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Carmony v. Mayberg

October 7, 2010

HAROLD E. CARMONY, PETITIONER,
v.
STEPHEN MAYBERG, DIRECTOR, DEPARTMENT OF MENTAL HEALTH, AND NORMAL KRAMER, EXECUTIVE DIRECTOR, COALINGA STATE HOSPITAL, RESPONDENTS.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Harold E. Carmony proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 civil recommitment as a sexually violent predator (SVP) under California's Sexually Violent Predator Act (SVPA). CAL. WELF. & INST. CODE §§ 6600 et seq. For the following reasons, (1) it is recommended that the petition and other miscellaneous requests be denied; and (2) Petitioner's requests for an order to show cause and judicial notice are denied.

II. FACTUAL AND PROCEDURAL HISTORY

The record reflects the following chronology of relevant proceedings:

1. On March 26, 1982, Petitioner was convicted of various sexual offenses, including multiple violations of Section 288a of the California Penal Code, a sexually violent, predatory offense within the meaning of Sections 6600(b) and 6600.1 of the California Welfare and Institutions Code. Lodged Doc. 12, at 2.*fn1 Petitioner's victims were four adolescent boys, aged eleven, thirteen, and fifteen. Id. The Sacramento County Superior Court found Petitioner was not a mentally disordered sex offender, and ultimately sentenced him to state prison for a term of thirty-four years and four months. Id.

2. On May 3, 2000, the Superior Court sustained a petition to commit Petitioner to the California Department of Mental Health (DMH) as an SVP. Lodged Doc. 4, at 2.*fn2

The California Court of Appeal, Third Appellate District, affirmed. Id.; see People v. Carmony, 99 Cal. App. 4th 317, 328, 120 Cal. Rptr. 2d 896 (2002), review denied, 2002 Cal. LEXIS 5945, at *1 (Cal. Aug. 28, 2002).*fn3

3. On April 12, 2002, the first petition to recommit Petitioner from May 2002 to May 2004 was filed. Lodged Doc. 4, at 3. "A probable cause hearing was held on May 1, June 17, and June 18, 2002." Id.

4. On June 28, 2002, the Superior Court found probable cause to recommit Petitioner as an SVP. Id. Trial on the first recommitment petition was set for September 23, 2002. Id. "For reasons not reflected on the record, the trial date was continued to January 27, 2003." Id.

5. On January 27, 2003, by agreement of the parties, the trial date for the first recommitment petition was vacated and reset to June 26, 2003. Id.

6. On June 26, 2003, the trial date for the first recommitment petition was rescheduled to the following day, when the trial was set for October 28, 2003. Id.

7. On October 28, 2003, the trial date for the first recommitment petition was vacated and reset to March 2, 2004. Id.

8. On January 22, 2004, the second petition to recommit Petitioner from May 2004 to May 2006 was filed. Id.

9. On January 23, 2004, a probable cause hearing on the second recommitment petition was set for February 17, 2004. Id.

10. On February 17, 2004, the probable cause hearing on the second recommitment petition was continued to April 2, 2004, which was the next available date for defense counsel and an evaluator. Id.

11. On March 2, 2004, the trial date for the first recommitment petition was vacated and reset to April 2, 2004, to join with the probable cause hearing on the second recommitment petition. Id.

12. On April 2, 2004, a probable cause hearing for the second recommitment petition was commenced, but it was not concluded because a prosecution witness was testifying in another case. Id. at 3-4. "At the conclusion of testimony that day, the parties agreed to coordinate their schedules and advise the court of the next date they would be available to continue the probable cause hearing." Id. at 4. "Although the trial of the first recommitment petition was set for that same date, neither the parties nor the court addressed it." Id.

13. On July 27, 2004, the probable cause hearing for the second recommitment petition resumed. Id. "At the conclusion of the hearing, the Superior Court determined that probable cause existed." Id. "In consideration of both counsels' trial and personal schedules, the trial on the second recommitment petition was set for January 4, 2005." Id.

14. Dated September 1, 2004, Petitioner's first habeas petition, No. 04F08151, relevant to this proceeding was filed in the Sacramento County Superior Court. See Lodged Docs. 15-17. In this petition, Petitioner "challenge[d] having future mental health examinations that do not meet the Civil Discovery Act of 1986, as well as the use of prior mental health examinations in the extension proceeding in Case No. CR 61422." Lodged Docs. 16-17; see Lodged Doc. 15, at 3-4.1.

