Naylor v. Price, 2:20-cv-672-JAM-EFB P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesTROY MITCHELL NAYLOR, Petitioner, v. BRANDON PRICE, Respondent.
Docket NumberNo. 2:20-cv-672-JAM-EFB P,2:20-cv-672-JAM-EFB P
Decision Date09 December 2020

BRANDON PRICE, Respondent.

No. 2:20-cv-672-JAM-EFB P


December 9, 2020


Petitioner, who is committed civilly to the state hospital and proceeds herein without counsel, brings an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. First, he argues that his due process rights were violated when the state court, in denying his petition for release, declined to appoint counsel and mental health experts to aid him with his petition. Second, he contends that his constitutional rights were violated by the state appellate court's delay in adjudicating his appeal of the foregoing claim regarding appointment of counsel and experts. Respondent has filed an answer (ECF No. 12) and petitioner, after an extension of time, has filed a traverse (ECF No. 18).

For the reasons stated hereafter, the petition should be denied.


The petition presents two purely legal questions and, consequently, the court finds it unnecessary to recount the factual background leading to petitioner's confinement and subsequent

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petition for release. The court will, however, for the sake of context, reproduce the state appellate court's summation of the SVPA under which petitioner was confined:

Under the Sexually Violent Predator Act (§ 6600, et. seq.) (SVPA), a person who is found to be a sexually violent predator is subject to involuntary indefinite commitment for treatment and confinement. (§§ 6603, subds. (a), (e) & (f), 6604, 6604.1.) "'Sexually violent predator' means a person who has been convicted of a sexually violent offense against one or more victims and who 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).) As noted by our high court, the SVPA "was designed to ensure that the committed person does not 'remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.'" (People v. McKee (2010) 47 Cal.4th 1172, 1186 (McKee).)

Former section 6605 required a "current examination" of the committed person's mental condition once a year and an annual report by DSH. The report must "include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Former § 6605, subd. (a); current § 6604.9, subds. (a) & (b).)

Two provisions established procedures whereby a committed person could obtain review to determine if civil confinement is still necessary, former sections 6605 (current §§ 6604.9, subd. (d) & 6605) and 6608. Under former section 6605, if DSH determined a committed person no longer met the criteria for being an SVP, DSH was mandated to authorize the committed person to petition the court for unconditional discharge or conditional release. (Former § 6605, subd. (b); current § 6604.9, subd. (d).)

Former section 6608 governs this case. When DSH has not authorized a petition, a committed person could, nevertheless, petition the court for conditional release and subsequent unconditional discharge under former section 6608, subdivision. (a).[1] In his or her petition, the committed person must "allege facts

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. . . that will show he [or she] is not likely to engage in sexually violent criminal behavior due to his [or her] diagnosed mental disorder without supervision and treatment in the community . . . ." (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1407 (Reynolds).)

Upon receipt of a section 6608 petition, "the court 'shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.' " (Reynolds, supra, 181 Cal.App.4th at p. 1407.) The term "frivolous" is not defined in the SVPA. However, our high court has adopted a definition for section 6608, subdivision (a), relying on the test for frivolous appeals. "A frivolous petition is one that 'indisputably has no merit.'" (McKee, supra, 47 Cal.4th at p. 1192; People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1071 (LaBlanc).) "Under that standard, a petition is not frivolous if it makes a colorable showing of entitlement to relief." (LaBlanc, at p. 1070.) On the other hand, a petition is subject to dismissal as frivolous if it lacks a factual or legal bases; a petition must make at least a prima facie showing to be entitled to a hearing. (Reynolds, supra, 181 Cal.App.4th at p. 1410.)

To make the threshold determination as to whether the petition is frivolous, the trial court reviews the petition and supporting attachments to determine if the committed person's position has "some merit on the issue of whether he or she may qualify for conditional release." (People v. Olsen (2014) 229 Cal.App.4th 981, 996 (Olsen), italics added [by appellate opinion].) In making its threshold determination of frivolousness, the trial court is not limited to considering the face of the petition and its supporting attachments, but may also review the DSH annual report, even if it is not attached to the petition. (Id. at p. 996.) If the trial court summarily denies the petition based upon frivolousness, the committed person may seek appellate review of the denial order (id. at p. 994), as Naylor has done here.

After setting forth the trial court's authority to make a threshold determination concerning whether the petition is frivolous, former section 6608, subdivision (a), continued: "The person petitioning for conditional release and unconditional discharge under this subdivision shall be entitled to assistance of counsel." (Former § 6608, subd. (a), see fn. 5, ante.) Thereafter, the statute provided that

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the court shall hold a hearing on a nonfrivolous petition "to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community." (Former § 6608, subd. (d).)

The rights of a person subject to the SVPA are listed in section 6603, subdivision (a), which states in pertinent part: "A person subject to this article [Article 4; Sexually Violent Predators] shall be 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. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." (Italics added [in appellate opinion].)

ECF No. 11-9 at 5-8.


I. Applicable Statutory Provisions

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong


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(d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

A. "Clearly Established Federal Law"

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute "clearly established Federal law," but courts may look to circuit law "to ascertain whether . . . the particular point in issue is clearly established by Supreme Court precedent." Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

B. "Contrary To" Or "Unreasonable Application Of" Clearly Established Federal Law

Section 2254(d)(1) applies to state court adjudications based on purely legal...

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