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Miller v. Allenby

United States District Court, N.D. California, Oakland Division

January 30, 2015

BRUCE WAYNE MILLER, Petitioner,
v.
CLIFF ALLENBY, Acting Director, California Department of Mental Health, Respondent.

ORDER GRANTING MOTION TO DISMISS; AND DENYING CERTIFICATE OF APPEALABILITY

SAUNDRA BROWN ARMSTRONG, District Judge.

I. INTRODUCTION

On July 22, 2013, Petitioner filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time of filing, Petitioner was a civil detainee pending proceedings to involuntarily commit him to Coalinga State Hospital ("Coalinga") as a sexually violent predator ("SVP"), pursuant to the California Sexually Violent Predator Act ("SVPA"), codified at California Welfare & Institutions Code §§ 6600-6609.3. Respondent moves to dismiss the petition on abstention grounds. Petitioner has not filed an opposition to the motion. For the reasons discussed below, Respondent's motion to dismiss is GRANTED.

II. BACKGROUND

A. AN OVERVIEW OF THE SVPA

The SVPA defines an SVP as a person "convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others" that is, is "likely [to] engage in sexually violent criminal behavior." Hydrick v. Hunter, 500 F.3d 978, 983 (9th Cir. 2007) (citing Cal. Welf. & Inst. Code § 6600(a)) rev'd on other grounds, 556 U.S. 1256 (2009). At least six months before a person who has committed the predicate offenses to qualify as a SVP is to complete his sentence, he is evaluated by the California Department of Corrections and Rehabilitation ("CDCR") and the California Department of State Hospitals ("DSH"), formerly known as the Department of Mental Health.[1] Id. (citing § 6601). If the CDCR and DSH agree that the person evaluated may be an SVP, a petition for commitment may be filed by the district attorney or counsel for the county in which the evaluated person was convicted. Id. (citing § 6601(i)). Thereafter, a probable cause hearing takes place during which a state court judge decides whether to issue an order pursuant to section 6601.5. The court considers whether "the petition, on its face, supports a finding of probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release[.]" Cal. Welf. & Inst. Code § 6601(k). Upon finding probable cause, the court "shall toll that person's parole pursuant to paragraph (4) of subdivision (a) of Section 3000 of the Penal Code, if that individual is determined to be a sexually violent predator." Id. A jury trial then takes place and if that person is found by the jury to be an SVP who poses a danger to the health and safety of others, he is civilly committed for an indefinite period to commence after his criminal sentence is fulfilled. Hydrick, 500 F.3d at 983 (citing §§ 6602-6604).

To ensure alleged SVPs are properly evaluated under section 6601, the DSH publishes a handbook and standardized assessment protocol for evaluators. See Reilly v. Superior Court, 57 Cal.4th 641, 649 (2013). In 2008, the Office of Administrative Law ("OAL") received a petition alleging that ten provisions in the DSH's 2007 Clinical Evaluator Handbook and Standardized Assessment Protocol had not been adopted according to California's Administrative Procedures Act ("APA"). Id. The OAL agreed and ruled that certain provisions of the handbook and assessment protocol met the definition of a regulation and should have been adopted in accordance with the APA. Id.

Notably, the OAL clarified that its ruling concerned only whether the 2007 assessment protocol constituted a regulation under Government Code § 11342.600, stating that "[n]othing in this analysis evaluates the advisability or the wisdom of the underlying action or enactment." Id. (citation omitted). The OAL recognized that it "has neither the legal authority nor the technical expertise to evaluate the underlying policy issues involved." Id. (citation omitted). In other words, its conclusions addressed only the procedural validity of the 2007 assessment protocol; it did not address the protocol's substantive validity. Id.

It was against this backdrop that, in November 2009, the California Court of Appeal in In re Ronje, 179 Cal.App.4th 509 (2009), concluded that alleged SVPs who had been evaluated under the invalid 2007 assessment protocol were entitled to entirely new evaluations and a new probable cause hearing "based on those new evaluations." Reilly, 57 Cal.4th at 650 (citing In re Ronje, 179 Cal.App.4th at 521).

Almost four years later, on August 19, 2013, the California Supreme Court issued its opinion in Reilly, in which it disapproved of In re Ronje, and held that relief arising from use of an invalid protocol in an SVP's evaluation requires a showing that the error was material. 57 Cal.4th at 655; see also id. at 657, n.5.

B. BACKGROUND RELATING TO PETITIONER'S EVALUATION AS AN SVP

On April 18, 2006, the DSH requested that a "petition for involuntary treatment" be filed in Petitioner's case. Dkt. 17, Ex. 1. Attached in support of this request were psychological evaluations submitted by Christopher Matosich, Ph.D. and Robert Brook, Ph.D., dated March 24, 2006 and April 4, 2006, respectively. Id.

On August 18, 2006, the District Attorney of the City and County of San Francisco filed a petition to commit Petitioner as an SVP. Id.

On May 14, 2008, the San Francisco County Superior Court found probable cause to believe Petitioner ...


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