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January 23, 2003

VICTOR D. WOODARD, Petitioner,
STEPHEN MAYBERG, Warden, Respondent.

The opinion of the court was delivered by: CHARLES R. BREYER, United States District Judge.


A jury in the Superior Court of the State of California in and for the County of Alameda found petitioner to be a sexually violent predator under California's Sexually Violent Predator Act, Cal. Welf. & Inst. Code § 6600 ("SVPA"), and civilly committed him to Atascadero State Hospital for a period of two years. Petitioner unsuccessfully appealed to the California Court of Appeal and the Supreme Court of California, which on August 29, 2001 denied review. (The state high court also rejected two requests for habeas relief.)

  Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on November 19, 2001, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


  The California Court of Appeal summarized the facts of the case as follows:

[242 F. Supp.2d 698]


Appellant was convicted in June 1993 of assault with a deadly weapon ([Cal.] Pen. Code, § 245, subd. (a)(1)), sentenced to a three-year prison term, and paroled in 1995. Although not entirely clear from the record, appellant's parole was apparently revoked following a police report that he committed a sexual assault, and he was returned to the [California] Department of Corrections (CDC).
The instant trial resulted from the People's petition, filed in anticipation of his release from CDC on or about August 8, 1996, for his civil commitment as an SVP. The People's primary evidence was the testimony of three psychologists. Appellant presented no evidence.
a. Dr. Jonathan French
Dr. Jonathan French, a psychologist, evaluated appellant in July 1996 and in September 1999. Based on documents he received from the Department of Mental Health, he determined that appellant had been convicted of two prior sexually violent predatory offenses. The first offense was against Deborah Joplin, who was acquainted with appellant on a first-name only basis because she lived in the same apartment complex as appellant. She had known him casually for approximately six months when he committed several forceful sexual assaults on her. The second offense was against Sherrilyn Harris, a prostitute whom appellant picked up in his van for the ostensible purpose of their obtaining some cocaine whom he thereafter assaulted sexually and with deadly weapons. When Dr. French asked appellant about these offenses, appellant either insisted they were consensual sexual contacts or he was the actual victim.
Dr. French diagnosed appellant as suffering from paraphilia, a broad category identified in the Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition, (DSM-IV) as "significant sexual disturbance," with a related diagnosis of sexual sadism. He based his latter diagnosis on the fact that appellant employed more force and inflicted more physical injury than was necessary to accomplish the sexual acts themselves.
Dr. French also diagnosed appellant as suffering from polysubstance dependence and antisocial personality disorder. He described the latter as manifesting in a pronounced and chronic disregard for the rights of others, dishonesty, substance abuse, physical violence, and commission of crimes.
In evaluating appellant, Dr. French employed a rating scheme related to recidivism called "the Static 99." Appellant scored 8 out of a possible score of 12 based on 10 risk factors; a score of 6 is considered a high recidivism risk. Based on appellant's having a number of risk factors known to correlate to reoffending, his pattern and duration of behavior, and the nature of the sexual acts, Dr. French opined that appellant's paraphilia and anti-social personality disorder were chronic, that appellant was an SVP, and that he was at a very high risk to reoffend.
b. Dr. Robert Owen
Dr. Owen, another psychologist, evaluated appellant in March 2000. Appellant refused to participate in a personal interview, so Dr. Owen's evaluation was based on material from the Department of Mental Health, which included arrest and probation officer reports, transcripts of victim interviews, and abstracts of judgment. Like Dr. French, he determined that the assaults of Joplin and Harris were sexually violent predatory offenses.
In reviewing appellant's criminal history, Dr. Owen noted sexual offenses against seven different women since 1975. In addition to the Joplin and Harris

[242 F. Supp.2d 699]

      offenses, three of the other offenses were violent assaults on strangers or casual acquaintances.
Dr. Owen diagnosed appellant as suffering from chronic paraphilia and anti-social personality disorder, and from polysubstance disorder. He defined anti-social personality disorder as a criminal orientation and an entrenched, long-standing violation of the rights of others. When Dr. Owen applied the Static 99 rating scheme to appellant, he computed a score placing appellant in the highest risk category.
Dr. Owen opined that appellant was an SVP who was likely to reoffend.
c. Dr. Dale Arnold
Psychologist Dale Arnold evaluated appellant in April 2000. As with Dr., Owen, appellant refused to participate in a personal interview, so Dr. [Arnold's] evaluation was based on police, probation officer, and psychologists reports, Atascadero State Hospital records, preliminary hearing transcripts, and parole revocation reports. Dr. Arnold characterized the Joplin and Harris offenses as predatory sexually violent offenses. He made the same diagnoses as Drs. French and Owen: paraphilia, polysubstance dependence, and antisocial personality disorder. In his opinion, this combination is "lethal," making appellant "very likely" to reoffend. He administered Static 99 rating system and calculated a score of seven. His paraphilia diagnosis was based on appellant's 20-year history of nonconsensual sexual behavior involving multiple victims, which had continued despite appellant's incarceration therefor. His anti-social personality disorder diagnosis was based on appellant's behavior, starting at age 13, of believing he could do whatever he pleased, regardless of the damages his conduct caused others.
People v. Woodard, No. A092032, slip op. at 1-4 (Cal. Ct. App. June 22, 2001) (Resp't Ex. 2).


  A. Standard of Review

  This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

  The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(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." Id. § 2254(d).

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

  "[A] federal habeas court may not issue the writ simply because the court

[242 F. Supp.2d 700]

      concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

  In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000). If the state court does not articulate a rationale for its decision, this court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

 B. Claims

  Petitioner raises several constitutional challenges to SVPA, both generally and as applied, in eight "Arguments." He also claims, in "Argument IX," that he was denied effective assistance of counsel during SVPA proceedings.

  1. Nature of SVPA: Civil or penal?

  In Arguments I and II, petitioner claims that SVPA is a penal statute providing continued punishment for past conviction and, therefore, that it violates the constitutional guarantee against "bills of attainder and bills of pains" and the constitutional guarantees to due process of law and equal protection. Pet. Attach. at 1-2, 3-6. In Argument IV, petitioner similarly claims that "[g]iven the fact that the SVPA is essentially punitive in nature and constitutes an attempt to impose added retribution for past misdeed, it violates the Ex Post Facto Clause of the Constitution . . . the logical conclusion is that the statute stands as a vindictive method by the State to impose additional punishment for past crimes." Id. at 18.

  In his direct appeal, petitioner argued that SVPA is punitive and therefore violates ex post facto and double jeopardy principles, as well as the other constitutional principles raised herein. The California Court of Appeal rejected petitioner's claims:
[Kansas v. Hendricks, 521 U.S. 346 (1997),] held that a Kansas statutory scheme similar to the SVPA did not offend double jeopardy or ex post facto principles. [Seling v. Young, 531 U.S. 250 (2001),] more recently held that the determination by the Washington Supreme Court that Washington's sexually violent predator statute was civil in nature precluded a defendant from challenging the statute on the ground his confinement thereunder rendered the statute punitive as applied to him.
Relying heavily on Hendricks, our state Supreme Court rejected the claim that the SVPA conflicts, on its face, with ex post facto principles. [Hubbart v. Superior Court, 19 Cal.4th 1138, 1142-43 (1999).] Hubbart scrupulously analyzed the SVPA's provisions, reviewed its legislative history, compared it to the Kansas statute at issue in Hendricks, and ...

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