Kirk v. Mayberg, No. 4:2006cv00071 - Document 34 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS.. Signed by Judge Claudia Wilken on 11/21/08. (scc, COURT STAFF) (Filed on 11/21/2008)
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Kirk v. Mayberg Doc. 34 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States DistrictUnited CourtStates District Court For the Northern District For of theCalifornia Northern District of California 10 No. C 06-0071 CW LAWRENCE RUDY KIRK, 11 12 13 14 ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS Petitioner, v. MELVIN HUNTER, Respondent. / 15 16 In this pro se petition, Petitioner Lawrence Rudy Kirk 17 challenges his civil commitment as a sexually violent predator 18 (SVP) under the Sexually Violent Predator Act (SVPA). 19 Inst. Code § 6600 et seq. 20 Cal. Welf. & PROCEDURAL HISTORY 21 The SVPA allows the civil commitment of violent criminal 22 offenders who have committed particular forms of predatory sex acts 23 against either adults or children, and who are incarcerated. 24 Hubbart v. Superior Court, 19 Cal. 4th 1138, 1154 n.20 (1999). 25 Commitment as an SVP cannot occur unless it is proven, beyond a 26 reasonable doubt, that the individual (1) was convicted of a 27 sexually violent offense against two or more victims; (2) currently 28 suffers from a clinically diagnosed medical disorder as defined in 1 the SVPA; and (3) is dangerous and likely to continue committing 2 such crimes if released into the community. United States District Court For the Northern District of California 3 Id. In 1998, Petitioner was discharged on parole from a state 4 sentence for sex offenses. 5 A104584, at 2 (Mar. 22, 2005) (Kirk I).) 6 parole was revoked. 7 committed to the California Department of Mental Health for two 8 years as an SVP after a jury trial. (Id. at 1.) He was committed 9 to Atascadero State Hospital (ASH). (Id. at 2.) In December, (Id.) (Resp't Ex. 3, People v. Kirk, No. After five weeks, his In December, 2000, Petitioner was 10 2002, the Sonoma County District Attorney filed a petition to 11 extend Petitioner’s commitment. 12 be an SVP and he was recommitted for two more years.1 13 Petitioner filed a direct appeal and the court affirmed the 14 verdict. 15 (Id.) A jury found Petitioner to (Id.) (Id.) In October, 2004, another petition to extend Petitioner's 16 commitment was filed. 17 to Extend Commitment as an SVP, at 4.) 18 found probable cause and scheduled a trial.2 19 Traverse, People v. Kirk, No. A111308, at 1 (Feb. 1, 2007) (Kirk (Resp’t Ex. 5, Motion for Review of Petition The superior court judge (Pet’r Ex. A to 20 21 22 23 24 25 26 27 28 1 At the time of Petitioner’s 2002 commitment extension proceedings, the SVPA commitment was limited to a maximum term of two years unless the State filed a new petition to continue the SVP commitment. Cal. Welf. & Inst. Code §§ 6604, 6604.1 (2002). In 2006, the statute was amended to make the term indeterminate. See Cal. Welf. & Inst. Code §§ 6604, 6604.1 (2008). 2 On August 30, 2005, a jury recommitted Petitioner for two more years. (Id. at 1-2.) Petitioner filed a direct appeal of these proceedings and the court of appeal reversed and remanded based on Petitioner’s claim of ineffective assistance of counsel. (Id. at 1.) Those trial proceedings are not challenged here. 2 1 2 II).) Petitioner filed a petition for a writ of habeas corpus in the 3 superior court challenging the constitutionality of his 2002 trial 4 and his 2004 probable cause hearing. 5 petition. 6 1 (Mar. 4, 2005).) 7 also denied his habeas corpus petition, both without opinion. 8 (Pet’r Ex. C to Petition, In re Kirk, No. A109597, at 1 (Mar. 30, 9 2005); Pet’r Ex. D. In re Kirk, No. S133151, at 1 (June 8, 2005). United States District Court For the Northern District of California 10 11 The court denied the (Pet’r Ex. B to Petition, In re Kirk, No. SCR-12659, at The court of appeal and the state supreme court BACKGROUND On direct appeal from the first extension of his SVP 12 commitment in 2002, the court summarized Petitioner's history as 13 follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 In 1964, 19-year-old appellant approached 17-year-old Sandra L. at a recreation area, pushed her down, tore her clothing and made unwanted sexual advances toward her. Thereafter, he was sent to the California Youth Authority. In 1972, 12-year-old Cynthia B. was awakened by someone removing the screen from her bedroom window. Soon after, she saw appellant come out from behind a bush and drive off in his car. A few days before, while Cynthia B. was visiting the home of appellant’s minor niece, appellant chased Cynthia B. causing her to be fearful and lock herself inside a room. In 1978, appellant was the friend of eight-year-old Linda E.'s mother and occasionally visited their home. On one occasion appellant took Linda E. to his house where he removed his pants, got on top of her and penetrated her with his penis. He threatened to kill her, her mother, and her stepfather if she told anyone about the incident. After developing gonorrhea, Linda E. told her mother which led to apellant’s arrest and conviction. Following his conviction, appellant was found to be a mentally disordered sex offender and committed to Patton State Hospital. He was released in 1982. 