JIMMY D. CARTY v. CRAIG NELSON, Warden; BILL LOCKYER, Attorney General
No. 03-56766
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 17, 2005
D.C. No. CV-01-00721-IEG/JFS
Before: Harry Pregerson, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges.
Argued and Submitted May 3, 2005—Pasadena, California
Filed October 17, 2005
Opinion by Judge Pregerson
Matthew D. Brown, CJA, San Francisco, California (argued); Christopher R.J. Pace, Cooley Goodward LLP, San Diego, California (briefed), for the petitioner-appellant.
OPINION
PREGERSON, Circuit Judge:
In April 1991, California prisoner Jimmy D. Carty (“Carty”) pled guilty to seven counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14, in violation of
Consequently, in June 1999, a civil commitment hearing was conducted in San Diego Superior Court to determine whether Carty was a sexually violent predator (“SVP”) who required civil commitment for a period of two years. After this hearing, Carty was classified as an SVP likely to engage in sexually violent criminal behavior against others, and ordered civilly committed in Atascadero State Hospital.
Carty appealed his June 1999 civil commitment to the California Court of Appeal and the California Supreme Court. Both courts ruled against Carty.
In May 2001, near the end of Carty’s first civil commitment term, the San Diego Cоunty District Attorney petitioned for Carty’s re-commitment. The District Attorney was successful in re-committing Carty to a second two-year term in October 2001.
In April 2003, while Carty was serving his second term, Carty filed a pro se habeas petition under
In May 2003, while review of Carty’s federal habeas petition was pending in district court, the San Diego County District Attorney initiated another civil commitment proceeding in state court to re-commit Carty for a third term. This time, the District Attorney was unsuccessful in re-committing Carty. Specifically, in October 2003, a jury found that Carty should no longer be civilly committed under the SVP Act. Accordingly, the superior court ordered Carty to be immediately released from civil commitment.
Shortly before his release from civil commitment, the district court denied Carty’s pending habeas petition with prejudice. Carty now appeals the district court’s order denying his habeas petition. We have jurisdiction under
I. FACTS AND PROCEDURAL HISTORY
A. California’s Sexually Violent Predators Act
California’s SVP Act requires that a prisoner who was previously convicted of certain enumerated violent sex crimes be evaluated by the Department оf Corrections, the Board of Prison Terms, and the California Department of Mental Health six months before being released from prison to determine whether the prisoner may be a potential SVP. See
This full evaluation must be conducted in accordance with a standardized assessment protocol by at least two practicing psychiatrists or psychologists designated by the Department of Mental Health. See
“If the county’s designated counsel [either the district attorney or county counsel] concurs with the recommendation, a petition for commitment shall be filed in the [county’s] superior court . . . .”
Despite the fact that the commitment trial is civil in nature, the prisoner is nonetheless “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.”
B. Carty’s Underlying Criminal Offenses and Subsequent Civil Commitment as an SVP
In April 1991, Carty entered into a plea agreement on seven counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14, in violation of
On April 30, 1999, Carty appeared before the superior court and waived his right to a probable cause hearing. The superior court scheduled another hearing for June 23, 1999, and ordered Carty to be returned to custody. When Carty returned to the superior court, he waived his right to a jury trial.
On June 24, 1999, a civil commitment hearing was held before Superior Court Judge Norbert Ehrenfreund to determine whether Carty was an SVP who required civil commitment. No witnesses were called, and the сase was decided by the superior court judge solely on documentary evidence. Carty’s counsel did not object to admission of the reports prepared by the State’s mental health experts as evidence that Carty had two predicate crimes involving “substantial sexual conduct” (the second element) and that Carty had a mental disorder that made him a danger to others (the third element). Carty’s counsel, however, contested the admission of the pro-
Notwithstanding Carty’s objections, the superior court judge admitted the рrobation report into evidence. The probation report provided the crucial evidence for the state court to conclude that Carty’s acts in two of his West offenses amounted to “substantial sexual conduct.” On the basis of this finding, the superior court ruled that Carty was an SVP and ordered him to be civilly committed for two years. Carty appealed his two-year civil commitment first to the California Court of Appeal, and then to the California Supreme Court.
