United States District Court, N.D. California
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.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
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
[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
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
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
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
[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).
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
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 concluded
that the SVPA is not punitive for ex post facto
purposes. "Whether it is viewed in its original form
or in light of amendments that have since been made,
the SVPA cannot be meaningfully distinguished for ex
post facto purposes from the Kansas scheme considered
[242 F. Supp.2d 701]
in Hendricks." [Id. at 1175.] Hubbart makes clear that
if the SVPA is not punitive, it does not violate
double jeopardy. [Id. at 1172 n. 32.]
Seling emphasized that a court will reject a
Legislature's manifest intent that a commitment
statute is civil rather than punitive in nature only
where the party challenging the statute "provides the
clearest of proof that the statutory scheme is so
punitive in either purpose or effect as to negate the
State's intention." [Seling, 531 U.S. at 261.]
Although appellant purports to raise issues not
considered by Hendricks, we conclude appellant has not
satisfied his burden of proof and so we consider
Hubbart dispositive. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
People v. Woodard, slip op. at 12-13. The California Court of Appeal did
not err in denying petitioner's claims.
In Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court of the
United States held that civil commitment under Kansas's Sexually Violent
Predator Act, based upon past conduct for which the offender has been
convicted and punished, does not violate the Double Jeopardy or Ex Post
Facto Clauses because the Kansas statute "does not establish criminal
proceedings" and involuntary confinement thereunder "is not punitive." 521
U.S. at 369. The first question considered by the Court was "whether the
legislature meant the statute to establish `civil' proceedings. If so, we
ordinarily defer to the legislature's stated intent." Id. at 361. The
Court found such a legislative intent, adding: "Although we recognize
that a civil label is not always dispositive, we will reject the
legislature's manifest intent only where a party challenging the statute
provides the clearest proof that the statutory scheme is so punitive
either in purpose or effect as to negate the State's intention to deem it
civil." Id. (citations and internal quotation marks omitted). Hendricks
did not "satisfy this heavy burden." Id. at 361.*fn1
In Seling v. Young, 531 U.S. 250 (2001), the Court held that if a
commitment statute is found to be civil under the criteria set forth in
Hendricks, the statute "cannot be deemed punitive `as applied' to a
single individual in violation of the Double Jeopardy and Ex Post Facto
Clauses and provide cause for release." 531 U.S. at 267. "The civil
nature of a confinement scheme cannot be altered based merely on vagaries
in the implementation of the authorizing statute." Id. at 263.
In Hubbart v. Superior Court, 19 Cal.4th 1138 (1999), the Supreme Court
of California held that SVPA does not violate the Ex Post Facto Clause
because, like the Kansas statute in Hendricks, SVPA does not establish
criminal proceedings and is not punitive. 19 Cal.4th at 1179. Like the
Supreme Court in Hendricks, the state high
[242 F. Supp.2d 702]
court found it significant
that, in enacting SVPA, the California legislature expressly disavowed
any punitive purposes; described the law as establishing "civil
commitment" proceedings; stated that qualifying defendants are not to be
viewed "as criminals, but as sick persons;" and placed SVPA in the
state's Welfare and Institutions Code in the section dealing generally
with the care and treatment of the mentally ill. These factors, the court
concluded, clearly manifest an intent to create "`a civil commitment
scheme designed to protect the public from harm.'" Id. at 1171 (quoting
Hendricks, 521 U.S. at 361).
The Supreme Court of California's decision in Hubbart does not involve
an unreasonable application of Supreme Court precedent. See
28 U.S.C. § 2254(d)(1). California's SVPA is strikingly similar to
Kansas's statutory scheme upheld by the Supreme Court in Hendricks.
