United States District Court, N.D. California
August 5, 2005.
MARC B ROSE, Petitioner,
MEL HUNTER, Respondent.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Marc Rose brings this petition for writ of habeas corpus
challenging his civil commitment pursuant to the Sexually Violent
Predators Act ("SVPA"). See Cal. Wel. & Inst. Code § 6600 et
seq. He argues that there is insufficient evidence to find that
he committed a predicate offense under the SVPA and that the SVPA
violates various provisions of the federal Constitution.
For the reasons stated below, the petition for a writ of habeas
corpus is DENIED.
The Sexually Violent Predators Act establishes a procedure that
may result in the civil commitment of individuals who have
repeatedly committed crimes involving sexual violence or abuse.
The Act defines sexual predators as any person who has (1) been
convicted of a sexually violent offense against two or more
victims for which he or she received a determinate sentence and
(2) who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that he or she is
likely to engage in sexually violent criminal behavior. Cal. Wel.
& Inst. Code § 6600(a). Confinement is for a term of two years;
at the expiration of one term, a new term of confinement may be
sought. Cal. Wel. & Inst. Code § 6604.
Petitioner has been convicted of two sexual offenses. In 1988,
he pled guilty to committing a lewd act upon a child, orally
copulating a child under 16 years of age, and possessing child
pornography. In 1993, he pled guilty to another charge of
committing a lewd act upon a child. At the conclusion of his
prison term for the 1993 offense, the Santa Clara County District
Attorney sought his commitment to the Department of Mental Health
under the SVPA. On March 25, 1998, the Superior Court found that
petitioner was a sexually violent predator within the meaning of
the statute and approved his two-year commitment. Petitioner's
commitment was affirmed by the California Court of Appeal, and
the California Supreme Court denied his petition for review.
Petitioner filed a petition for writ of habeas corpus in this
Court on November 21, 2000. Meanwhile, petitioner's initial
two-year term of commitment had expired and the district attorney
successfully sought a new two-year term, which was approved by
the Superior Court on August 21, 2000. At the time of filing the
habeas petition, petitioner was confined pursuant to the new
two-year term, not the originally challenged term. Respondent
moved to dismiss the habeas petition on the grounds that
petitioner was not in custody within the meaning of
28 U.S.C. § 2254(a) at the time of filing and that therefore the petition was
moot. This Court granted the motion to dismiss. Rose v. Nelson,
Case No. C 00-4366 CRB, Docket No. 12 (N.D. Cal. Oct. 25, 2001).
Petitioner also challenged his second term of commitment in the
California courts; his commitment was again affirmed by the
California Court of Appeal, and the California Supreme Court
again denied review. Petitioner then filed the instant petition
for writ of habeas corpus. Respondent again moved to dismiss for
mootness because, by the time Respondent replied to the order to
show cause, petitioner's challenged two-year term had again
expired and petitioner had again been committed under a new
two-year term. This Court again granted the motion to dismiss, Rose v. Hunter, Case
No. C 01-4890 CRB, Docket No. 14 (N.D. Cal. Dec. 6, 2002), and
petitioner appealed the dismissal to the Ninth Circuit.
While the appeal was pending, the Circuit decided a similar
case involving mootness of habeas petitions for offenders
committed under the SVPA. See Hubbart v. Knapp, 379 F.3d 773,
777 (9th Cir. 2004). Hubbart found that habeas petitions under
the SVPA are not moot when the petitioner is confined under a new
term rather than the challenged term because the claims are
capable of repetition yet evading review. Id. Referring to
Hubbart, the Circuit reversed and remanded the Court's
dismissal for mootness in the instant case. This Court now
reaches the merits of the petition.
I. Standard of Review
Petitioner's claims are governed by the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), under which a writ of
habeas corpus 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."
28 U.S.C. § 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 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.
The only definitive source of clearly established federal law
under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the
dicta) of the Supreme Court as of the time of the state court
decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069
(9th Cir. 2003). While circuit law may be "persuasive authority"
for purposes of determining whether a state court decision is an
unreasonable application of Supreme Court precedent, only the
Supreme Court's holdings are binding on the state courts and only
those holdings need be "reasonably" applied. Id.
