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Mack v. Brown

United States District Court, E.D. California

August 9, 2016

DENNIS MACK, Petitioner,
v.
JERRY BROWN, Governor, Respondent.

          FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. 23]

          Michael J. Seng United States Magistrate Judge

         Petitioner is a state detainee proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent is represented in this action by Brian R. Means, of the Office of the Attorney General for the State of California.

         I. Background

         Petitioner is detained by the State of California pursuant to an October 16, 2006 judgment of the Superior Court of California, County of San Francisco, finding probable cause that Petitioner is a sexually violent predator under California’s Sexually Violent Predator Act (“SVPA”). (Cal. Welfare & Inst. Code § 660 et. seq.) (See, Mot. to Dismiss, Lodged Doc. 1.) The court ordered Petitioner to be detained in Coalinga State Hospital, where he is currently confined, while awaiting his SVPA trial. (Id.) Although nearly ten years have passed after the probable cause hearing, there is no indication that the County has held Petitioner’s SVPA trial.[1]

         As stated, on October 16, 2006, the San Francisco County Superior Court found that Petitioner would likely engage in sexually violent predatory criminal conduct upon his release. (Lodged Doc. 1.) Petitioner was therefore detained by the state under the SVPA. On May 25, 2007, Petitioner filed a petition for writ of habeas corpus with the San Francisco County Superior Court challenging his commitment. (Lodged Doc. 2.) Although not in possession of the order denying the petition, on December 13, 2007 the California Court of Appeal, First Appellate District noted that the habeas corpus petition filed with San Francisco County Superior Court was previously denied along with denial of a petition for writ of mandate filed with that Court. (Lodged Doc. 3.)

         On July 8, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court raising various challenges to the SVPA. (Pet., ECF No. 1.) In general, he contends that the SVPA is unconstitutional because it does not appropriately distinguish between those sex offenders who are mentally ill and dangerous and those who are not mentally ill and dangerous.

         On May 13, 2016, Respondent filed a motion to dismiss based on Petitioner’s failure to exhaust all the claims presented in the petition, the Court’s duty to abstain from intervening in pending state proceedings, and because Plaintiff’s claims are unripe. (Mot. To Dismiss, ECF No. 23.) On July 21, 2016, Petitioner filed an opposition to the motion to dismiss.

         II. Discussion

         A. Should the Petition be Governed by Section 2241 or Section 2254?

         The critical issue is whether the petition for writ of habeas corpus should be governed by the more general federal statute (§ 2241), or the more specific section governing petitions for relief by individuals in state custody (§ 2254). While exhaustion of remedies defenses have been judicially enforced in habeas proceedings under § 2241, AEDPA imposes a separate statutorily created exhaustion requirement for petitions filed under § 2254. Accordingly, the resolution of this motion is dependent on the nature of the habeas petition filed.

         The Court finds that, although the Petition ostensibly was brought pursuant to 28 U.S.C. § 2241, the law is well established that a habeas petition challenging a state civil commitment order is governed by § 2254. See Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (state court order of civil commitment satisfies § 2254's "in custody" requirement); Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005) ("It is well established that detainees under an involuntary civil commitment scheme such as SVPA may use a § 2254 habeas petition to challenge a term of confinement"); Carmony v. Mayberg, No. CIV S-10-3381 GGH P, 2011 U.S. Dist. LEXIS 3470, 2011 WL 86662, at *2 (E.D. Cal. Jan. 10, 2011) ("Plainly, if petitioner seeks to challenge the constitutionality of a prior civil commitment pursuant to the SVP Act, he must proceed by way of a petition pursuant to 28 U.S.C. § 2254."); Padilla v. King, 2014 U.S. Dist. LEXIS 183948 (C.D. Cal. Aug. 15, 2014). The Court therefore construes the petition as challenge to his state detainment under 28 U.S.C. § 2254.

         B. Procedural Grounds for Motion to Dismiss

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

         The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) ...


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