually a dual inquiry. First, 25 as a threshold matter, inquiry into the remaining Barker factors is only necessary if the delay is 26 “presumptively prejudicial.” Id. at 530. Second, “if the accused makes this showing, the court 18 1 must then consider, as one factor among several, the extent to which the delay stretches beyond 2 the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 3 652. 4 In examining the first prong of the delay factor, the Ninth Circuit held that presumptive 5 prejudice is not dispositive; instead, it is simply part of the mix of relevant facts and its 6 importance increases with the length of the delay. United States v. Gregory, 322 F.3d 1157, 7 1162 (9th Cir. 2003). Depending on the nature of the charges, lower courts generally found 8 post-accusation delay presumptively prejudicial as it approaches one year. Doggett, 505 U.S. at 9 652 n.1; see McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003) (finding three year delay was 10 presumptively prejudicial); Gregory, 322 F.3d at 1162 (determining twenty-two month delay 11 between first superseding indictment and trial date was presumptively prejudicial but did not 12 weigh heavily in defendant’s favor because it was not excessively long). 13 Here, the first Barker factor weighs in favor of Petitioner’s right to a speedy trial. The 14 State first petitioned to have Petitioner recommitted on April 12, 2002. See Lodged Doc. 4, at 3. 15 On January 22, 2004, the State filed a second recommitment petition, before trial on the first 16 recommitment petition occurred. Id. Trial on the first recommitment petition did not commence 17 until January 10, 2005, when the Superior Court granted the State’s motion to consolidate trials 18 on the two recommitment petitions and denied Petitioner’s motion for separate trials. See id. at 19 4. Thus, Petitioner’s trial on the first recommitment petition did not begin until almost thirty- 20 three months after the first petition was filed. Accordingly, this factor weighs in favor of 21 Petitioner, and the second, third, and fourth Barker factors must be reviewed. 22 iii. Second Factor: Reason for the Delay 23 The reason for the delay is the second prong in the Barker analysis. Barker, 407 U.S. at 24 530. Specifically, the second Barker factor asks which party is responsible for the delay. Courts 25 generally look to the reasons for the delay in commencing the trial to determine whether those 26 reasons are deliberate, neutral, or valid. Id. at 531 (focusing evaluation of delay on “the reason 19 1 the government assigns to justify the delay”); United States v. Henry, 615 F.2d 1223, 1233 (9th 2 Cir. 1980). 3 In assessing the government’s explanation, different weights should be assigned to 4 different reasons. Intentional delays which obtain a strategic advantage for the prosecution are 5 weighed heavily against the government. Barker, 407 U.S. at 531. A more neutral reason such 6 as negligence or overcrowded courts should be weighed less heavily, but nevertheless should be 7 considered because the ultimate responsibility for such circumstances rests with the government 8 rather than with the petitioner. Id. A valid reason, such as a missing witness, serves to justify 9 appropriate delay. Id. Delay attributable to the petitioner’s own acts or to tactical decisions by 10 petitioner’s counsel will not bolster a petitioner’s speedy trial argument. See McNeely, 336 F.3d 11 at 827. 12 Here, Respondents contend that “Petitioner must be deemed to have consented to or 13 waived the right to object to the delay in the proceedings on the two petitions.” Resp’ts’ Answer 14 21. Respondents attribute the majority of delays to “Petitioner’s counsel’s involvement in other 15 trials.” Id. Respondents assert that “[w]itness unavailability worked to delay the proceeding on 16 each side one time, and the District Attorney was ill on one occasion.” Id. But, according to 17 Respondents, Petitioner never objected to these delays. Id. 18 The record supports Respondents’ argument that Petitioner never objected to these delays 19 in the proceedings on the two petitions. After the Superior Court found probable cause to believe 20 that Petitioner was an SVP on June 28, 2002, the case was continued from time to time, until 21 January 10, 2005. The record reveals the following: 22 1. On June 28, 2002, both parties agreed to set the trial date on September 23, 2002. 23 Rep.’s Augment on Appeal vol. 1, 11. The record does not indicate why the first trial 24 date of September 23, 2002 was continued to January 27, 2003. Supplemental 25 Clerk’s Tr. vol. 1, 2. 26 2. On January 27, 2003, Petitioner stated that the trial date was “going to be reset,” and 20 1 “[w]e already picked a date,” i.e., June 26, 2003. Rep.’s Augment on Appeal vol. 1, 2 14. Petitioner explained, “[T]hat’s the first date that the evaluator is going to be 3 available.” Id. In their answer, Respondents point out, “Presumably this was 4 Petitioner’s evaluator, but the record is not specific. Petitioner made no objection to 5 the continuance and the court’s focus on Petitioner suggests that he was the party 6 requesting the continuance.” Resp’ts’ Answer 14. 7 3. On March 21, 2003, the parties appeared so the Superior Court could address 8 Petitioner’s “motion to compel production of certain documents,” which the Superior 9 Court granted. Rep.’s Augment on Appeal vol. 1, 16-17. Petitioner confirmed the 10 June 26, 2003 trial date, and made no objection. Id. at 19 (“It’s currently set for trial 11 in June, Your Honor, the 27th [sic].”). 12 4. On June 26, 2003, neither party appeared for trial. Id. at 19a. (“We called and they 13 said they totally forgot about it. And we put it over to [June 27, 2003].”). “Council 14 [sic] for [Petitioner] was in trial on the case of Armel Hunt, 91F08195.” Clerk’s Tr. 15 on Appeal vol. 1, 19. The matter was rescheduled for June 27, 2003. See Lodged 16 Doc. 4, at 3. The record reveals no objection by Petitioner. 17 5. On June 27, 2003, again, neither party appeared for trial. Rep.’s Augment on Appeal 18 vol. 1, 19a (“They did this yesterday, too. Nobody showed.”). The Deputy District 19 Attorney “call[ed] back” and requested an October 28, 2003 trial date. Id. at 19a-19b. 20 The record does not show that Petitioner objected. 