II. Sufficiency of the Evidence
To qualify for commitment under the SVPA, an offender must have
been convicted of sexually violent offenses against two or more
victims. Cal. Wel. & Inst. Code § 6600(a). Petitioner claims that
there was insufficient evidence to conclude that his 1993 offense
constitutes a sexually violent offense within the meaning of the
SVPA. Respondent replies that this claim was not exhausted in the
state courts; that it does not present a federal question; and
that petitioner's 1993 offense does qualify under the terms of
A federal district court must dismiss a state prisoner's
petition for writ of habeas corpus unless the petitioner has
exhausted his available state remedies as to each and every claim
presented. 28 U.S.C. § 2254(b). Petitioner has twice sought a
writ of habeas corpus in this Court for his commitment under the
SVPA. His two petitions challenge two different two-year terms of
commitment. Both terms of commitment rely on the 1993 offense as
a predicate offense, and both of petitioner's habeas petitions
challenge the same underlying determination that the 1993 offense
is a sexually violent offense within the meaning of the SVPA.
Petitioner argues that he has exhausted this claim because the
California Court of Appeal and Supreme Court heard and rejected his appeal on that
exact issue in his challenge of his first two-year term of
confinement. This is sufficient to satisfy the requirements of
28 U.S.C. section 2254(c). See O'Sullivan v. Boerckel,
526 U.S. 838, 844 (1999) (finding that the exhaustion doctrine does not
require prisoners to file repetitive petitions).
However, petitioner's claim does not present a federal
statutory or constitutional issue that is reviewable by a federal
court exercising habeas corpus jurisdiction. Under the SVPA, if
the victim of an underlying offense is under the age of 14 and
the offense involved "substantial sexual conduct," the offense
qualifies as a predicate offense for commitment. Cal. Wel. &
Inst. Code § 6600.1(a). "Substantial sexual conduct" includes
"masturbation of either the victim or the offender." Id. at §
6600.1(b). The victim in petitioner's 1993 offense was a
nine-year-old boy, and the offense involved "fondling" of both
petitioner's and the victim's genitals. Petitioner argues that
"fondling" and "masturbation" do not have the same meaning, and
that a finding that he "fondled" the victim is insufficient to
find that he was convicted of a predicate offense under the SVPA.
After an exhaustive review of the specific conduct involved and
the many definitions and uses of the term "masturbation," the
California Court of Appeal concluded that "defendant's conduct,
viewed in the totality of the circumstances under which defendant
`fondled' Perry [the victim], was masturbation." People v.
Rose, Case No. H019259 (Cal.Ct.App. 2000) (unpublished
opinion), Pet. Exh. A.
Federal habeas corpus relief generally may not be used to
challenge state court interpretations of state law. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Petitioner's claim that his
1993 offense is not a predicate offense under the SVPA challenges
the state courts' determination of what conduct may constitute
"masturbation" within the meaning of the SVPA. Because this is
essentially a challenge to the state courts' interpretation of
the SVPA, federal habeas corpus relief is unavailable. Id.
Petitioner attempts to frame this question as one of
insufficiency of evidence, which would present a federal
constitutional claim. See Jackson v. Virginia, 443 U.S. 307,
319 (1979). However, there is ample evidence in the record that
petitioner fondled the victim. The essence of the question
presented is whether the type of "fondling" involved in this case can ever constitute "masturbation" as that term is used in the
SVPA. This is solely an issue of statutory interpretation and the
state court holdings on this issue is therefore not reviewable
here. See Estelle, 502 U.S. at 67-68.
III. Ex Post Facto
Petitioner claims that the SVPA violates the federal
constitutional prohibition on ex post facto laws because it
increases the punishment for the underlying offenses after the
fact. The government responds that the SVPA is not punitive, as
is evidenced by the text of the statute and the intent of the
California legislature, and so does not violate the ex post facto
prohibition, which only applies to punishment for criminal acts.
The Supreme Court has held that the Ex Post Facto Clause
prohibits only those laws which "retroactively alter the
definition of crimes or increase the punishment for criminal
acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). If a
statue is civil rather than criminal in nature, it cannot violate
the Ex Post Facto. Kansas v. Hendricks, 521 U.S. 346, 367
(1997). Where the legislature's intent to create a civil rather
than a criminal statute is apparent from the statute's face, the
courts should defer to the legislature's intent unless the
statute is so punitive in purpose or effect as to negate the
legislature's intent to label it civil rather than criminal.
