The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Denying Petition for Writ of Habeas Corpus; Granting in Part Certificate of Appealability
Petitioner Jackie Robinson, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his December 14, 2006 involuntary commitment to the custody of the California Department of Mental Health ("DMH") for an indeterminate term. The trial court, in San Diego County Superior Court Case No. SDC153907, ordered Petitioner be committed under California's Sexually Violent Predator Act ("SVPA"), Cal. Welf. & Inst. Code §§ 6600 et seq., after a jury unanimously found beyond a reasonable doubt that Petitioner was a sexually violent predator ("SVP") as defined in that statute*fn1. Respondent has filed an answer to the petition and lodged the state court record. Petitioner has filed a traverse.*fn2
The San Diego County District Attorney filed a petition pursuant to the SVPA on April 8, 2003, alleging Petitioner was a SVP based upon his January 24, 1992 conviction on four counts of committing lewd and lascivious acts upon a child under the age of 14, and his January 24, 2001 conviction for failing to register as a sex offender. [Lodgment No. 1, Clerk's Transcript ("CT"), 1-67.] According to the law in effect at that time, the District Attorney sought to have Petitioner committed to the DMH for two years. [CT 1.] Following a hearing on June 4, 2003, the court found probable cause to proceed with the petition. However, the court released Petitioner to the custody of the San Bernardino County Sheriffs Department to face charges based upon his January 3, 2003 arrest in that County for annoying or molesting a minor under the age of 18 in violation of the terms of his parole. [CT 293; Unpublished Opinion of California Court of Appeal ("Cal. Ct. App. Op."), filed August 8, 2008, Lodgment No. 7, p. 11.] Petitioner waived time for trial with regard to the San Diego County Superior Court SVPA petition in order to resolve the San Bernardino County charges. Petitioner entered a plea of nolo contendere to the San Bernardino County charge in late July 2004. [Cal. Ct. App. Op., p. 14.] On March 4, 2005, the San Bernardino County Superior Court sentenced Petitioner to a negotiated mitigated prison term of 32 months. [Id., p. 17.]
Petitioner agreed to a series of continuances of the San Diego County SVPA petition proceedings through September 15, 2006. [CT, 293-318.] On September 15, 2006, Petitioner filed a written motion to enforce an agreement he claimed the parties entered into at the June 4, 2003 probable cause hearing. [Id., p. 18; CT 318-319.] Petitioner argued that the San Diego County District Attorney at the June 4, 2003 probable cause hearing agreed to dismiss the SVPA petition if the San Bernardino County court imposed any prison time on the annoying or molesting a minor charges. Following an evidentiary hearing, the court denied Petitioner's motion on September 18, 2006. [CT 320-321.]
A jury trial commenced on the SVPA petition in San Diego County Superior Court on September 20, 2006. [CT 325.] The trial ended on September 28, 2006, when the jury reported they were hopelessly deadlocked. The court declared a mistrial. [CT 339-340.]
On October 3, 2006, anticipating a change in the law with regard to commitment of SVPs, the San Diego County District Attorney filed an amended petition alleging Petitioner was a SVP and requesting that the court commit Petitioner to the DMH for an indeterminate term. [CT 198-203.] Trial once again commenced on December 4, 2006. [CT 346-347.] On December 13, 2006, the jury unanimously found Petitioner to be a SVP. [CT 358-361.] Based upon the provisions of Proposition 83, passed by California voters in November of 2006, the court ordered Petitioner be committed to the DMH for an indeterminate term. [CT 288-289.]
Petitioner filed a direct appeal, and also filed a petition for a writ of habeas corpus in the California Court of Appeal. [Lodgment Nos. 2 and 3.] The Court of Appeal consolidated the matters, and affirmed the trial court's judgment and commitment by unpublished opinion filed August 8, 2008. [Lodgment No. 7.] Petitioner filed a petition for review in the California Supreme Court. [Lodgment No. 8.] The California Supreme Court denied the petition, without comment, on November 12, 2008. [Lodgment No. 9.]
Petitioner timely filed this current petition on February 20, 2009. Petitioner asserts the following grounds for relief: (1) Petitioner's indeterminate commitment to the custody of the Department of Mental Health violated his constitutional right to due process of law; (2) the judgment should be reversed because Petitioner's indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature in violation of the ex post facto clause; (3) the judgment should be reversed because Petitioner's indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature and violates the prohibition against cruel and unusual punishment; (4) the judgment must be reversed because Proposition 83 violated the single subject rule applicable to ballot initiatives; (5) Petitioner's indeterminate commitment with limited judicial review of his custodial status violates the equal protection clause of the Fourteenth Amendment; (6) Petitioner's Fifth and Fourteenth Amendment due process rights were violated when the trial court refused to enforce his plea bargain; (7) the trial court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights when it failed to grant a mistrial when Petitioner's key witness failed to testify; (8) the trial court violated Petitioner's constitutional rights to due process and fair trial by refusing to exclude inflammatory evidence; and (9) cumulative error requires reversal.
Petitioner was 18 years old in 1992 when he pled guilty to four counts of committing lewd and lascivious acts against four boys under the age of 14. [Cal. Ct. App. Op., p. 5.] The first victim, Jason, was a 9-year-old boy who lived next door to Petitioner and who played video games at Petitioner's house. Petitioner sodomized Jason on about 20 occasions, and digitally penetrated Jason's anus on 3 other occasions. [Id.] The second victim, Jimmy, was an 11--year-old boy with whom Petitioner maintained a close friendship over the course of three years prior to May of 1991. Jimmy would earn "points" by engaging in sexual activity with Petitioner*fn3, and could exchange the points for video games and other items. [Id.. pp. 5-6.]