Accord Seling, 531 U.S. at 260 (construing and upholding as a civil
rather than punitive process Washington's sexually violent predator
statutory scheme because Washington Act is strikingly similar to Kansas
Act upheld in Hendricks); Munoz v. Kolender, 208 F. Supp.2d 1125, 1134-35
(S.D. Cal. 2002) (noting that California's SVPA procedures and
confinement are civil in nature rather than criminal and punitive
because, among other things, California's statutory scheme is similar to
Kansas's and Washington's). And, for the essentially the same reasons,
the California Court of Appeal's decision in the instant case
rejecting petitioner's claim that the punitive nature of SVPA violates
various constitutional provisions does not involve an
unreasonable application of Supreme Court precedent. See
28 U.S.C. § 2254(d)(1). Petitioner sets forth no "clear proof" that
SVPA is so punitive in either purpose or effect as to negate California's
intention to deem it civil. Seling, 531 U.S. at 261; Hendricks, 521 U.S.
That SVPA applies only to those with qualifying criminal "convictions"
does not compel a different result. SVPA was amended a year after its
enactment to include violent sex offenses that result in a finding of not
guilty by reason of insanity, see Cal. Welf. & Inst. Code §
6600(a)(2)(F), and is identical in this regard to the Kansas statute
upheld by the Supreme Court in Hendricks. In any event, the fact that SVPA
allows reliance on a prior criminal conviction to determine who qualifies
for a civil commitment does not render the law punitive. SVPA "does not
`affix culpability' or seek `retribution' for criminal conduct."
Hubbart, 19 Cal.4th at 1175 (citation omitted). As in Hendricks, "prior
sexually violent offenses are used `solely for evidentiary purposes' to
help establish the main prerequisites upon which civil commitment is
based current medical disorder and the likelihood of future
violent sex crimes." Id. (citation omitted). SVPA "does not impose
liability or punishment for criminal conduct, and does not implicate ex
post facto concerns insofar as pre-Act crimes are used as evidence in the
[sexually violent predator] determination." Id.
Petitioner is not entitled to federal habeas relief on his claim that
the punitive nature of SVPA violates various constitutional provisions
(Arguments I, II and IV) because it cannot be said, applying a firm
conviction standard, that the state courts "clearly err[ed]" in rejecting
the claim. Van Tran v. Lindsey, 212 F.3d 1143, 1159 (9th Cir. 2000).
2. Predatory nature of prior offenses
Petitioner claims in Argument III that SVPA violates due process and
equal protection because it arbitrarily allows
[242 F. Supp.2d 703]
CDC and Department of
Mental Health ("DMH") evaluators to determine whether predicate offenses
are "predatory" for purposes of determining whether an individual is a
sexually violent predator. Pet. Attach. at 7-9.
To sustain a commitment under SVPA, the state must prove beyond a
reasonable doubt that the offender has been convicted of a sexually
violent offense against two or more victims, and that he suffers from a
diagnosed mental disorder that makes him a danger to the health and
safety of others because it is likely that he will engage in sexually
violent criminal behavior. Cal. Welf. & Inst. Code §§ 6600(a)(1)
& 6604; Hubbart, 19 Cal.4th at 1145. The existence of the requisite
prior qualifying convictions "may be shown with documentary evidence. The
details underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may be
shown by documentary evidence, including, but not limited to, preliminary
hearing transcripts, trial transcripts, probation and sentencing
reports, and evaluations by the State Department of Health." Cal. Welf.
& Inst. Code § 6600(a)(3).
In People v. Torres, 25 Cal.4th 680 (2001), the Supreme Court of
California held that, even if certain provisions of SVPA suggest that
CDC, DMH or the trial court must make a determination about whether the
prior convictions were predatory in nature, "it is clear that the
Legislature has not chosen to effectuate this purpose by requiring the
trier of fact at the trial to determine whether the defendant's predicate
felonies involved predatory behavior." 24 Cal.4th at 686. The predatory
nature of the predicate offenses is not an element in determining whether
a defendant is a sexually violent predator. Id. at 682.