27 28 In October 1987, Joan C. and appellant began dating. On one occasion when Joan C.'s 13-year-old daughter, 3 1 2 Melissa C., stayed home sick from school, appellant came to the house and forced her to have sex. In July 1988, Melissa C. told her mother about appellant’s molestations and he was arrested, convicted and sent to state prison 3 6 In 1996, [Petitioner] was transferred from state prison to Atascadero State Hospital (ASH). He was discharged on parole, but after five weeks, his parole was revoked because he missed his first parole officer appointment because he was with a woman overnight. He has been at ASH since his SVP commitment in December 2000. 7 . . . 8 [A]ppellant admitted [in 2002] that he falsely told the police that Melissa C. was a 13-year-old prostitute and he gave her $30 for sex . . . . He claimed that he and Sandra L. had consensual sex and denied ripping her clothes. He also denied penetrating eight-year-old Linda E., but admitted impulsively removing her clothes and masturbating on her stomach. Whether his act was right or wrong did not "cross his mind." 4 5 9 United States District Court For the Northern District of California 10 11 12 (Kirk I, at 2.) 13 The court of appeal noted that Petitioner has refused 14 counseling at ASH because he does not believe he has a mental 15 disorder. (Id.) The court also noted that Petitioner has 16 exhibited repeated instances of inappropriate behavior and vulgar 17 verbal abuse towards female staff at ASH. (Id. at 4; see also 18 Resp't Ex. 1, vol. 3, Report of Dr. Jay Seastrunk, Jul. 27, 2002, 19 at 16.) 20 Psychologist Dr. Dawn Starr testified for the prosecution at 21 the 2002 commitment extension trial. (Kirk I, at 3.) Dr. Starr 22 interviewed Petitioner in July, 2002 and May, 2003 and reviewed his 23 ASH records and criminal information packet. (Id.) She opined 24 that Petitioner met the criteria of an SVP. (Id.) She diagnosed 25 Petitioner as suffering from "pedophilia, sexually attracted to 26 females, non-exclusive type, cannabis abuse, alcohol abuse, and a 27 personality disorder with narcissistic and antisocial features." 28 4 1 (Id. at 3-4.) 2 personality disorder rose to the level of statutorily defined SVP 3 diagnoses. 4 Starr determined that Petitioner was likely to reoffend based on 5 his score on the Static 99 scale and his lack of remorse. 6 at 4.) United States District Court For the Northern District of California 7 Dr. Starr determined that the pedophilia and (Resp’t Ex. 1, v. 3, Clerk’s Transcript, at 46.) Dr. (Kirk I, Dr. Jay Seastrunk, Petitioner's treating psychiatrist in 2001 8 and evaluator in 2002, also testified for the prosecution at the 9 2002 trial. (Id.) Dr. Seastrunk also concluded that Petitioner 10 had exhibited a pattern of inappropriate sexual activity and was in 11 danger of reoffending. 12 (Id.) Petitioner called Dr. John Podboy, an expert in forensic 13 psychology. (Id.) 14 of sexual recidivism decreases with age. 15 hearing, Petitioner was fifty-eight years old. 16 called psychologist Dr. Theodore Donaldson, who had interviewed 17 Petitioner in 2000 and May, 2003 and reviewed the prosecution’s 18 psychological reports. 19 Starr and Seastrunk and opined that Petitioner did not have a 20 diagnosed mental disorder and that because of his age, he presented 21 a low risk of reoffending. Dr. Podboy testified that, in general, the rate (Id.) (Id.) At the time of the Petitioner also Dr. Donaldson disagreed with Drs. (Id.) 22 LEGAL STANDARD 23 This Court may entertain a petition for a writ of habeas 24 corpus of an individual in custody pursuant to the judgment of a 25 state court only on the ground that he is in custody in violation 26 of the Constitution or laws or treaties of the United States. 27 U.S.C. § 2254(a). 28 unless the state court's ruling "was contrary to, or involved an 28 The Court may not grant habeas corpus relief 5 United States District Court For the Northern District of California 1 unreasonable application of," clearly established United States 2 Supreme Court law or was based on an unreasonable determination of 3 the facts. 4 Taylor, 529 U.S.C. 362, 411-413 (2000). 28 U.S.C. §§ 2254(d)(1), 2254(d)(2); Williams v. 5 Where, as here, the highest state court to reach the merits 6 issued a summary opinion which does not explain the rationale of 7 its decision, federal court review under § 2254(d) is of the last 8 state court opinion to address the merits. Bains v. Cambra, 204 9 F.3d 964, 970-71, 973-78 (9th Cir. 2000). In this case, the last 10 state court opinion to address the merits of Petitioner's habeas 11 corpus claims is that of the California superior court. 