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
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
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).
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
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 ...