David LITMON, Jr., Plaintiff-Appellant, v. Kamala D. HARRIS, Attorney General, Defendant-Appellee.
No. 12-15261
United States Court of Appeals, Ninth Circuit
Argued and Submitted Aug. 12, 2014. Filed Oct. 14, 2014.
768 F.3d 1237
In this case, however, Morales appealed only his sentence and did not seek vacatur of his conviction. We therefore vacate only his sentence and remand for resentencing before a different district court judge.
VI.
The Department of Justice has prosecuted an increasing number of federal immigration crimes in recent decades. To alleviate the resulting strain on the criminal justice system, it recommends substantial sentencing discounts for defendants who quickly plead guilty and waive important constitutional and procedural rights. Fast-track agreements, including those pursuant to Rule 11(c)(1)(C), serve the interests of all involved. The government is obligated to adhere strictly to their terms, just as it must—and usually does—honor its promises under all plea agreements.
The purpose of a fast-track plea is to achieve unusual efficiency through unusual leniency. Absent exceptional circumstances, therefore, the government should have little need to colorfully recount the details of the defendant‘s criminal history in its sentencing position in a fast-track case. In this case, the government‘s inflammatory discussion of Morales‘s previous crimes served no practical purpose but to argue implicitly for a harsher punishment than the government had agreed to recommend. It also violated the government‘s express promise not to suggest in any way that the district court impose a sentence other than the stipulated one.
Morales would ordinarily be entitled to vacatur of his conviction and sentence and a remand for further proceedings before a different district judge. But here, in light of the only remedy Morales requested, we vacate his sentence. On remand, the Clerk of the United States District Court for the Central District of California shall reassign the case to a different district judge.
VACATED AND REMANDED with instructions.
Skye D.Y. Langs (argued), Craig E. Stewart, pro bono appointment, Jones Day, Palo Alto, CA, for Plaintiff-Appellant.
Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Nelson R. Richards (argued), Deputy Attorney General, San Francisco, CA, for Defendant-Appellee.
Before: ALEX KOZINSKI, Chief Judge, BARRY G. SILVERMAN and RICHARD R. CLIFTON, Circuit Judges.
OPINION
KOZINSKI, Chief Judge:
California law requires “every person who has ever been adjudicated a sexually violent predator” to appear before local law enforcement every 90 days for the rest of their lives to verify certain identifying information. See
David Litmon, Jr., admitted to raping four women and severely beating another in the 1970s. Upon his release from prison, he sexually assaulted two underage girls. After serving his second sentence, he was adjudicated a “sexually violent predator” pursuant to
[E]very person who has ever been adjudicated a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code, shall, after his or her release from custody, verify his or her address no less than once every 90 days and place of employment, including the name and address of the employer, in a manner established by the Department of Justice.
A sexually violent predator is “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.”
II. Discussion
We review the dismissal of Litmon‘s section 1983 claims de novo. See Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). We construe pro se complaints liberally, especially in civil rights cases. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (internal quotation marks and brackets omitted).
A. Substantive Due Process Claims
The district court properly dismissed Litmon‘s claim that the registration requirement violates the fundamental right to be free from physical restraint by requiring sexually violent predators to appear in person every 90 days to register. In United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), we held that a similar in-person, 90-day registration requirement for certain juvenile sex offenders didn‘t implicate any fundamental rights protected by substantive due process. See id. at 1012 (“None of the [fundamental] rights [identified by the Supreme Court] are, or could be, asserted by defendants in this case. Nor do any of defendants’ rights that are potentially at stake appear to be so rooted in the traditions and conscience of our people as to be ranked as fundamental. . . .“) (internal quotation marks omitted). And in Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004) (per curiam), we held that “persons who have been convicted of serious sex offenses do not have a fundamental right to be free from the registration and notification requirements set forth in” an Alaska statute requiring those convicted of multiple aggravated sex offenses to register every 90 days, though not in person.
That the registration period in Juvenile Male may be reduced from life to 25 years in limited circumstances, see 670 F.3d at 1005, is not a material distinction. Litmon cannot cite any authorities suggesting that the registration requirement implicates the fundamental right to be free from restraint and relies on inapposite cases in the habeas context. Even if we could analogize to habeas cases, we held in Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999), that “[r]egistration, even if it must be done in
Absent a fundamental right, strict scrutiny is inapplicable. We therefore apply rational basis review and conclude that the in-person registration requirement survives. The California legislature found that “[s]ex offenders pose a potentially high risk of committing further sex offenses after release from incarceration or commitment,”
Litmon further alleges in his original complaint that his “liberty and freedom of movement have been so restricted and infringed upon that [he] has been unable to obtain employment as a truck driver, since such employment could likely cause him to miss the 90-day appearance at the police station.” He argues that this violates his “fundamental right to work.” But “[t]he [Supreme] Court has never held that the ‘right’ to pursue a profession is a fundamental right, such that any state-sponsored barriers to entry would be subject to strict scrutiny.” See Dittman v. California, 191 F.3d 1020, 1031 n. 5 (9th Cir.
