Opinion
No. C 02-1127 CRB (PR)
August 8, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
On March 28, 2000, a California Superior Court jury found Paul Arthur Pedersen to be a sexually violent predator under the Sexually Violent Predators Act, Cal. Welf. Inst. Code § 6600 ("SVPA") and civilly committed him to Atascadero State Hospital for a period of two years. Pedersen unsuccessfully appealed to the California Court of Appeal and the Supreme Court of California, which denied review on June 27, 2001.
Pedersen then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. On July 2, 2002, the court found that the petition appeared to contain colorable claims under section 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and Pedersen has filed a traverse.
FACTUAL BACKGROUND
In 1984, Pedersen was sentenced to prison after pleading guilty to forcible oral copulation with a six-year-old girl. In 1990, he was sentenced to prison again after pleading no contest to four counts of forcible oral copulation, four counts of rape with a foreign object, one count of attempted rape, and one count of attempted sodomy. According to the victim of those offenses, he had seemed friendly when they met but later entered her hotel room uninvited, slapped her, forcibly removed her clothing, and sexually assaulted her multiple times. Over the course of his incarceration in state prison and detention at Atascadero State Hospital pending trial under the SVPA, Pedersen attempted to escape and engaged in further sexual misconduct.
Dr. Michael Maloney, a clinical psychologist, evaluated Pedersen in 1996 while Pedersen was at Avenal State Prison. Pedersen refused to be interviewed, so Dr. Maloney reviewed Pedersen's California Department of Corrections ("CDC") file, which included the prisoner's arrest and prison history. The doctor also reviewed Pedersen's medical file, which did not include any report of psychiatric treatment. Maloney diagnosed Pedersen with paraphilia, alcohol dependency, an anti-social personality disorder, and a likelihood of committing further sexually violent behavior.
Dr. Elaine Finnberg, a clinical and forensic psychologist, made a similar evaluation based on similar information. Pedersen twice refused to discuss his condition with her, so she used his records to diagnose him with pedophilia, alcohol dependence, polysubstance dependence, conduct disorder, and an unspecified personality disorder. She predicted that he had a high likelihood of reoffending.
In January of 1997, the Alameda County District Attorney filed a petition seeking to civilly commit Pedersen under the SVPA. One month later, the Alameda County Superior Court found probable cause to believe that Pedersen was a sexually violent predator and ordered him transferred to Atascadero State Hospital for treatment pending trial. A jury subsequently committed him to that hospital for two years as a sexually violent predator under the SVPA.
DISCUSSION
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 maybe "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.
B. Claims
Pedersen claims that the SVPA is constitutionally impermissible, both generally and as applied, because it violates the constitutional protections against double jeopardy and ex post facto laws and the constitutional guarantees to due process and equal protection. He also claims denial of due process due to various trial errors, including admission of prejudicial evidence and insufficiency of the evidence, and he claims that his commitment constitutes cruel and unusual punishment.
1. Confidentiality/privacy of medical records
Pedersen claims that the state trial court violated his right to confidentiality/privacy by admitting the psychologists' expert testimony at trial. The court had denied a motion to exclude or limit Dr. Finnberg's testimony on the grounds that Pedersen's medical records were confidential and privileged under state law. Pedersen maintains that this denial deprived him of a fair trial because SVPA records are confidential.
There is a general California statute protecting the confidentiality of treatment records, see Cal. Welf. Inst. Code § 5328, but, as the California Court of Appeal noted, special acts can provide exceptions to a statute's broad rules. People v. Pedersen, No. A090871, slip op. at 5 (Cal.Ct.App. Apr. 18, 2001) (citing People v. Watson, 30 Cal.3d 290, 295 (1981)) (Resp't Ex. 4). According to section 6603 of the SVPA, evaluations used to determine if the prisoner is a sexually violent predator "shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order." Cal. Welf. Inst. Code § 6603(c)(1). The California Court of Appeal concluded that if courts did not follow this section and admit such records, the SVPA would fail in its intended function. People v. Pedersen, slip op. at 5. Moreover, under Evidence Code section 1024, a psychologist can violate confidentiality with his or her patient if the doctor reasonably believes that the patient is dangerous to someone else and the disclosure is necessary to prevent that danger. Dr. Maloney and Dr. Finnberg both concluded that Pedersen was dangerous, so under California law, it was appropriate to admit their testimony into evidence at his trial. See id. at 6-7.
Pedersen is not entitled to federal habeas relief on his confidentiality/privacy claim because the California Court of Appeal's rejection of the claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent; nor was the objection based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). There is no clearly established Supreme Court precedent recognizing a federal right to confidentiality/privacy of medical records at civil commitment proceedings and, to whatever extent California has created a liberty interest in such a right, the California Court of Appeal's determination that Pedersen's state rights to confidentiality/privacy were not violated is binding on this court. See Hicks v. Feiock, 485 U.S. 624. 629 (1988) (determination of state law by state appellate court is binding in federal habeas action); see also Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994) (federal habeas relief not available for violations of state law or for alleged error in the interpretation or application of state law). The California Court of Appeal's determination was reasonable, which means that it must stand. See Early v. Packer, 123 S.Ct. 362, 366 (2002).