12 A judgment committing an individual under the SVPA is subject 13 to review under the Antiterrorism and Effective Death Penalty Act 14 of 1996 (AEDPA) standards set forth in 28 U.S.C. § 2254(d). 15 Carty v. Nelson, 426 F.3d 1064, 1072-73, amended, 431 F.3d 1185 16 (9th Cir. 2005). 17 application of the SVPA should not be revisited in a federal habeas 18 action unless the state court's interpretation and application of 19 the SVPA violates federal due process. 20 F.3d 773, 779-80 (9th Cir. 2004). A California court's interpretation and 21 22 23 See See Hubbart v. Knapp, 379 DISCUSSION I. The Merits of the SVP Determination Petitioner makes three general challenges to the merits of his 24 SVP determination. 25 as a due process challenge of California’s SVPA civil commitment 26 scheme as applied to him. 27 pro se petitions for writs of habeas corpus liberally. 28 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). The Court will construe Petitioner’s argument Federal courts have a duty to construe 6 Zichko v. Specifically, 1 Petitioner argues that the SVPA is unconstitutional as applied to 2 him because he did not commit a "recent overt act" of sexually 3 violent predation. 4 be found to be presently dangerous under the SVPA after having been 5 paroled unless his parole had been revoked for reoffending. 6 Petitioner’s third argument is that the trial court did not have 7 sufficient evidence to commit him civilly. 8 United States District Court For the Northern District of California 9 Petitioner’s second argument is that he may not The California Supreme Court has upheld the SVPA as constitutional against due process, equal protection and ex post 10 facto challenges. 11 1153. 12 States Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 370 13 (1997), which upheld a similar Kansas statute against similar 14 challenges. 15 identical" language in defining an SVP as "someone who suffers from 16 a diagnosed mental disorder which 'predisposes' the person to 17 committing sexually violent acts and which makes the person a 18 'menace' to the health and safety of others and 'likely' to 19 reoffend." 20 that an SVP is a "'danger' to the public." 21 Court, 19 Cal. 4th at 1158 n.24. Hubbart v. Superior Court, 19 Cal. 4th at 1152- The Hubbart court relied on the decision of the United The Kansas and California schemes use "nearly The only difference is that the California statute adds Hubbart v. Superior 22 The plain language of the SVPA supports Respondent's 23 contention that a recent overt act is not necessary for an SVPA 24 commitment. 25 "danger to the health and safety of others . . . does not require 26 proof of a recent overt act while the offender is in custody." 27 Cal. Welf. & Inst. Code § 6600(d); see also People v. Hubbart, 88 28 Cal. App. 4th 1202, 1221 (2001) ("the SVPA requires proof of a Section 6600(d) of the SVPA specifically states that 7 1 current mental condition and current dangerousness but not a recent 2 overt act"); In re Calhoun, 121 Cal. App. 4th 1315, 1323 (2004). 3 4 147 Wash. 2d 1, 51 (2002), for his argument that a recent overt act 5 is necessary for civil commitment under California’s SVPA. 6 However, the AEDPA standard limits this Court to an evaluation of 7 United States Supreme Court law. 8 inapposite, especially one from a different state, interpreting a 9 different law. 10 United States District Court For the Northern District of California Petitioner cites the Washington state case of In re Albrecht, Therefore, state law cases are Likewise, Petitioner’s second argument -- that SVPA 11 proceedings against him were inappropriate because his parole was 12 not revoked due to an act of sexually violent predation -- is 13 without merit. 14 proceedings against one whose parole has been revoked. 15 & Inst. Code § 6601(a). 16 revocation was based on a sex offense. 17 SVPA section 6601(a) specifically authorizes SVPA Cal. Welf. It does not require that the parole Petitioner also claims that the trial court had insufficient 18 evidence to make an SVP finding. 19 this contention was not unreasonable. 20 Hubbart v. Superior Court, which relied on controlling Supreme 21 Court authority in Hendricks. 22 commitment scheme allowing for commitment based on past 23 convictions, current clinically diagnosed medical disorder and 24 evaluation of current dangerousness was constitutional. 25 Superior Court, 19 Cal. 4th at 1163-1164. 