Leonard v. King

Filing 31

MEMORANDUM DECISION AND ORDER signed by Senior Judge James K. Singleton on 12/16/2014 ORDERING the Petition under 28:2254 for Writ of Habeas Corpus is DENIED; the Court DECLINES to issue a Certificate of Appealability; the Clerk of the Court is to enter judgment accordingly. CASE CLOSED (Reader, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
HARVEY MACK LEONARD,
No. 2:12-cv-03009-JKS
Petitioner,
MEMORANDUM DECISION
vs.
AUDREY K. KING, Acting Executive
Director, Coalinga State Hospital,
Respondent.

Harvey Mack Leonard, a civil detainee proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254.1 Leonard is in California state
custody and involuntarily civilly committed to the Coalinga State Hospital as a sexually violent
predator (“SVP”). Respondent has answered, and Leonard has replied.

1

A person in custody pursuant to the judgment of a state court may file a petition
for a writ of habeas corpus in the United States district courts if the custody is in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams
v. Taylor, 529 U.S. 362, 375, n.7 (2000). The fact that Leonard is challenging his civil
commitment for mental illness rather than his underlying conviction does not change the
outcome as civil commitments are typically challenged in habeas proceedings. See Duncan v.
Walker, 533 U.S. 167, 176 (2001) (stating that a state court order of civil commitment satisfies
§ 2254’s “in custody” requirement).
A person in state custody may challenge his confinement under 28 U.S.C. § 2241 or 28
U.S.C. § 2254. However, a § 2241 petition generally challenges the execution of a sentence
such as the “manner, location, or condition” of confinement. Hernandez v. Campbell, 204 F.3d
861, 864 (9th Cir. 2000). Because Leonard challenges the term of his confinement rather than
the conditions surrounding it, he has properly brought his claim under § 2254. See Huftile v.
Miccio–Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005) (“[D]etainees under an involuntary
civil commitment scheme . . . may use a § 2254 habeas petition to challenge a term of
confinement.”).

I. BACKGROUND/PRIOR PROCEEDINGS
On September 3, 2008, a Placer County Superior Court jury found Leonard to be a
sexually violent predator under the Sexually Violent Predators Act (“SVPA”), CAL. WELF. &
INST. CODE § 6600 et seq., and the court civilly committed him to the California Department of
Mental Health (“DMH”) for “appropriate treatment and confinement in a secure facility for an
indeterminate term until such time that he is entitled to be released according to law.”
On direct appeal, the California Court of Appeal summarized the following evidence
presented at Leonard’s civil commitment trial:
A. Prosecution Evidence
[Leonard]
[Leonard] was a serial rapist between 1976 and 1985, with at least eight victims.
[Leonard] denied having a mental disorder, and therefore believes that any
treatment would be a sham. He has never successfully completed a sex offender
treatment program. He attributed his past sexually violent behavior to youth, stupidity,
and a wild disposition. [Leonard] was born January 1, 1950, and was 58 years old at the
time of trial.
Dr. Christopher North
Dr. North, a psychologist, evaluated [Leonard] in 2005 and diagnosed him with
coercive paraphilia[2] (not otherwise specified), antisocial personality disorder,[3] and

2

“The essential features of a paraphilia are recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or
humiliation of oneself or one’s partner, or 3) children or other nonconsenting persons . . . .”
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS at 566 (4th ed. 2000).
3

The American Psychiatric Association defines antisocial personality disorder as
“a pervasive pattern of, disregard for, and violation of, the rights of others,” often including
criminal behavior, impulsivity, irritability or aggressiveness, and irresponsibility. AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
§ 301.7, at 701-06 (4th ed. 2000).
2

alcohol abuse. (Paraphilia encompasses recurring and intense sexually arousing fantasies
or behavior involving suffering of self or others.)
At trial, it was stipulated that Dr. North had updated his diagnosis, by stating: “In
retrospect, I do not think [Leonard] has a coercive paraphilia, but I do think he meets [the
SVP] criteria based on his ASPD [antisocial personality disorder], and that this disorder
does predispose him to commit sexually violent offenses. This [is] the first time that I
ever recommended civil commitment for someone based on ASPD alone.”
Dr. North found [Leonard] unamenable to treatment, noting that [Leonard] had
resisted treatment and mocked those who did participate.
On tests assessing the likelihood for committing a new sex crime, [Leonard]
scored in the “high risk” range on a “Rapid Risk Assessment for Sexual Offense
Recidivism” (RRASOR) test in 1999 and on a “Static-99” test in 2000 (with a score of 7
on the Static-99 test, as calculated by Dr. North; 6 or above indicating “high risk”).
While sex crimes typically decline with age, especially after 60, the more
important factors include health, vigor and vitality. [Leonard], 58 years old, appeared
quite healthy and vigorous given his exercise routine (walking several miles per day), an
assault he recently committed (he beat up an elderly patient in February 2007), and his
possession of a Playboy picture. Moreover, a study based on a Static-99-like test showed
that offenders, aged 40 to 59 with two prior sexual sentencings, like [Leonard], had a 49
percent recidivism rate. Another study concluded that, for serious offenders, advanced
age should not be considered a possible actuarial mitigating factor.
Dr. John Hupka
Dr. Hupka, a psychologist, also evaluated [Leonard] in 2005 and diagnosed him
with coercive paraphilia (not otherwise specified) and antisocial personality disorder, and
[Leonard] still suffers from both. Dr. Hupka opined that [Leonard] meets the SVP
criteria.
Even without the paraphilia diagnosis, Dr. Hupka testified, he would still find
[Leonard] likely to engage in sexually violent criminal behavior, given his still severe
antisocial personality disorder.
Dr. Hupka scored [Leonard] at a “high risk” 8 on the Static-99 test.
Although studies show that, in general, the risk level of re-offense for sex
offenders declines significantly between the ages of 50 and 59, and begins to approach
zero for those 60 and above, [Leonard] was not a typical case. [Leonard] may have been
in his late 50’s, but there was no evidence of his “slowing down,” given his “very
hostile” and “potentially threatening” behavior during a recent interview (June 2007) and
given his very recent physical assault.