15. Dated September 8, 2004, Petitioner's second habeas petition, No. 04F08383, relevant to this proceeding was filed in the Sacramento County Superior Court. See Lodged Doc. 17. In this petition, Petitioner challenged: (1) "[t]he vagueness of the SVP Act which gives no guidance as to when the trial must take place;" and (2) the "delaying of trial." Id. at 3-4.

16. In an order dated October 12, 2004, the Superior Court denied Petititioner's first and second habeas petitions. See Lodged Docs. 16-17. The Superior Court found that Petitioner raised issues "that could be addressed and raised by petitioner's counsel in Case No. CR 61422, and not by petitioner . . . ." Id.

17. On October 27, 2004, Petitioner filed his third habeas petition, No. 04F09535, relevant to this proceeding, in the Sacramento County Superior Court. See Lodged Doc. 13. Petitioner argued that: (1) "[t]he trial court does not have statutory authority to join SVP proceedings" in Case No. CR 61422, violating his due process rights; and (2) "[t]he court lacks jurisdiction to accept a new SVP petition."

Id. at 3-4.

18. In an order dated November 3, 2004, the Superior Court denied Petitioner's third habeas petition. See Lodged Doc. 14. The Superior Court determined, again, that Petitioner raised issues "that could be addressed and raised by petitioner's counsel in Case No. CR61422, and not by petitioner . . . ." Id.

19. On December 28, 2004, Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. See Lodged Doc. 10. Petitioner raised eleven grounds for relief, including: (1) his "Constitutional Right to petition the courts," (2) violations of the Civil Discovery Act of 1986, "United States and California Constitutions," in that Petitioner was not afforded protections "when seeking a mental evaluation;" (3) failure to receive proper notice so he "could object to the mental examination or to limit its scope," violating his due process rights; (4) use of "old information[] to make a current diagnosis, violating his due process rights "to a fair and impartial hearing;" (5) "vagueness of the [SVPA];" (6) failure to "balanc[e] . . . process due;" (7) "[d]elaying of trial;" (8) joining an SVP proceeding "with another civil commitment," thereby violating due process; (9) violations of due process and equal protection because "all . . . long term commitments in California have a clear time frame within which the trial must take place EXCEPT for the SVPA;" (10) joinders "are not acceptable remedies for late trials;" and (11) lack of jurisdiction "to accept a new petition for recommitment." Id. at iii-xiii.

20. On January 4, 2005, the trial on the second recommitment petition was continued for two days because the prosecutor was ill. Lodged Doc. 4, at 4.

21. On January 6, 2005, the trial on the second recommitment petition was continued to January 10, 2005. Id. Also on January 6, 2005, the California Court of Appeal, Third Appellate District, summarily denied Petitioner's appeal for habeas relief. See Lodged Doc. 11.

22. On January 10, 2005, the Superior Court granted the State's motion to consolidate the trials on the two recommitment petitions and denied Petitioner's motion for separate trials. Lodged Doc. 4, at 4. The Superior Court acknowledged Petitioner's claim that he "has been objecting to continuances," but stated that it "has reviewed the court's files over the matter and finds in the files no specific objection by [Petitioner] to the continuances on the specific grounds of unreasonable delay or denial of speedy resolution." Id. (internal quotation marks omitted). The Superior Court distinguished this case from Litmon v. Superior Court, 123 Cal. App. 4th 1156, 1176-77, 21 Cal. Rptr. 3d 21 (2004), in which the SVP specifically objected to the delay, and in which a further delay was granted solely to accommodate consolidation. Lodged Doc. 4, at 4.

23. "In January 2005, a jury found true the allegation that, by reason of a diagnosed mental disorder, Petitioner is an SVP who is a danger to the health and safety of others because he is likely to engage in sexually violent predatory criminal behavior if released." Id. at 1. "Based on the jury finding, Petitioner's commitment to the DMH was extended to May 2006." Id. at 1-2.

24. On October 5, 2005, Petitioner filed a habeas petition in the California Supreme Court. See Lodged Docs. 8A-8D. Petitioner raised the same eleven grounds for relief as raised in the Court of Appeal. See Lodged Doc. 8A, at iii-xiii.

25. On November 8, 2005, Petitioner directly appealed his recommitment to the California Court of Appeal, Third Appellate District. See Lodged Doc. 1. Petitioner alleged that: (1) "the consolidation of two recommitment petitions, after the previous commitment under the Sexually Violent Predator Act had expired, violated [Petitioner's] due process rights;" and (2) there was insufficient evidence to support the jury verdict that he was likely to reoffend. Id. at ii.

26. On June 7, 2006, Respondents filed a response to Petitioner's appeal on his recommitment, see Lodged Doc. 2, and Petitioner filed a reply on August 1, 2006. See Lodged Doc. 3.