The third victim, Thomas, was a 10-year-old boy who Petitioner sodomized on more than one occasion. Petitioner would give Thomas money, food, or treats each time he sodomized him. [Id., p.6.] The fourth victim, Mark, was a 9-year-old boy who Petitioner fondled on the buttocks. On one occasion, Petitioner pulled Mark's underpants down while Mark was pinned against the bed, and smelled and touched Mark's buttocks. [Id.]
After Petitioner was released from prison on parole in August 1993, he remained out of custody until 1995, when he committed a non-sexual offense. Petitioner returned to prison until August 1999, when he was again released. After his release in August 1999, Petitioner failed to report to his parole officer and failed to register as a sex offender. He, instead, lived in a homeless shelter under an alias and false Social Security number. Petitioner was re-arrested for these offenses in December 1999. [Id. p. 7.]
Petitioner was again released from custody in June 2002. In January 2003, Petitioner was arrested in San Bernardino County and charged with annoying or molesting a minor with a prior sexual offense. In violation of the conditions of his parole, Petitioner had been corresponding in an online chat room with Marcus, who was 16-years-old, for purposes of having sex. Petitioner traveled to San Bernardino County in January 2003, without permission from his parole agent, to meet Marcus. After buying Marcus a video game, Petitioner and Marcus drove to a secluded area where they began kissing and fondling one another. They drove to a more secluded area, but Petitioner's car became stuck in the sand. When a deputy sheriff stopped to assist them, Petitioner and Marcus initially lied about their relationship, telling the deputy they were cousins. Upon further investigation, the deputy learned the two were not related and had been kissing and touching each other's genitals. According to the deputy, Marcus looked young, between the ages of 14 and 16. Petitioner asserted he believed Marcus was 19-years-old. [Id., p. 7.]
Psychologists Clark Clipson and Harry Goldberg both testified at the December 2006 trial. Drs. Clipson and Goldberg first evaluated Petitioner in January 1999, to determine whether he should be committed to the DMH under the SVPA. [Reporter's Transcript ("RT"), Lodgment No. 10, at 96, 722.] At that time, both Dr. Clipson and Dr. Goldberg determined that Petitioner did not meet the criteria of a sexually violent predator. [RT 99, 722-723.] Drs. Clipson and Goldberg evaluated Petitioner again following his 2003 arrest in San Bernardino County, at which time they both determined Petitioner met the SVP criteria. Both doctors concluded Petitioner had the diagnosed mental disorders of pedophilia and antisocial personality disorder. [Cal. Ct. App. Op., p. 8; RT 115-122, 132-138, 730-752.] Both doctors also concluded Petitioner had a high risk of re-offending and that the sexual offenses were predatory in nature. [Cal. Ct. App. Op., p. 9; RT 161-169, 752-778.]
Psychologist Dr. Ted Donaldson testified on behalf of Petitioner at trial. Dr. Donaldson opined Petitioner never had a sexual preference for children and was not a pedophile. [Cal. Ct. App. Op., p. 9; RT 854-856.] Dr. Donaldson challenged the reliability of the methods used by Drs. Clipson and Goldberg to evaluate Petitioner's risk of re-offending, and opined that any assessment of risk was moot because Petitioner did not have a diagnosable mental disorder. [Cal. Ct. App. Op., p. 9.]
Petitioner also testified at trial. Petitioner denied sodomizing any of the four young victims. [Cal. Ct. App. Op., p. 9; RT 947-950.] After his release from prison in August 1993, Petitioner became a manager at KFC and took home study courses to earn his bachelor's degree in business administration. [Cal. Ct. App. Op., p. 9; RT 960-61.] Petitioner did not believe he was required to register as a sex offender when he was released from prison in August 1999 because he was living in a homeless shelter and thought he had completed his sentence. [Cal. Ct. App. Op., pp. 9-10; RT 982-985.] Petitioner met Marcus online, in a Gay 20s chat room, and believed Marcus was 19. [Cal. Ct. App. Op., 10; RT 994-997.] Petitioner testified his parole agent gave him verbal permission to travel to San Bernardino to contest a traffic ticket that a friend got while driving Petitioner's car. He arranged to meet Marcus while he was in San Bernardino taking care of the ticket. [RT 998-1000.] Petitioner met Marcus at a liquor store, and then drove to a store to buy Marcus a video game as a Christmas gift. [RT 999-1001.] The two then drove to a desolate area where they touched and fondled each other. Because they kept getting interrupted by passing all- terrain vehicles, they moved to a more isolated area, but Petitioner's car got stuck in the sand. [RT 1002-1006.] When Petitioner and Marcus were walking toward the police station to try to get help, Marcus first told Petitioner he was only 16-years-old. [RT 1006-1007.] Because Petitioner knew he would be in trouble for being with a 16-year-old, the two decided to tell the police they were cousins. [RT 1007.]
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (West 2006) (emphasis added). A federal habeas corpus petition must allege a deprivation of one or more federal rights to present a cognizable claim pursuant to § 2254. A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas corpus relief does not lie for errors of state law, and federal courts may not re-examine state court determinations on state law issues).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). As amended by AEDPA, 28 U.S.C. § 2254(d) now reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d) (West 2006) (emphasis added).
A state court's decision may be found to be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). A state court decision involves an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or, "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 539 U.S. at 407; Andrade, 538 U.S. 63, 75-76.
"[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 be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412; ...