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.
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 ...