21 6. On July 30, 2003, Petitioner’s counsel “went to trial as DNA council [sic] in the 22 [c]ase of People vs. Cross, Superior Court No. 02F06519. That trial was completed 23 in September of 2003, and yet on October 28, 2003, another continuance was granted 24 in this matter.” Clerk’s Tr. on Appeal vol. 1, 20. 25 7. On October 28, 2003, the trial date was continued to March 2, 2004. Rep.’s Augment 26 on Appeal vol. 1, 20; see Clerk’s Tr. on Appeal vol. 1, 20. The record does not show 21 1 2 any objections by Petitioner. 8. In November 2003, Petitioner’s counsel “was in a homicide trial, People vs. Tinker, 3 Superior Court No. 99F07982.” Clerk’s Tr. on Appeal vol. 1, 20. 4 9. On January 23, 2004, the parties appeared “for receipt of records.” Rep.’s Augment 5 on Appeal vol. 1, 22. The State filed a second recommitment petition,” and the 6 parties “agreed to set a PC hearing for the second petition” on February 17, 2004. Id. 7 Petitioner’s counsel stated he was “in no way conceding that the People have any 8 right to file this subsequent petition, nor to attempt to consolidate these petitions at 9 any point in time.” Id. at 23. The Superior Court replied, “I imagine that you can file 10 the papers to contest it before that date.” Id. Petitioner’s counsel responded, “I don’t 11 think we need to necessarily do that because there’s been no move to consolidate at 12 this point in time.” Id. Petitioner’s counsel added, “[F]or the record, my client is 13 specifically waiving his appearance for any proceeding, short of trial.” Id. The 14 record, therefore, does not show that Petitioner objected to any delay. 15 10. On February 17, 2004, the probable cause hearing on the second recommitment 16 petition was continued to April 2, 2004. Id. at 25. Petitioner’s counsel stated, “I 17 believe the next date that both myself and the evaluator are going to be available are 18 April 2nd.” Id. Nowhere does Petitioner object to any delay. 19 11. On March 2, 2004, the trial date for the first recommitment petition was reset to April 20 2, 2004, to join the probable cause hearing on the second recommitment petition. Id. 21 at 26. Petitioner’s counsel explained, “I’m in trial,” and “I’ll probably still be in trial 22 on April 2, 2004.9 Id. Petitioner “was not personally present.” Id. Petitioner, 23 therefore, did not object to any delays. 24 25 26 9 “From approximately February 3, 2004 until April 14, 2004,” Petitioner’s counsel “was in trial as DNA council [sic] on the case of People vs. Rufus Kelsaw, Superior Court No. 02F06630.” Clerk’s Tr. on Appeal vol. 1, 20. 22 1 12. On April 2, 2004, the probable cause hearing for the second recommitment petition 2 commenced. Id. at 27. Neither party, however, mentioned that the trial on the first 3 recommitment petition should have commenced as well. See Lodged Doc. 4, at 4. 4 Moreover, Petitioner was not personally present at the hearing. Clerk’s Tr. on Appeal 5 vol. 1, 27 (“His appearance is excused” because “he specifically asked to remain at 6 Atascadero State Hospital during the pendency of the probable cause hearing.”). 7 Thus, Petitioner did not object to any delays. 8 13. On July 27, 2004, the probable cause hearing on the second recommitment petition 9 resumed. Id. at 117. The Superior Court determined that probable cause existed, and 10 asked if the parties agreed on a trial date for the second recommitment petition. Id. at 11 185-86. The parties chose January 4, 2005, because of “trials we have already set,” 12 the Deputy District Attorney mentioned. Id. at 186. Petitioner’s counsel added, “And 13 [the Deputy District Attorney’s] vacation, my vacation, his baby.” Id. There was no 14 discussion of the trial on the first recommitment petition during these proceedings. 15 Also, “Def’s appearance [was] waived.” Supplemental Clerk’s Tr. vol. 1, 10. The 16 record, therefore, does not reveal any objections by Petitioner regarding delay. 17 14. On January 4, 2005, the trial on the second recommitment petition was continued to 18 January 6, 2005, because “DA [was] ill.” Id. at 11. The record does not reflect that 19 Petitioner objected to any delays. 20 15. On January 6, 2005, trial on the second recommitment petition was reset to January 21 10, 2005. See Lodged Doc. 4, at 4. The record does not show that Petitioner objected 22 to any delays. 23 24 25 26 16. Finally, on January 10, 2005, the parties raised the subject of trial on the first petition when they filed simultaneous motions. Clerk’s Tr. on Appeal vol. 1, 15-21. The record also shows that during the thirty-three month period when Petitioner’s case was continued without objection, Petitioner was busy challenging the legality of the SVPA 23 1 proceedings against him by filing numerous pro se petitions in the state courts. Petitioner did 2 assert that his right to a speedy trial was violated in his habeas petitions to the Superior Court, 3 California Court of Appeal, and California Supreme Court petitions. See supra n.4. The 4 Superior Court determined Petitioner raised issues “that could be addressed and raised by 5 petitioner’s counsel in Case No. CR 61422, and not by petitioner . . . .” See Lodged Docs. 16-17. 6 The Court of Appeal and California Supreme Court denied the petitions without written 7 opinions. See Lodged Docs. 9, 11. Petitioner, however, never objected to any continuances 8 during the proceedings. Lodged Doc. 4, at 4 (acknowledging Superior Court “reviewed the 9 court’s files over the matter and finds in the files no specific objection by [Petitioner] to the 10 continuances on the specific grounds of unreasonable delay or denial of speedy resolution” 11 (internal quotation marks omitted)). 