The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Harvey Mack Leonard, a civil committee under the California Sexually Violent Predator Act ("SVPA") appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Leonard is currently in the custody of the California Department of Mental Health, incarcerated at the Coalinga State Hospital. Respondent has answered, and Leonard has replied. At Docket No. 27 Leonard has moved to dismiss all unexhausted claims and to proceed on his exhausted claims.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 2008, following the
determination by the jury that he was a sexually violent predator
("SVP") under the SVPA, Cal. Welfare & Institutions Code §§ 6601, et
seq., the Placer County Superior Court committed Leonard to the
custody of the California Department of Mental Health for an
indeterminate period. In an unpublished decision, the California Court
of Appeal, Third Appellate District, remanded the case to "to the
trial court to determine whether the People can demonstrate the
constitutional justification for imposing on SVP's a greater
burden to obtain release from commitment than is imposed on MDO's and
NGI acquittees," and affirmed in all other respects.*fn1
The California Supreme Court denied review on June 9, 2010.
Leonard timely filed his Petition for relief in this Court on June 24,
2010. On September 2, 2010, Leonard filed a petition for habeas relief
in the California Supreme Court, which was summarily denied without
opinion or citation to authority on April 20, 2011.
Leonard filed a motion to stay and hold these proceedings in abeyance while he exhausted his state-court remedies with respect to his ineffective assistance of counsel claims.*fn2 Respondent opposed the motion.*fn3 The Magistrate Judge entered his Order & Findings and Recommendations recommending that the motion be granted and the Petition stayed and held in abeyance pending exhaustion of Leonard's state-court remedies.*fn4 Before this Court acted upon the Magistrate Judge's Findings and Recommendations, Leonard filed a request to withdraw his stay and abey motion.*fn5 The Magistrate Judge granted the motion, vacated his Findings and Recommendations, and Ordered Respondent to answer the Petition.*fn6
In his request to withdraw his stay and abey motion, it appeared that Leonard specifically requested that this Court proceed and determine his Petition on the exhausted grounds alone. In an abundance of caution and in order to prevent Leonard from inadvertently foreclosing future review of his unexhausted equal protection claim, this Court entered an Order explaining the risk and directing Leonard to verify his understanding and intent to proceed on the exhausted claims alone.*fn7 At Docket No. 27 Leonard responded with a Motion to Dismiss the unexhausted claims and to proceed on the exhausted claims alone.
II. GROUNDS RAISED/DEFENSES
In his Petition, Leonard raises three grounds: (1) a general assertion that his federal and state due process rights were violated; (2) that his continued incarceration under the SVPA violates the Double Jeopardy Clause; and (3) ineffective assistance of trial and appellate counsel. Respondent contends that, because Leonard did not present his first ground in its entirety to the California Supreme Court, the Petition is a "mixed petition" containing both exhausted and unexhausted grounds and should be dismissed. Respondent also contends that Leonard's second ground, double jeopardy, is procedurally barred on adequate and independent state grounds. Respondent raises no other affirmative defense.*fn8
A. Appointment of Counsel
In his Traverse Leonard has renewed his request for appointment of
counsel. There is no constitutional right to counsel in federal habeas
proceedings.*fn9 Appointment of counsel is not
required in a habeas corpus proceeding in the absence of an order
granting discovery or an
evidentiary hearing.*fn10 This Court may appoint
counsel under the Criminal Justice Act in this case if the Court
determines that the interests of justice so require.*fn11
This Court does not so determine. Accordingly, the request
for appointment of counsel is DENIED.
As noted in this Court's prior Order, Leonard's state-court judgment is not yet final. As a consequence, this Court must determine whether the Younger doctrine applies.*fn12 If it applies, abstention in this case is mandatory, i.e., ...