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Harvey Mack Leonard v. Pam Ahlin


March 12, 2012


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.


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 In an unpublished decision, the California Court of Appeal, Third Appellate District, remanded the case to "to the trial court to determine whether the People can demonstrate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.


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.

B. Abstention

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., this Court must refrain from exercising its jurisdiction.*fn13

Although neither party has raised the question, this Court may raise it sua sponte.*fn14

Although Younger itself held that, absent extraordinary circumstances, a federal court may not interfere with a pending state-criminal prosecution, the Supreme Court and the Ninth Circuit have extended Younger abstention to civil cases on numerous occasions. The Supreme Court laid out a three-part test for determining when to apply Younger in a civil proceeding, holding that abstention is required so long as the state proceedings: (1) are ongoing; (2) implicate "important state interests"; and (3) provide an adequate opportunity to raise federal questions.*fn15

To these three threshold requirements, the Ninth Circuit has articulated an implied fourth requirement that abstention is required if (4) the federal court action would "enjoin the proceeding, or have the practical effect of doing so."*fn16

Because the state appellate review process has not yet been completed, Leonard's SVP civil commitment proceeding is still on-going,*fn17 and thus the first factor is clearly met. Likewise, it is clear that each of the constitutional issues Leonard is attempting to assert in this proceeding may be raised in Leonard's pending state-court proceeding; indeed, they have been. The state interest involved concerns for the health and safety of the state's citizens. There can be no doubt that a state has an important interest in safeguarding the health and safety of its citizens.*fn18 Thus, the three factor test from the Supreme Court's decision in Middlesex has been met.

If this Court were to grant Leonard the relief requested, it would effectively render any further action by the California state courts a nullity. The effect would be the same as if this Court entered an order enjoining the Placer County Court from proceeding to adjudicate Leonard's continued commitment as a SVP as instructed by the California Court of Appeal. This Court may not, under the Younger doctrine, enter such a judgment. Indeed, it lacks jurisdiction to do so. Accordingly, this Court must abstain and dismiss this action.*fn19


IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DISMISSED, without prejudice.

IT IS FURTHER ORDERED THAT the Motion to Dismiss All Unexhausted Claims at Docket No. 27 is DENIED as moot.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn20 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn21

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.

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