3

B. Defense Evidence
Dr. Denise Kellaher
Dr. Kellaher, a psychiatrist, diagnosed [Leonard] with antisocial personality
disorder, but found no evidence of paraphilia in his prior offenses; rather, he had been an
“opportunistic rapist.”
Dr. Kellaher opined that [Leonard’s] antisocial personality disorder does not
predispose him to commit sexually violent predator acts because this disorder diminishes
sharply with age, and falls to around zero at around age 60 (“antisocial burnout”), and
this has happened with [Leonard]. [Leonard] also suffers from diabetes, had a quadruple
heart bypass in 2003, and was diagnosed with Peyronie’s Disease in 2005 (a penis
deformity that largely precludes erection).
Dr. Brian Abbott
Dr. Abbott, a psychologist, concluded that [Leonard] does not meet the SVP
mental disorder criteria. [Leonard] suffers from antisocial personality traits that do not
rise to antisocial personality disorder, and these traits diminish to very low rates of
antisocial behavior in the 50 to 60-plus age range.
Furthermore, a study by the creator of the Static-99 test showed that rapists, aged
50 to 59, reoffend at about a 13.5 percent clip, and at age 60-plus this rate drops to zero.
People v. Leonard, No. C059936, 2010 WL 1217971, at *1-3 (Cal. Ct. App. Mar. 30, 2010).
Through counsel, Leonard appealed the superior court’s commitment order, arguing that
there was insufficient evidence showing that he was likely to engage in sexually violent criminal
behavior if released and that his indeterminate commitment violates various provisions of the
federal constitution, including due process, ex post facto, and equal protection. On March 30,
2010, the Court of Appeal issued an unpublished, reasoned opinion remanding the case to the
trial court to determine, in response to Leonard’s claim that “his indeterminate sentence violates
his right to equal protection,” whether sufficient justification had been shown for treating SVPs
differently than other groups of individuals who are involuntarily committed. Id. at *5. The
appellate court affirmed the order of commitment in all other respects. Id. The record is silent
as to if, and when, the trial court addressed the equal protection claim on remand.

4

On April 30, 2010, Leonard petitioned for review to the California Supreme Court,
challenging only the “issues affirmed by the Court of Appeal.” Leonard specifically disavowed
that he was raising his equal protection claim and listed only his insufficiency of the evidence
claim as presented for review. The supreme court summarily denied the petition on June 9,
2010.
Leonard subsequently filed a petition for a writ of habeas corpus in the California
Supreme Court, arguing that he was denied the effective assistance of counsel as a result of trial
counsel’s failure to preserve the issue of whether the trial court erroneously denied his request to
exclude expert witness testimony from the probable cause hearing on the basis that any alleged
interview was unrecorded. The supreme court denied the petition without comment on April 20,
2011.
On December 13, 2012, Leonard commenced this action, in which he challenges the
September 3, 2008, order of commitment. Court records reflect that Leonard previously
challenged the order of commitment in this Court in an action designated Leonard v. Ahlin, 2:10cv-1701-JKS (E.D. Cal.).4 On March 12, 2012, the undersigned judge dismissed without
prejudice for lack of jurisdiction the petition in that case, citing Younger v. Harris, 401 U.S. 37
(1971), which refers to the doctrine that forbids federal courts from unduly interfering with
pending state court proceedings that implicate important state interests.

4

A court may take judicial notice of court records. See FED. R. EVID. 201(b)(2)
(permitting judicial notice of a fact that “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”); United States v. Wilson, 631 F.2d 118, 119
(9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as
the records of an inferior court in other cases.”).
5

II. GROUNDS/CLAIMS
In the instant pro se Petition before this Court, Leonard raises four grounds for relief.
First, he argues that there was insufficient evidence to support the jury’s finding that he “remains
or ever was” an SVP. Leonard next contends that “[t]he order of indefinite commitment violated
[his] federal constitutional rights to due process of law, to be free of ex[]post facto laws, and to
equal protection of the law.” Leonard asserts in his third ground that the SVPA violates his
double jeopardy rights. Finally, Leonard argues that he was denied the effective assistance of
trial and appellate counsel.
III. STANDARD OF REVIEW
The Ninth Circuit has held that habeas petitions challenging state civil commitment
proceedings are governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Rose v. Mayberg, 454 F.3d 958, 961 n.3 (9th Cir. 2006). Under AEDPA, 28
U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). A state-court decision is contrary to federal law if the state court
applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts
a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but
nevertheless arrives at a different result. Williams, 529 U.S. at 406.
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the

6

relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
IV. DISCUSSION
A.