Id. at 361. The defendant bears the "heavy burden" of
demonstrating a punitive purpose or effect over the legislature's
label to the contrary. See id. at 362.
In Hendricks the Supreme Court reviewed a Kansas statute also
called the Sexually Violent Predators Act which provides for the
civil commitment of individuals "convicted of or charged with a
sexually violent offense and who suffer from a mental abnormality
. . . which makes the person likely to engage in the predatory
acts of sexual violence." Id. at 352 (quoting Kan. Stat. Ann. §
592-29a02(a)). The Court found that the legislature's intent in
passing the Act was to provide for civil not criminal
confinement because it had been placed in the probate code and
because it had contained the "civil commitment" label. Id. at
362. Further, the Court found no punitive purpose or effect
because the commitments made under the Act did not operate
retributively or as a deterrent. Id. at 361. The statute was
not retributive because it did not use prior criminal conduct to
"affix culpability," but instead simply for evidentiary purposes, because a criminal conviction
was not a prerequisite to commitment, and because there was no
scienter requirement in the statute. Id. at 361-62. The act did
not function as a deterrent because the statute defined
individuals eligible for commitment as those with a mental
illness that could not control their actions. Id. at 362-63.
The Court also noted that the statute did not subject confinees
to punitive conditions, but rather to conditions more consistent
with the purpose of treatment. Id. at 363.
In the instant case, the California Court of Appeal denied
petitioner's federal ex post facto challenge to California's SVPA
for the reasons stated in Hubbart v. Superior Court,
19 Cal.4th 1138 (Cal. 1999). See Pet. Exh. A at 8. Hubbart found the
California commitment scheme was constitutional because it was
clear that, as in Hendricks, the state legislature had intended
to create a civil statute. Hubbart, 19 Cal.4th at 1171. The
court found Hendricks to be directly on point because "the
[California] SVPA cannot be meaningfully distinguished for ex
post facto purposes from the Kansas scheme considered in
Hendricks." Id. at 1175. The court elaborated that, like the
Kansas law, California's SVPA uses prior convictions only for
evidentiary purposes and the conditions of the confinement
resulting from commitment is non-punitive. Id. at 1175-76.
This Court agrees that there are no material differences
between California's SVPA and the statute evaluated in
Hendricks. Moreover, as previously stated, this Court must
defer to the California courts' interpretation of the California
statute, see Estelle, 502 U.S. at 68; which includes the
determination of whether the statute is criminal or civil in
nature. See Hendricks, 521 U.S. at 360-61 ("The
categorization of a particular proceeding as civil or criminal
`is first of all a question of statutory construction.'" (quoting
Allen v. Illinois, 478 U.S. 364, 368 (1986)). It is therefore
apparent that the state appellate court did not arrive at a
holding in this case that was contrary to or an unreasonable
application of clearly established Supreme Court precedent.
IV. Double Jeopardy
Petitioner also claims that the SVPA violates the Double
Jeopardy Clause because it incarcerates offenders twice for the
same underlying conduct. However, like the Ex Post Facto Clause, the Double Jeopardy Clause applies only to penal
statutes. See Hendricks, 521 U.S. at 369. Petitioner's claim
that his confinement is unlawful pursuant to the Double Jeopardy
Clause therefore fails for the same reasons as his ex post fact
V. Due Process
Petitioner claims that the SVPA violates due process
protections because the statute's definition of "mental disorder"
(a finding predicate to commitment) is too imprecise; and because
the burden of proof that the offender is "likely" to commit
another offense is too low. As with the ex post facto challenge,
the California Court of Appeal denied petitioner's due process
claims for the reasons stated in Hubbart. See Rose, Pet.
Exh. A at 8, which in turn relied centrally on Hendricks.
Hubbart, 19 Cal. 4th at 1152.