Petitioner's claim is without merit because the final arbiter of
California Law the Supreme Court of California has
determined that SVPA does not require the trier of fact to make the
"predatory act" finding petitioner claims is made arbitrarily.*fn2 As the
California Court of Appeal put it in rejecting a related claim, "Even
assuming there was insufficient evidence for the crimes committed in the
Joplin and Harris cases to meet the SVPA's definition of "predatory,"
they still constituted the kind of sexually violent offense sufficient to
establish a requisite element of an SVP finding." People v. Woodard, slip
op. at 9.*fn3
Petitioner is not entitled to federal habeas relief on this claim
(Argument III) because it cannot be said, after independently reviewing
the record and applying a
[242 F. Supp.2d 704]
firm conviction standard, that the state courts
"clearly erred" in rejecting the claim. Delgado v. Lewis, 223 F.3d 976,
982 (9th Cir. 2000).
3. Statutory contractual obligation
Petitioner claims in Argument V that former California Penal Code
section 1364 created a contractual obligation on the part of the state to
offer him treatment as a sex offender. According to petitioner, SVPA
"impairs such statutory rights which were vested prior to enacting the
SVPA statutes to the detriment of petitioner." Pet. Attach. at 20-23.
California Penal Code section 1364, which was in effect from 1982 to
1995, provided that "[t]he State Department of Mental Health shall
develop a voluntary experimental treatment program that can be
evaluated, limited to no more than 50 beds, for persons convicted of
[certain] sex offenses. . . . [¶] The treatment shall only be done
during the last two years of incarceration, and only persons who
voluntarily consent shall be included in the program."
A statute "is itself treated as a contract when the language and
circumstances evince a legislative intent to create private rights of a
contractual nature enforceable against the State." United States Trust
Co. of New York v. New Jersey, 431 U.S. 1, 17 n. 14 (1977) (citation
omitted). There is no such language or circumstances here. Former section
1364 did not create a private right of contract against the government
for sex offender treatment.
Petitioner is not entitled to federal habeas relief on this claim
(Argument V) because it cannot be said, after independently reviewing the
court and applying a firm conviction standard, that the state courts
"clearly erred" in rejecting the claim. Delgado, 223 F.3d at 982.
4. Notification of SVPA screening and evaluation process
Petitioner claims in Argument VI that his right to procedural due
process was violated because he was not afforded "notification of the
implementation of the SVPA screening and evaluation process until the
prison personnel advised petitioner of the initial scheduled appointment
with the first `evaluator,' approximately 14 hours prior to said
appointment." Pet. Attach. at 24-27.
Section 6601 provides for screening and evaluation of prisoners by CDC
and DMH to determine whether a prisoner is a potential sexually violent
predator under SVPA. See Cal. Welf. & Inst. Code § 6601. If two
DMH evaluators concur that a prisoner has "a diagnosed mental disorder"
so that he is "likely to engage in acts of sexual violence without
appropriate treatment and custody," the Director of DMH forwards a request
to the appropriate district attorney asking for the filing of a petition
for commitment under SVPA. Id. § 6601(d). A probable cause hearing
and trial in state superior court may then follow. See Id. §§
SVPA does not provide for notification prior to screening and
evaluation. Nor is it clearly established that the Due Process Clause
requires such notification. The screening and evaluation process does not
appear to amount to the sort of dispositive hearing for which a prisoner
needs advance notice to marshal the facts and prepare a defense. Cf.
Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (prisoner facing
disciplinary hearing must be given advance notice of disciplinary charges
against him in order to enable him to marshal the facts and prepare a
defense). That generally will come at the probable cause hearing and jury
trial, if a petition for commitment is filed. Not surprisingly, there is
[242 F. Supp.2d 705]
Supreme Court precedent requiring that an individual must be given
notification prior to being screened and evaluated under the
circumstances of this case.
In fact, Hendricks suggests that SVPA provides adequate procedural due
process protections. In Johnson v. Nelson, 142 F. Supp.2d 1215 (S.D. Cal.
