United States District Court, N.D. California
JEFFERY W. MILINICH, Petitioner,
PAM AHLIN, Executive Director, Respondent.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
CHARLES R. BREYER, District Judge.
On March 17, 2004, a Santa Clara County Superior Court jury found Jeffery W. Milinich (Petitioner) to be a sexually violent predator under the Sexually Violent Predators Act, Cal. Welf. & Inst. Code § 6600 et seq. (SVPA), and the court civilly committed him to the Department of Mental Health (DMH) for a period of two years. On January 11, 2006, the District Attorney of Santa Clara County filed a petition pursuant to the SVPA to recommit Petitioner for another two years. On September 20, 2006, the SVPA was amended and, on October 5, 2006, the District Attorney filed an amended petition to recommit Petitioner for an indeterminate term under the amended SVPA. On October 25, 2006, a jury found Petitioner to be a sexually violent predator (SVP) under the amended SVPA and the court recommitted him to the DMH for an indeterminate term.
Petitioner appealed the decision of the superior court, arguing that his indeterminate commitment violates various provisions of the federal constitution. On January 16, 2009, the California Court of Appeal affirmed the superior court's order recommitting Petitioner to the DMH for an indeterminate term and, on April 1, 2009, the Supreme Court of California denied review.
Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on January 13, 2010, the Court found that the petition appeared to contain colorable claims for relief under § 2254 and ordered Respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer and Petitioner filed a traverse.
On December 29, 2010, the Court stayed the instant federal habeas proceedings in light of People v. McKee , 47 Cal.4th 1172 (2010), which issued after Petitioner's state court proceedings were complete and potentially entitled him to habeas relief in state court on his equal protection claim. The Court ordered Petitioner to file a habeas petition containing a McKee equal protection claim in state court and return to this Court to reopen this action after state-court consideration of his McKee equal protection claim is concluded. Petitioner returned to this Court after the Supreme Court of California denied his McKee equal protection claim on July 10, 2013. Per order filed on March 17, 2014, the Court reopened this action and ordered Respondent to file an amended answer. Respondent has filed an amended answer and Petitioner has filed an amended traverse.
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus on "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).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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." Id . § 2254(d).
"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 412-13 (2000). "Under the reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . at 413.
"[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 also be unreasonable." Id . at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id . at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id . at 412; Clark v. Murphy , 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
Petitioner claims that the amended SVPA violates constitutional protections against double jeopardy, ex post facto laws and cruel and unusual punishment, and constitutional guarantees to due process, First Amendment right to petition courts for redress and equal protection.
1. Double Jeopardy, Ex Post Facto and Cruel and Unusual Punishment
Petitioner claims that "retroactively" applying the amended SVPA's indeterminate commitment provision to his case violates the constitutional protections against double jeopardy and ex post facto laws and constitutes cruel and unusual punishment.
A threshold issue for Petitioner's claims is whether the amended SVPA is civil or criminal in nature. The civil nature of a statute forecloses double jeopardy, ex post facto and cruel and unusual punishment claims, even if the individual argues that the statute is punitive as applied to him or her, because it does not establish criminal proceedings or constitute a punishment. See Seling v. Young , 531 U.S. 250, 260-65 (2001); Kansas v. Hendricks , 521 U.S. 346, 359-69 (1997). Categorization of a statute as civil or criminal is "first of all a question of statutory construction." Id . at 361 (citation and internal quotation marks omitted). The civil label is not always dispositive, but the party challenging the statute must provide the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the state's intention to deem it civil. Id.
The California Court of Appeal rejected Petitioner's claims on the ground that the constitutional protections against double jeopardy, ex post facto laws and cruel and unusual punishment were not implicated by the amended SVPA because the amended SVPA is civil, rather than criminal, in nature under Kansas v. Hendricks , 521 U.S. 346 (1997), and Hubbart v. Superior Court , 19 Cal.4th 1138 (1999). People v. Milinich, No. H030823, 2009 WL 106557, at **15-16 (Cal.Ct.App. Jan. 16, 2009). The court explained that the Supreme Court of California had held in Hubbart that a commitment under the SVPA is civil in nature and does not amount to punishment, and that nothing in the amended SVPA compelled a different conclusion. Id . at *15. The court noted that the indeterminate term introduced by the amended SVPA is "linked to the stated purpose of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others'" - "a legitimate nonpunitive governmental objective ...