Opinion
No. C 02-1110 PJH
August 26, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the court is the petition for writ of habeas corpus filed by petitioner Christopher Hubbart, pursuant to 28 U.S.C. § 2254. On April 4, 2002, the court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support, and lodged portions of the record with the court. Petitioner has responded with a traverse. Having reviewed the parties' papers, the record, and having carefully considered their arguments and the relevant legal authorities, the court hereby DENIES the petition.
BACKGROUND
On March 21, 2000, a jury in Santa Clara County Superior Court determined that petitioner Hubbart was a sexually violent predator ("SVP") and ordered him civilly committed to the Atascadero State Hospital ("ASH") for psychiatric treatment pursuant to the California Sexually Violent Predators Act ("SVPA"), Welf. Inst. Code § 6600 et seq. Hubbart requests habeas relief.
The facts in this matter are summarized in Hubbart v. Superior Court, 19 Cal.4th 1138, 1149-50 (1999), an opinion on Hubbart's initial appeal of the constitutional issues raised in this petition, and in more detail in People v. Hubbart. 88 Cal.App.4th 1202, 1210-16 (2001), the state appellate opinion affirming Hubbart's SVP determination.
1. Hubbart Criminal History
Hubbart has a long history of sexual assault. He began breaking into houses to watch women, and groping women, while he was in high school. In 1972, he was charged with committing over twenty sexual assaults of women in their homes in the Los Angeles area. Hubbart pled guilty in 1973 to one count of burglary, one count of rape, and three counts of sodomy. He was then deemed a mentally disordered sex offender (MDSO), Former Welf. Inst. Code § 6300 et seq., and was committed to ASH, where he spent approximately six years in psychiatric treatment for his sexually deviant behavior.
Hubbart was released as an outpatient in 1979, and moved to Santa Clara County. Within a few months of his release, he again began committing sexual assaults. Between 1980-81, he broke into the homes of approximately 15 women in the San Francisco and Sunnyvale area and sexually assaulted them.
Hubbart's 1971-72 and 1980-81 attacks followed a standard pattern. In the early morning hours, he would break into a home where a woman lived alone, bind the victim's hands, cover her head, and commit forcible sex acts. The sex acts included fondling of the victim's breasts, digital penetration, oral copulation, rape, and sodomy. In two instances, Hubbart also administered forced enemas to the victims.
In November 1981, Hubbart was rearrested and readmitted to ASH pending trial. In March 1982, he was convicted in Santa Clara County of one count of rape, one count of oral copulation, six counts of false imprisonment, and at least six counts of burglary, and was sentenced to sixteen years in prison.
In April 1990, Hubbart was released on parole. Approximately two months later, in June 1990, within a two-day period, Hubbart attemped to sexually assault one woman and actually assaulted another. Hubbart's parole was revoked, and he was returned to prison.
In 1993, Hubbart was paroled. About six weeks later, even though he had committed no crime, he was returned to prison under then-effective Cal. Code Regs. tit. 15 § 2616(a)(7), which permitted parole revocation if the parolee "suffer[s] from a mental disorder which substantially impairs the parolee's ability to maintain himself or herself in the community, or which makes the parolee a danger to himself/herself or to others, when necessary psychiatric treatment cannot be obtained in the community." This section was later invalidated by Terhune v. Superior Court, 65 Cal.App.4th 864, 878 (1998), and has since been repealed.
2. SVPA
Hubbart was in custody under former Cal. Code Regs. tit. 15 § 2616(a)(7) on January 2, 1996 when the Santa Clara County district attorney filed a petition to have Hubbart committed under the SVPA.
The SVPA establishes involuntary civil commitment for mentally ill individuals "in custody" who are considered likely to continue to commit acts of sexual violence even after receiving criminal punishment. Inmates who have been identified as potential SVPs are to be immediately transferred to civil confinement for psychiatric treatment upon their release from prison. The SVPA is not intended to be punitive in nature, but rather, to provide medical care for the SVP and to reduce the threat of harm to the public. If the treatment is successful, the SVP must be released.
To be classified as an SVP, the state must demonstrate first that an inmate suffers from "a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent behavior." A "diagnosed mental disorder" is defined as "includ[ing] a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." The inmate must also have been convicted of sexually violent offenses against at least two victims. These prior qualifying offenses may have taken place either before or after the passage of the SVPA, but they may not be the sole basis for determining SVP status absent evidence of a current mental disorder. SVPA § 6600.
There are a number of administrative and judicial procedures used in determining SVP status. The Department of Corrections does an initial screening of all inmates approximately six months before their release, and inmates considered likely to be SVPs are referred to the Department of Mental Health for a full evaluation by at least two practicing psychologists or psychiatrists. If the two evaluations agree that the inmate is mentally disordered and dangerous, the Department of Mental Health transmits a request for a petition for commitment to the county of the inmate's last conviction. If the county's attorneys agree with the Department of Mental Health's request, a petition for commitment is then filed in the county superior court, SVPA § 6601.