12 Thus, the thirty-three month delay should be attributable to Petitioner because he did not 13 object to any continuances. See United States v. Shetty, 130 F.3d 1324, 1330-31 (9th Cir. 1997) 14 (finding delay attributable to defendant where neither defense counsel nor defendant objected to 15 any continuances granted and instead stipulated to most); see also United States v. Lam, 251 F.3d 16 852, 858 (9th Cir.), amended, 262 F.3d 1033 (9th Cir. 2001) (finding defendant bound by his 17 attorney’s actions in having sought several continuances, but noting defendant can preserve his 18 rights to speedy trial when he expressly asserts his rights and his actions contradict his 19 counsel’s). Petitioner had ample opportunity to object to any of the continuances but the record 20 does not show that he ever objected. Cf. McNeely, 336 F.3d at 829 n.8 (finding defense 21 counsel’s waiver of time not necessarily attributable to defendant where defendant repeatedly 22 disagreed with counsel and asserted his right to speedy trial). Thus, Petitioner, rather than the 23 State, is substantially “more to blame” for the delay. Doggett, 505 U.S. at 651. Barker’s second 24 factor does not support Petitioner’s claim. 25 26 iv. Third Factor: Petitioner’s Assertion of the Right A petitioner’s assertion of his speedy trial right is “entitled to strong evidentiary weight in 24 1 determining whether the [petitioner] [was] deprived of the right.” Barker, 407 U.S. at 531-32. 2 The “failure to assert the right will make it difficult for a [petitioner] to prove that he was denied 3 a speedy trial.” Id. at 532. “[I]f delay is attributable to the [petitioner], then his waiver may be 4 given effect under standard waiver doctrine.” Id. at 529. 5 Even repeated assertions of a petitioner’s speedy trial right must be viewed in light of the 6 petitioner’s other conduct. United States v. Loud Hawk, 474 U.S. 302, 314 (1986). A petitioner 7 may not establish that he appropriately asserted his speedy trial rights when at the same time he 8 was asserting the right in the trial court by filing motions and appeals which contributed to the 9 delay in his trial. See id. at 314-15 (finding defendants’ repeated assertions of their speedy trial 10 rights was contradicted by their filings of frivolous petitions in the appellate courts and of 11 repeated and unsuccessful motions in the trial court, which contributed to delay in their trial); 12 Lam, 251 F.3d at 859 (determining where counsel’s successive requests for continuances are 13 attributable to defendant, weight of defendant’s assertions of his speedy trial right is considerably 14 diminished). 15 Although Petitioner claims he “objected to the delays at every opportunity,” Pet’r’s Pet. 6, 16 the record shows that: (1) Petitioner sought to delay his trial by filing several habeas corpus 17 petitions through the state courts, in which he repeatedly challenged the legality of the SVPA 18 proceedings pending against him, and (2) Petitioner never objected to continuances in the 19 proceedings. See supra Part IV.B.1.c.iii; see also Lodged Doc. 4, at 4 (noting that Superior 20 Court acknowledged Petitioner’s allegation that he “has been objecting to continuances,” but 21 “has reviewed the files over the matter and finds in the files no specific objection by [Petitioner] 22 to the continuances on the specific grounds of unreasonable delay or denial of speedy resolution” 23 (internal quotation marks omitted)). Barker’s third factor, therefore, does not support 24 Petitioner’s claim. 25 26 v. Fourth Factor: Prejudice Petitioner bears the burden of demonstrating actual prejudice under the fourth Barker 25 1 factor because he is responsible for the delay in his trial. Lam, 251 F.3d at 859; United States v. 2 Manning, 56 F.3d 1188, 1195 (9th Cir. 1995); United States v. Aguirre, 994 F.2d 1454, 1458 (9th 3 Cir. 1993). “Doggett holds that we should presume prejudice only if the [petitioner] is not 4 responsible for the delay.” Aguirre, 994 F.2d at 1457. But if the petitioner is responsible for the 5 delay in his trial, then he carries the heavy burden of demonstrating actual prejudice to succeed 6 on a speedy trial claim. Id. at 1458. 7 Actual prejudice can be shown in three ways: (1) oppressive pretrial incarceration; (2) 8 anxiety and concern of the accused; and (3) the possibility that the accused’s defense will be 9 impaired. Doggett, 505 U.S. at 654; Barker, 407 U.S. at 532. “Of these, the most serious is the 10 last, because the inability of [the accused] adequately to prepare his case skews the fairness of the 11 entire system.” Barker, 407 U.S. at 532. 12 Here, Petitioner does not credibly point to any specific damage to his defense stemming 13 from the delay in his trial. In fact, the delay could have assisted his defense had he availed 14 himself of the sexual offender treatment programs available at Atascadero State Hospital, where 15 he was detained. Cf. Loud Hawk, 474 U.S. at 315 (noting delay is two-edge sword; the passage 16 of time may make it more difficult or impossible for government to carry its burden of proof). 17 Thus, Barker’s final factor of prejudice does not support Petitioner’s claim. 18 In sum, Petitioner’s speedy trial right was not violated, assuming that right attached to 19 civil commitment proceedings. Cf. Barker, 407 U.S. at 533-36 (finding no Sixth Amendment 20 speedy trial violation where criminal defendant did not request speedy trial and had not been 21 seriously prejudiced by more than five-year delay between his arrest and trial, even though most 22 of delay was attributable to prosecutor’s inability to try co-indictee and have him testify at 23 defendant’s trial). Accordingly, Petitioner’s speedy trial claim does not entitle him to habeas 24 relief. Thus, Petitioner’s claims of due process, equal protection, and speedy trial violations due 25 to trial delay fail. 26 /// 26 1 2. Ground One: Counsel’s Failure to Make Objections 2 In ground one, Petitioner complains that his counsel failed to present to the Superior 3 Court numerous objections, which may be construed as an ineffective assistance of counsel 4 claim. Pet’r’s Mem. 15. These objections include “the long delays in bringing the commitment 5 petition to trial; the violations of statutory law (Civil Discovery Act of 1985); suppression of 6 tainted evaluation reports and testimony; denial of due process; the vagueness (lack of guidance) 7 of the SVPA; consolidation of petitions; and lack of jurisdiction.” Id. For the following reasons, 8 Petitioner’s ineffective assistance of counsel claim lacks merit. 