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ROSE v. HUNTER

August 5, 2005.

MARC B ROSE, Petitioner,
v.
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.

  BACKGROUND

  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.

  DISCUSSION

  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 ...


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