1. "Mental Disorder"
Freedom from physical restraint "has always been at the core of
the liberty protected by the Due Process Clause from arbitrary
governmental action." Hendricks, 521 U.S. at 356 (quoting
Foucha v. Louisiana, 504 U.S. 71 (1992)). That liberty interest
has been found to be outweighed where states have found it
necessary to civilly detain "people who are unable to control
their behavior and who thereby pose a danger to the public health
and safety" and the detention is made "pursuant to proper
procedures and evidentiary standards." Id. at 357. In
Hendricks the Court determined that Kansas's SVPA did not
violate due process because the Act "unambiguously requires a
finding of dangerousness either to one's self or to others as a
prerequisite to involuntary confinement" and because this was
combined with the requirement that the detained individual
suffers from a "mentally abnormality" or "personality disorder."
Id. at 357-58. The Court rejected the notion that due process
demands that the legislature require a specific finding of
"mental illness" as opposed to other characterizations describing
psychiatric disorders such as "mental abnormality," "personality
disorder," "mental disorder" or "psychopathic personality." Id.
at 358-59. Instead, all that is required is that the relevant
statute describes a condition which relates to "a volitional
impairment rendering [the detainee] dangerous beyond their
control." Id. In Hubbart, the California Supreme Court found that the
SVPA's definition of "mental disorder" did not violate due
process, noting that this term was defined by the statute
identically to the Kansas SVPA's definition of "mental
abnormality," i.e. as a "congenital or acquired condition
affecting the emotional or volitional capacity that predisposes
the person to the commission of criminal sexual acts in a degree
constituting the person a menace to health and safety of others."
Hubbart, 19 Cal.4th at 1157 (quoting Cal. Wel. & Inst. Code §
The state courts' ruling on this subject was not contrary to or
an unreasonable application of Hendrix. Quite the opposite,
this Court would have to ignore Hendrix entirely in order to
reach the conclusion petitioner desires. As the Supreme Court has
stated that the legislature's definition of a mental disorder
need not correspond with any specific verbal formulation,
Hendrix, 521 U.S. at 359, nor that it mirror definitions of
mental disease used by the psychiatric community, id.,
petitioner's claims to the contrary must fail.
2. Burden of Proof
"[T]o commit an individual to a mental institution in a civil
proceeding, the State is required by the Due Process Clause to
prove by clear and convincing evidence the two statutory
preconditions to commitment: that the person sought to be
committed is mentally ill and that he requires hospitalization
for his own welfare and protection of others." Foucha v.
Louisiana, 504 U.S. 71, 75-76 (1992) (citing Addington v.
Texas, 441 U.S. 418 (1979)).
Petitioner argues that the SVPA is unconstitutional because it
requires proof only that the defendant will "likely" engage in
further criminal behavior. See Cal. Welf. & Inst. Code §
6600(a). This reading of the statute, however, contradicts its
plain language and California courts' interpretation of it. While
the statute defines a "sexually violent predator" to include that
a person who "is likely [to] engage in sexually violent criminal
behavior,"*fn1 see id., the statute also makes clear
that "[t]he court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator."
Cal. Welf. & Inst. Code § 6604. California courts have found no ambiguity in this scheme and that
"[t]he reasonable doubt standard has not been circumvented or
diluted." People v. Buffington, 74 Cal.App.4th 1149, 1153
(Cal.Ct.App. 1997); see also CALJIC 4.19 (specifying that the
burden of proof is "beyond a reasonable doubt"). It is therefore
clear that the burden of proof for commitment required by the
SVPA not only satisfies due process, it exceeds the
constitutional minimum requirement of proof by "clear and
convincing evidence." See Foucha, 504 U.S. at 75-76.
VI. Equal Protection
Petitioner claims that the SVPA violates the equal protection
clause because there is no rational basis to justify the
different standards of commitment in the SVPA and California's
Mentally Disordered Offender statute, which provides for
involuntary commitment and treatment of potential state parolees.
However this issue was raised and rejected when Hubbart was
appealed to the Ninth Circuit. See Hubbart v. Knapp,
379 F.3d 773, 782 (9th Cir. 2004). That authority is, of course, binding
on this Court. Petitioner's equal protection argument therefore
For the reasons stated above, the petition for a writ of habeas
corpus is DENIED.
IT IS SO ORDERED.