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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


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 the statute.

  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 claim.

  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 § 6600(c)).

  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 fails.


  For the reasons stated above, the petition for a writ of habeas corpus is DENIED.


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