Younger Abstention
As previously noted, the record is silent as to whether the trial court has on remand ruled

on Leonard’s equal protection claim. Indeed, a search of the California courts’ case information
website (http://appellatecases.courtinfo.ca.gov/; Third Appellate District; case number C059936)
indicates that Leonard’s case is still pending in the California court system. As a result, this
Court must determine, as it did with regard to Leonard’s previous Petition challenging the
commitment order, whether the Younger doctrine applies here. In concluding that the Younger
doctrine barred this Court from exercising its jurisdiction to consider Leonard’s previous
Petition, this Court stated:

7

Although Younger itself held that, absent extraordinary circumstances, a federal
court may not interfere with a pending state-criminal prosecution, the Supreme Court and
the Ninth Circuit have extended Younger abstention to civil cases on numerous
occasions. The Supreme Court laid out a three-part test for determining when to apply
Younger in a civil proceeding, holding that abstention is required so long as the state
proceedings: (1) are ongoing; (2) implicate “important state interests”; and (3) provide an
adequate opportunity to raise federal questions.FN15 To these three threshold
requirements, the Ninth Circuit has articulated an implied fourth requirement that
abstention is required if (4) the federal court action would “enjoin the proceeding, or
have the practical effect of doing so.”FN16
FN15. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982).
FN16. AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148-49 (9th Cir.
2007).
Because the state appellate review process has not yet been completed, Leonard’s
SVP civil commitment proceeding is still on-going,FN17 and thus the first factor is clearly
met. Likewise, it is clear that each of the constitutional issues Leonard is attempting to
assert in this proceeding may be raised in Leonard’s pending state-court proceeding;
indeed, they have been. The state interest involved concerns for the health and safety of
the state’s citizens. There can be no doubt that a state has an important interest in
safeguarding the health and safety of its citizens.FN18 Thus, the three factor test from the
Supreme Court’s decision in Middlesex has been met.
FN17. See [Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (en
banc)] (noting that for Younger abstention purposes, proceedings are deemed
on-going until state appellate review is completed).
FN18. See, e.g., Hill v. Colorado, 530 U.S. 703, 715, 120 S. Ct. 2480, 147 L. Ed.
2d 597 (2000) (“It is a traditional exercise of the States’ ‘police power to protect
the health and safety of their citizens.’” (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 475, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996))); see also Dept. of
Revenue of Ky. v. Davis, 553 U.S. 328, 340, 128 S. Ct. 1801, 170 L. Ed. 2d 685
(2008) (noting that state and local governments are “vested with the responsibility
of protecting the health, safety, and welfare of their citizens” (quoting United
Haulers Ass’n v. Oneida–Herkimer Solid Waste Mgmnt Auth., 550 U.S. 330, 342,
127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007))).
If this Court were to grant Leonard the relief requested, it would effectively
render any further action by the California state courts a nullity. The effect would be the
same as if this Court entered an order enjoining the Placer County Court from proceeding
to adjudicate Leonard’s continued commitment as a SVP as instructed by the California
8

Court of Appeal. This Court may not, under the Younger doctrine, enter such a
judgment. Indeed, it lacks jurisdiction to do so. Accordingly, this Court must abstain and
dismiss this action.FN19
FN19. American Consumer Pub. Ass’n, Inc. v. Margosdian, 349 F.3d 1122, 1126
(9th Cir. 2003) (noting that when Younger applies, ordinarily the district court
must dismiss).
Leonard v. Ahlin, No. 2:10-cv-01701, 2012 WL 868806, at *2 (E.D. Cal. Mar. 13, 2012).
Nothing has changed in Leonard’s case that would compel the conclusion that the
requirements enumerated above are no longer met. Nor does it appear that there are any special
circumstances that may warrant an exception to abstention in this case. While there is no
comprehensive definition of situations that would warrant an exception to the Younger
abstention doctrine, interference in ongoing state proceedings has been found to be appropriate
upon a showing that the state has engaged in bad faith or harassment or other unusual or special
circumstances warranting equitable relief, such as flagrant and patent violations of express
constitutional provisions or a demonstration of irreparable injury. Perez v. Ledesma, 401 U.S.
82, 85 (1971); Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980).
Leonard contends that this Court may consider his claims because the California Court of
Appeal has since decided People v. McKee, 144 Cal. Rptr. 3d 308 (Cal. Ct. App. 2012), in which
it rejected an identical challenge to the SVPA on equal protection grounds. Leonard asserts that,
“[a]s this issue has now been determined, no further action need be taken in this matter, which
otherwise has become final.” However, while the California Court of Appeal in the district in
which Leonard’s case was brought has issued an opinion rejecting an identical challenge to the
SVPA on equal protection grounds which is thus binding on the court to which his claim was
remanded, People v. Kisling, 167 Cal. Rptr. 3d 339, 342 (Cal. Ct. App. 2014), Leonard’s case