The superior court then holds a hearing to determine whether probable cause exists to believe that the inmate is likely to engage in sexually violent and predatory behavior upon release. If so, the superior court holds a trial to determine SVP status. The inmate is entitled to trial by jury, the assistance of counsel, access to all relevant medical and psychological records, and access to mental health experts. SVP status must be proved beyond a reasonable doubt, and any jury verdict must be unanimous. SVPA §§ 6602-03.
If SVP status is found, the inmate "shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Department of Mental Health." SVPA § 6604. A new petition must be filed and an extended commitment period must be obtained from the court if the period of confinement is to exceed two years, Id.
While in confinement, the Department of Health must provide structured treatment to the SVP, even if the chance of success is considered low. SVPA § 6606. Furthermore, an SVP in confinement will be mentally examined every year, and the court must set an annual hearing to determine whether there is probable cause that the SVP's mental disorder has improved to the point where release is warranted. SVPA § 6605.
The Department of Mental Health may petition the court for either an unconditional or conditional release if it has reason to believe that the inmate is no longer an SVP, or will not pose a risk to the community with adequate supervision and treatment. The SVP may also petition for release, either conditionally or nonconditionally, after a year of commitment. SVPA §§ 6607-08.
3. Hubbart's SVPA Proceedings
In 1995, the Department of Corrections and the Department of Mental Health determined that Hubbart was a potential SVPA. This was based on Hubbart's past record and evaluations prepared by two licensed psychologists, Dr. Craig Nelson and Dr. Amy Phenix. Hubbart declined to speak with either psychologist, so the evaluations were prepared solely based on Hubbart's criminal, probation, prison, and medical records. These evaluations determined that Hubbart suffered from "paraphilia," which is defined as "recurrent and intense sexual fantasies and behaviors involving the humiliation and forcible sexual penetration of persons against their will." Phenix also determined that Hubbart's administering of forced enemas for his sexual arousal constituted "klismaphilia." Nelson and Phenix determined that Hubbart's condition had been ongoing for at least 20 years, and that Hubbart posed a high risk of reoffense if he were released into the community.
Paraphilia is not a diagnosis recognized by the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994)), because psychiatrists disagree about whether the condition actually exists.
Upon the filing of the petition for commitment in 1996, Hubbart filed a demurrer claiming that the SVPA was unconstitutional, which was denied. Hubbart then appealed the decision and requested a stay on the proceedings. The stay was granted, but the appeal was denied. Hubbart then appealed to the California Supreme Court, which found the SVPA constitutional in January 1999 and thus denied his motion. Hubbart v. Superior Court, 19 Cal.4th at 1179.
Hubbart remained in prison while these appeals were pending. While these appeals were pending, he also filed a petition for habeas relief in September 1998, claiming his parole had been unfairly revoked under Terhune. Record Exh. 1B at 223. The habeas request was denied by the Supreme Court in August 1999. Request for Expansion of Record Exh. 2.
Hubbart had filed a similar petition in 1995, beforeTerhune was decided, which was denied by the California Supreme Court.
Hubbart's SVPA trial began in February 2000. Phenix and Nelson provided testimony for the state, after having subsequently interviewed Hubbart in person. Phenix reported that Hubbart had told her at the interview that he was concerned about his "fantasies that involve a little aggression." Phenix again diagnosed Hubbart with paraphilia and klismaphilia, and concluded that Hubbart's mental disorders affected his ability to control his sexual fantasies and urges. Phenix then used a standardized actuarial method to calculate Hubbart's risk of reoffense, which indicated that Hubbart had a 52% chance of reoffending within 15 years. Phenix also noted that a number of other factors not included in the actuarial calculations, including Hubbart's life, social, and psychiatric history, would significantly increase his chances of reoffending. Nelson, the clinical administrator for ASH, also reevaluated Hubbart, diagnosed him with severe paraphilia, and also determined that he posed a high risk of reoffense, based on factors similar to the ones evaluated by Phenix.
Hubbart presented evidence from Dr. James Missett, a psychiatrist, and Dr. Theodore Donaldson, a psychologist. Missett and Donaldson concluded that Hubbart did not currently have a mental disorder, that he had significantly improved since the 1980s and 1990s, that he was now in control of his fantasies, and that his paraphilia was now in remission. Missett conceded that there was a risk Hubbart would reoffend, but noted that since defendant was 49 at the time of trial, that the risk would decrease as Hubbart aged. Donaldson calculated a 10.2% risk of reoffense using an unofficial statistical model, and concluded that Hubbart was not likely to reoffend.
The jury found Hubbart to be an SVP, and ordered Hubbart committed to ASH for treatment for a two-year period starting as of the date of the jury verdict. Hubbart appealed this decision to the California Court of Appeals on constitutional grounds. The court of appeals upheld the verdict in May 2001. People v. Hubbart, 88 Cal.App.4th 1202, 1235 (2001), and the California Supreme Court denied review in August 2001. In November 2001, Hubbart filed a petition for certiorari before the United States Supreme Court, which was denied in February 2002.
