FINDINGS & RECOMMENDATIONS
Petitioner is a former state prisoner subsequently confined to a psychiatric hospital pursuant to a civil commitment. He is proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding on the amended petition filed March 15, 2005. Petitioner challenges a November 1, 2002 finding by the Sacramento County Superior Court that he was a sexually violent predator pursuant to § 6600 of the California Welfare and Institutions Code, and a resultant commitment to Atascadero State Hospital for two years. He seeks relief on the grounds that: (1) the evidence was insufficient to support the jury's finding that he was a sexually violent predator; and (2) the trial court violated his right to due process when it excluded evidence that he was subject to an outstanding arrest warrant for completion of a criminal sentence in another state. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In 1984, petitioner was convicted of second degree rape in South Dakota. (Clerk's Transcript on Appeal (CT) at 55.) On or about July 12, 1995, petitioner was convicted in the Sacramento County Superior Court of four counts of sexually violent offenses within the meaning of California Welfare & Institutions Code § 6600(b) and was subsequently committed to the California Department of Corrections to serve a determinate sentence of twelve years. (Id. at 25.) On April 2, 2001, the Sacramento County District Attorney filed a civil commitment petition against petitioner pursuant to California Welfare & Institutions Code § 6600, et seq. (Id. at 25-29.) Consequently, on October 21, 2002, a jury trial was commenced to determine whether petitioner was a sexually violent predator who required civil commitment. (Id. at 65.) On November 1, 2002, the jury found beyond a reasonable doubt that petitioner was a sexually violent predator likely to engage in sexually violent criminal behavior against others. (Id. at 143-46.) On that same date the Sacramento County Superior Court entered an order committing petitioner to the Department of Mental Health for a period of two years. (Id. at 147.)*fn1
On November 5, 2002, counsel filed a notice of appeal on petitioner's behalf. (Id. at 148.) The California Court of Appeal for the Third Appellate District affirmed the judgment against petitioner on September 8, 2004. (Am. Pet., Ex. A.) Petitioner subsequently filed a petition for review in the California Supreme Court, which was summarily denied by order dated December 1, 2004. (Am. Pet., Ex. C.)
At the time of trial, defendant was a 53-year-old male with a history of child molestation offenses dating back to before 1984. Defendant's attraction to prepubescent girls began when he was a teenager. While in the military, defendant sexually fondled two girls in a day care center where he worked as a volunteer. Defendant later married and moved to Texas with his wife and two children. He became a "house husband" and took care of his children as well as others in the area. He became sexually involved with some of the girls in his care. Defendant and his family moved to another area of Texas where he again became sexually involved with some girls he was baby-sitting.
Defendant and his wife eventually moved to South Dakota where they got divorced. In South Dakota, defendant met E., the single mother of two children, C. and F. Soon after defendant began dating E., he initiated a relationship with C., who was seven to nine years old at the time. The relationship began by defendant wrestling with C. and moved on to nudity and sexual touching. Defendant and C. engaged in mutual masturbation and mutual oral copulation. Defendant also digitally penetrated C.'s vagina. Defendant sexually touched F. as well. Defendant believed the girls were being sexually provocative toward him. Defendant later married E. and adopted C. At some point, defendant began molesting friends of C. and F. There were a total of nine girls involved. The molestations continued for two to three years.
In 1984, defendant was convicted of raping C. and was sentenced to seven years in South Dakota state prison. However, the sentence was suspended and he served only one year. After two years in a halfway facility in South Dakota, defendant moved to Sacramento, California.
In 1990, defendant's parole agent discovered that he was living in an apartment complex where young children also lived and that defendant had spoken with some of the young girls. The parole agent directed defendant to move.
Defendant met a woman at his place of employment who also played on a softball team with him. Defendant falsely informed the woman that his wife and three daughters had been killed in an automobile accident. The woman allowed defendant to spend time with her daughter. Between 1991 and 1993, when the woman's daughter was seven to nine years old, defendant had a relationship with the daughter similar to the one he had with C. in South Dakota. He fondled her vagina and nipples and made genital-to-genital contact with her.
On July 12, 1995, defendant was convicted on a no contest plea of four counts of lewd and lascivious conduct with a child under the age of 14 and was sentenced to 12 years in state prison. He was scheduled for parole on April 20, 2001.
On April 3, 2001, the People filed a petition for commitment of defendant as an SVP. On April 30, the court found probable cause to hold defendant after his parole date.
Jury trial began on October 21, 2002. Drs. Jack Vognsen and L.C. Miccio-Fonseca testified for the People. Both opined that defendant suffers from pedophilia and meets the criteria for an SVP. Dr. Theodore Donaldson testified for the defense and opined that while defendant may be a pedophile, he does not meet the criteria of an SVP.
The jury found the allegations of the petition to be true, and defendant was committed to the Department of Mental Health for a period of two years.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Hubbart v. Knapp, 379 F.3d 773, 779 (9th Cir. 2004) ("The question before us is not whether the state court of appeal applied an overbroad interpretation of the SVPA , but whether that court's interpretation and application of the SVPA in this case violates federal due process."); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth ...