Carty v. Nelson

• Decision Date: 17 October 2005
• Docket Number: No. 03-56766.,03-56766.
• Citation: 426 F.3d 1064
• Parties: Jimmy D. CARTY, Petitioner-Appellant, v. Craig NELSON, Warden; Bill Lockyer, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1064

426 F.3d 1064

Jimmy D. CARTY, Petitioner-Appellant, v. Craig NELSON, Warden; Bill Lockyer, Attorney General, Respondents-Appellees.

No. 03-56766.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2005.

Filed October 17, 2005.

Matthew D. Brown, CJA, San Francisco, CA (argued); Christopher R.J. Pace, Cooley Goodward LLP, San Diego, CA (briefed), for the petitioner-appellant.

Bradley A. Weinreb, Deputy Attorney General, San Diego, CA, for the respondents-appellees.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-01-00721-IEG/JFS.

Before: PREGERSON, FISHER, and BYBEE, Circuit Judges.

PREGERSON, Circuit Judge:

In April 1991, California prisoner Jimmy D. Carty ("Carty") pled guilty to seven counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14, in violation of California Penal Code section 288(a). Carty was sentenced to state prison for a term of sixteen years. Eight years later — a day before Carty was to be released on parole — the San Diego County District Attorney filed a civil commitment petition against Carty pursuant to California's Sexually Violent Predators Act ("SVP Act").

Consequently, in June 1999, a civil commitment hearing was conducted in San Diego Superior Court to determine whether Carty was a sexually violent predator ("SVP") who required civil commitment for a period of two years. After this hearing, Carty was classified as an SVP likely to engage in sexually violent criminal behavior against others, and ordered civilly committed in Atascadero State Hospital.

Carty appealed his June 1999 civil commitment to the California Court of Appeal and the California Supreme Court. Both courts ruled against Carty.

In May 2001, near the end of Carty's first civil commitment term, the San Diego County District Attorney petitioned for Carty's re-commitment. The District Attorney was successful in re-committing Carty to a second two-year term in October 2001.

In April 2003, while Carty was serving his second term, Carty filed a pro se habeas petition under 28 U.S.C. § 2254 in federal district court challenging his initial June 1999 civil commitment. Carty contended that his Sixth Amendment right to confront witnesses and his Fourteenth Amendment due process rights were violated at the June 1999 commitment hearing because the superior court relied on inadmissible hearsay consisting of victim statements contained in Carty's probation report.

In May 2003, while review of Carty's federal habeas petition was pending in district court, the San Diego County District Attorney initiated another civil commitment proceeding in state court to re-commit Carty for a third term. This time, the District Attorney was unsuccessful in re-committing Carty. Specifically, in October 2003, a jury found that Carty should no longer be civilly committed under the SVP Act. Accordingly, the superior court ordered Carty to be immediately released from civil commitment.

Shortly before his release from civil commitment, the district court denied Carty's pending habeas petition with prejudice. Carty now appeals the district court's order denying his habeas petition. We have jurisdiction under 28 U.S.C. § 2253(a), and as discussed below, we deem the controversy live, reach the merits, and affirm.

I. FACTS AND PROCEDURAL HISTORY

A. California's Sexually Violent Predators Act

California's SVP Act requires that a prisoner who was previously convicted of certain enumerated violent sex crimes be evaluated by the Department of Corrections, the Board of Prison Terms, and the California Department of Mental Health six months before being released from prison to determine whether the prisoner may be a potential SVP. See Cal. Welf. & Inst.Code § 6601(a)(1). This screening involves review of the prisoner's background and criminal record. See id. § 6601(b). If the Department of Corrections concludes that the prisoner is likely to be an SVP, the prisoner is referred to the Department of Mental Health for a "full evaluation" to determine whether the prisoner meets the other criteria in the SVP Act. See id.