Hubbart originally filed a petition for habeas corpus before this court in April 2000, case no. C-01-4944 PJH. That petition was dismissed in January 2002 due to the pending petition for certiorari. After Hubbart's petition for certiorari was denied, he filed this petition on March 7, 2002.
STANDARD OF REVIEW
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply.
Under the AEDPA, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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.28 U.S.C. § 2254(d). The state court's review is given deference by the federal courts, because "the state courts, as part of a co-equal judiciary, are competent interpreters of federal law deserving of our full respect." Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). citing Williams v. Taylor. 529 U.S. 362, 403 (2000).
A state court opinion may only be considered "contrary to" clearly established federal law, under the first clause of § 2254(d), 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 Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. Furthermore, the only clearly established federal law" that the state court need rely upon are "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Id. at 412: see also Clark, 331 F.3d at 1069 ("While circuit law may be `persuasive authority' for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied.") (citations omitted).
Similarly, a state court opinion may only be considered an "unreasonable application of federal law" if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. In determining whether the state court unreasonably applied federal law, "a reversal is warranted . . . only if the state court's application of federal law is objectively unreasonable. The writ may not issue simply because, in [the federal court's] determination, a state court's application of federal law was erroneous, clearly or otherwise."Clark, 331 F.3d at 1068, citing Lockyer v. Andrade, 123 S.Ct. 1166, 1174-75 (2003) (emphasis in original) (federal court no longer to perform initial de novo review of state court decision and merely to evaluate the state court application of federal law).
However, when the state court decision does not articulate the rationale for its determination, or does not analyze the claim under federal constitutional law, a review of that court's application of clearly established federal law is not possible. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000); see also 2 J. Liebman R. Hertz, Federal Habeas Corpus Practice and Procedure § 32.2 at 1424-26 nn. 7-10 (4th ed. 2001). When confronted with such a decision, a federal court must conduct an independent review of the record and the relevant federal law to determine whether the state court's decision was "contrary to, or involved an unreasonable application of clearly established federal law.Delgado, 223 F.3d at 982.
When a state court does not furnish a basis for its reasoning, we have no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context. . . . [A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the objectively reasonable lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. . . . Only by that examination may we determine whether the state court's decision was objectively reasonable.Id.
As for state court findings of fact, this court may not grant a habeas petition by a state prisoner unless the adjudication of a claim on the merits by a state court 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. 28 U.S.C. § 2254(d)(2). The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of the facts in light of the evidence under § 2254(d)(2). See Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000). To grant relief under § 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and the one [petitioner] urges was correct." |d. at 1108. Furthermore, this court must presume correct any factual determinations made by the state court, 28 U.S.C. § 2254(e)(1).
ISSUES
Hubbart claims that his commitment under the SVPA violates his federal constitutional rights on the following bases:
1. His due process rights under the Fourteenth Amendment were violated because he was illegally in state custody under Terhune when the SVPA proceedings began;
2. His equal protection rights under the Fourteenth Amendment were violated because he was treated differently from other similarly-situated parolees, in that his parole was illegally revoked and theirs were not;
3. His equal protection rights under the Fourteenth Amendment were violated because he was treated differently than other inmates whose paroles were revoked but who were subsequently released from prison; 4. His equal protection rights under the Fourteenth Amendment were violated because the definition for mental disorder under the SVPA is broader than the definition for mental disorder under the Mentally Disordered Offender (MDO) Act for similarly-situated inmates;
5. His equal protection rights under the Fourteenth Amendment were violated because similarly-situated inmates under the MDO Act receive mental health care before long-term commitment can be ordered, whereas under the SVPA, no mental health care is required before long-term commitment;
6. His equal protection rights under the Fourteenth Amendment were violated because the MDO Act requires a showing of an overt act leading to a person's long-term commitment for similarly-situated inmates, whereas the SVPA does not.
7. His due process rights under the Fourteenth Amendment were violated because the SVPA defines "mental disorder" overly broadly;
8. His due process rights under the Fourteenth Amendment were violated because the jury was misinstructed on the burden of proof;
9. The SVPA is punitive in nature and thus constitutes an ex post facto law in violation of Art. I § 10 of the U.S. Constitution; and
10. The SVPA is punitive in nature and thus constitutes double jeopardy against him in violation of the Fifth and Fourteenth Amendments.
DISCUSSION
A. Illegal Custody
The SVP statute in effect at the time proceedings began against Hubbart did not require that the alleged SVP be in "lawful custody" when SVPA proceedings begin, but merely that the SVP be in "custody." Former SVPA § 6601(a). When Hubbart's SVP proceedings began in 1996, he was only in custody because his 1993 parole had been revoked under former Cal. Code Regs. tit. 15 § 2616(a)(7), which permitted parole revocation if the parolee "suffer[s] from a mental disorder which substantially impairs the parolee's ability to maintain himself or herself in the community, or which makes the parolee a danger to himself/herself or to others, when necessary psychiatric treatment cannot be obtained in the community." Hubbart had not committed any crime or parole violation after his 1993 release. Section 2616(a)(7) was later invalidated by Terhune v. Superior Court, 65 Cal.App.4th 864, 878 (1998), and has since been repealed.