27. On December 14, 2005, the California Supreme Court denied the habeas petition without a written opinion, only citing In re Robbins, 18 Cal. 4th 770, 780, 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998), In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993), and In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953). Lodged Doc. 9.

28. On January 4, 2007, the Court of Appeal issued a reasoned opinion affirming the recommitment. See Lodged Doc. 4.

29. In his petition for review dated February 14, 2007, Petitioner directly appealed his recommitment in the California Supreme Court. See Lodged Doc. 5. Petitioner also filed an Application and Declaration of Counsel in Support of Relief from Default, dated February 14, 2007. See Lodged Doc. 6. In his application, Petitioner asked the Supreme Court "to grant relief from default from the failure to timely file his Petition for Review." Id. at 1. Petitioner acknowledged that any petition for review was "due for filing between February 3 and 13, 2007," and "it was counsel's inadvertence that he failed to calendar the due dates on his office calendar." Id. at 2.

30. In a letter dated February 15, 2007, the California Supreme Court denied Petitioner's application for relief from default and directed that the petition for review be returned to Petitioner. See Lodged Doc. 7.

31. On December 27, 2007, Petitioner filed the instant federal habeas petition. 32. Respondents filed an answer to the petition on June 6, 2008, to which Petitioner filed a traverse on June 26, 2008.

III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States.

U.S.C. § 2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more than one state court has adjudicated a petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (finding presumption that later unexplained orders, upholding judgment or rejecting same claim, rests upon same ground as prior order)). Thus, a federal habeas court looks through ambiguous or unexplained state court decisions to the last reasoned decision to determine whether that decision was contrary to or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). When no state court reached the merits of a claim, the federal court must review that claim de novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005), cert. denied, 547 U.S. 1128 (2006) (applying de novo standard of review to claim in habeas petition that was not adjudicated on merits by state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (same); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) ("[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.").

IV. CLAIMS FOR REVIEW

Petitioner raises: (1) seven grounds for relief; (2) a request for an order to show cause; (3) a request for judicial notice; and (4) other miscellaneous requests. Petitioner's seven grounds for relief include the following:

1. "California denies indigent pro se litigants with appointed trial counsel the constitutional right to redress their grievances through habeas corpus until after all trial and appeal proceedings are completed." Pet'r's Supplemental Pet. 3, ECF No. 2 (emphasis omitted).

2. "The [s]tate evaluators and the D.A. ignored the ground rules set up by the Civil Discovery Act (CDA), [Code of Civil Procedure §§ 2016 through 2036] as well as the SVPA," thereby denying "Petitioner his right to due process under both the United States and California Constitutions." Pet'r's Pet. 5, ECF No. 1.

3. "The vagueness of the California SVPA statute does not delineate when a trial must take place." Pet'r's Supplemental Pet. 3 (emphasis omitted).

4. "The lengthy delays California permits in bringing Petitioner to trial for a civil commitment determination violates Petitioner's constitutional due process of law rights under both the United States and California Constitutions." Id.

5. "SVPA Civil Commitment Hearing[s] . . . may not be joined with another civil commitment," violating Petitioner's due process rights. Id.

6. "The court lacked jurisdiction to accept a new petition for recommitment" because "[b]y the time the second petition for recommitment was filed[,] this Petitioner's original commitment had expired and he was being held by a petition to recommit . . . ." Pet'r's Pet. 7.

7. "[T]here was insufficient evidence of a current mental disorder to support a finding that Petitioner was a current danger and likely to commit a predatory violent criminal offense if released." Pet'r's Supplemental Pet. 4.

A. Procedural Default

Respondents contend that Petitioner procedurally defaulted all seven grounds raised in the instant habeas petition. See Resp'ts' Answer 8, ECF No. 15. Respondents maintain that "[e]xhaustion and procedural default must be addressed as a preliminary matter." Id. at 13. Respondents allege "there remains no available state remedy and Petitioner's claims have thereby satisfied the exhaustion requirement." Id. at 14. However, Respondents argue that the following procedural defaults bar Petitioner's claims:

1. Untimeliness applies to claims six and seven.*fn4 Id. ("Claims six and seven . . . were raised on direct review, but . . . were presented to the California Supreme Court in an untimely petition.").

2. Waiver under In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953), applies to claims one through five.*fn5 Resp'ts' Answer 14 ("Claims one through five . . . were not presented on direct review . . . ."); see Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) ("In California, a convicted defendant desiring to bring claims in a state habeas petition, must, if possible, have pursued ...


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