Sullivan v. King et al

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 10/2/2017. Signed by Judge Richard Seeborg on 7/24/17. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 7/24/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MANSE SULLIVAN,

United States District Court
Northern District of California

Petitioner,

Case No. 17-cv-02546-RS (PR)

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v.

ORDER TO SHOW CAUSE

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AUDREY KING,
Respondent.

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INTRODUCTION

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Petitioner seeks federal habeas relief from his civil detention under California’s

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Sexually Violent Predator Act (“SVPA”), Welf. & Inst. Code (“CWIC”) §§ 6600–04, as

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amended in 2006 by SB1128 and Proposition 83. The petition for such relief is now

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before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules

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Governing Section 2254 Cases.

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The petition appears to state claims for relief. In consequence, respondent shall file
a response to the petition on or before October 2, 2017, unless an extension is granted.
BACKGROUND
Petitioner is civilly committed for an indeterminate term at Coalinga State Hospital

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as a sexually violent predator (“SVP”). An SVP is an individual “who has a diagnosed

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mental disorder that makes the person a danger to the health and safety of others in that it

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is likely that he or she will engage in sexually violent criminal behavior.” CWIC

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§ 6600(a).

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In July 2005, the Santa Clara District Attorney filed a petition in state court to

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extend petitioner’s civil detention. Prior to the detention trial, the SVPA was amended to

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provide for an indeterminate term of commitment, and the District Attorney subsequently

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filed an amended petition, reflecting the statutory amendment. The jury found the petition

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true, and the state court extended petitioner’s commitment for an indefinite period.
In 2009 in this Court, petitioner filed a petition for federal habeas relief from the

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jury’s determination that the petition was true. (Sullivan v. Kramer, 3:09-cv-03690-RS,

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Dkt. No. 1). The Court denied his petition and entered judgment in favor of respondent.

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United States District Court
Northern District of California

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(Id., Dkt. Nos. 31 and 32.) Petitioner appealed, but the Ninth Circuit terminated his appeal

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when it denied his request for a certificate of appealability. (Id., Dkt. No. 37.) Petitioner

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asked the U.S. Supreme Court for review, but his petition was denied. (Id., Dkt. No. 40.)

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The current petition is an attempt to secure discharge from his indeterminate

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detention. An SVP is allowed to file in the state superior court a petition for discharge

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under CWIC § 6608. It appears petitioner filed such petitions in the state courts, which

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were all denied. Whether his petitions comported with state law requirements, this Court

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cannot say.

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DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). A district court considering an application for a writ of habeas corpus shall

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“award the writ or issue an order directing the respondent to show cause why the writ

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should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

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only where the allegations in the petition are vague or conclusory, palpably incredible, or
ORDER TO SHOW CAUSE
CASE NO. 17-cv-02546-RS

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner claims there is no evidence to

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support a finding that he is an SVP, as shown by allegedly inadequate annual commitment

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evaluations. When liberally construed, this claim is cognizable on federal habeas review.

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CONCLUSION

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1. The Clerk shall serve a copy of this order, the petition and all attachments

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thereto, on respondent and respondent’s counsel, the Attorney General for the State of

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California. The Clerk shall also serve a copy of this order on petitioner.

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2. Respondent shall file with the Court and serve on petitioner on or before
October 2, 2017 an answer conforming in all respects to Rule 5 of the Rules Governing

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United States District Court
Northern District of California

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted

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based on petitioner’s cognizable claims. Respondent shall file with the answer and serve

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on petitioner a copy of all portions of the state trial record that previously have been

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transcribed and that are relevant to a determination of the issues presented by the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, within sixty (60) days of the date this

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order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent

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files such a motion, petitioner shall file with the Court and serve on respondent an

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opposition or statement of non-opposition within thirty (30) days of the date the motion is

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filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen

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(15) days of the date any opposition is filed.

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.

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ORDER TO SHOW CAUSE
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6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. Upon a showing of good cause, requests for a reasonable extension of time will
be granted provided they are filed on or before the deadline they seek to extend.
8. The Clerk shall amend the docket to reflect that Audrey King, the executive
director of the institution in which petitioner is housed, is the sole respondent in this

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action. Petitioner erroneously also named the California Department of Mental Health as

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co-respondent. King, not the Department, is the sole proper respondent in this action, as

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United States District Court
Northern District of California

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she is the custodian having day-to-day control over petitioner, the only person who can

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produce “the body” of the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th

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Cir. 1992) (quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)).

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9. Petitioner’s application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED.

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10. The Clerk shall terminate Dkt. No. 2.

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IT IS SO ORDERED.

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Dated: July___, 2017

_________________________
RICHARD SEEBORG
United States District Judge

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ORDER TO SHOW CAUSE
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