Nothnagel v. County of Humboldt et al

Filing 10

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 2/2/16. (Attachments: # 1 Certificate/Proof of Service)(jebS, COURT STAFF) (Filed on 2/2/2016)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 11 12 13 14 PREN NOTHNAGEL, ) No. C 12-5976 CW (PR) ) Petitioner, ) ORDER DENYING PETITION FOR A ) WRIT OF HABEAS CORPUS v. ) ) ) CLIFF ALLENBY, ) Respondent. ) ___________________________ ) 15 16 17 18 19 INTRODUCTION Petitioner seeks federal habeas relief from his civil detention under California’s Sexually Violent Predator Act (SVPA), California Welfare and Institutions Code sections 6600–04, as 20 amended in 2006 by SB1128 and Proposition 83. For the reasons set 21 22 23 24 forth below, the petition for such relief is DENIED. BACKGROUND Petitioner is civilly committed at Coalinga State Hospital as 25 a sexually violent predator (SVP). 26 has a diagnosed mental disorder that makes the person a danger to 27 28 An SVP is an individual “who the health and safety of others in that it is likely that he or 1 she will engage in sexually violent criminal behavior.” 2 Welf. & Inst. Code § 6600(a). 3 4 Cal. In March 2009, a Humboldt County Superior Court jury found true a petition that Petitioner, who was then sixty-five years 5 old, is an SVP. The trial court committed him to an indeterminate 6 7 term in a facility to be designated by the California Department 8 of Mental Health (DMH). 9 United States District Court For the Northern District of California 10 11 Pet. at 2; Ans., Ex. A at 326. Evidence presented at his civil commitment trial included the testimony of two psychologists, Drs. Jeremy Coles and Craig Updegrove. The two interviewed Petitioner, reviewed his criminal 12 history, which included five criminal convictions for committing 13 14 15 16 lewd and lascivious behavior with a child, and evaluated his risk of reoffending. Petitioner’s criminal history is as follows. In 1975, 17 Petitioner approached several eight- and nine-year-old boys and 18 began masturbating in front of them. 19 his penis. He had one of the boys touch Petitioner was consequently convicted of two counts of 20 loitering where children were present. Ans., Ex. J, Vol. 4 at 21 22 23 812-13. In 1978, Petitioner was arrested for masturbating in front of 24 children in a park. 25 placed on probation. 26 27 He plead guilty to indecent exposure and was Id. at 813. In 1991, Petitioner befriended eleven-year-old Cody, gave him candy and pornography, and, over a matter of several months, 28 2 1 engaged in masturbation, oral copulation, and sodomy. 2 occasion, Petitioner tied the child up. He threatened to “hunt 3 down” and kill Cody if he told anyone. Id. at 814; Ex. A at 26. 4 On one Petitioner was convicted of five counts of lewd and lascivious 5 conduct with a child and sentenced to sixteen years in prison. 6 7 Id., Ex. A at 6. In 2006, Petitioner, then sixty-two, approached several young 8 9 boys and asked if they wanted to see pornography. The boys ran United States District Court For the Northern District of California 10 away and reported the incident. 11 count of attempting to annoy or molest a child and was sentenced 12 to two years in prison. Petitioner plead guilty to one Id., Ex. J., Vol. 4 at 817-18; Pet., Ex. 13 2A. Coles and Updegrove evaluated his risk of reoffending using 14 15 actuarial risk formulas, one of which was the Static 99. They 16 gave Petitioner a score of eight and seven (out of a possible 17 twelve), respectively. 18 reoffending.” 19 20 Both scores indicate “high risk of Ans., Ex. J, Vol. 4 at 828-29; Vol. 5 at 957. Coles and Updegrove also considered Petitioner’s age. They rejected the idea that his age was a protective factor in lowering 21 22 his risk of reoffending. Id., Vol. 4 at 822. Though they 23 acknowledged that he did not actually molest anyone in 2006 when 24 he was 62 years old, they noted that he exhibited the same “MO” as 25 he had in prior offenses. 26 has denied committing any sexual offenses and rejected the idea 27 Id. at 818. Also, because Petitioner that he needs treatment, the doctors were not convinced that he 28 3 1 would voluntarily seek treatment if released. Id. at 836. 2 3 4 Based on this and other evidence, both Coles and Updegrove testified at the 2009 commitment proceeding that Petitioner had 5 pedophilia and was likely to engage in sexually violent predatory 6 7 criminal acts as a result of this disorder. Id. The doctors 8 further explained that pedophilia is a chronic condition that 9 individuals can manage, but that it can never go into remission. United States District Court For the Northern District of California 10 11 12 Id. at 821. Petitioner, who represented himself at trial, presented the testimony of two psychologists, Drs. James Park and Otto Vanoni. 