9 10 a. Legal Standard for Ineffective Assistance of Counsel Claim The Sixth Amendment guarantees the effective assistance of counsel. The United States 11 Supreme Court sets forth the test for demonstrating ineffective assistance of counsel in 12 Strickland v. Washington, 466 U.S. 668 (1984). An allegation of ineffective assistance of 13 counsel requires that a petitioner establish two elements: (1) counsel’s performance was 14 deficient; and (2) the petitioner was prejudiced by the deficiency. Lowry v. Lewis, 21 F.3d 344, 15 346 (9th Cir. 1994); see Strickland, 466 U.S. at 687. 16 First, a petitioner must show that, considering all the circumstances, counsel’s 17 performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. To 18 this end, a petitioner must identify the acts or omissions that are alleged not to have been the 19 result of reasonable professional judgment. Id. at 690. The federal court must then determine 20 whether in light of all the circumstances, the identified acts or omissions were outside the wide 21 range of professional competent assistance. Id. “We strongly presume that counsel’s conduct 22 was within the wide range of reasonable assistance, and that he exercised acceptable professional 23 judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) 24 (citing Strickland, 466 U.S. at 689). 25 26 Second, a petitioner must establish that he was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where “there is a reasonable 27 1 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 2 been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine 3 confidence in the outcome.” Id.; see also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 4 F.3d 972, 981 (9th Cir. 2000). 5 A court need not determine whether counsel’s performance was deficient before 6 examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. 7 Strickland, 466 U.S. at 697. Since the petitioner must affirmatively prove prejudice, any 8 deficiency that does not result in prejudice must necessarily fail. However, certain instances are 9 legally presumed to result in prejudice, e.g., where there was an actual or constructive denial of 10 the counsel’s assistance, or where the State interfered with counsel’s assistance. Id. at 692; see 11 United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984). 12 13 b. Analysis of Ineffective Assistance of Counsel Claim Here, Petitioner fails to demonstrate prejudice resulting from his counsel’s representation. 14 See Strickland, 466 U.S. at 697; Weaver v. Palmateer, 455 F.3d 958, 966 (9th Cir. 2006) (“We 15 are well-advised to bypass scrutinizing a criminal-defense attorney’s representation if the 16 defendant cannot show that he was prejudiced by it.”). Petitioner does not show “there is a 17 reasonable probability that,” but for counsel’s failure to raise Petitioner’s objections, “the result 18 of the [SVPA] proceeding would have been different.” Strickland, 466 U.S. at 694. Petitioner 19 wanted counsel to raise objections that are not meritorious. See supra Part IV.B.1 (trial delay, 20 due process); see infra Parts IV.B.4 (Civil Discovery Act violations); IV.B.5 (vagueness), IV.B.6 21 (trial consolidation), IV.B.7 (jurisdiction), and IV.B.8 (reports and testimony). Thus, Petitioner’s 22 ineffective assistance of counsel claim, as construed from his allegations in ground one, should 23 be rejected. 24 25 26 3. Ground One: Violation of the Right to Petition for State Habeas Relief In ground one, Petitioner contends his “right to petition for writ of habeas corpus” was violated because “California” does not allow “pro se litigants” to file state habeas petitions “until 28 1 2 after all trial and appeal proceedings are completed.” Pet’r’s Pet. 4. “In conducting habeas review, a federal court is limited to deciding whether a conviction 3 violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 4 62, 68 (1991). Habeas relief is not available for an alleged error in the interpretation or 5 application of state law. See id. at 67-68. A federal district court has “no authority to review a 6 state’s application of its own laws.” Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990). Instead, 7 federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. 8 Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). 9 Here, Petitioner does not allege that he was deprived of any federally protected right. 10 Instead, Petitioner’s claim involves only alleged state law errors, and is not cognizable on federal 11 habeas review. See generally Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (explaining 12 federal petitioner may not “transform a state-law issue into a federal one merely by asserting a 13 violation of due process”), cert. denied, 522 U.S. 881 (1997). Accordingly, Petitioner’s claim 14 asserting a violation of his right to petition for state habeas relief is not reviewable. 15 4. Ground Two: Violations of the California Civil Discovery Act and SVPA 16 In ground two, Petitioner argues that “[t]he State evaluators and the D.A. ignored the 17 ground rules set up by the Civil Discovery Act [Code of Civil Procedure §§ 2016 through 2036] 18 as well as the SVPA” during his “mental” evaluations. Pet’r’s Pet. 5. Specifically, Petitioner 19 asserts his due process rights were violated because: (1) he “has never been provided with notice 20 or other due process of any of the evaluations so he could confer with his attorney,” Pet’r’s Mem. 21 23; (2) the interviews were not recorded, id.; and (3) he “was never provided with a copy” of the 22 evaluation reports.10 Id. Ground two fails for several reasons. 23 Petitioner’s claims appear to allege only state law errors and are not cognizable on federal 24 10 25 26 In ground two, Petitioner also asserts that “[t]he People and their experts . . . used old evaluations, probation, and police reports, none of which contained current information and only added ‘spillover prejudice[,]’[] tainting the jury impressions of [Petitioner].” Pet’r’s Pet. 5. This is addressed in Part IV.B.8. 