C. Carty’s California Appellate Proceedings
In his appeal to the California Court of Appeal, Carty contended that the superior court judge erred in civilly committing him as an SVP in June 1999. According to Carty, he should not have been deemed an SVP because (1) the probation report used at his initial commitmеnt hearing was based on multiple levels of hearsay and therefore inadmissible, and (2) the admission of the probation report at the commitment hearing violated his Sixth Amendment right to confront the witnesses against him and his Fourteenth Amendment due process rights.
The California Court of Appeal rejected Carty’s hearsay argument on the basis that
After this unfavorable decision, Carty sought review by the California Supreme Court. On July 19, 2000, the California Supreme Court summarily denied Carty’s request for review. Following his failures in the California State Courts, Carty filed a pro se habeas petition in the United States District Court for the Southern District of California.
D. Carty’s Federal Habeas Proceedings
On April 23, 2001, while Carty was serving his initial two-year term imposed by the San Diego Superior Court in June 1999, he filed a pro se federal habeas petition, challenging his June 1999 civil commitment. Carty argued that the superior court violated his Sixth Amendment right to confront the witnesses against him and his Fourteenth Amendment due process rights by relying on inadmissible hearsay to conclude that his conduct was “substantial sexual conduct.”
On May 3, 2001, while Carty’s habeas petition was pending before the district court — but before the two-year term
While Carty was serving his second civil commitment term, United States Magistrate Judge James F. Stiven filed his report pursuant to
While the San Diego County District Attorney’s May 2003 re-commitment petition was pending in state court, District Judge Irma E. Gonzalez conducted a de novo review of Carty’s objections to the Magistrate Judge’s Report and Recommendation. On July 31, 2003, the district court filed an order adopting the Magistrate Judge’s Report and Recommendation and denied Carty’s habeas petition.4 The district court concluded that habeas relief was not warranted. According to the district court, the California Court of Appeal’s decision that Carty was not denied his due process rights when the superior court relied on his probation report to civilly commit him was not contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
On October 24, 2003, after the district court denied Carty’s
Although he is no longer civilly committed as an SVP, Carty, through appointed counsel, now appeals the district court’s denial of his habeas petition which challenged his initial civil commitment. Carty argues that had the district court granted his habeas petition, then his initial civil commitment (in June 1999) and his second re-commitment (in October 2001) would have been nullified, and as a result, he would not need to verify his residency and employment every ninety days, as required by the California SVP Act. See
II. ANALYSIS
A. The Case is Not Moot
[1] Before we consider the merits of Carty’s petition, we must determine “whether it presents a case or controversy under Article III of the Constitution.” Jackson v. Cal. Dep‘t of Mental Health, 399 F.3d 1069, 1071 (9th Cir. 2005); see also Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir. 2004) (“A case is moot if it does not satisfy the case-or-controversy requirement of Article III, § 2, of the Constitution.”).
The case-or-controversy requirement demands that, through all stages of federal judicial proceedings, the
Caswell, 363 F.3d at 836 (citations and quotation marks omitted). Upon release, “some concrete and continuing injury other than the now-ended incarceration or parole — some ‘collateral consequence’ of the conviction — must exist if the suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). Here, the San Diego County District Attorney contends (1) that Carty has been released from civil commitment and there is no collateral consequence as a result of his prior adjudication as an SVP; and (2) that even if there is a collateral consequence, a favorable judicial decision will not provide Carty with redrеss. As discussed below, we disagree with both contentions.
1. Collateral Consequences Exist
As an SVP, Carty must verify his address and place of employment every ninety days with the California Department of Justice. According to the State, this obligation to merely “verify” residency and employment information every ninety days under
[2] Carty’s injury is continuing and actual because, as a former SVP, he is subject to incarceration for up to a year if he fails to verify his residence and employment record every ninety days. See
2. Relief is Available
Because Carty is no longer committed under the June 1999 initial civil commitment order that he challenged in his habeas petition, the State contends that we cannot provide Carty with any meaningful relief. This is not true.