The SVPA was subsequently amended in 1999 to clarify that: "A petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law. This paragraph shall apply to any petition filed on or after January 1, 1996." Cal. Welf. Inst. Code § 6601(a)(2). The state appellate court did not address this statutory revision in its opinion.
1. Due Process Claim
The state court determined that the SVPA did not require Hubbart to be properly in custody to commence proceedings against him under California due process law. People v. Hubbart, 88 Cal.App.3d at 1226-31. "We do not believe an SVPA commitment resulting from unlawful custody violates due process where, as here, the unlawful custody was the result of a good faith error and where, as here, the SVP is provided with numerous procedural safeguards." Id. at 1230 ("We emphasize that . . . the lawful custody must result from a good faith error rather than negligent or intentional wrongdoing"),citing, inter alia, People v. Superior Court (Whitiey). 68 Cal.App.4th 1383, 1390 (1998); Garcetti v. Superior Court (Lyles), 68 Cal.App.4th 1105, 1117-18 (1998). Hubbart claims that since he was illegally in state custody at the time that SVPA proceedings began, his federal due process rights were violated, and the decision finding him an SVP is invalid for lack of jurisdiction.
This court does not reach the question of whether the state court properly determined the applicability of state law to the SVPA.Estelle v. McGuire. 502 U.S. 62, 67-68 (1991) (federal habeas relief not available for state court's interpretation of its own laws).
The Fourteenth Amendment requires compliance with both substantive and procedural due process before a party may be deprived of life, liberty, or property. See, e.g., U.S. v. Salerno, 481 U.S. 739, 746 (1987); U.S. Const. Amend. XIV § 1. Substantive due process "forbids the government from infringing on certain fundamental rights at all . . . unless narrowly tailored to serve a compelling government interest," Reno v. Flores, 507 U.S. 292, 302 (1993), while procedural due process requires that a party be given "the opportunity to be heard at a meaningful time and in a meaningful manner" on such matters, Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Under federal law, the state law's interpretation of the SVPA is valid unless it is "not sufficiently narrowly tailored to achieve a compelling governmental interest or [the petitioner's] commitment was not accomplished in a fair manner." Johnson v. Nelson, 142 F. Supp.2d 1215, 1228 (S.D. Cal. 2001) (examining identical illegal custody issue under SVPA, citations to Supreme Court authority omitted). This raises both substantive and procedural due process issues.
a. Substantive Due Process
Civil commitment of the mentally ill has been held to implicate "a significant deprivation of liberty that requires due process protection."Addington v. Texas, 441 U.S. 418, 425 (1979). Nonetheless, that liberty interest is "not absolute" and "may be overriden even in the civil context." Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (finding Kansas SVPA statute, which is almost identical to California's, constitutional).
Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.id. at 357 (citations omitted, citing to historical statutes permitting civil commitment from 1788 on) (emphasis added). Thus, under Hendricks. the state has a compelling interest in protecting the public from a limited subclass of dangerous and mentally ill individuals through civil confinement, as long as heightened procedural due process requirements are met. id. at 357, 360 (permitting civil confinement upon a showing of dangerousness and a mental disorder rendering the individual unable to control his or her dangerousness); see also Kansas v. Crane, 534 U.S. 407, 410 (2002) (affirming Hendricks).
The state court's decision on the lawful custody requirement is not contrary to, or objectively an unreasonable application of, federal law. Under Hendricks. the right to liberty may be curtailed as a matter of substantive due process if heightened procedural safeguards are applied to ensure that only a very narrow category of dangerous persons who are unable to control their dangerousness are properly identified and confined. 521 U.S. at 358. The SVPA thus outlines a complex procedural system to ensure that only a narrow category of persons are identified in the general inmate population and affords those persons full procedural rights to refute the claims once an SVP hearing has begun. SVPA § 6600 et seq. (requiring several layers of review before SVP process begins and affording alleged SVP full right to defense).