2. Admission of other offenses
Pedersen claims he was denied a fair trial because the state trial court erred by allowing the experts to mention two offenses or incidents that did not qualify as prior sexually violent convictions. Unfortunately for the petitioner, his federal claim attacking the admission of this testimony is procedurally defaulted because he failed to object to its admission at trial. As the California Court of Appeal put it:
Appellant did not raise these objections to the experts' testimony in the trial court. As we have already discussed, he objected to their review of the records of his psychiatric treatment while confined at Atascadero pending trial, but he did not object on any ground to their mention of these prior incidents, either during the hearing on his in limine motions or at trial when they testified. The absence of a specific objection waives any claim of error.People v. Pedersen, slip op. at 7-8 (citation omitted).
In order to find Pedersen's claims procedurally defaulted, the court must determine whether an "independent and adequate state [procedural] ground" exists to support the state court's procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9th Cir. 2002). To constitute an adequate procedural bar, a state court procedural rule must be "clear, consistently applied, and well established at the time of the petitioner's purported default." Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002) (citation omitted).
The Ninth Circuit has consistently held that California's contemporaneous objection rule, which requires objection at time of trial to preserve an issue for appeal, is an adequate procedural bar. See Chein v. Shumsky, 323 F.3d 747, 751-52 (9th Cir. 2003); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999); Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981). The California Court of Appeal's invocation of California's contemporaneous objection rule here accordingly precludes federal review of Pedersen's constitutional challenge to the admission of the experts' testimony concerning the "non-qualifying offenses." Pedersen can only prevail on that challenge if he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). He makes no such showing. Pedersen's claims challenging the admission of testimony concerning the "non-qualifying offenses" is barred from federal habeas review.
The Ninth Circuit's decision in Melendez v. Plieler does not contradict this line of cases. Chein, 323 F.3d at 752. In Melendez, the court simply recognized that "`there are no California cases holding that the [contemporaneous objection] rule is applied consistently in situations in which an objection is made but the trial court in its discretion declines to consider it on the merits.'" Id. (quotingMelendez, 288 F.3d at 1125) (sic and emphasis in original).
Pedersen's federal claim challenging the experts' testimony concerning the non-qualifying offenses is further barred from federal habeas review because Pedersen did not object to its admission on constitutional grounds. See Chein, 323 F.3d at 751-52 (finding claim not preserved for federal habeas review because objection made at trial was not based on the constitutional issue later asserted).
3. Insufficiency of the evidence
Pedersen claims that there is insufficient evidence that his prior offenses fit the SVPA's definition of "predatory." The claim is without merit because California law has established that the predatory nature of previous offenses is not a necessary element in evaluating the SVPA's applicability.
To sustain a commitment under the SVPA, the state must prove beyond a reasonable doubt that the offender has been convicted of a sexually violent offense against two or more victims and safety of others because it is likely that he will engage in sexually violent criminal behavior. Cal. Welf. Inst. Code §§ 6600(a)(1) 6604; Hubbart v. Superior Court, 19 Cal.4th 1138, 1145 (1999). The existence of the requisite prior qualifying convictions "may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Health." Cal. Welf. Inst. Code § 6600(a)(3).
In People v. Torres, 25 Cal.4th 680 (2001), the Supreme Court of California held that, even if certain provisions of the SVPA suggest that the CDC or trial court must determine whether the prior convictions were predatory in nature, "it is clear that the Legislature has not chosen to effectuate this purpose by requiring the trier of fact at the trial to determine whether the defendant's predicate felonies involved predatory behavior." 24 Cal.4th at 686. Pedersen's federal claim must be rejected because the final arbiter of California law, the Supreme Court of California, has determined that the SVPA does not require the trier of fact to determine if the petitioner is a predator. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (determination of state law by state appellate court is binding in federal habeas action).
Pedersen is not entitled to federal habeas relief on his sufficiency of the evidence claim because the state courts' rejection of the claim was not contrary to and did not involve an unreasonable application of, clearly established Supreme Court precedent. Moreover, it did not involve an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d).
Pedersen's assertion that the improper admission of testimony that he raped his spouse in 1979 somehow affected the sufficiency of the evidence does not compel a different result. In view of all of the properly admitted evidence showing that Pedersen was a sexually violent predator under the SVAP (including his 1983 conviction for forcible oral copulation with a child and 1990 conviction for multiple violent sexual offenses against a woman in a hotel), it simply cannot be said that the admission of testimony that he raped his spouse in 1979 had a substantial and injurious effect in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
4. Equal Protection
Pedersen claims that the SVPA violates his right to equal protection under the United States Constitution because the Act applies only to inmates who are about to complete a prison term; it does not apply to other equally dangerous and mentally ill inmates not about to be released or to persons out on parole or probation. The claim is without merit.
