Milligan v. Ahlin

• Decision Date: 21 October 2011
• Docket Number: 2: 08 - cv - 2766 - MCE TJB
• Court: U.S. District Court — Eastern District of California
• Parties: TIMOTHY L. MILLIGAN, Petitioner, v. PAM AHLIN, Respondent.

TIMOTHY L. MILLIGAN, Petitioner,

v.PAM AHLIN, Respondent.

2: 08 - cv - 2766 - MCE TJB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: October 21, 2011

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Timothy L. Milligan, is under an order of civil commitment and is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises the following claims in this federal habeas petition: (1) his due process rights were violated in that the "standardized assessment protocol" used to evaluate him for civil commitment was "an illegal underground regulation" ("Claim I"); (2) his due process and equal protection rights were violated when the state appellate court falsely held the psychological evaluations were to be used only to keep meritless civil commitment petitions from reaching trial ("Claim II"); (3) the Sexual Violent Predator Act (SVPA) 2006 amendments unconstitutionally shifted the burden of proof to Petitioner ("Claim III"); and (4) Petitioner's due process rights were violated when the structured risk assessment instrument used in his case wildly inflated the prediction of Petitioner's re-offense likelihood ("Claim IV"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND¹

A jury found true an allegation that defendant Timothy Leslie Milligan is a sexually violent predator (SVP) within the provisions of Welfare and Institutions Code sections 6600 through 6604. Based on the jury finding, defendant was committed to the state Department of Mental Health for appropriate treatment and confinement at Coalinga State Hospital for an indefinite term pursuant to section 6604 . . . .

Defendant, born in January 1958, had several qualifying sexual offenses involving young boys. Licensed psychologist John Hupka outlined defendant's prior offenses and was of the opinion that he is a pedohile and an SVP who poses a high risk to reoffend. Defendant's first offense occurred in 1978 at age 20. He was married, and his wife had a son, age 9 or 10. Defendant said he "had an affair with her son," lasting a year and one-half, during which he and the boy engaged in "mutual masturbation and mutual oral copulation." Defendant was convicted, determined to be a mentally disordered sex offender, and placed at Atascadero State Hospital for two years.

In 1988, defendant molested two 10-year-old boys, showing them photographs of nude children, giving them cigarettes, fondling their penises, and attempting to sodomize them. He received a four-year prison term.

In 1992, defendant grabbed and squeezed the private parts of a 10-year-old boy. He received a four-year prison term.

In 1995, defendant fondled two boys, ages 10 and 12, by rubbing the clothing that covered their penises. He met the boys at church, and after church he followed them to a field where he made sexual advances. He provided the boys alcohol, cigarettes, money and a motor scooter; showed them pornography; and masturbated in front of them. Similar acts of molestation occurred over a period of a couple of months. When defendant was arrested and his house was searched, pictures and videos of naked young boys were found. He received a 15-year prison term.

Dr. Hupka, who examined defendant on February 2, 2007 diagnosed him with a "deep-seated" desire for children as shown by his "history from the age of 20 to nearly 40, in which he has engaged in sex with children repeatedly and even done so despitearrest, conviction, incarceration and treatment." Defendant acknowledges his sexual attraction to young boys.

Dr. Hupka testified that based on the Static-99, an actuarial test used to predict the changes of sexually reoffending, there is a 39 percent chance that defendant would be convicted of a new sex offense in the next five years, a 44 percent chance during the next 10 years, and a 52 percent chance during the next 15 years. Dr. Hupka said, "I think that he is at high risk to not be able to control his sexually deviant behavior. I think he is very unlikely to control

it."

Defendant told Dr. Hupka that his plan if released was to stay away from boys, get a job, earn money for retirement, find a good woman, and do the right thing.

The defense did not call any witnesses.

(Slip Op. at p. 1-4.)

III. PROCEDURAL HISTORY

A. State Proceedings

After being civilly committed, Petitioner appealed to the California Court of Appeal in December 2007. The California Court of Appeal affirmed the judgment on July 16, 2008. Petitioner then filed a petition for review in the California Supreme Court. On October 22, 2008, the California Supreme Court summarily denied the petition for review. Petitioner filed a state habeas petition in the California Supreme Court in February 2010. On March 10, 2010, the California Supreme Court denied the state habeas petition citing In re Lindley, 29 Cal. 2d 709, 177 P.2d 918 (1947) and In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953).

B. Federal Proceedings

Petitioner filed his federal habeas petition in November 2008. Respondent filed a motion to dismiss arguing that Claims II and IV were unexhausted. On April 20, 2010, Petitioner filed a "Notice of Exhaustion" of his claims. (See Dkt. No. 19.) On April 22, 2010, Magistrate Judge Brennan ordered the Respondent to file an answer to the federal habeas petition in light of Petitioner's representation in his April 20, 2010 filing. Respondent answered the petition on August 18, 2010. The matter was reassigned to the undersigned on July 5, 2011.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings 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 state court. See 28 U.S.C. 2254(d). When no state court has reached the merits of a claim, de novo review applies. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, 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." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal 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. Although only Supreme Courtlaw is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

In Claim I, Petitioner argues that he was denied due process of law when the "standardized assessment protocol" used to evaluate and try him for civil commitment was "an underground regulation." (Pet'r's Pet. at p. 5.) The last reasoned state court decision on this Claim was from the California Court of Appeal which stated the following:

Compliance with the APA [Administrative Procedure Act]

Defendant contends his commitment must be reversed because the petition was not supported by valid psychiatric evaluations inasmuch as they were prepared in accordance with the protocol that had not been adopted as a regulation under the APA. The People respond that defendant has failed to exhaust his administrative remedies, the protocol does not qualify as a regulation, and defendant's contention does not undermine the legitimacy of his commitment. We need not reach the People's first two points because their last point is dispositive.

A

Overview of the Relevant Provisions of the SVPA

The SVPA provides for the involuntary civil commitment of certain offenders who are found to be sexually violent predators. (§6600 et seq.; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) To establish that an offender is an SVP, the prosecution must prove the person; (1) has been convicted of one or more of the enumerated sexually violent offenses against one or more victims; and (2) has 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 criminal behavior. (§§ 6600, subd. (a)(1), 6604.)

The person's commitment under the SVPA follows his

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