The opinion of the court was delivered by: Benjamin H. Settle United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the court on Petitioner's petition for writ of habeas corpus. Dkt. 1. The Court has considered the relevant documents and the remainder of the file herein.
I. PROCEDURAL AND FACTUAL HISTORY
In January 1996 Petitioner was convicted of committing a lewd or lascivious act with a child under the age of fourteen. He was sentenced to twelve years in state prison. On December 6, 2005, following a jury trial, Petitioner was committed under the Sexually Violent Predator Act, Cal. Welf & Inst. Code § 6600, et seq. ("SVPA"), to the Atascadero State Hospital.
Petitioner timely appealed his commitment to the California Court of Appeal, Third Appellate District. Petitioner maintained that his commitment should be reversed because (1) the prosecutor had failed to prove that Petitioner was "likely" to engage in acts of sexual violence without treatment and custody; (2) the "likelihood" element under state law should be altered; and (3) the prosecutor's comments to the jury constituted reversible misconduct. Dkt. 37, Lodged Document 1 (Mr. Jennings' opening brief) and Lodged Document 2 (Mr. Jennings' supplemental brief). The appellate court rejected Petitioner's arguments and affirmed his commitment. Id., Lodged Document 5. Petitioner's petition for review was denied by the California Supreme Court on March 14, 2007. Id., Lodged Document 7.
On September 27, 2006, Petitioner filed a petition for writ of habeas corpus with the Shasta County Superior Court. Id., Lodged Document 8. Petitioner challenged the implementation of a California Department of Mental Health ("DMH") Standardized Assessment Protocol ("Protocol"), maintaining that DMH did not comply with requirements of the Administrative Procedures Act ("APA") when it implemented the Protocol. Id. Petitioner maintained that by failing to permit public input prior to implementing the protocol, and otherwise violating the APA, his Constitutional liberty interests and due process rights were violated, because his civil commitment was based in part on the results from this evaluation. Id. Petitioner further argued that the Protocol constituted an "underground regulation," and was also in violation of a state executive order. Id. The Shasta County Superior Court denied the petition because Petitioner failed to indicate whether he previously appealed his commitment, and, if he had, whether he asserted his claim that the Protocol violated the APA. Id., Lodged Document 9. The court informed Petitioner that if he failed to assert this claim on direct appeal, "relief is not available through the habeas corpus proceeding." Id. (citing In re Harris, 5 Cal.4th 813, 829 (1993); In re Dixon, 41 Cal.2d 756, 759 (1953).
Petitioner filed a petition for writ of habeas corpus (Lodged Document 10) with the California Court of Appeal, Third Appellate District, which was denied on December 14, 2006 (Lodged Document 11). Presumably, the appellate court denied review for the same reason as the trial court.
Petitioner's petition for writ of habeas corpus (Lodged Document 12) was denied by the California Supreme Court on May 16, 2007. See Lodged Document 13. The California Supreme Court cited In re Dixon, supra, in its opinion.
On January 25, 2007, Petitioner filed a second petition for writ of habeas corpus with the Shasta County Superior Court. Lodged Document 14. Petitioner maintained that because "the provisions of SB 1128 amending the SVPA are to apply retroactively, any such application would run afoul of the due process clauses of the state and federal constitutions." Id. The petition was denied on March 21, 2007. Lodged Document 15.
On March 8, 2007, Petitioner filed a petition for writ of habeas corpus in this Court. Dkt. 1. On January 14, 2008, Respondent filed an answer. Dkt. 24. Petitioner has not filed a traverse.*fn1
Petitioner challenges the state's use of the Protocol, which is used to determine the eligibility of persons for civil commitment under the SVPA. Petitioner claims that DMH failed to lawfully adopt the Protocol, in violation of the APA, and in violation of Petitioner's due process rights. Petitioner challenges the constitutionality of the implementation of the Protocol, and maintains that the Protocol was promulgated as an "underground regulation." Petitioner maintains that his commitment is invalid because it was based on psychological evaluations utilized under the Protocol.
Respondent maintains that Petitioner's claims are ...