Because of the procedural safeguards incorporated into the statute, the state court adopted a strict statutory interpretation, holding that the term "custody" under the SVPA was not jurisdictionally restricted to lawful custody," but only if the otherwise-unlawful custody was due to an error of law. People v. Hubbart. 88 Cal.App.4th at 1228. The state court reasoned that this continued to provide substantive due process because the many layers of procedural safeguards in the SVPA system would sufficiently minimize the risk of "an erroneous liberty deprivation," such that any inmate found to be an SVP would qualify for civil commitment, even if the person was not originally lawfully in custody. Therefore, the court found that, if the state met its burden of proof at the SVP hearing, it was, on balance, in the state's interest to protect the public by committing the SVP, even if the SVP was only originally in custody due to a good faith error of law. Id at 1230. Since the only substantive due process requirements for holding persons in involuntary civil confinement is that they be proven to be dangerous to the public and unable to control their dangerousness,Hendricks. 521 U.S. at 358, the state court's finding is sufficiently narrowly tailored to achieve a compelling state interest, and thus did not contradict or unreasonably apply federal law in determining that federal due process did not require that the alleged SVP be in lawful custody at the time that SVPA proceedings began. See also Johnson, 142 F. Supp.2d at 1229-30 (finding the SVP "custody" requirement did not violate substantive federal due process).
Hubbart argues in reply that the "good faith" doctrine ofU.S. v. Leon. 468 U.S. 897, 921 (1984) does not apply to a due process analysis, citing Dickerson v. U.S., 530 U.S. 428, 441 (200p) andOregon v. Elstad. 470 U.S. 298, 306 (1986). Leon. though, holds that evidence obtained in violation of the Fourth Amendment need not be suppressed when the officer conducting the search had an genuine good faith belief that the search was conducted properly.Dickerson and Elstad hold that Fourth Amendment jurisprudence does not apply to the Fifth Amendment. Dickerson. 530 U.S. at 441; Elstad. 470 U.S. 298 at 306. This has no bearing on the due process issues raised here.
Finally, Hubbart claims that the state appellate decision violatesHicks v. Oklahoma, 447 U.S. 343 (1980). Hubbart argues that under Hicks, he has a substantive due process right in liberty interests created by state law, 447 U.S. at 346, and therefore he had a due process right under post-Terhune state law to be released from custody before SVP proceedings began. This reading of Hicks is overbroad. Hicks holds only that when a state statute requires that a jury make sentencing decisions, a criminal defendant has a substantive due process right under the state statute to have a jury do so. 447 U.S. at 346; see also demons v. Mississippi, 494 U.S. 738, 746-47 (1990) (noting limited nature of Hicks ruling). Here, where Hubbart is not a criminal defendant and no question of jury sentencing has been raised, Hicks does not apply.
As an initial matter, the state originally claimed that Hubbart failed to exhaust his claim that his equal protection rights were violated under Hicks v. Oklahoma. 447 U.S. 343 (1980). Hubbart, though, raised his claims under Hicks before the California Supreme Court in a petition for habeas corpus in May 1999. See Request for Expansion of Record Exh. 1 at 9. The California Supreme Court summarily denied all claims in that petition. Id. Exh. 2. A summary denial of a state petition for habeas relief by the California Supreme Court is sufficient to exhaust all claims presented in the petition.Harris v. Superior Court. 500 F.2d 1124, 1128-29 (9th Cir. 1974). Upon review of the expanded record, the state withdrew its argument that the Hicks claim was unexhausted. Response to Petitioner's Request at 1-2.
Even if a broader reading of Hicks is appropriate, anyHicks claim raised by Hubbart concerning Terhune would be moot, since Hubbart has already been released from prison custody to civil custody at ASH. Hubbart petitioned for habeas relief based on his illegal custody in 1994 but that petition was denied by the California Supreme Court. See People v. Hubbart. 88 Cal.App.4th at 1231.
b. Procedural Due Process
Similarly, the state court's decision is not contrary to, or objectively an unreasonable application of, federal procedural due process law. Hendricks requires that SVPs be proven to be dangerous to society and unable to control their dangerous tendencies.Hendricks. 521 U.S. at 358. Here, Hubbart was afforded the full procedural safeguards of an SVPA proceeding, where a jury unanimously found beyond a reasonable doubt that Hubbart met the Hendricks qualifications for civil commitment. Thus, even though Hubbart was originally in prison only because of an error of law, the state court did not err in finding that his procedural due process rights were nonetheless not violated under the SVPA.
2. Equal Protection Claim
Hubbart next claimed that commencing SVPA proceedings against him while he was illegally in custody violated his equal protection rights, because he is similarly situated to 1) other potential SVP parolees who complied with the terms of their parole but were not returned to prison under former Cal. Code Regs. tit. 15 § 2616(a)(7), and 2) other parolees who were illegally in custody but were granted habeas relief under Terhune.
The state court rejected both arguments. On the first argument, the court held that the state has a compelling interest to protect the public from SVPs "who can be identified while they are incarcerated," Stats. 1995 ch. 762 § 1 (SVPA statement of purpose), and therefore the state could legitimately distinguish between persons in custody and persons not in custody. People v. Hubbart, 88 Cal.App.4th at 1231. On the second, the court held that a change in the law does not warrant habeas relief, id. Hubbart claims there is no rational basis for a law distinguishing his situation from the situation of other parolees who were not illegally returned to custody, and that holding SVPA hearings against persons in custody in violation ofTerhune does not further a compelling interest of the state.
