United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING
RESPONDENT’S MOTION TO DISMISS [Doc. 23]
Michael J. Seng United States Magistrate Judge
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.
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.
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.)
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
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.
Should the Petition be Governed by Section 2241 or Section
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.
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.
Procedural Grounds for Motion to Dismiss
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.
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.