"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) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).
The California Court of Appeal rejected Pedersen's equal protection claim on the ground that prisoners covered by the SVPA are not similarly situated to those equally dangerous and mentally ill prisoners not covered by the Act:
Appellant's failure to demonstrate that these groups are similarl situated defeats the claim. It is obvious that regardless of their mental condition, inmates who are not about to be released do not present an immediate danger to the public; thus they are not similarly situated to those who are the focus of the SVPA. Parolees presumably would not have been released on parole if they qualified for commitment under the SVPA. Persons granted probation are almost certainly not dangerous within the meaning of the SVPA, as the likelihood that a defendant will be a danger to others if not incarcerated is one of the factors a court must consider when deciding to grant or deny probation. (See Cal. Rules of Court, rule 414(b)(8),) The Legislature did not violate equal protection principles by limiting the SVPA to the narrowly defined group of individuals it considered to be extremely dangerous.People v. Pedersen, slip op. at 12. The California Court of Appeal's rejection of Pedersen's equal protection claim was not contrary to, or involve an unreasonable application of, clearly established Supreme Court precedent. Nor did it result in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). Pedersen is not entitled to federal habeas relief on this claim.
5. Double jeopardy and ex post facto
Pedersen claims that the SVPA is punitive, violates the Ex Post Facto Clause, and offends the principle of double jeopardy. The California Court of Appeal correctly rejected the claims on the basis of Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250 (2001); andHubbart v. Superior Court. 19 Cal.4th 1138 (1999). See People v. Pedersen, slip op. at 12-13.
In Kansas v. Hendricks, the Supreme Court of the United States held that civil commitment under Kansas's Sexually Violent Predator Act, based upon past conduct for which the offender has been convicted and punished, does not violate the Double Jeopardy or Ex Post Facto Clauses because the Kansas statute "does not establish criminal proceedings" and involuntary confinement thereunder "is not punitive." 521 U.S. at 369. The first question considered by the Court was "whether the legislature meant the statute to establish `civil' proceedings. If so, we ordinarily defer to the legislature's stated intent." Id. at 361. The Court found such a legislative intent, adding: "Although we recognize that a civil label is not always dispositive, we will reject the legislature's manifest intent only where a party challenging the statute provides 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. (citations and internal quotation marks omitted). Hendricks did not "satisfy this heavy burden." Id. at 361.
The Court specifically reasoned that where a state has disavowed any punitive intent; limited civil confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards, directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, it cannot be said that the state has acted with punitive intent. Hendricks, 521 U.S. at 368-69.
In Seling v. Young, the Court held that if a commitment statute is civil according to the criteria in Hendricks, the statute "cannot be deemed punitive `as applied' to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release." 531 U.S. at 267. "The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute." Id. at 263.
In Hubbart v. Superior Court, the Supreme Court of California held that the SVPA does not violate the Ex Post Facto Clause because, like the Kansas statute in Hendricks, the Act does not establish criminal proceedings and is not punitive. 19 Cal.4th at 1179. Like the Supreme Court in Hendricks, the state high court found it significant that, in enacting the SVPA, the California legislature expressly disavowed any punitive purposes; described the law as establishing "civil commitment" proceedings; stated that qualifying defendants are not to be viewed "as criminals, but as sick persons"; and placed the SVPA in the state's Welfare and Institutions Code in the section dealing generally with the care and treatment of the mentally ill. These factors, the court concluded, display intent to create "a civil commitment scheme designed to protect the public from harm." Id. at 1171 (quoting Hendricks, 521 U.S. at 361).
The Supreme Court of California's decision in Hubbart does not involve an unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254 (d)(1). California's SVPA is strikingly similar to Kansas's statutory scheme upheld by the Supreme Court in Hendricks. Accord Seling, 531 U.S. at 260 (construing and upholding as a civil rather than punitive process Washington's sexually violent predator statutory scheme because the Washington Act is strikingly similar to the Kansas Act upheld in Hendricks); Munoz v. Kolender, 208 F. Supp.2d 1125, 1134-35 (S.D. Cal. 2002) (noting that California's SVPA procedures and confinement are civil in nature rather than criminal and punitive because, among other reasons, California's statutory scheme is similar to Kansas's and Washington's). For essentially the same reasons, the California Court of Appeal's decision in the instant case-rejecting Pedersen's claim that the punitive nature of the SVPA violates double jeopardy and ex post facto principle-does not involve an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254 (d)(1). Pedersen sets forth no clear proof that the SVPA is so punitive in either purpose or effect as to negate California's intention to deem it civil. Seling, 531 U.S. at 261; Hendricks, 521 U.S. at 361.