Carty first argues that our decision in Hubbart v. Knapp, 379 F.3d 773 (9th Cir. 2004), controls as to whether his appeal is moot. There, the State argued that Hubbart’s claim that his commitment under the SVP Act violated his constitutional rights was moot because Hubbart petitioned for habeas relief from his initial term of confinement, which had expired. We held that Hubbart’s petition was not moot because his claims were capable of repetition yet evading review. See id. at 777-78 (noting that a two-year commitment under the SVP Act is too short a time for the validity of the commitment to be fully litigated). We stated that an action is capable of repetition yet evading review when: “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Id. at 777 (citation and internal quotation marks omitted). However, in this case, unlike Hubbart, Carty cannot show that the claim in his habeas petition challenging the validity of his June 1999 initial civil commitment is capable of repetition yet evading review: in October 2003, Carty was released after a jury determined, beyond a reasonable doubt, that he was no longer an SVP and should not be re-committed for a third term.
[3] Carty’s second argument has merit. Although Carty’s instant appeal challenges only his June 1999 initial civil commitment proceeding, if we conclude that the state court’s finding of “substantial sexual conduct” at the June 1999 hearing was unconstitutional, then Carty’s October 2001 hearing would also be unconstitutional. Put another way, if we find Carty’s due process argument persuasive, we can strike both the June 1999 civil commitment and the October 2001 re-commitment, and relieve Carty from the additional reporting requirements placed on an SVP. Accordingly, Carty’s appeal is not moot because we could grant him relief.
B. Carty’s Sixth Amendment Right to Confrontation and Fourteenth Amendment Due Process Rights Were Not Violated
During Carty’s civil commitment proceedings before the San Diego Superior Court, the San Diego County District Attorney used documentary evidence that included hearsay to prove that Carty engaged in “substantial sexual conduct” against his child victims. Carty contends that the district court
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition cannot be granted unless a state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
2. Carty’s Sixth Amendment Rights
Carty points out that in June 1999 the San Diego County District Attorney used documentary evidence — as permitted
[4] The “fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a ‘criminal prosecution’ for purposes of the Sixth Amendment.” Middendorf v. Henry, 425 U.S. 25, 37 (1976). We recоgnize that involuntary civil commitment “constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979). But the Sixth Amendment right to confrontation does not attach in civil commitment proceedings. Cf. United States v. Sahhar, 917 F.2d 1197, 1205-06 (9th Cir. 1990) (“[F]ederal commitment serves a regulatory, rather than punitive, purpose and section 4246 [permitting civil commitment of mentally incompetent prisoners due for release] need not incorporate the right to a jury trial.”). Indeed, “the procedures required for a civil commitment are not nearly as rigorous as those for criminal trials, or even juvenile proceedings.” Id. at 1206 (internal citations omitted). We therefore reject Carty’s argument that his Sixth Amendment rights were violated during his initial civil commitment proceeding in Junе 1999.
3. Carty’s Fourteenth Amendment Due Process Rights
As originally enacted, the SVP Act did not permit the use of documentary evidence. The California State Legislature, however, modified the SVP Act “after prosecutors complained that they must bring victims back to court to re-litigate proof of prior convictions.” People v. Otto, 109 Cal. Rptr. 2d 327, 333 (2001) (citation and internal quotation marks omitted).
Carty argues that his substantive due process rights were violated when the San Diego County District Attorney used — as permitted by the SVP Act — documentary evidence to prove that Carty engaged in “substantial sexual conduct” with his child victims. Specifically, Carty complains that the superior court improperly admitted statements from his victims (ages five through fourteen) as memorialized in his probation report. In addition, Carty argues he was not given the same protections as Cаlifornia residents facing general civil commitment proceedings. In short, Carty claims that his constitutional rights were violated when unreliable documentary evidence was used against him during his civil commitment proceedings under the SVP Act.