The Fourteenth Amendment of the U.S. Constitution also requires that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV § 1. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citation omitted). There are three standards applicable to equal protection analysis: strict scrutiny, heightened scrutiny, and rational basis review, id. at 440-41. Both parties agree that strict scrutiny applies here, which requires that the restriction in question be narrowly tailored to serve a compelling state interest. Plyler v. Doe, 457 U.S. 202, 217 (1982).
The state court's decision is not contrary to, or objectively an unreasonable application of, federal equal protection law. Hubbart's first argument, that he is similarly situated to potential SVPs on parole who were not erroneously returned to custody, fails. As the state court explained, the SVPA distinguishes between inmates in custody and those who are not, and thus those two groups are differently situated. "The SVPA is narrowly tailored to apply to `a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders who can be identified while they are incarcerated.'"People v. Hubbart. 88 Cal.App.4th at 1231. citing Stats. 1995 ch. 762 § 1 (legislative history of SVPA) (emphasis added). Thus, since inmates in custody are differently situated than inmates who are not, the SVPA may properly treat them differently.Plyler 457 U.S. at 217. The state court's decision on this issue is thus not contrary to, or objectively an unreasonable application of, federal equal protection law.
Hubbart's second argument, that there is no rational basis for distinguishing between him and others who were freed underTerhune. similarly fails. Under Hendricks. the state has a compelling interest in protecting the public from dangerous persons already in custody. 521 U.S. at 356-57. The state determined that it furthers that state interest to permit SVPA proceedings against inmates in custody due to a good faith error in law, as long as those inmates are given their procedural due process rights. See id. at 357. The state court's decision on this issue is not contrary to, or objectively an unreasonable application of, federal equal protection law either.
B. MDO Act and IPS Act
Hubbart next argues that his equal protection rights were violated because he is treated differently under the SVPA than he would have been under other acts permitting civil commitment of the mentally ill.
The MDO Act also permits civil commitment of mentally ill inmates upon their release from prison. Cal. Penal Code § 2962. To be committed under the MDO Act, the inmate must have "a severe mental disorder that is not in remission or cannot be kept in remission without treatment."Id. § 2962(a). A "severe mental disorder" is defined as "an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior, or that demonstrates evidence of an acute brain syndrome for which prompt remission, in absence of treatment, is unlikely." id. This definition specifically excludes personality or adjustment disorders from its scope, id. In addition, MDO patients must have received mental health care for the disorder in question within a year of their scheduled release from prison before post-prison commitment can be ordered. Cal. Penal Code § 2962(c).
The Lanterman-Petris-Short ("IPS") Act allows the state to commit individuals not otherwise in custody for psychiatric help for up to 72 hours if they pose a threat to themselves or others. Cal. Welf. Inst. Code § 5000 et. seq. Long-term commitment may be ordered if, during the previous temporary custody periods, the individual is demonstrated to pose an imminent danger to themselves or others,id. §§ 5000, 5350.
California state courts have found, and the state here agrees, that persons committed under the MDO Act and IPS Act may be considered similarly situated to those civilly committed under other acts, such as the SVPA. People v. Hubbart. 88 Cal.App.4th at 1217 (citations omitted); Answer at 12.
1. Mental Disorders and Personality Disorders
Hubbart first claims that his equal protection rights were violated because the MDO Act does not permit the commitment of individuals suffering from personality or adjustment disorders, while the SVPA does. Compare Cal. Penal Code § 2962(a) (specifically excluding personality and adjustment disorders) with SVPA § 6600(c) (defining "diagnosed mental disorder" as any "congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting a person a menace to the health and safety of others," which includes personality and adjustment disorders).
The state court held that, under Hendricks. "the terms used to describe the degree of mental disorder required for civil commitment carry no talismanic significance." People v. Hubbart. 88 Cal.App.4th at 1218, citing Hendricks. 521 U.S. at 358. Thus, since both the MDO and the SVPA "require proof of both a mental disorder and proof of dangerousness, so that confinement is limited to those who suffer from a volitional impairment rendering them dangerous beyond their control," the two statutes "do not treat the committed person differently for purposes of defining the requisite mental disorder," and therefore the SVPA did not violate the Fourteenth Amendment, Id.
The Supreme Court has held that the only requirement for civil commitment laws is that the individuals in question be shown to be dangerous to the public, and unable to control their dangerousness. Hendricks, 521 U.S. at 358. The specifics of what mental disorders are considered "dangerous" have been left for the legislature to determine, and thus will not be examined by the courts, Id. at 360 n. 3 ("when a legislature undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.").
Here, both the MDO and the SVPA require a medical showing of dangerousness and inability to control that dangerousness before civil commitment can be ordered. Therefore, though the specific medical definitions for those standards may differ between the statutes, both the MDO and the SVPA comply with Hendricks and treat disordered individuals the same for the purposes of the law. The state court's decision is thus not contrary to, or objectively an unreasonable application of, federal equal protection law on this issue.