Pedersen is not entitled to federal habeas relief on his claim that the punitive nature of the Act violates various constitutional provisions because it cannot be said that the state courts' rejection of the claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003) (discussing 28 U.S.C. § 2254 (d)(1)).
6. Cruel and unusual punishment
Pedersen claims that the SVPA constitutes cruel and unusual punishment because it provides for potential lifetime confinement of those who may be unamenable to treatment and for whom treatment need not be even potentially successful. The claim is without merit.
The California Court of Appeal rejected Pedersen's claim on the basis of Hendricks and Hubbart. See People v. Pedersen, slip op. at 13-14. InHendricks, the Supreme Court of the United States made clear that it has "never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." 521 U.S. at 366. It would be of little value to "obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions." Id. (citations omitted); accord Hubbart, 19 Cal.4th at 1164-66 (finding that language in Hendricks "strongly suggests that there is no broad constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired"). Pedersen is not entitled to federal habeas relief on his cruel and unusual punishment claim because the California Court of Appeal's rejection of the claim was not contrary to and did not involve an unreasonable application of clearly established Supreme Court precedent.See Andrade, 123 S.Ct. at 1172 (discussing 28 U.S.C. § 2254 (d)(1)).
7. Burden of proof and timeliness of petition for commitment
Under section 6604 of the SVPA, the fact finder must determine whether the requirements for classification as a sexually violent predator have been established "beyond a reasonable doubt." Among those requirements, the prisoner must suffer from "a diagnosed mental disorder that makes the person a danger . . . in that it is likely that he or she will engage in sexually violent criminal behavior." Cal. Welf. Inst. Code § 6600(a)(1). Pedersen claims that the incorporation of the term "likely" into the definition of a sexually violent predator violates due process because it allows commitment based on a "preponderance of the evidence" standard rather than a "beyond a reasonable doubt" standard.
The California Court of Appeal rejected Pedersen's claim on the basis of People v. Buffington, 74 Cal.App.4th 1149 (1999). See People v. Pedersen, slip op. at 15. In Buffington, the state appeltate court held that the SVPA's "likely [to] engage in sexually violent criminal behavior" requirement did not violate due process or unconstitutionally circumvent or dilute the statute's reasonable doubt standard because that phrase is merely "a prediction of dangerousness that the trier of fact must find has been proved beyond a reasonable doubt." 74 Cal.App.4th at 1153-55.
The California Court of Appeal's determination that the term "likely" does not circumvent or dilute the SVPA's overall requirement that dangerousness be proved "beyond a reasonable doubt" is at least reasonable, which means that it must stand scrutiny under 28 U.S.C. § 2254 (d). See Early v. Packer, 123 S.Ct. 362, 366 (2002). Pedersen is not entitled to federal habeas relief on his burden of proof claim.
Pedersen also claims that he was denied procedural due process because the petition seeking to commit him under the SVPA was filed after his scheduled release date. The record shows that Pedersen filed a motion to dismiss the petition arguing, as he does here, that CDC failed to take action within mandatory time limits and that he was not lawfully in custody at the time of the filing of the petition. The Alameda County Superior Court denied the motion, implicitly finding that the procedure used-an initial three-day hold, followed by a probable cause hearing before the Board of Prison Terms, a subsequent 45-day hold and then the filing of the petition-was lawful under California law. That determination of state law is binding on this court. Even if there was a minor legal error in the "chain of custody" leading to the filing of the petition for commitment, California courts have now made it clear that such error does not defeat jurisdiction to file the petition because the SVPA only requires "custody," not "lawful custody," before a petition is filed. See, e.g., People v. Hedge, 72 Cal.App.4th 1466, 1478-80 (1999);Garcetti v. Superior Court, 68 Cal.App.4th 1105 (1998).
This interpretation of the SVPA is neither "contrary to" nor "an unreasonable application of" clearly established Supreme Court precedent. See Johnson v. Nelson, 142 F. Supp.2d 1215, 1229-30 (S.D. Cal. 2001) (concluding that federal jurisprudence addressing due process protections supplies ample basis for a finding that the state courts' interpretation of the SVPA requiring only "custody" is narrowly tailored to serve a compelling state interest).
Pedersen is not entitled to federal habeas relief on his claim of untimely filing of the petition/unlawful custody because it cannot be said that the state courts' rejection of the claim was contrary to or involved an unreasonable application of clearly established Supreme Court precedent. In addition, it did not involve an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d); accord Johnson v. Nelson, 142 F. Supp.2d 1215, 1227-30 (S.D. Cal. 2001) (rejecting similar claim under 28 U.S.C. § 2254 (d)).
CONCLUSION
For the aforementioned reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
IT IS SO ORDERED.