Johnson v. Nelson
| Decision Date | 10 April 2001 |
| Docket Number | No. 00-CV-1941 W (AJB).,00-CV-1941 W (AJB). |
| Citation | 142 F.Supp.2d 1215 |
| Court | U.S. District Court — Southern District of California |
| Parties | Samuel M. JOHNSON, Petitioner, v. Craig NELSON, Respondent. |
Bill Lockyer, Attorney General of the State of California, Robert Anderson, Acting Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany, Supervising Deputy Attorney General, Bradley A. Weinreb, Deputy Attorney General, San Diego, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On September 28, 2000 Petitioner Samuel M. Johnson ("Petitioner"), proceeding pro se, submitted this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his civil commitment to the California Department of Mental Health under the Sexually Violent Predator Act ("SVP Act"), California Welfare and Institutions Code § 6600 et seq.
On February 22, 2001 United States Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation ("Report") describing the reasons why Petitioner's habeas petition should be denied with prejudice. The parties were permitted to file objections to the Report, if any, no later than April 4, 2001. To date, no party has submitted objections to the Report nor requested additional time in which to do so.
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989); United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. See Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983)).
Having read and considered the papers submitted, including Petitioner's motion, the Court concludes that the Report presents a well reasoned analysis of the issues raised by the parties. The Magistrate Judge correctly determined that: (1) Petitioner presented a cognizable federal claim; (2) there was sufficient evidence of substantial sexual conduct; and (3) the trial court properly had jurisdiction over the SVP petition.
In light of the foregoing, the reasoning and findings contained in the Report are hereby ADOPTED in their entirety. For the reasons stated in the Report, which are incorporated herein by reference, the Court DISMISSES with prejudice Petitioner's writ of habeas corpus. The Clerk of Court shall close the district court case file.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
On April 19, 1999, Petitioner Samuel M. Johnson was civilly committed to the California Department of Mental Health under the authority of California Welfare and Institutions Code § 6600 et seq., commonly known as the Sexually Violent Predator Act ("SVP Act"). (Lodgment 9 at 0122-0124.) Johnson, who is proceeding pro se, now challenges that commitment with a habeas corpus action, pursuant to 28 U.S.C. § 2254. Specifically, he claims: (1) the California court's finding that mere touching of genitals is sufficient evidence of substantial sexual contact so as to support his commitment under the SVP Act violates his Due Process rights under the Fourteenth Amendment to the United States Constitution; (2) the trial court lacked jurisdiction over the SVP petition because Johnson was not in lawful custody at the time the SVP petition was filed; and, (3) the state court erroneously interpreted the SVP Act to provide that unlawful custodial status shall not be a basis to dismiss an SVP petition if the unlawful custody is the result of a good faith mistake of law or fact, in violation of his Due Process rights under the Fourteenth Amendment to the United States Constitution. (See Petition at 5-7.) (hereinafter "Pet.")
This Report and Recommendation is submitted to United States District Judge Thomas J. Whelan, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. The Court recommends that the Petition be denied and the case dismissed with prejudice for the reasons stated below.
Johnson has an extensive criminal history, but only two of his prior convictions are relevant to this case. In 1975 and again in 1982, Johnson was convicted of a lewd act on a child in violation of California Penal Code § 288(a) and sentenced to prison. (Lodgment 9 at 0002-03.) After his release from custody, Johnson was convicted of petty theft with a prior conviction, a violation of California Penal Code §§ 484/666, was sentenced to five years in custody, and eventually released on parole. (Id. at 0002.) Johnson was rearrested on a parole violation on February 23, 1995. His parole was revoked, and a new release date of February 23, 1996 was set. (Id. at 0037-38; 0051.) On February 23, 1996, however, the Department of Corrections placed a hold on Johnson's release under the authority of California Penal Code § 2616(a)(7). (Id. at 0037; 0050.) A parole revocation hearing was scheduled for March 18, 1996. (Id. at 0038.) Johnson's parole was subsequently revoked after a finding that he was a danger to himself and others due to a mental disorder. (Id. at 0056-61.) He was referred for psychiatric treatment, and a new parole release date was set for February 22, 1997. (Id.)
On January 7, 1997, the San Diego County District Attorney filed a Petition for Involuntary Treatment of a Sexually Violent Predator. The SVP petition alleged that Johnson had been convicted of two sexually violent offenses (his 1975 and 1982 § 288(a) convictions) against two or more victims, and that he had a diagnosed mental disorder which made it likely he would engage in sexually violent criminal behavior if released from custody. (Id. at 001-04.) Johnson filed a demurrer to the petition. The trial court sustained the demurrer and dismissed the petition on March 4, 1997. (Id. at 0037.) The District Attorney then appealed the trial court's dismissal to the California Court of Appeal for the Fourth District. The Fourth District ultimately reversed the trial court's dismissal of Johnson's SVP Petition in accordance with its previous decision in People v. Hedge, 56 Cal.App.4th 773, 65 Cal. Rptr.2d 693 (1997) (Hedge I) (which found California's SVP Act constitutional). Johnson's SVP petition was therefore reinstated on March 19, 1998, and the case proceeded. (Lodgment 9 at 0037.)
While proceedings in Johnson's reinstated SVP petition were pending, the California Court of Appeal for the Fourth District decided Terhune v. Superior Court (Whitley), 65 Cal.App.4th 864, 76 Cal.Rptr.2d 841 (1998) ("Whitley I"). Whitley I found that California Penal Code § 2617(a)(7) did not give the Board of Prison Terms the authority to hold a prisoner who had completed a determinate sentence beyond his release date solely because he has a mental disorder and is in need of psychiatric treatment. Id. at 880, 76 Cal.Rptr.2d 841. On October 28, 1998, Johnson filed a Motion to Dismiss his reinstated SVP Petition and a Petition for Writ of Habeas Corpus alleging that, among other things, the trial court lacked jurisdiction to proceed on the SVP Petition under Whitley I because Johnson was not in lawful custody at the time the original petition was filed. (Lodgment 9 at 0035-63.) The trial court denied the motion and set a trial date. (Id. at 0127; 0136.) Johnson filed a second motion to dismiss on April 8, 1999, as a motion in limine. The April 8 motion alleged that Johnson's 1982 prior conviction could not operate as a predicate offense for the SVP petition because it did not involve "substantial sexual conduct" with a child under the age of 14 as required by the SVP statute. (Cal. Welf. & Inst.Code § 6600(b).) Johnson argued that his 1982 conviction involved only touching, not masturbation, and thus the conviction did not constitute "substantial sexual conduct" under § 6600(b). (Lodgment 9 at 0064-0069.) Johnson raised no dispute as to the validity of his 1975 prior.
After lengthy consideration, the trial court also denied Johnson's second motion to dismiss. (Id. at 0138.) The trial court found sufficient evidence to show that Johnson's 1982 conviction involved "substantial sexual conduct" in that Johnson engaged in masturbation with the victim. Specifically, the court found that because Johnson had admitted "fondling" the victim to his probation officer, sufficient evidence existed to satisfy the statutory definition of masturbation. (Id. at 0115-18.) The court also found the legislative history of the SVP Act supported a liberal definition of "substantial sexual conduct" and "masturbation." (Id.)
Johnson waived his right to a jury trial, and testimony on the SVP petition commenced on April 13, 1999. (Id. at 0062; 0138-9.) The prosecution introduced evidence of Johnson's 1975 and 1982 convictions, including portions of the preliminary hearing transcript in the...
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