2001), the court so held:
Hendricks found that Kansas'[s] statutory scheme
provided sufficient due process protections for a
person subject to civil commitment, in part because
"proper procedur[al] and evidentiary standards" were
present. Hendricks, 521 U.S. at 356-57, 360 .
Again, the California Supreme Court has found that
California's SVP Act is nearly identical to the
statute upheld in Hendricks, and Petitioner has
provided this Court with no basis for disturbing that
decision. See Hubbart, 19 Cal.4th at 1138, 1157 .
Thus, California's SVP Act similarly provides
sufficient procedural due process protections . . . .
142 F. Supp.2d at 1230. This court agrees.*fn4
And, as in Johnson, the
record here makes clear that petitioner "had an opportunity to challenge
every aspect of his commitment under the `proper procedures and
evidentiary standards' contained in the California SVP Act as required by
Hendricks." Id. (citation omitted).
Petitioner is not entitled to federal habeas relief on this claim
(Argument VI) because it cannot be said that the state courts' rejection
of the claim was "contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. § 2254(d)(1).
5. Timing of SVPA petition
Petitioner claims in Argument VII that his "due process, speedy trial,
and equal protection rights" were violated because the filing of the SVPA
petition was done at the "11th hour" in violation of state law and because
he was "held in custody past his scheduled release date without statutory
probable cause being found." Pet. Attach. at 28-43.
The record shows that petitioner was convicted of assault with a deadly
weapon in June 1993, sentenced to a three-year prison term, and paroled
in 1995. His parole was revoked following a police report that he had
committed a sexual assault, and he was given a release date of August 8,
1996. See Clerk's Tr. at 199-204 (Resp't Ex. 1). On July 17, 1996, the
Board of Prison Terms issued an order stating "Place a [section]
6601.3 . . . hold for a period not to exceed 72 hours of a normal working
day [weekends and holidays excluded]." Id. at 185, 197.*fn5
(The hold was effective August 8, 1996 until
[242 F. Supp.2d 706]
midnight on August 13, 1996.
Id.) On August 1, 1996, petitioner was notified that the Board
of Prison Terms would hold a probable cause hearing and would request a
45-day hold. See id. at 185, 195-96. On August 12,
1996, the Board of Prison Terms held a probable cause hearing at which
petitioner was present and represented by counsel. See
id. at 185-86, 191-94. After the hearing, a probable cause
finding was made and the Board of Prison Terms imposed a 45-day hold on
petitioner pursuant to section 6601.3, commencing on August 13, 1996 until
September 26, 1996. See id. at 193-94. On August 19, 1996, a petition for
commitment was filed by the Alameda County District Attorney and, on
September 3, 1996, the trial court made a finding that the petition
stated probable cause on its face pursuant to section 6601.5. Id. at
10.*fn6 On September 5, 1996, the trial court held a probable cause hearing
and found probable cause. Id. at 11.
On December 10, 1997, petitioner filed a motion to dismiss the petition
arguing, as he does here, that CDC failed to take action within mandatory
time limits and that he was not lawfully in custody at the time of the
filing of the petition. See id. at 166-70. The trial court held a hearing
and denied the motion on December 17, 1997. See id. at 226-41. (A jury
subsequently determined that petitioner was a sexually violent
Petitioner's claim that he was not lawfully in custody at the time of
the filing of the petition is belied by the record. In addition, in
rejecting the motion to dismiss, the trial court implicitly found that
the initial 72-hour hold, the notice of the Board of Prison Terms's
probable cause hearing, the hearing, the subsequent 45-day hold and the
filing of the petition, were lawfully carried out pursuant to California
law. That determination of state law is binding on this court. And even
if there was some minor legal error in the "chain of custody" leading to
the filing of the petition for commitment, California courts have now
made it clear that such error does not defeat jurisdiction to file the
petition because SVPA only requires "custody," not "lawful custody,"
before a petition is filed. See, e.g., People v. Hedge,
72 Cal.App.4th 1466, 1478-80 (1999).*fn7
Petitioner is not entitled to federal habeas relief on his claim of
"unlawful custody" because it cannot be said that the state courts'
rejection of the claim was contrary to, or an unreasonable application
of, Supreme Court precedent. See 28 U.S.C. § 2254(d); accord Johnson
[242 F. Supp.2d 707]
142 F. Supp.2d 1215, 1227-30 (S.D. Cal. 2001) (rejecting
similar claim under 28 U.S.C. § 2254(d)).*fn8
6. Non-referral to treatment program
Petitioner claims in Argument VIII that his due process and equal
protection rights were violated because "[a]s a matter of basic
jurisprudence, the Director of Corrections must be precluded from
requesting for an inmate to be adjudicated an SVP if the Director has not
even attempted to seek mental `treatment' of the inmate prior to the
issue actually affecting the inmate's liberty interest." Pet. Attach. at
44-52. He alleges that the prosecution had a responsibility to
"evaluate, assert position, and provide effective treatment to petitioner
during his DSL prison term" and, therefore, judicial estoppel prevents
his commitment under SVPA.