29 1 habeas review. See supra Part IV.B.3. In any event, the record does not show Petitioner was 2 denied any procedural safeguards under the SVPA. See supra Part IV.B.1.a. First, the SVPA 3 does not require that the evaluator provide advance notice before conducting the evaluation. See 4 Woodward v. Mayberg, 242 F. Supp. 2d 695, 704-05 (N.D. Cal. 2003) (“SVPA does not provide 5 for notification prior to screening and evaluation. Nor is it clearly established that the Due 6 Process Clause requires such notification. . . . [N]o Supreme Court precedent requir[es] that an 7 individual must be given notification prior to being screened and evaluated under the 8 circumstances of this case.”); Carmony, 99 Cal. App. 4th at 326-28, 120 Cal. Rptr. 2d 896 9 (affirming trial court’s overruling of Petitioner’s objections that: “(1) he received no advance 10 notice that he was being evaluated as an SVP; (2) he was coerced into making statements to the 11 psychologists; and (3) he was deprived of the right to advice of counsel before proceeding with 12 the interviews”). 13 Second, no authority exists showing that a petitioner has a constitutional right to have his 14 SVPA interviews or evaluations recorded. See Pritchett v. Hunter, No. C-05-0764-PJH, 2008 15 WL 4183932, at *13 (N.D. Cal. Sept. 9, 2008) (concluding no due process violation occurred 16 where civilly committed petitioner claimed he failed to receive notice and tape recordings of 17 psychological interviews); People v. Sumahit, 128 Cal. App. 4th 347, 354 n.3, 27 Cal. Rptr. 3d 18 233 (2005) (“SVP prisoners are certainly not a suspect class and defendant has no fundamental 19 right to have his interviews recorded. The DMH policy serves the rational state purpose of 20 preventing SVP interviewees from becoming distracted by the use of a tape recorder, thereby 21 promoting complete candor and honesty during the interview process.”). In any case, at the April 22 2, 2004 probable cause hearing on the second recommitment petition, the Superior Court ordered 23 that State mental health expert Dr. Douglas Korpi “reinterview[] [Petitioner] for purposes of the 24 jury trial” and “also order[ed] that it be tape-recorded.” Rep.’s Augment on Appeal vol. 1, 46, 25 181. Nevertheless, Petitioner refused to be interviewed by Dr. Korpi in the fall of 2004. Lodged 26 Doc. 4, at 9. 30 1 Third, the record belies Petitioner’s claim that he “was never provided with a copy” of the 2 evaluation reports. Compare Pet’r’s Mem. 23, with, e.g., Rep.’s Tr. on Appeal vol. 1, 245 3 (showing Petitioner’s counsel referred to “page three” of “latest report . . . dated October 9th of 4 2004” by State mental health expert Dr. Shoba Sreenivasan at 2005 recommitment trial), and 5 Rep.’s Augment on Appeal vol. 1, 47 (during cross examination of Dr. Korpi at April 2, 2004 6 probable cause hearing, Petitioner’s counsel asserted, “You list some 28 items in your report that 7 you relied upon [in evaluating Petitioner].” (emphasis added)). Additionally, Petitioner admits 8 copies of his evaluation reports “are available to Petitioner at $0.10 per page from the 9 Department of Mental Health,” but “Petitioner must pay for his copies of the report.” Pet’r’s 10 Supplemental Pet. 8. This fee comports with California state law. CAL. CIV . CODE § 1798.33 11 (“Each agency may establish fees to be charged, if any, to an individual for making copies of a 12 record. Such fees shall exclude the cost of any search for and review of the record, and shall not 13 exceed ten cents ($0.10) per page, unless the agency fee for copying is established by statute.”). 14 Nothing in the record indicates Petitioner was unable to pay this fee. Thus, Petitioner is not 15 entitled to habeas relief on ground two. 16 17 5. Ground Three: Vagueness In ground three, Petitioner argues that “the vagueness of the SVPA, which does not give 18 guidance as to when the trial must take place, allows the government to deprive a person of their 19 liberty without any timely or meaningful due process.” Pet’r’s Pet. 5. Petitioner asserts that “the 20 legislature[] fail[ed] to delineate a time frame in which trial must take place.” Id. 21 This argument is conceptually flawed. An unconstitutionally vague statute is unclear as 22 to: (1) who falls within its scope; (2) what conduct is forbidden; and/or (3) what punishment 23 may be imposed. See Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). Under the 24 SVPA, none of these points are unclear. Further, as to the time for a commitment trial, state law 25 clearly imposes no deadline for holding the trial. See People v. Superior Court (Preciado), 87 26 Cal. App. 4th 1122, 1127, 105 Cal. Rptr. 2d 159 (2001). The SVPA, therefore, is not 31 1 unconstitutionally vague due to the lack of a time frame for holding a trial, and Petitioner’s claim 2 fails. 3 4 5 6 6. Ground Five: Trial Consolidation In ground five, Petitioner challenges the Superior Court’s decision to consolidate the first and second recommitment petitions into one trial. Pet’r’s Pet. 7. The California Court of Appeal has explicitly found that trial courts are, in fact, 7 authorized to consolidate recommitment hearings. Litmon, 123 Cal. App. 4th at 1174-75, 21 Cal. 8 Rptr. 3d 21. In Litmon, however, the court recognized that limitations on this authority may exist 9 when the petitioner opposes consolidation and stands prepared to proceed to trial before 10 additional recommitment petitions are filed. Id. at 1176, 21 Cal. Rptr. 3d 21. Specifically, 11 Litmon set forth the following limitation: 12 14 [W]hen the trial on the earlier petition can be held within the two-year commitment period to which it relates, and the SVP has announced ready for trial and has objected to consolidation or a continuance, consolidation appears to be at odds with the legislative intent codified in the SVPA. 15 .... 16 17 [I]t is error to order consolidation over objection when a consolidated trial can occur only if the earlier petition is further delayed. 18 .... 19 In our view, a motion to consolidate successive petitions should not be granted unless the SVP consents to consolidation or the consolidation will not delay the trial of the earlier petition. However, if consolidation will not delay the trial of the earlier petition, and consolidation will not prejudice the SVP’s right to a fair trial, then consolidation is permissible. 13 20 21 22 23 24 25 26 Id. at 1176-77, 21 Cal. Rptr. 3d 21 (emphasis added). Here, however, the limitation to consolidate the recommitment hearings is inapplicable. As the Court of Appeal noted in the instant case: Here, the consolidation motion was granted on January 10, 2005. 