Rose v. Mayberg, 05-16881.

• Decision Date: 18 July 2006
• Docket Number: No. 05-16881.,05-16881.
• Citation: 454 F.3d 958
• Parties: Warren David ROSE, Jr., Petitioner-Appellant, v. Stephen MAYBERG, Director, California Department of Mental Health, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.3d 958

Warren David ROSE, Jr., Petitioner-Appellant, v. Stephen MAYBERG, Director, California Department of Mental Health, Respondent-Appellee.

No. 05-16881.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2006.

Filed July 18, 2006.

David Porter, Assistant Federal Defender, Sacramento, CA, argued the cause for the appellant. Quin Denvir, Federal Defender, Dennis S. Waks, Acting Federal Defender, and Ann C. McClintock, Assistant Federal Defender, Sacramento, CA, were on the briefs.

Judy Kaida, Deputy Attorney General, Sacramento, CA, argued the cause for the appellee. Bill Lockyer, Attorney General of California, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, and Brian G. Smiley, Deputy Attorney General, Sacramento, CA, were on the brief for the appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-03-01502-LKK.

Before: HUG, and O'SCANNLAIN, Circuit Judges, and MILLER,^* District Judge.

O'SCANNLAIN, Circuit Judge:

We consider whether a habeas petition must be granted when a state court jury does not separately determine whether a sexually violent predator suffers from a mental condition that renders him dangerous beyond his control.

I

In 1982, Warren Rose—then serving in the United States Navy in Guam—committed violent sexual offenses against three eight-year-old girls. Rose was court-martialed, pled guilty, and received a 13-year sentence in federal prison. He was paroled in 1990, having served seven years. Rose then violated the terms of his parole by contacting, hitting, and twice raping his ex-girlfriend. He was returned to federal prison for five years and was released in 1996. Less than a year later, Rose reoffended, committing a lewd act on a seven-year-old girl he was babysitting. He was convicted in state court of committing a lewd and lascivious act upon a child under the age of 14 and was sentenced to a term of three years in state prison.

In 1999, the Sacramento County District Attorney's Office filed a petition to commit Rose involuntarily as a sexually violent predator ("SVP") pursuant to California's Sexually Violent Predator Act ("SVPA"). See CAL. WELF. & INST. CODE § 6600 et seq. The trial court denied the SVPA petition and Rose received parole in 2000.

Less than a year later, Rose's parole was revoked based on charges that he had contact with a minor, gave false information to his parole officer, and failed to maintain a logbook. After hearing testimony from Rose, his parole agent, and others, the state parole board found that Rose had violated two special conditions of his parole, and assessed Rose four months in prison for each violation.

Following Rose's return to prison, the state filed a second SVPA petition, which was tried to a California Superior Court jury. There, Rose requested the following instruction, which the trial court declined to give:

In order to find that [Rose] is a Sexually Violent Predator, [the State] must establish beyond a reasonable doubt that [Rose] is currently suffering from a mental condition that renders him dangerous beyond his control.

Rather, the trial court instructed the jury that:

The term "a sexually violent predator" means a person who, (1) has been convicted of a sexually violent offense against two or more victims for which he or she received a sentence, and (2) has a diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior.

Further, the trial court instructed the jury on the requirements for finding a mental disorder:

"Diagnosed mental disorder" includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.

The jury concluded that Rose was a sexually violent predator within the meaning of the SVPA. Consequently, Rose was placed in custody for a two-year period, consistent with the SVPA. Though his original two-year civil commitment term expired in 2003, the State filed recommitment petitions in 2003 and 2005, and Rose remains in Atascadero State Hospital.¹

After exhausting the claims relevant to this petition in state court, Rose timely filed a petition for a writ of habeas corpus in federal district court, contending that it was error for the state trial judge to refuse to instruct the jury that it must find him "dangerous beyond his control." The district court denied the petition and Rose timely appealed.²

II

Rose contends that the state court's refusal to instruct the jury that it must find that he was "dangerous beyond his control" was an unreasonable application of Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), and Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).³ See 28 U.S.C. § 2254(d)(1).