9

has still not been fully adjudicated and thus remains open. As another federal circuit court has
stated, “The fact that state or Commonwealth courts may reject (or have rejected) arguments on
the merits, however, does not mean those courts have deprived a plaintiff of the opportunity to
make the argument. And, it is only where, for procedural or other reasons, the state courts
deprive the plaintiff of such an opportunity that Younger does not apply.” Duty Free Shop, Inc.,
v. Administracion De Terrenos, 889 F.2d 1181, 1183 (1st Cir. 1989). Nor does the trial court’s
delay in issuing an opinion in Leonard’s case constitute an extraordinary circumstance. See
Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 2012) (holding that 5-year delay in prosecution on
robbery charge was not an “extraordinary circumstance” for purposes of the abstention doctrine,
and arrestee had to delay bringing his speedy trial claim in federal court until after he had been
convicted at trial and first presented that claim to state appellate courts).
However, the Younger abstention doctrine rests on notions of comity, federalism, and
respect for pending state proceedings. Fresh Int’l Corp. v. Agric. Labor Relations Bd., 805 F.2d
1353, 1356 (9th Cir. 1986) (quoting Middlesex, 457 U.S. at 431). The doctrine is jurisprudential
rather than jurisdictional, arising from “strong policies counseling against the exercise” of
federal jurisdiction rather than a “lack of jurisdiction in the District Court.” Ohio Civil Rights
Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986). Consequently, a State may
forego a tenable abstention claim and submit to adjudication in a federal forum. See Ohio
Bureau of Emp’t Servs. v. Hodory, 431 U.S. 471, 480 (1977) (“It may not be argued, however,
that a federal court is compelled to abstain in every such situation. If the State voluntarily
chooses to submit to a federal forum, principles of comity do not demand that the federal court
force the case back into the State’s own system.”).

10

A State waives its Younger challenge and consents to a federal forum when it “expressly
urge[s]” the federal court to proceed. Dayton, 477 U.S. at 626. The Ninth Circuit has stated in
dicta, however, that a State does not waive Younger by merely failing to raise the issue.
Boardman v. Estelle, 957 F.2d 1523, 1535 (9th Cir. 1992) (per curiam). In this case, it appears
that Respondent, who is represented by the California Attorney General, has waived any
Younger argument. In her Opposition to Leonard’s Petition, Respondent notes that Leonard has
failed to provide any evidence or documentation showing the disposition of his case upon
remand. Respondent does not, however, argue that this omission renders Leonard’s Petition
subject to dismissal under Younger. Rather, she contends that it shows that “the equal protection
claim is unsupported and premature at best and not cognizable on federal habeas corpus.”
Similarly, the record clearly indicates that Respondent is aware of this Court’s dismissal
of Leonard’s prior petition on Younger grounds as an earlier Findings and Recommendations
issued by the magistrate judge in this proceeding addressed the dismissal at length. Docket No.
18. However, Respondent does not address abstention or exhaustion grounds in her Opposition.
It therefore appears that Respondent goes beyond failing to argue Younger and instead urges the
Court to decide this case on the merits. Recognizing that Respondent seems content to have this
matter resolved, this Court declines to abstain under the Younger doctrine and will address the
merits of Leonard’s claims as discussed below.

11

B.

Exhaustion
This Court may not consider claims that have not been fairly presented to the state courts.

28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). To be
deemed exhausted, a claim must have been presented to the highest state court that may consider
the issue presented. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To have properly
exhausted his state court remedies, Leonard must have presented both the legal arguments and
the factual basis to the highest state court. See Peterson v. Lampert, 319 F.3d 1153, 1155-56
(9th Cir. 2003). Although Leonard raised his constitutional claims on direct appeal to the
California Court of Appeal, he did not present them to the California Supreme Court in his
petition for review. Accordingly, Leonard’s constitutional claims are unexhausted, and
unexhausted claims must be dismissed. See Rhines v. Weber, 544 U.S. 269, 275-78 (2005).
However, this Court need not rely on this basis as it may deny the petition on the merits
notwithstanding the lack of exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the State.”). Given that the
Court of Appeal remanded to the trial court Leonard’s equal protection claim, which Leonard
had raised in his appellate brief as a single constitutional claim with his due process and ex post
facto challenges, it does not appear that Leonard could have fully exhausted his claims at this
time under the unusual procedural posture of this case. Accordingly, this Court also declines to
dismiss the unexhausted constitutional claims solely on exhaustion grounds and will instead
reach the merits of the claims as discussed below.

12

C.

Merits
Insufficient Evidence (Claim 1)
Leonard first argues that there was insufficient evidence to support the jury’s finding that

he “remains or ever was” an SVP. An SVP is defined as “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.” CAL. WELF. & INST. CODE § 6600(a)(1).
The Due Process Clause of the Fourteenth Amendment “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In order to comply
with constitutional requirements with regards to the SVPA, the state must show that Leonard has
serious difficulty in refraining from criminal sexual violence. Kansas v. Crane, 534 U.S. 407,
411-12 (2002). This standard does not require “total or complete lack of control,” but “there
must be proof of serious difficulty in controlling behavior . . . [in order] 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 411-13.
Such a finding is supported by sufficient evidence if, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements . . . beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming
this standard). In making this determination, this Court may not usurp the role of the finder of

13

fact by considering how it would have resolved any conflicts in the evidence, made the
inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when
“faced with a record of historical facts that supports conflicting inferences,” this Court “must
presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any
such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.
A review of the record reveals that the evidence introduced at Leonard’s civil
commitment trial, as laid out in detail above, was sufficient to support the jury’s verdict that
Leonard met the definition of an SVP. Both Drs. North and Hupka are licensed doctors who met
personally with Leonard prior to diagnosing him with coercive paraphilia and antisocial
personality disorder.5 Although Dr. North updated his diagnosis and no longer believed that
Leonard suffered from coercive paraphilia, he opined that Leonard nonetheless met the SVP
criteria based on his antisocial personality disorder which predisposed him to commit sexually
violent offenses.6 Dr. Hupka also testified that, even without the paraphilia diagnosis, he would