32 1 2 3 4 Jury selection on both petitions commenced minutes later. Thus, the consolidation did not delay the trial of the earlier petition. This distinguishes the present case from Litmon, in which “it was the trial court’s granting of the People’s consolidation motion, over Litmon’s objection, that resulted in a delay of his pending trial on the earlier petition beyond the two-year commitment petition.” (Litmon, supra, 123 Cal.App.4th at p. 1177.) 5 Lodged Doc. 4, at 6. Further, the record supports that the delay in bringing the first 6 recommitment petition to trial was primarily attributable to Petitioner’s conduct or to that of his 7 counsel. See supra Part IV.B.1.c.iii. 8 Petitioner attempts to show prejudice from the consolidation of the two recommitment 9 petitions by arguing no trier of fact would likely be able to assess the evidence separately as to 10 the two discrete two-year periods of time. According to Petitioner, he was forced “to defend 11 allegations at trial where two sets of evaluations concerned two different time periods and had an 12 improper cumulative effect.” Pet’r’s Mem. 64. However, Litmon establishes that a person is 13 “adjudged” an SVP from “the time the verdict is rendered,” upon a showing he “‘currently’ 14 suffers from a diagnosed mental disorder which prevents him from controlling sexually violent 15 behavior and which ‘makes’ him dangerous and ‘likely’ to reoffend.” 123 Cal. App. 4th at 1170, 16 21 Cal. Rptr. 3d 21 (quoting Hubbart, 19 Cal. 4th at 1162, 81 Cal. Rptr. 2d 492, 969 P.2d 584). 17 It is the present inability to control sexually violent behavior which determines whether the SVP 18 is dangerous if not confined. See id. Petitioner’s contention that two separate time periods must 19 be tried when petitions are consolidated thus does not comport with California’s interpretations 20 of its own law. Accordingly, habeas relief is not warranted on Petitioner’s fifth ground for relief. 21 22 7. Ground Six: Jurisdiction In ground six, Petitioner argues that “there was no valid commitment term when the 23 second petition to extend was filed.” Pet’r’s Pet. 7. Petitioner was completing an unexpired 24 two-year SVP commitment term at the time the first of the two recommitment petitions at issue 25 here was filed. Although the first petition was filed before expiration of his then-current 26 commitment period, that term expired before a recommitment order was issued. The second 33 1 recommitment petition was filed in January 2004, before trial on the first petition had occurred, 2 and after his previously-ordered commitment term had expired. Petitioner, therefore, concludes 3 that “the court lacked jurisdiction to accept a new petition for recommitment since this petitioner 4 was neither under sentence, parole, probation, nor commitment at the time the petition was 5 filed.” Id. He also argues that the SVPA “must be narrowly construed and strictly applied,” 6 citing Peters v. Superior Court, 79 Cal. App. 4th 845, 847-48, 94 Cal. Rptr. 2d 350 (2000) 7 (holding statutory requirements for initial SVPA commitments apply equally to recommitments, 8 and state may not recommit SVP on single psychological evaluation when statute called for at 9 least two). Pet’r’s Mem. 72. 10 Petitioner’s arguments appear to be solely state law interpretation issues that he attempts 11 to characterize as jurisdictional or “due process” infirmities. See supra Part IV.B.3. However, 12 even if the merits are reached, California courts have rejected Petitioner’s jurisdictional 13 arguments. See Orozco v. Superior Court, 117 Cal. App. 4th 170, 176-79, 11 Cal. Rptr. 3d 573 14 (2004) (holding no requirement exists to obtain recommitment before extending confinement 15 beyond two-year commitment period while timely-filed recommitment petition remains under 16 review, and there is “no jurisdictional requirement that a recommitment order be obtained before 17 expiration of the prior term” (emphasis omitted)); Litmon, 123 Cal. App. 4th at 1171, 21 Cal. 18 Rptr. 3d 21 (holding “the only act that could divest the court of subject matter jurisdiction and 19 trigger a dismissal is the People’s failure to file a petition for recommitment before the prior 20 commitment expires,” where trial on recommitment petitions affecting two SVPs had been 21 delayed for twenty-three months (emphasis added)); People v. Superior Court (Ramirez), 70 Cal. 22 App. 4th 1384, 1390, 83 Cal. Rptr. 2d 402 (1999) (holding failure to complete trial on 23 subsequent petition before expiration of prior commitment period does not divest trial court of 24 jurisdiction to proceed on subsequent petition); see also CAL. WELF. & INST . CODE § 6602 25 (requiring on finding of probable cause, “the judge shall order that the person remain in custody 26 in a secure facility until trial is completed”). Thus, Petitioner’s claim that “the court lacked 34 1 jurisdiction to accept a new petition for recommitment” fails. Pet’r’s Pet. 7. 2 8. Ground Seven: Insufficient Evidence 3 In ground seven, Petitioner argues that his “civil commitment must be reversed due to 4 insufficiency of the evidence supporting the jury verdict finding him to be a sexually violent 5 predator likely to reoffend.” Id. at 8. He asserts that “static reports and other old information 6 cannot be used to make a current diagnosis.” Id. He also claims “[i]n Petitioner’s trial, all the 7 experts testified that the science of ‘recidivism predictability’ was in a constant state of 8 development, internal division and criticism, and dubious data . . . .” Id. (emphasis omitted). 9 a. Legal Standard for Insufficient Evidence Claim 10 When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is 11 only available if it is found that upon the record evidence presented at trial, viewed in the light 12 more favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond 13 a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, the court 14 must review the entire record when the sufficiency of the evidence is challenged on habeas. 