Hatton v. Bonner
| Decision Date | 08 October 2003 |
| Docket Number | No. 02-15586.,02-15586. |
| Citation | 356 F.3d 955 |
| Parties | David Clinton HATTON, Petitioner-Appellant, v. Edward BONNER, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Rothschild and M. Bradley Wishek, Rothschild, Wishek & Sands, Sacramento, CA, for the petitioner-appellant.
Janet E. Neeley, Deputy Attorney General, State of California, Sacramento, CA, for the respondent-appellee.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Chief Judge, Presiding. D.C. No. CV-00-01403-WBS.
Before GRABER, WARDLAW, and BYBEE, Circuit Judges.
ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION
The opinion filed October 8, 2003, slip opinion at 14955 and published at 346 F.3d 938 (9th Cir.2003), is amended by the opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.
The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.
We are called on to decide whether the state court's decision, upholding the application of California's sex-offender registration statute to Petitioner David Hatton, involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts. Because we answer that question "no," we must affirm the district court's denial of habeas corpus relief.
In 1981, Petitioner was convicted of assault with intent to commit oral copulation, in violation of California Penal Code § 220. He was sentenced to a four-year prison term and was released in 1983.
California's sex-offender registration statute requires persons convicted of various sex offenses to register with local law enforcement authorities. Cal.Penal Code §§ 290, 290.01. As of 1983, assault with intent to commit oral copulation under California Penal Code § 220 was not among the offenses requiring registration.1 After the California Court of Appeal pointed out this inexplicable omission in People v. Saunders, 232 Cal.App.3d 1592, 284 Cal. Rptr. 212, 215 (1991), the California legislature amended § 290 to add assault with intent to commit oral copulation to the list of offenses requiring registration. 1992 Cal. Legis. Serv. ch. 197, § 1 (A.B.2297) (West); 1993 Cal. Legis. Serv. ch. 555 (A.B.191) (West).
In 1996, the California legislature significantly amended the registration law by adding public notification provisions. The 1996 amendments authorized limited public release of information about registered offenders whom law enforcement officials consider a threat to the public. 1996 Cal. Legis. Serv. ch. 908, § 2(m)-(p) (A.B.1562) (West) (now codified at Cal.Penal Code § 290.45).
Although assault with intent to commit oral copulation was not added to the list of offenses requiring registration under § 290 until 1993, shortly before his release in 1983, Petitioner was presented with a document informing him that he had to register as a sex offender. The document was entitled "NOTICE OF FELONY REGISTRATION REQUIREMENT" and, under the heading "Probation or Parole — Specify Conditions Requiring Registration," it stated that Petitioner was "REQUIRED TO REGISTER UNDER SECTION 290 P[ENAL] C[ODE]." Petitioner signed his name under an acknowledgment of the duty to register, which stated:
I understand that as a result of the conviction and/or commitment described herein I am required to register immediately or within 30 days of coming into any OTHER city, county, or city and county of California with the chief of police of the city, or the sheriff of the county, if unincorporated area, in which I reside or am temporarily domiciled for such length of time. Upon changing my residence address I understand that I shall inform in writing, within 10 days, the law enforcement agency with which I last registered of my new residence address. I ACKNOWLEDGE RECEIPT OF A COPY OF THIS FORM.
(Emphasis added.)
On July 29, 1983, thirteen days after his release on parole, Petitioner completed the registration form required by § 290. In the box titled "PROBATION OR PAROLE — FOR THIS OFFENSE SPECIFY CONDITIONS REQUIRING REGISTRATION," the word "Register" was typewritten. However, the registration form also provided, in fine print near the bottom:
WHO MUST REGISTER 290 P.C.: Any person determined to be a mentally disordered sex offender or convicted under any of the following statutes: Penal Code Sections 220 (), 266, 267, 268, 285, 286, 288, 288a, 647a.1, 261.2. 261.3, 647(a), 647(d), 314.1, 314.2 and 272 ().
(Emphasis added.) Thus, this portion of the registration form correctly reflected that § 290's registration requirement applied to only two of the four offenses then included in § 220 — that is, assault with intent to commit rape or sodomy, but not assault with intent to commit oral copulation.
Yet, despite this information in fine print, Petitioner re-registered on November 9, 1983, and again on March 6, 1985, when he changed his address. Records of the California Department of Justice show that the Department's last contact with Petitioner was in 1994, when it received notification that Petitioner was moving to Texas.
In the fall of 1996, Petitioner returned from Texas to Placer County, California. On February 14, 1997, county sheriff's deputies went to Petitioner's residence to investigate his possible involvement in a suspicious incident. As a result of this visit and a further investigation, the deputies learned that Petitioner had moved to Placer County between October and December 1996. The Placer County Sheriff's Department determined that Petitioner had failed to re-register as a sex offender upon his return to California, and they therefore charged him with violating § 290.
Petitioner was convicted. He appealed, raising the ex post facto and due process claims that he brings before us. His conviction was affirmed by the California Court of Appeal, and his petition for review was denied without comment by the California Supreme Court.
Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California. The district court denied the petition but issued a certificate of appealability. This timely appeal followed.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a petition for writ of habeas corpus 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); see Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173-74, 155 L.Ed.2d 144 (2003) ().
We review de novo a district court's denial of a habeas corpus petition. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000).
The offense of which Petitioner was convicted in 1981 was not included in the list of offenses for which § 290 mandated registration until 1993. Petitioner makes two arguments based on that sequence of events.
First, he argues that § 290, as applied to him, violates the Ex Post Facto Clause. U.S. Const. art. I, § 9, cl. 3. He asserts that, when the California legislature amended § 290 in 1993 to include assault with intent to commit oral copulation, the legislature retroactively increased the punishment for his 1981 conviction.
Second, Petitioner argues that § 290 violates the Due Process Clause as applied to him. U.S. Const. amend. XIV, § 1. Specifically, he contends that he received insufficient notice of the need to register because fine print on the registration form excluded his offense from the list of crimes to which § 290 applied.
The California Court of Appeal found neither of Petitioner's arguments persuasive. We will consider each argument in turn and measure it against the AEDPA standard.
The United States Supreme Court recently upheld Alaska's sex-offender registration statute against an ex post facto claim. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Under Smith, we must undertake a two-step analysis to determine whether § 290 constitutes retroactive punishment forbidden by the Ex Post Facto Clause. Id. at 1146-47; see also Young v. Weston, 344 F.3d 973, 977 (9th Cir.2003) (); Russell v. Gregoire, 124 F.3d 1079, 1086-87 (9th Cir.1997) ().
First, we must decide whether the intent of the California legislature in enacting § 290 was to impose punishment on sex offenders. See Smith, 123 S.Ct. at 1146-47. If the answer is "yes," our analysis ends because retroactive application of the statute would constitute an ex post facto violation. Id. at 1147.
If, however, the intent of the California legislature was to enact a nonpunitive and civil regulatory regime, we move to the second step...
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