26 that “the United States Supreme Court has consistently upheld 27 commitment schemes authorizing the use of prior dangerous behavior 28 to establish both present mental impairment and the likelihood of The superior court’s rejection of The superior court cited Hubbart determined that the SVPA 8 Hubbart v. The court emphasized 1 future harm.” 2 Petitioner specifically attacks the pedophilia diagnoses of 3 Drs. Starr and Seastrunk, asserting that they were based on his 4 past sexual misconduct alone and do not prove his current 5 condition. 6 relied on incidents other than his past convictions, including 7 other sexual misconduct, inappropriate behavior while at ASH -- 8 especially his pattern of abusive comments to female staff, his 9 Static 99 score, his lack of remorse and his refusal of therapy. 10 United States District Court For the Northern District of California Id. Petitioner is incorrect. Drs. Starr and Seastrunk In sum, the superior court was not unreasonable in rejecting 11 Petitioner’s claim that due process requires a recent overt act for 12 an SVPA commitment. 13 address this issue, Petitioner’s claim that an SVPA determination 14 was inappropriate because he was in custody for a parole violation 15 that was not a sex offense is without merit. 16 court was not unreasonable in determining that there was no 17 deficiency in the SVPA proceedings that would warrant overturning 18 the jury verdict. 19 II. 20 Although the state court did not directly Finally, the state False Documentary Evidence Petitioner claims that in the probable cause hearing for the 21 State's 2004 petition to extend his commitment, the prosecution 22 presented false documentary evidence. 23 State listed four California Department of Corrections and 24 Rehabilitation (CDCR) prisoner numbers as belonging to him and that 25 the State incorrectly reported that he was currently incarcerated 26 27 28 9 Petitioner alleges that the 1 in state prison.3 United States District Court For the Northern District of California 2 Petitioner claims that this violated the truth in evidence 3 rule in the California Constitution, Art. I, § 28(d). 4 federal habeas corpus claim cannot be based on the California 5 Constitution. 6 due process claim and the Court will construe it as such. 7 to obtain habeas relief on the basis of an evidentiary error, 8 Petitioner must show that the error was one of constitutional 9 dimension and that it was not harmless under Brecht v. Abrahamson, However, a Petitioner also appears to raise this as a federal In order 10 507 U.S. 619 (1993). 11 substantial and injurious effect' on the verdict." 12 244 F.3d 758, 767 n.7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 13 623). 14 He must show that the error had "'a Dillard v. Roe, Respondent concedes that some of the identification numbers 15 were inaccurate and that Petitioner was not incarcerated in a 16 prison at the time of the hearing but was civilly committed at ASH. 17 However, Respondent points out that the prosecutor corrected the 18 errors in a declaration filed on the same day, and that the court 19 did not consider this information in making its determination that 20 there was probable cause. 21 (Resp’t Ex. 5, at 53.) Petitioner fails to explain how the incorrect CDCR numbers or 22 the incorrect information about where he was incarcerated could 23 have prejudiced his case in any way, let alone had a “substantial 24 3 25 26 27 28 The prosecution asserted in an October 14, 2004 motion to the state court that Petitioner was “presently an inmate at the California Department of Corrections with the CDC numbers of E11001, D17643, C98928, J21285 . . .” (Resp’t Ex. 5, Motion for Review of Petition to Extend Commitment as an SVP, Ex. 5, at 4.) Only CDCR numbers E-11001 and C98928 belonged to Petitioner while he was incarcerated. (Resp’t Ex. 7, Fax from N. Grannis to S. Wooden, Aug. 8, 2006, at 1-5.) 10 1 and injurious effect” on the outcome. 2 this claim in its order denying the petition for a writ of habeas 3 corpus. 4 court did not unreasonably apply United States Supreme Court 5 authority, nor did it make an unreasonable determination of the 6 facts. (Superior Ct. Habeas Corpus Denial at 1-2.) 7 8 9 United States District Court For the Northern District of California 10 The superior court rejected The superior CONCLUSION The petition for a writ of habeas corpus is DENIED. shall enter judgement and close the file. terminated. The clerk All pending motions are Each party shall bear his own costs. 11 12 IT IS SO ORDERED. 13 14 Dated: 11/21/08 CLAUDIA WILKEN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 LAWRENCE RUDY KIRK, Case Number: CV06-00071 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 MELVIN HUNTER et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 21, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 18 19 20 21 Lawrence Rudy Kirk 9962279 166-9 P.O. Box 5003 #7 Coalinga, CA 93210 Sharon R. Wooden CA Attorney General’s Office 455 Golden Gate Ave. Suite 11000 San Francisco, CA 94102-7004 Dated: November 21, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 22 23 24 25 26 27 28 12