At oral argument before the panel, Litmon mentioned that local police have been harassing sex offenders during the registration process, causing him to spend upwards of six hours at the police station. Nothing in the district court‘s order dismissing Litmon‘s due process claims against the Attorney General precludes Litmon from raising an as-applied substantive due process claim against local law enforcement based on allegations of police misconduct.
B. Ex Post Facto Claim
The district court properly dismissed Litmon‘s claim that “the cumulative burden of the [registration] requirement . . . makes it an unconstitutionally retroactive punishment.” In his original complaint, Litmon alleged a violation of the Double Jeopardy Clause, and only on appeal did he recharacterize the claim as alleging a violation of the Ex Post Facto Clause. The Attorney General does not object to this change, and nor do we, as the inquiry into whether a law constitutes retroactive punishment in violation of the Double Jeopardy Clause is identical to that with respect to the Ex Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 97, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).
The Supreme Court‘s decision in Smith v. Doe I, supra, is instructive. There, the Court held that an Alaska statute requiring those convicted of aggravated sex offenses to register every 90 days for life did not violate the Ex Post Facto Clause. See id. at 99-105. Smith re-
Litmon argues that Smith is not controlling due to the Alaska law‘s lack of an in-person registration requirement. But there is no reason to believe that the addition of such a requirement would have changed the outcome. In fact, we held in ACLU of Nevada v. Masto, 670 F.3d 1046 (9th Cir. 2012), that an in-person, 90-day, lifetime registration requirement for the highest level sex offenders does not violate the Ex Post Facto Clause, noting that the Nevada statute at issue was “indistinguishable from [the statute] in Smith,” and that Smith‘s “resolution of our factual error [regarding the in-person registration requirement] did not amount to a holding that in-person registration necessarily constitutes an affirmative disability” for purposes of the inquiry. See id. at 1056; see also Hatton v. Bonner, 356 F.3d 955, 964 (9th Cir. 2004) (California‘s in-person, annual, lifetime registration requirement for those who committed certain sex offenses did not violate the Ex Post Facto Clause).
C. Equal Protection Claim
Litmon‘s equal protection claim was also properly dismissed. Litmon alleges in his second amended complaint that the registration requirement for sexually violent predators violates the Equal Protection Clause because “other similarly situated civil committees such as . . . a) Mentally Disordered Offender[s] . . . [and] b) Mentally Disordered Sex Offender[s] . . . whom [sic] also have been convicted of the same kinds of sex offenses, civilly committed to the same mental institution, [and] receiv[ed] the same mental health treatment, [are] not required to appear in per-
The equal protection challenge fails because neither mentally disordered offenders nor mentally disordered sex offenders are similarly situated to sexually violent predators. See Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). Recall that a sexually violent predator is “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.”
The inquiry into whether an individual poses a “substantial danger of physical harm to others” is far broader than the inquiry into whether one is “likely [to] . . . engage in sexually violent criminal behavior.” Moreover, unlike sexually violent predators, mentally disordered offenders need not have been convicted of a “sexually violent offense against one or more victims,” and may instead have committed non-sexually violent offenses such as voluntary manslaughter or arson.
Litmon argues that “because of the significant overlap between the two commitment statutes, any sex offender committed
Nor are sexually violent predators similarly situated to mentally disordered sex offenders. A mentally disordered sex offender is “any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.”
The two groups are distinguishable because sexually violent predators must have been convicted of a sexually violent offense and have been found likely to “engage in sexually violent criminal behavior” upon their release from prison, see
In any event, the California legislature has a rational basis for imposing more frequent reporting requirements on sexually violent predators given their criminal history of sexual violence and their higher risk of recidivism. See
Litmon argues in his opening brief that the equal protection claim in his second amended complaint should “be read to encompass the allegation that those adjudicated as sexually violent predators within the State of California are treated less favorably than those similarly adjudicated outside of the state.” But Litmon‘s second amended complaint identified only mentally disordered offenders and mentally disordered sex offenders as similarly situated individuals, and cannot reasonably be construed as alleging an equal protection claim on the basis of differential treatment between those adjudicated as sexually violent predators within California and those adjudicated as such under other states’ statutes. Regardless, this argument is waived because Litmon failed to raise it before the district court. See In re Mortgage Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014). The district court gave Litmon two opportunities to allege this equal protection claim in a subsequent complaint, both of which he passed up.
Litmon contends that
Litmon also argues that the California Department of Justice‘s failure to issue formal regulations governing the manner of registration under
California‘s registration requirement for sexually violent predators accordingly survives Litmon‘s constitutional challenges.
AFFIRMED.