A

In Kansas v. Hendricks, the Supreme Court analyzed the constitutionality of the Kansas Sexually Violent Predator Act, which "establishes procedures for the civil commitment of persons who, due to a `mental abnormality' or a `personality disorder,' are likely to engage in `predatory acts of sexual violence.'" 521 U.S. at 350, 117 S.Ct. 2072 (citing KAN. STAT. ANN. § 59-29a01 et seq. (1994)). There, the Supreme Court determined that the Act satisfied substantive due process considerations, explaining that:

We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a "mental illness" or "mental abnormality." See, e.g., . . . Allen v. Illinois, 478 U.S. 364, 366, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) (Illinois statute permitting commitment of "mentally ill" and dangerous individual); Minnesota ex rel. Pearson v. Probate Court of Ramsey Cty., 309 U.S. 270, 271-272, 60 S.Ct. 523, 84 L.Ed. 744 (1940) (Minnesota statute permitting commitment of dangerous individual with "psychopathic personality"). These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a "mental abnormality" or "personality disorder" that makes it difficult, if not impossible, for the person to control his dangerous behavior. Kan. Stat. Ann. § 59-29a02(b) (1994). The precommitment requirement of a "mental abnormality" or "personality disorder" is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.

Id. at 358, 117 S.Ct. 2072.

The Kansas Supreme Court subsequently interpreted the Hendricks decision to hold—similar to Rose's contention— that "commitment under the [Kansas SVPA] is unconstitutional absent a finding that the defendant cannot control his dangerous behavior." In re Crane, 269 Kan. 578, 7 P.3d 285, 290 (2000). Upon grant of certiorari, the Supreme Court of the United States squarely rejected the Kansas Supreme Court's view, concluding that involuntary commitment statutes may be upheld if "(1) `the confinement takes place pursuant to proper procedures and evidentiary standards,' (2) there is a finding of `dangerousness either to one's self or to others,' and (3) proof of dangerousness is `coupled . . . with the proof of some additional factor, such as a `mental illness' or `mental abnormality.''" Crane, 534 U.S. at 409-10, 122 S.Ct. 867 (quoting Hendricks, 521 U.S. at 357-58, 117 S.Ct. 2072).

The Court dismissed the contention that Hendricks required "total or complete lack of control," id. at 411, 122 S.Ct. 867, but concluded that it does require some "lack-of-control" determination, id. at 412, 122 S.Ct. 867. That is, "there must be proof of serious difficulty in controlling behavior," id. at 413, 122 S.Ct. 867, which "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case," id. at 413, 122 S.Ct. 867 (citing Hendricks, 521 U.S. at 357-58, 117 S.Ct. 2072; Foucha v. Louisiana, 504 U.S. 71, 82-83, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)).

B

Here, the California Court of Appeal reviewing Rose's claim of instructional error reasoned that the jury instructions did not violate Hendricks and Crane:

The statutory language in the [California] SVPA is similar to the language used in the Kansas act upheld in Hendricks and Crane. People v. Buffington 74 Cal.App.4th 1149, 1154, 88 Cal.Rptr.2d 696 (1999). Like the Kansas statute, California's SVPA requires the jury to find that the offender has a "diagnosed mental disorder" that affects his "emotional or volitional capacity," which "predisposes" him to the commission of criminal sexual acts and makes it "likely that he will engage in sexually violent predatory criminal behavior." Under Crane these criteria are sufficient to establish the offender has a current mental condition that causes him serious difficulty in controlling his behavior.

People v. Rose, 2003 WL 657727, *7 (Cal. Ct.App.2003).

The California Supreme Court reached the same conclusion shortly thereafter in People v. Williams, 31 Cal.4th 757, 3 Cal.Rptr.3d 684, 74 P.3d 779, 793 (2003).

III

Rose claims he is entitled to habeas relief because the trial court failed to instruct the jury that it had to find Rose was "currently suffering from a mental condition that renders him dangerous beyond his control." This failure to instruct the jury,...