15 Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 16 722 (9th Cir. 1986) (en banc), rev’d, 483 U.S. 1 (1987). It is the province of the jury to “resolve 17 conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic 18 facts to ultimate facts.” Jackson, 443 U.S. at 319. “The question is not whether we are 19 personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the 20 conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). 21 Under Jackson, the federal habeas court determines evidence sufficiency “with explicit reference 22 to the substantive elements of the criminal offense as defined by state law.” 443 U.S. at 324 23 n.16. 24 b. Analysis of Insufficient Evidence Claim 25 Here, the record reflects that sufficient evidence supports Petitioner’s civil 26 recommitment. At Petitioner’s recommmitment trial, three mental health experts testified for the 35 1 State: (1) Dr. Douglas Korpi; (2) Dr. Shoba Sreenivasan; and (3) Dr. Gabrielle Paladino. One 2 mental health expert, Dr. Theodore Donaldson, testified for Petitioner. 3 First, psychologist Dr. Douglas Korpi, a mental health expert for the State, testified that 4 Petitioner’s pedophilia was “exceptionally well ingrained.” Rep.’s Tr. vol. 1, 64. Dr. Korpi 5 testified, “I just think he happens to be at high risk” for reoffending. Id. Dr. Korpi’s reasons 6 included, among others: (1) “this is a man with a strange sexual deviancy11 who takes victims in 7 the highest risk pool [strangers and boys], has never been married,” id. at 92; (2) “he’s violated 8 probation several times, . . . and he offends sexually while on probation,” id. at 93; (3) “there’s 9 no basic change in the kind of person he is” from “23 years ago,”12 when Petitioner committed 10 the last offense, id.; (4) although Petitioner has “pain in his back,” he “certainly is capable of 11 getting up and touching a boy,” id. at 96; (5) Petitioner “had problems with impotence since his 12 30’s,” but “[i]t didn’t stop him, however, from offending at 44 with the boys. So in this case 13 impotence isn’t an issue,” id. at 97; (6) Petitioner “declines involvement” in any treatment 14 programs, id. at 98; and (7) “[h]e has no one waiting for him upon his release, and his history 15 suggests that his intimacy issues are rather significantly disrupted inasmuch as it’s natural for a 16 man to have a relationship with an eleven year old.” Id. 17 Dr. Korpi confirmed that pedophilia is a “life-long condition” that cannot be cured. 18 According to Dr. Korpi, “you can [only] learn to control it” through “successful methods,” id. at 19 87, which Petitioner failed to acquire. Id. at 98. Petitioner also refused to be interviewed by Dr. 20 Korpi in December 2003 and in the fall of 2004. Lodged Doc. 4, at 9. 21 Second, psychologist Dr. Shoba Sreenivasan, a mental health expert for the State, 22 11 23 Dr. Korpi compares Petitioner to a “priest doing the sermon. During the day good guy, lots of things going for him interpersonally, but then he has a private life. And so, it’s the sexual deviancy that is driving the high risk in this case.” Rep.’s Tr. vol. 1, 93. 24 12 25 26 Dr. Korpi elaborated, “He wasn’t a cocaine, whiskey, swilling thug when he was sexually offending, and he’s not a cocaine using whiskey swilling thug now. He’s not a gang banger. He’s at Atascadero State Hospital, gets along with people, usually described as pleasant, always been that way.” Rep.’s Tr. vol. 1, 93-94. 36 1 confirmed that Petitioner “still poses a serious and well-founded risk in this case.” Rep.’s Tr., 2 vol. 1, 222. Dr. Sreenivasan found that under the Static-99 test, “that’s been use[d] the most 3 widely,” “[t]here are ten risk factors here and [Petitioner’s] score was a six, that falls in a high 4 risk range.” Id. at 214. Under the “Stable-2000” test, “[a] lot of factors put him in the increased 5 risk range,” id. at 215, including, among others: (1) intimacy issues, “where he looked at young 6 boys as his friends and had this whole sexualized thing, id.;” (2) “sexual preoccupation,” which 7 “stopped because he has been in custody,” id.; (3) an attitude “tolerant of sexual assault,” where 8 he viewed boys as “willing participants” and “sex as a private matter between two people no 9 matter how old they are,” id. at 216; and (4) “cooperation with supervision,” where “he was on 10 probation in the 60s for a sex offense,” and “he goes and commits these other three sex offenses. 11 . . . On the other hand, he has done relatively well in prison and he has done relatively well in the 12 hospital.” Id. 13 Dr. Sreenivasan also testified that Petitioner’s pedophilia is a “multiple decade issue” and 14 remains “untreated, so there is nothing really that’s changed here.” Id. at 212. From reading the 15 records, Dr. Sreenivasan stated that in treatment programs, Petitioner is “legalistic” and “often 16 says he will take the fifth, he doesn’t want to talk about his sex offenses.” Id. at 222. Thus, 17 “there has been no treatment participation.” Id. Consequently, Petitioner cannot “apply” control 18 techniques learned from treatment “to a high risk situation,” so “how can he deal with it besides 19 starting to be friendly to some kid so that he can get some emotional support.” Id. at 225. 20 Petitioner also “refused to be interviewed by Dr. Sreenivasan, both initially and the two times she 21 sought to update her evaluations.” Lodged Doc. 4, at 15. 22 Third, psychiatrist Dr. Gabrielle Paladino, a mental health expert for the State, confirmed 23 that she found Petitioner “met the criteria of the sexually violent predator act.” Rep.’s Tr. vol. 2, 24 600. Dr. Paladino found that Petitioner “would have a high potential of reoffending.” Rep.’s Tr. 25 vol. 3, 606. Dr. Paladino’s reasons included, among others: (1) “he’s targeted boys,” and “those 26 who target boys[] are usually in a category pretty much of their own of the hands-on sex 37 1 offenders,” id.; (2) “he’s had victims, who he didn’t know” and “doesn’t have any other criminal 2 history,” so “he’s very focused on this,” id.; and (3) Petitioner is unable to “sustain[] 3 relationships outside of these children and he has been rather active in soliciting these children.” 4 Id. at 607. 