5

In Hubbart v. Superior Court, the California Supreme Court rejected the
appellant’s request to strike down the SVPA because it does not expressly exclude antisocial
personality disorders or other conditions characterized by an inability to control violent
antisocial behavior, such as paraphilia, from being categorized as a “diagnosable mental
disorder.” 969 P.2d 584, 598-99 (Ca1. 1999). In so ruling, the court necessarily found that these
conditions can be mental disorders under the SVPA.
6

In an unpublished opinion, the California Court of Appeals rejected the
contention that an antisocial personality disorder diagnosis cannot provide the basis of an SVPA
commitment. People v. Swain, No. F056514, 2010 WL 717687, at *3 (Cal. Ct. App. Mar. 3,
2010) (“We have found no authority to support Swain’s position that an antisocial personality
disorder alone cannot form the basis of an SVP commitment where, like here, the jury makes the
required finding that the disorder makes him a danger to the public because, as a result of the
disorder, it is likely that he will engage in sexually violent predatory conduct.”).
14

still find Leonard likely to engage in sexually violent criminal behavior given his severe
antisocial personality disorder.
The jury was free to accept the conclusions of the prosecution experts over the defense
experts, or to find North’s first assessment that Johnson suffered from paraphilia to be more
persuasive than his testimony at trial that Johnson did not. Thus, the evidence was sufficient to
support the jury’s finding that Johnson had a “mental disorder that ma[de] [him] a danger to the
health and safety of others in that it is likely that he . . . will engage in sexually violent criminal
behavior.” CAL. WELF. & INST. CODE § 6600(a)(1); see Rose v. Mayberg, 454 F.3d 958, 962-65
(9th Cir. 2006) (finding of “mental disorder” that affected offender’s emotional or volitional
capacity and predisposed him to commit further sexual crimes constitutionally supported SVPA
commitment). The jury’s finding based on such evidence does not fall below the threshold of
bare rationality, and the doctors’ testimony at Leonard’s trial satisfied Jackson.
In arguing to the contrary, Leonard relies in large part on the fact that he has not
committed any sexually inappropriate behavior in over two decades. But as the Court of Appeal
noted in rejecting this argument:
[Leonard] neglects to mention that he has been confined in prison custody or in
civil commitment for nearly all the time—the 23 years—he claims he has been towing
the line with respect to his sexual behavior. The 23-year period began after he was
convicted again of a forcible sex crime and sentenced to a significant term. While
sexually inappropriate behavior certainly can take place behind custodial walls, the
critical consideration is whether [Leonard] is likely to engage in sexually violent criminal
behavior outside those walls, an environment much more conducive to such behavior.
Drs. North and Hupka answered “yes” to this critical question.
Leonard, 2010 WL 1217971, at *3 (footnote omitted).

15

Leonard also argues that the likelihood of recidivism is very low given his advanced age,
which, at the time of the Court of Appeal’s decision, was nearly 60 years. The Court of Appeals
also reasonably rejected that argument, reasoning:
[O]ne can say that, for [Leonard], it’s not so much the age as the mileage. Even
though the advance to age 60 is typically a protective factor, Dr. Hupka concluded (and
Dr. North concurred), “I don’t see it with [Leonard].” Both doctors noted [Leonard’s]
vigor and noted that he had physically assaulted another person in 2007 (an elderly
patient). Again, in Dr. Hupka’s words: There was no evidence [Leonard] was “slowing
down.” [He] had been “very hostile” and “potentially threatening” even during Dr.
Hupka’s recent interview. This atypicality was what made Drs. North and Hupka opine
that [Leonard] met the SVP criteria based on his severe antisocial personality disorder
alone.
Furthermore, [Leonard] points to studies showing the rate of re-offense for sex
offenders age 60 and over is very low or zero. Again, that is the typical case. This is not.
A study based on a Static-99-like test showed that offenders, aged 40 to 59 with two prior
sexual sentencings, like [Leonard], had a 49 percent recidivism rate. Also, [Leonard]
tallied his Static-99 “high risk” score in 2000, not when he was some kid, but 50 years
old. And Dr. Kellaher’s defense-supportive testimony that antisocial personality disorder
typically falls to zero around age 60 concerning the commission of all crimes, including
assault, is undercut by [Leonard’s] commission of assault in 2007.
Id.
In short, ample evidence presented at Leonard’s trial demonstrates that the California
Court of Appeal’s rejection of Leonard’s claim was reasonable, and Leonard is therefore not
entitled to relief on this ground.
Constitutional Claims (Claims 2, 3)
Leonard additionally contends in claim 2 that “[t]he order of indefinite commitment
violated [his] federal constitutional rights to due process of law, to be free of ex[]post facto laws,
and to equal protection of the law.” He also asserts in claim 3 that the SVPA violates his double
jeopardy rights.

16

1.