In any event, the state is correct that in 1995 and 1999-2000, Hubbart was diagnosed with paraphilia, a mental disorder. Thus, in 1999, he could have been civilly committed under either the MDO Act or the SVPA.
2. Mental Health Care
Hubbart next claims that his equal protection rights were violated because of the mental health care requirements of the MDO and SVPA. An inmate may not be civilly committed for long-term care under the MDO unless the inmate has received psychiatric care for the disorder in question "for 90 days or more within the year prior to the prisoner's parole release." Cal. Penal Code § 2962(c). Similarly, the LPS only permits long-term commitment after mental health services are received. Cal. Welf. Inst. Code § 5300(a-c). In contrast, the SVPA does not require any prior psychiatric treatment before an SVP is civilly committed.
The state court held that this was permissible under equal protection law because inmates committed under the MDO were differently situated from inmates committed under the SVPA. This was because "involuntary commitment under the MDO Act is directly related to the crime for which the defendant was incarcerated," whereas the SVPA targets persons who pose a threat of sexual violence, even if that is not related to their current prison term. People v. Hubbart, 88 Cal.App.4th at 1221-22. The state appeals court also pointed out that the MDO Act focused on mental illnesses that can be adequately treated or cured, while the SVPA encompasses the identification of mental illnesses of any type that would cause an inmate to be an SVP, even if the inmate cannot be successfully integrated into society. The state also held that inmates committed under the SVPA are differently situated from persons committed under the LPS Act because those persons were not previously in custody, Id. at 1222.
The Fourteenth Amendment only protects against discrimination between similarly-situated parties, so differently-situated parties are not protected from disparate treatment. City of Cleburne. 473 U.S. at 439. The state court here found legitimate reasons why inmates subject to the SVPA on the one hand were differently situated from inmates under the MDO Act or IPS Act, for the purposes of pre-commitment mental health care. People v. Hubbart 88 Cal.App.4th at 1221-22. The state court thus did not err or apply an objectively unreasonable interpretation of federal law in coming to this conclusion.
3. Evidentiary Standard
Hubbart next claims that his equal protection rights were violated because the SVPA does not require a showing of current psychological symptoms, overt acts demonstrating a current mental disorder, or any objective basis for finding that the inmate is likely to reoffend. In contrast, Hubbart claims that both the MDO Act and IPS Act require that the state show proof of a recent overt act and current psychological symptoms before civil commitment can be ordered.
The state appellate court found that Hubbart had misread the MDO and LPS Acts, neither of which require proof of an overt act. People v. Hubbart, 88 Cal.App.4th at 1220, citing Cal. Penal Code § 2962(f) (MDO Act); People v. Martin. 107 Cal.App.3d 714, 726 (1980) (interpreting LPS Act). According to the state court, the only difference between the SVPA on the one hand and the MDO and LPS Acts on the other alleged by Hubbart was that the MDO and LPS Acts specifically state that any civil commitment must be based on "current" psychological symptoms. On that issue, the state appellate court found that the SVPA also required a showing of current psychological symptoms before civil commitment could be ordered.People v. Hubbart, 88 Cal.App.4th at 1219,citing Butler v. Superior Court, 78 Cal.App.4th 1171, 1180 (2000). Therefore, the statutes did not treat similarly-situated individuals differently and thus there was no equal protection violation.
Even assuming that for the purposes of this issue that SVPs are similarly situated to persons committed under the MDO Act and LPS Act, the federal courts may not review a state court's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Therefore, this court accepts the state court's interpretation of the MDO Act and IPS Act as not requiring proof of an overt act, and the SVPA as requiring a showing of current dangerousness, before civil commitment can be ordered. There is thus no showing of disparate treatment of similarly-situated individuals and therefore no violation of the Fourteenth Amendment.
C. SVPA and Due Process
Hubbart next claims that the SVPA violates his substantive due process rights because the definition of "mental disorder" is overly broad. Hubbart argues that the diagnosis of "paraphilia," for instance, is simply a label used for people who commit sex crimes and not a genuine mental condition, and that the diagnosis of an "antisocial personality disorder" is a psychological label for "criminal." Hubbart thus claims that the SVPA allows the state to civilly commit any inmate who has committed a sex crime.
The California Supreme Court ruled on this issue in Hubbart's initial appeal. It held that under Hendricks. the psychological labels placed on an SVP were irrelevant, as long as there was a showing of dangerousness and inability to control his or her own dangerousness on the part of the SVP. Hubbart v. Superior Court, 19 Cal.4th at 1155-56, citing Hendricks, 521 U.S. at 358-59.
For the purposes of exhaustion, Hubbart raised the issues again before the state appellate court, which deferred to the Supreme Court opinion based on the doctrine of stare decisis. People v. Hubbart. 88 Cal.App.4th at 1226.