5 Dr. Paladino testified that “when [Petitioner] gets out into society, within a short order, 6 there are sex crimes that he has committed.” Rep.’s Tr. vol. 3, 604. According to Dr. Paladino, 7 pedophilia “is a chronic condition that just doesn’t magically stop,” and “there hasn’t been a 8 change in him . . . that’s been so important to stop those urges from being enacted out on more 9 children.” Id. at 604-05. Petitioner also refused to be interviewed by Dr. Paladino in March 10 11 2002, June 2003, and November 2004. Rep.’s Tr. vol. 2, 599. Finally, Dr. Theodore Donaldson, a clinical psychologist, testified on Petitioner’s behalf. 12 Lodged Doc. 4, at 17. Dr. Donaldson concluded that Petitioner “was not a pedophile.” Rep.’s 13 Tr. vol. 2, 452. Dr. Donaldson acknowledged, “Certainly he has a preference” for “teenaged 14 boys.” Id. at 450, 452. According to Dr. Donaldson, however, Petitioner’s “age preference . . . 15 would not qualify for a diagnosis of pedophilia because [Petitioner’s victims were] not under 16 thirteen, thirteen or under, although some of his victims were that young.” Id. at 450. Dr. 17 Donaldson also added, “[H]is last offense was a very long time ago, around 24 years,” and “he 18 has not been attracted to young inmates in the prison system.” Id. at 452. Dr. Donaldson thereby 19 concluded that either Petitioner “never had it in the first place or he is in total remission.” Id. at 20 453. Additionally, Dr. Donaldson mentioned that “now [Petitioner] can’t get an erection at all.” 21 Id. However, Dr. Donaldson admitted, “We know true pedophiles are not always driven by 22 sexual interest. It’s through the attachment t[o] the children, and whether they can get an 23 erection may not be essential.” Id. 24 The record, therefore, reveals that sufficient evidence supports Petitioner’s civil 25 recommitment. “The fact that defendant has not misbehaved in a strictly controlled hospital 26 environment does not prove he no longer suffers from a mental disorder that poses a danger to 38 1 others. . . . Because he currently lacks access to children, his lack of outward signs of sexual 2 deviance is not dispositive of whether he is likely to reoffend if released into society at large.” 3 Sumahit, 128 Cal. App. 4th at 353, 27 Cal. Rptr. 3d 233. Further, although Petitioner complains 4 about the lack of more recent information, “[b]ecause [Petitioner] refused to be interviewed by 5 the state’s experts, who could have formed an opinion as to his present dangerousness, 6 [Petitioner] has forfeited the claim that the state did not prove that he was currently dangerous.” 7 Id. at 353-54. Additionally, “[t]he jury was made well aware of the difference in opinion as to 8 the usefulness of the actuarial tools or risk assessment instruments” about which the experts 9 testified. Lodged Doc. 4, at 20; see United States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 10 2004) (“[T]he credibility of witnesses is a question for the jury, unreviewable on appeal.”). 11 Thus, Petitioner’s seventh claim for relief due to insufficient evidence should be denied. 12 C. First Request: Order To Show Cause 13 In his prayer for relief, Petitioner requests “an order to show cause.” Pet’r’s 14 Supplemental Pet. 13. As stated earlier, Respondents filed an answer to the petition on June 6, 15 2008, to which Petitioner filed a traverse on June 26, 2008. Accordingly, Petitioner’s request for 16 an order to show cause is denied as moot. 17 D. Second Request: Judicial Notice 18 In a separate “motion requesting the court to take judicial notice,” ECF No. 14, Petitioner 19 requests judicial notice of People v. Litmon, 162 Cal. App. 4th 383, 76 Cal. Rptr. 3d 122 (2008). 20 While judicial notice of this ruling may be taken, United States v. Wilson, 631 F.2d 118, 119-20 21 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as 22 the records of an inferior court in other cases.”), they are, at most, persuasive authority. 23 Petitioner’s pleadings, therefore, are treated as supplemental briefing. Because judicial notice is 24 unnecessary, the request for judicial notice is denied. See Ventura Mobilehome Cmtys. Owners 25 Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1052 n.5 (9th Cir. 2004) (denying request for 26 judicial notice of rulings by other courts, where rulings, “in any event, . . . do not alter our 39 1 determination of the case”). 2 E. Other Miscellaneous Requests 3 In his prayer for relief, Petitioner requests: (1) definition of “the rights of the parties;” (2) 4 exclusion of “all evaluation reports and testimony based thereon by State evaluators;” (3) 5 “[d]ismiss[al]” and the “set[ting] aside” of both recommitment petitions; (4) rejection and/or 6 dismissal of “probable cause findings;” (5) vacating “the commitment(s) obtained using reports 7 and testimony of evaluators;” (6) sanctions against “the District Attorney and their agents;” (7) a 8 declaration that “the SVPA [is] unconstitutionally vague;” and (8) an order freeing Petitioner. 9 Pet’r’s Supplemental Pet. 13; Pet’r’s Mem. 88-89. Since habeas relief should not be granted, it is 10 11 recommended that Petitioner’s remaining requests be denied. See supra Part IV.B. V. CONCLUSION 12 For the foregoing reasons, IT IS HEREBY ORDERED that: 13 1. Petitioner’s request for an order to show cause is DENIED as moot; and 14 2. Petitioner’s request for judicial notice is DENIED. 15 IT IS HEREBY RECOMMENDED that: 16 1. Petitioner’s application for writ of habeas corpus be DENIED; and 17 2. Petitioner’s remaining requests be DENIED. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 20 days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 23 shall be served and filed within seven days after service of the objections. Failure to file 24 objections within the specified time may waive the right to appeal the District Court’s order. 25 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 26 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of 40 1 appealability should be issued in the event he elects to file an appeal from the judgment in this 2 case. See Rule 11(a), Federal Rules Governing Section 2254 Cases (district court must issue or 3 deny certificate of appealability when it enters final order adverse to applicant). 4 DATED: October 7, 2010. 5 6 7 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 41

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