Due Process

Leonard first claims that “Proposition 83 modified the SVP Act by providing for an
indeterminate commitment and shifting the burden of proof in commitment proceedings to the
committed individual to prove by a preponderance of the evidence that he is not a SVP.” He
claims that the SVPA additionally violates due process because, “[w]hile the new version of the
SVP Act does provide mechanisms for judicial review of the indefinite commitment, these
mechanisms are inadequate under the due process clause.”
The SVPA provides for the civil commitment of a person found to be “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.” CAL. WELF. &
INST. CODE § 6600(a)(1). Persons who are in custody under the jurisdiction of the California
Department of Corrections and Rehabilitation are screened prior to their scheduled release from
prison and, for those who screen positive, full evaluations are performed by the DMH. Id.
§ 6601. If formal commitment proceedings are initiated, the person is entitled to a trial by jury,
id. § 6603(a), at which the verdict must be unanimous, id. § 6603(f), and the burden of proof is
beyond a reasonable doubt, id. § 6604.
The SVPA originally provided for a two-year term of commitment and two procedures
by which an SVP could obtain release. First, former § 6605 required the DMH to submit an
annual report with the committing court, following an examination, considering whether the
committed person currently met the definition of an SVP and whether unconditional release was
appropriate. See 1995 Cal. Legis. Serv. Ch. 763 (A.B. 888) (West). Second, the DMH was

17

required to notify the SVP of his or her right to petition the committing court for conditional
release under § 6608 and to forward the notification and a waiver of the SVP’s right to petition
as part of the annual report. Id. If the SVP did not waive his or her right to petition, the
committing court was required to set a show cause hearing to determine whether the person still
met the definition of an SVP. Id.
The SVPA, as amended by Proposition 83, now provides for an indeterminate term of
commitment. CAL. WELF. & INST. CODE § 6604. The amended SVPA no longer requires the
DMH to submit notification and waiver of the SVP’s right to petition the committing court under
§ 6608 as part of their annual report, but the amended SVPA continues to provide two
procedures by which an SVP can obtain release. Section 6605 requires the DMH, following an
examination, to submit an annual report with the committing court considering “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 discharge is in the best
interest of the person and conditions can be imposed that would adequately protect the
community.” Id. §§ 6604.9(a),(b), 6605. The DMH is required to authorize the person to file a
petition for conditional release or unconditional discharge where the person’s condition has so
changed that he no longer meets the definition of an SVP or conditional release is appropriate.
Id. §§ 6604.9(b), 6605. Second, under § 6608, a person under commitment as an SVP may
unilaterally petition for release, conditional or unconditional, without DMH concurrence. Id.
§ 6608(a). The committed person has the burden of proof by a preponderance of the evidence.
Id. § 6608(i).

18

The California Court of Appeals rejected Leonard’s due process claims, finding no basis
for speculating that the DMS will not fairly assess the mental condition of a committed person
and that the remainder of Leonard’s due process claims were foreclosed by the California
Supreme Court’s decision in People v. McKee, 223 P.3d 566 (Cal. 2010). Leonard, 2010 WL
1217971, at *4.
Leonard is not entitled to federal habeas relief on these claims either because it cannot be
said that the California Court of Appeal’s rejection of his due process claims was contrary to, or
involved an unreasonable application of, clearly established Supreme Court precedent. See 28
U.S.C. § 2254(d). The United States Supreme Court has never held that the prosecution must
bear the burden of proof at a release hearing initiated by a person who was civilly committed
under state law upon a finding beyond a reasonable doubt that the person met the criteria for
commitment. Nor is there any Supreme Court authority that requires periodic judicial hearings
with regard to continued civil commitment or mandates more mechanisms for judicial review
than the SVPA provides. In sum, because there is no Supreme Court precedent that controls on
the due process claims raised by Leonard in state court, the California Court of Appeal’s
decision cannot be contrary to, or an unreasonable application of, clearly established Supreme
Court precedent. See Carey, 549 U.S. at 77.
2.

Ex Post Facto

Leonard additionally argues that the SVPA violates the constitutional prohibition against
ex post laws.
The Ex Post Facto Clause applies only to punishment for criminal acts, whether
punishment for an act not punishable at the time it was committed, or additional punishment to

19

that then prescribed. Collins v. Youngblood, 497 U.S. 37, 42 (1990). To determine what
constitutes punishment in an ex post facto claim analysis, the Supreme Court has applied the
double jeopardy “intent-effects” test set out in United States v. Ward, 448 U.S. 242, 248-249
(1980). See Smith v. Doe, 538 U.S. 84, 92 (2003). The two-pronged Ward test requires that the
court inquire: (1) whether the legislature intended to impose punishment and, if not, (2) whether
the sanction is so punitive in purpose or effect as to negate the state’s intent to deem it civil.
Smith, 538 U.S. at 92. The Court shall reject the legislature’s intent under the second “effects”
prong only where there is “the clearest proof” to support such a finding. Id.
The SVPA is a non-punitive statute under the initial intent prong of the Ward test. First,
the SVPA is placed within Welfare & Institutions Code, rather than California’s criminal code,
differentiating it from the state’s laws intended to punish criminal acts. Second, language in
Proposition 83 states that “[i]t is the intent of the People in enacting this measure to help
Californians better protect themselves, their children, and their communities; it is not the intent
of the People to embarrass or harass persons convicted of sex offenses.” 2006 Cal. Legis. Serv.
Prop. 83 §1(f) (Proposition 83) (WEST). The people of California approved Proposition 83 in
2006, amending the SVPA and thus expressing their intent that it serve as a civil commitment
statute rather than a mechanism to punish criminal conduct.
Moving to the second prong of the Ward test, the SVPA’s effects are not so punitive as to
overcome the act’s civil intent. In assessing a law’s effects, the Court shall consider the
following seven-factor test:
Whether the sanction involves an affirmative disability or restraint, whether it has
historically been regarded as a punishment, whether it comes into play only on a finding
of scienter, whether its operation will promote the traditional aims of
punishment—retribution and deterrence, whether the behavior to which it applies is
20