This full evaluation must be conducted in accordance with a standardized assessment protocol by at least two practicing psychiatrists or psychologists designated by the Department of Mental Health. See id. § 6601(c) & (d). The two evaluators must agree that the prisoner has a mental disorder and is dangerous within the meaning of section 6600 for proceedings to go forward under the SVP Act.¹ See id. § 6601(d). If the two evaluators agree that the prisoner should be civilly committed under the SVP Act, the Department of Mental Health will then transmit a request for a petition for commitment to the county in which the alleged SVP was convicted. At that time the Department of Mental Health will also send the county copies of the psychiatric evaluations prepared by the evaluators and any other supporting documentation. See id. § 6601(d), (h), & (i).

"If the county's designated counsel [either the district attorney or county counsel] concurs with the recommendation, a petition for commitment shall be filed in the [county's] superior court...." Id. § 6601(i). Once the petition for civil commitment is filed in the superior court by the county's designated counsel, a superior court judge will then hold a "probable cause hearing." Id. § 6602(a). At this hearing, the prisoner is entitled to assistance of counsel.

The superior court judge will determine at the hearing whether there is probable cause to believe that the prisoner is likely to engage in sexually violent, predatory criminal behavior after being released from prison. See id. If the judge determines there is no probable cause, the judge shall dismiss the petition for commitment. If, however, the judge determines that probable cause exists, the judge must order the prisoner to remain in custody pending a civil commitment trial to determine whether the prisoner is, by reason of a diagnosed mental disorder, a danger to the health and safety of others and likely to engage in acts of sexual violence upon release from prison.

Despite the fact that the commitment trial is civil in nature, the prisoner is nonetheless "entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." Id. § 6603. If the prisoner is indigent, then she or he is entitled to court-appointed counsel and court-appointed experts. If the prisoner or county's designated counsel do not demand a jury trial, a bench trial will be conducted. Id. § 6603(e). The court or jury shall determine whether, beyond a reasonable doubt, the prisoner is a sexually violent predator. Id. § 6604. A unanimous verdict is required in any jury trial. Id. § 6603(f). "If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced." Id. But if the court or jury determines following a trial that the person is a sexually violent predator, then the prisoner is deemed an SVP and civilly committed for two years in a facility designated by the California Department of Mental Health. See id. § 6604. The SVP is then committed to the custody of the Department of Mental Health "for appropriate treatment and confinement in a secure facility...." Id.

An SVP may not be civilly committed for more than two years unless a new petition for commitment is filed and a subsequent re-commitment is obtained pursuant to the same safeguards detailed above. See id. Once every year, the civilly committed SVP has a right to a "show cause" hearing to determine whether her or his condition has changed such that she or he no longer poses a danger to others. See id. § 6605. If the superior court at the show cause hearing determines that the SVP's condition has changed, then another hearing is held by the court to permit the State to show that the SVP remains a danger to others. Again, if the prisoner or county's designated counsel do not demand a jury trial, a bench trial will be conducted to determine whether the SVP remains a danger to others. If the court or jury finds in favor of the civilly committed SVP, then the person must be released. If, however, the court or jury finds in favor of the State, the person is recommitted for two more years. See id. §§ 6605, 6608.

B. Carty's Underlying Criminal Offenses and Subsequent Civil Commitment as an SVP

In April 1991, Carty entered into a plea agreement on seven counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14, in violation of California Penal Code section 288(a). Carty admitted that two of the offenses involved sexual contact against his sons. Carty's guilty plea on the remaining five counts was entered pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970). This meant that Carty did not admit the specific details about his conduct on the remaining five counts when he pled guilty. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 718, 830 P.2d 747 (1992) (stating that a plea proffered under People v. West is a plea of nolo contendere that does not admit a factual basis for the plea). After Carty entered his guilty plea, a probation report was prepared. The probation report relied on and summarized police reports that contained statements from the victims and their parents. Carty was sentenced to sixteen years in state prison.

In April 1999, one day before Carty was to be released on parole, the San Diego County District Attorney filed a petition with the San Diego Superior Court to have Carty civilly committed for a period of two years under the SVP Act. To...