Petitioner argues that before he could be committed under SVPA, he
should have been placed in a state hospital and treated under either
California Penal Code section 1364 or section 2684.*fn9 Petitioner cites
no authority in support of his arguments, and the court has found none.
Neither section 1363 nor section 2684 "required" the state to provide any
sort of treatment to petitioner, much less precluded the state from
committing petitioner under SVPA. The claim is wholly without merit.
Petitioner is not entitled to federal habeas relief on this claim
because it cannot be said that the state courts' rejection of the claim
was contrary to, or an unreasonable application of, Supreme Court
precedent. See 28 U.S.C. § 2254(d).
7. Ineffective assistance of counsel
Petitioner claims in Argument IX that he received ineffective
assistance of counsel during the pendency of his civil commitment
proceedings. Pet. Attach. at 53-57. He specifically claims that counsel
was deficient because: (1) petitioner was "forc[ed] . . . to accept
(and/or obtain) representation during the proverbial 11th hour when
representation of counsel was basically meaningless," and (2) "actual
assistance of counsel is/was deficient upon its face, based upon lack of
effective communication and refusal to fully advocate petitioner's
statutory and constitutional rights." Id. at 54-55.
In order to prevail on a Sixth Amendment ineffectiveness of counsel
claim, petitioner must establish two things. First, he must establish
that counsel's performance was deficient, i.e., that it fell below an
"objective standard of reasonableness" under prevailing professional
norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he
must establish that he was prejudiced by counsel's deficient
performance, i.e., that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different." Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
[242 F. Supp.2d 708]
Judicial scrutiny of counsel's performance must be highly deferential.
A court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance and the
defendant must overcome the presumption that the challenged action might
be considered sound trial strategy. Id. at 689.
Petitioner has the burden of "showing" that counsel's performance was
deficient. Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990).
Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S.
Petitioner's conclusory allegations of ineffective assistance do not
warrant relief. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995). He
does not specifically show how counsel's performance fell below an
"objective standard of reasonableness," and he does not "affirmatively
prove prejudice." Strickland, 466 U.S. at 687-88, 693. At most, petitioner
alleges that he was prejudiced by counsel's deficient performance because
counsel failed to raise the "points of law and contentions made within
the instant petition." But this is not enough. Petitioner has not shown
that "there is a reasonable probability that," but for counsel's failure
to raise the points of law and contentions raised here, "the result of
the [SVPA] proceeding would have been different." Id. at 694. After all,
none of the points of law and contentions made within the instant
petition proved meritorious on appeal or on state or federal collateral
Petitioner is not entitled to federal habeas relief on this claim of
ineffective assistance of counsel (Argument IX) because it cannot be said
that the state courts' rejection of the claim was contrary to, or an
unreasonable application of, Supreme Court precedent. See
28 U.S.C. § 2254(d).
For the foregoing reasons, the petition for a writ of habeas corpus is
The clerk shall enter judgment in favor of respondent and close the file.