already a crime, whether an alternative purpose to which it may rationally be connected
is assignable for it, and whether it appears excessive in relation to the alternative purpose
assigned . . . .
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (footnotes omitted); see, e.g., Smith
v. Doe, 538 U.S. 84, 95-105 (2003).
The seven-factor test set out in Mendoza-Martinez indicates that the SVPA’s effect is
non-punitive. Under factors one and two, while the SVPA involves an affirmative disability or
restraint, civil commitment of sexually violent predators has been historically regarded as a
legitimate non-punitive governmental objective. Kansas v. Hendricks, 521 U.S. 346, 363 (1997).
Under factor three, SVPA commitment is based upon a currently “diagnosed mental disorder”
rather than on a finding of scienter. CAL. WELF & INST. CODE § 6600(a)(1),(c). Factor four is
not supportive of Leonard’s position because the SVPA cannot be said to serve the penological
purpose of deterrence or retribution because commitment is contingent on the inability to control
sexually violent urges which, by definition, cannot be controlled or deterred, and the lack of a
scienter requirement in the SVPA suggests that the statute is not intended to promote the
penological purpose of retribution. Under factor five, the behavior to which the SVPA applies is
not a crime because being diagnosed with a mental disorder is not a crime. Finally, under factors
six and seven, the duration of an SVPA commitment is both related to the act’s rehabilitative
purpose and not excessive because commitment is conditional upon a current mental disorder.
Id. §§ 6605, 6608. In sum, consideration of all seven Mendoza-Martinez factors strongly
suggests that the SVPA’s effects are civil.
It is important to note that the Supreme Court denied a habeas challenge in circumstances
similar to those presented by Leonard’s ex post facto claim. In Hendricks, the Supreme Court

21

upheld a Kansas civil commitment statute under the Ward “intent-effects” test, reasoning that the
potential for indefinite confinement showed the rehabilitative, rather than punitive, purpose of
the statute. Hendricks, 521 U.S. at 361-362. Additionally, the statute did not have a retroactive
effect because confinement was conditioned upon a determination that the person was currently
suffering from a mental disorder. Id. The SVPA mirrors the Kansas statute in that there is a
potential for indefinite confinement and that commitment lasts only so long as the detainee
suffers from an ongoing, diagnosed mental disorder. Accordingly, the California Court of
Appeal’s decision rejecting Leonard’s ex post facto challenge is neither unreasonable nor
contrary to federal law, and Leonard is therefore not entitled to relief on this ground.
3.

Equal Protection

Leonard next argues that SVPs committed under the SVPA are denied equal treatment in
comparison to those determinately committed as mentally disordered offenders (“MDO’s”) and
as not guilty by reason of insanity (“NGI’s”), with whom he claims share two “common
criteria—a finding of mental disorder, and a showing of dangerousness.”
“The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S.
202, 216 (1982)). The Supreme Court has articulated three distinct standards applicable to equal
protection analysis: strict scrutiny, heightened scrutiny and rational basis review. Id. at 440-41.
The standard to be invoked depends on the nature of the class involved or the interest affected.

22

In People v. McKee, the California Supreme Court “some merit” in this contention and
remanded the case “to the trial court to determine whether the People . . . can demonstrate the
constitutional justification for imposing on SVPs a greater burden than is imposed on MDO’s
and NGI’s in order to obtain release from commitment.” McKee, 223 P.3d at 587. The Court of
Appeal, after independently reviewing the additional evidence presented on remand in the
superior court, subsequently concluded:
[T]he People on remand met their burden to present substantial evidence,
including medical and scientific evidence, justifying the amended Act’s disparate
treatment of SVP’s (e.g., by imposing indeterminate terms of civil commitment and
placing on them the burden to prove they should be released). The People have shown
that, “notwithstanding the similarities between SVP’s and MDO’s [and NGI’s], the
former as a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed to
protect society.” The People have shown “that the inherent nature of the SVP’s mental
disorder makes recidivism as a class significantly more likely[;] . . . that SVP’s pose a
greater risk [and unique dangers] to a particularly vulnerable class of victims, such as
children [;]” and that SVP’s have diagnostic and treatment differences from MDO’s and
NGI’s, thereby supporting a reasonable perception by the electorate that passed
Proposition 83 that the disparate treatment of SVP’s under the amended Act is necessary
to further the state’s compelling interests in public safety and humanely treating the
mentally disordered.
McKee, 144 Cal. Rptr. 3d at 324 (internal citations omitted).
The California Court of Appeal’s decision in McKee, which rejects Leonard’s equal
protection claim, does not contravene or unreasonably apply federal law. It simply cannot be
said that the appellate court’s determination that the disparate treatment between SVPs and
MDO’s and NGI’s is necessary to further a compelling state interest is objectively unreasonable.
Williams, 529 U.S. at 409. Accordingly, Leonard is not entitled to relief on his equal protection
claim.

23

4.