Hendricks determined that civil commitment of the mentally ill does not violate substantive due process if the SVP was shown to be dangerous and unable to control his or her dangerousness.Hendricks. 521 U.S. at 358-59. This is irrespective of the medical labels used to characterize those behavioral traits, Id. at 359 (stating that medical terminology "is devoid of any talismanic significance"); 360 n. 12 (legislature may properly base civil commitment statutes on disputed issues of mental health definitions). The state court did not err or objectively misapply the law in finding that the medical diagnoses of paraphilia used to label Hendricks-defined behavioral traits was proper for the purposes of substantive due process review.
The state claims that Hubbart did not exhaust any claims he may raise under Kansas v. Crane that he was in control of his dangerousness, since Crane did not issue until Hubbart exhausted his state habeas claims. Hubbart does not appear to challenge the jury's factual finding that he was unable to control his dangerousness, but in any event, Crane merely reaffirms Hendricks's ruling that a general inability to control dangerousness must be shown before an SVP may be civilly committed, and thus does not raise any new claims to exhaust.
D. Jury Instructions
Hubbart next claims that the jury was misinstructed on the relevant burden of proof. The jury was first told that the state had to demonstrate Hubbart was an SVP "beyond a reasonable doubt," but then told in a separate instruction that an SVP is a person that is "likely . . . to engage in sexually violent behavior." Tr. at 952, 953. Hubbart claims this confused the jury into erroneously believing that they only had to find that Hubbart was more likely than not to engage in sexually violent behavior to find him to be an SVP, rather than understanding that they were required to find beyond a reasonable doubt that Hubbart was an SVP.
The state appellate court found that a reasonable jury would be "entirely capable of separating the criteria of finding it likely' that the person will engage in sexually violent criminal behavior from the standard of proof of `beyond a reasonable doubt," People v. Hubbart, 88 Cal.App.4th at 1233, and found no error.
To obtain federal habeas relief for errors in jury instructions, Hubbart must show that the improper instruction by itself so infected the entire trial that the resulting verdict violates due process.Estelle, 502 U.S. at 72 (citations omitted). "[T]he instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." id. (citations omitted). In reviewing an allegedly ambiguous instruction, the court must further determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. (citations omitted). Furthermore, even if an error is found, the court may not grant habeas relief unless there is a showing of prejudice. Prejudice may only be found if the error "had substantial and injurious effect or influence in determining the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147 (1998) (citation omitted).
Reading the record as a whole, the state court's interpretation is reasonable. There was sufficient evidence in the record for the jury to find beyond a reasonable doubt that Hubbart was likely to reoffend, and there is no reasonable likelihood that the jury misapplied the instruction so as to cause a federal constitutional violation.
E. Ex Post Facto and Double Jeopardy
Finally, Hubbart claims that the SVPA law is punitive in nature and violates the ex post facto and double jeopardy clauses of the Constitution. The California Supreme Court held that the SVPA law was not punitive, and therefore, under Hendricks. did not violate either the ex post facto and double jeopardy clauses. People v. Hubbart. 19 Cal.4th at 1170-79, citing Hendricks, 521 U.S. at 361-71.
Hubbart also raised this issue before the state appellate court, which deferred to the Supreme Court's ruling on this issue based on stare decisis. People v. Hubbart. 88 Cal.App.4th at 1226.
1. Punitive Nature of the SVPA
The California Supreme Court first reviewed the California SVPA in light of Hendricks and found that it was not punitive. The California Supreme Court noted that the California SVPA was expressly designated as non-punitive in intent, provides adequate treatment for SVPs, provides for the immediate release of an SVP if he or she can be safely released into the community, and does not demonstrate any punitive intent in its procedures that is any different from the non-punitive Kansas SVPA. Hubbart v. Superior Court, 19 Cal.4th at 1170-79. This is consistent with Hendricks. 521 U.S. at 361-71. The California Supreme Court did not err or objectively misapply the law in finding that the California SVPA is non-punitive.
Furthermore, the federal courts may not review a state court's construction of its own laws. Estelle. 502 U.S. at 62, 67-68.
2. Ex Post Facto Law and Double Jeopardy
The ex post facto clause of the Constitution forbids the application of any new punitive measure to a crime already consummated.Hendricks. 521 U.S. at 370 (citations omitted). It applies only to criminal statutes. Id. Similarly, the double jeopardy clause requires that no person be prosecuted twice for the same crime, and only applies to criminal proceedings. Id. at 369 (citations omitted).
Since the California SVPA is not punitive, it cannot violate the ex post facto or double jeopardy clauses. Hendricks, 521 U.S. at 369, 370. The California Supreme Court did not err or objectively misapply the law in finding that neither of these clauses applied.
CONCLUSION
The habeas petition is DENIED in its entirety. This order fully adjudicates the matter listed at no. 1 on the clerk's docket for this case, and all pending matters. The clerk is ordered to close the file.
IT IS SO ORDERED.
JUDGMENT
Pursuant to the Order Denying Petition for Writ of Habeas Corpus signed today, this action is DISMISSED.
IT IS SO ORDERED AND ADJUDGED.