To analyze Carty’s due process challenge, we first look to Vitek v. Jones, 445 U.S. 480 (1980), where the Supreme Court decided whether Nebraska violated a prisoner’s due process rights by transferring him from prison to a state mental hospital for treatment. The Court held that in order to satisfy due process, a prisoner facing involuntary commitment to a mental hospital is entitled to: (1) written notice; (2) a hearing at which the evidence being relied upon for the commitment is disclosed to the prisoner; (3) an opportunity at the hearing for the prisoner to be heard in person, to present testimony and documentary evidence, and to cross-examine witnesses called by the State; (4) an independent decision-maker; (5) reasoned findings of fact; (6) legal counsel; and (7) effective and timely notice of these rights. See id. at 494-97.
[5] Next we look to the Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997), where the Court considered a substantive due process challenge to the Kansas SVP Act. See id. at 356. The Court rejected Hendrick’s challenge and stated that “[w]e have consistently upheld such involuntary commitment statutes provided the confinement
[6] In addition to these decisions, the California Supreme Court’s opinion in Otto is enlightening. In Otto, the California Supreme Court concluded that the SVP Act procedures, including its statutory hearsay exception, did not violate a defendant’s right to due process. See Otto, 109 Cal. Rptr. 2d at 334-38. Otto challenged the use of child victim statements contained in a рrobation report that were used to establish “substantial sexual conduct” in his SVP Act civil commitment proceedings. Like Carty, Otto argued that the victim statements did not possess “sufficient indicia of reliability to satisfy due process.” See id. at 335. The California Supreme Court disagreed, and noted that although Otto pled no contest, the factual basis for his plea was contained in the police reports which detailed the predicate offenses. See id. The California Supreme Court also noted that Otto received the probation report prior to his sentencing on the predicate offenses and did not challenge its contents when he entered his guilty plea before the state trial court. See id. at 336-37. Carty, like Otto, rеceived his probation report prior to being sentenced in April 1991 for the predicate offenses and did not challenge the contents of the probation report.
As to Otto’s confrontation claims, the California Supreme Court noted that Otto did not attempt to call any witnesses of his own, and that Otto had the opportunity to confront his child victims at the time the underlying criminal charges were
[7] In light of Vitek, Hendrick, and the persuasive opinion in Otto, we reject Carty’s current due process challenge.5 First, before being civilly committed under the California SVP Act, Carty was accorded all of the procedural protectiоns identified in Vitek during his June 1999 initial civil commitment hearing.
[8] Second, Carty fails to identify any Supreme Court case which imposes an obligation on the San Diego County District Attorney to proffer only live testimony at civil commitment hearings under the SVP Act. In these hearings, the superior court needs to find facts relating to the circumstances of sex offenses which are predominantly committed in private. Because of the incentive for defendants to enter into plea agreements, many of the facts underlying sex offenses are not determined by a trier of fact in a criminal proceeding. This means that the main witnesses at a sex offense trial usually are the victim and the offender. That is why, unlike other civil commitment proceedings, the SVP Act’s special hearsay excеption “intend[s] to relieve victims of the burden and trauma of testifying about the details of the crimes.” Otto, 109 Cal. Rptr. 2d at 333. Carty argues that the admission of the victims’ statements in the probation report was fundamentally unfair. He wants the government — at the civil commitment
[9] Finally, even looking to the Supreme Court cases on which Carty relies, he was not denied the necessary safeguards required by the Constitution. Particularly, at his initial civil commitment hearing in June 1999, Carty was represented by counsel, was given an opportunity to challenge the evidence used by the District Attorney, waived his right to a
[10] “Due process calls for an individual determination before someone is locked away.” Demore v. Kim, 538 U.S. 510, 551 (2003). That is what happened here.
III. CONCLUSION6
[11] The California Court of Appeal’s conclusions that the admission of documentary evidence during Carty’s June 1999 civil commitment hearing (1) did not render his civil commitment proceedings under the SVP Act fundamentally unfair, and (2) did not violate his substantive due process rights, was not contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court. Accordingly, we AFFIRM the district court’s order denying Carty’s habeas petition.