Double Jeopardy

Leonard additionally argues that the SVPA violates his double jeopardy rights. In
rejecting that claim on direct appeal, the California Court of Appeal held:
[Leonard] also claims the amended SVP Act violated his double jeopardy
rights. However, [Leonard] has forfeited this claim by failing to separately head
it and to provide authority for it. (Cal. Rules of Court, rule 8.204(a)(1)(B);
Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal. App. 3d 218, 228,
220 Cal. Rptr. 712.)
Leonard, 2010 WL 1217971, at *5 n.3.
Respondent contends that, because the California Court of Appeal decided the issue on
state procedural grounds, Leonard is procedurally barred from raising the double jeopardy issue
in this Court. Federal courts “will not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is independent of the federal question
and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). This
Court may not reach the merits of procedurally defaulted claims, that is, claims “in which the
petitioner failed to follow applicable state procedural rules in raising the claims . . . .” Sawyer v.
Whitley, 505 U.S. 333, 338 (1992). The appellate court’s denial is therefore an independent and
adequate state ground that precludes federal habeas review. Cone v. Bell, 556 U.S. 449, 465
(2009) (“[C]onsistent with the longstanding requirement that habeas petitioners must exhaust
available state remedies before seeking relief in federal court, we have held that when a
petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the
state court’s refusal to adjudicate the claim ordinarily qualifies as an independent and adequate
state ground for denying federal review.”).

24

Moreover, even if this Court were to reach the merits of Leonard’s claim, it would be
denied. As previously discussed, California’s SVPA is civil and not criminal in nature, thus
foreclosing any attack on double jeopardy grounds. See Seling v. Young, 531 U.S. 250, 260-65
(2001) (the civil nature of a statute forecloses double jeopardy claims, even if the individual
argues that the statute is punitive as applied to him or her, because it does not establish criminal
proceedings or constitute a punishment); Hendricks, 521 U.S. at 359-69. Leonard’s third ground
is thus both procedurally barred and meritless.
Ineffective Assistance of Counsel (Claim 4)
Finally, Leonard argues that he was denied the effective assistance of trial and appellate
counsel.
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a
reasonable probability that the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,
1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at
393-95. Thus, Leonard must show that defense counsel’s representation was not within the
range of competence demanded of attorneys in criminal cases, and that there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been different. See Hill
v. Lockhart, 474 U.S. 52, 57 (1985).

25

An ineffective assistance of counsel claim should be denied if the petitioner fails to make
a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697
(courts may consider either prong of the test first and need not address both prongs if the
defendant fails on one).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And,
because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
It is through this highly deferential lens that a federal habeas court reviews Strickland
claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003)).
Leonard first argues that his trial counsel rendered ineffective assistance because he
failed to preserve the issue of whether the trial court erroneously denied his request to exclude
expert witness testimony from the probable cause hearing on the basis that the interview on
which the testimony was based was unrecorded. Leonard raised this claim in his state habeas
petition, which was summarily denied.
In support of his claim, Leonard attaches to his Petition the transcript of a hearing held on
August 10, 2005, in which he objected to the introduction of the evaluators’ testimony regarding
their evaluations because he did not have an audiotaped copy of the evaluations. Leonard stated

26

that he had requested that the evaluations be audiotaped, but his requests were refused and his
trial counsel “didn’t listen” to his complaint. Trial counsel then stated:
Now, I haven’t been able to make the issue previously because I couldn’t get any
information from Mr. Leonard if he would be interviewed, and since it’s been the longest
time since he’s considered to [sic] an interview, one time when I went to Atascadero, he
wouldn’t even be interviewed by me so I didn’t know he wanted to talk to the doctors. If
that’s so, I think it is something that we need to take up.”
The trial court indicated that Leonard could undergo an authorized audiotaped evaluation
between the probable cause hearing and trial, but it would not grant a continuance of the
probable cause hearing as any request would be untimely. Trial counsel responded:
The reason that I would disagree with the Court on that is that [Leonard] has
never been provided an opportunity to make a request for taping prior to this. Part of that
has been his inclination to not discuss his case with my office, but the first available
opportunity for that would be sometime between the 19th and 25th of July. He was
absent on the court appearance on the 29th, and this is the next available opportunity to
have contact with me. I have attempted to mail to him, and he indicates that was
unsuccessful so he hasn’t had an opportunity to get this issue before the Court and make
the request.
If the Court is directing that ruling in instances where probable cause hearings are
promptly set, [Leonard] would be effectively denied a right to get that request in. They
haven’t had an opportunity to speak to counsel. And so under the timing of this
particular case, he’s done it about as fast as he could.
The record therefore indicates that, contrary to Leonard’s assertion, his trial counsel
objected to the court’s ruling. The record also shows that trial counsel could have raised the
issue earlier had Leonard provided him with the necessary information. See Alcala v. Woodford,
334 F.3d 862 (9th Cir. 2003) (finding that trial counsel’s performance was not deficient where
defendant did not inform him of facts within defendant’s knowledge). Moreover, Leonard
cannot demonstrate prejudice as the trial court specifically authorized an audiotaped interview,
and the record indicates that Leonard submitted to an interview with Dr. Hupka in June 2007,
prior to trial. Consequently, Leonard’s corresponding ineffective assistance of appellate counsel
27

claim, which alleges that counsel should have raised on appeal the ineffective assistance of trial
counsel, also must fail. Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (“A failure to
raise untenable issues on appeal does not fall below the Strickland standard.”).
Leonard also faults appellate counsel for failing to properly raise his double jeopardy
claim. However, as discussed above, that claim is without merit and would have been without
merit before the state appellate courts in light of the California Supreme Court’s decision in
McKee, 223 at 576-78 (rejecting defendant’s contention that SVPA is punitive). Accordingly,
Leonard cannot prevail on any of his ineffective assistance claims.
V. CONCLUSION AND ORDER
Leonard is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

28

537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 16, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

29