13 14 Both also diagnosed pedophilia. Id. at 667; Vol. 5 at 1027. 15 However, Dr. Park believed Petitioner’s pedophilia was in 16 remission. 17 did not have a high risk of reoffending in a sexually violent 18 predatory manner if released. 19 Id., Vol. 4 at 668. Both doctors concluded that he Id. at 670; Vol. 5 at 1030. They also found his age to be a significant protective factor because 20 the likelihood of reoffending drops dramatically after the age of 21 22 sixty. Id., Vol. 4 at 659; Vol. 5 at 1030. They also were 23 convinced Petitioner’s 2006 offense was not indicative of the 24 desire to reoffend; rather, it was simply a “stupid” offense with 25 no evidence supporting the desire to molest. 26 68; Vol. 5 at 1029. 27 Id., Vol. 4 at 667- Petitioner and his doctors asserted that he had gained empathy and an understanding about the effects of his 28 4 1 offenses on the victims. Id., Vol. 4 at 672; Vol. 5 at 1031. 2 3 4 The jury, as noted above, found that Petitioner was an SVP. He appealed his 2009 civil commitment judgment. In 2010, the 5 state appellate court affirmed in part, reversed in part, remanded 6 7 the case to the trial court for consideration of Petitioner’s 8 equal protection claim, but stayed the trial court proceedings 9 until the state supreme court decided People v. McKee, 207 Cal. United States District Court For the Northern District of California 10 App. 4th 1325 (2012). 11 denied his petitions for review and for habeas corpus. 12 Ans., Ex. E. The state supreme court Id., Exs. G and I. 13 In 2011, he filed a federal habeas petition, which this Court 14 15 dismissed without prejudice to refiling after the state supreme 16 court decided McKee. 17 his federal petition. 18 19 20 When McKee became final, Petitioner refiled Petitioner raises twenty-seven claims for federal habeas relief. These fall into five categories: (I) challenges to the constitutionality of the SVPA; (II) challenges to prior 21 22 23 24 25 26 27 28 convictions; (III) sufficiency of the evidence; (IV) specific trial errors; and (V) Sixth Amendment claims. STANDARD OF REVIEW Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the 5 1 state court’s adjudication of the claim: “(1) resulted in a 2 decision that was contrary to, or involved an unreasonable 3 application of, clearly established Federal law, as determined by 4 the Supreme Court of the United States; or (2) resulted in a 5 decision that was based on an unreasonable determination of the 6 7 facts in light of the evidence presented in the State court 8 proceeding.” 28 U.S.C. § 2254(d). The first prong applies both 9 to questions of law and to mixed questions of law and fact, United States District Court For the Northern District of California 10 Williams (Terry) v. Taylor, 529 U.S. 362, 407–09 (2000), while 11 the second prong applies to decisions based on factual 12 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 13 A state court decision is “contrary to” Supreme Court 14 15 authority, that is, falls under the first clause of § 2254(d)(1), 16 only if “the state court arrives at a conclusion opposite to that 17 reached by [the Supreme] Court on a question of law or if the 18 state court decides a case differently than [the Supreme] Court 19 has on a set of materially indistinguishable facts.” 20 (Terry), 529 U.S. at 412–13. Williams A state court decision is an 21 22 23 “unreasonable application of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly 24 identifies the governing legal principle from the Supreme Court’s 25 decisions but “unreasonably applies that principle to the facts 26 of the prisoner’s case.” 27 habeas review may not issue the writ “simply because that court 28 Id. at 413. The federal court on concludes in its independent judgment that the relevant 6 1 state-court decision applied clearly established federal law 2 erroneously or incorrectly.” 3 application must be “objectively unreasonable” to support 4 granting the writ. Id. at 411. Id. at 409. Rather, the Under 28 U.S.C. § 2254(d)(2), 5 a state court decision “based on a factual determination will not 6 7 be overturned on factual grounds unless objectively unreasonable 8 in light of the evidence presented in the state-court 9 proceeding.” United States District Court For the Northern District of California 10 Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 11 12 DISCUSSION I. Constitutionality of the SVPA 13 Petitioner claims that the SVPA violates the (A) ex post 14 15 facto, (B) double jeopardy, (C) due process, (D) excessive bail, 16 and (E) equal protection clauses.1 17 rejected Claims A, B, and C: “the SVPA does not contravene due 18 process, ex post facto, or double jeopardy principles.” 19 Ex. E at 1. 20 The state appellate court Ans., The state supreme court summarily denied all claims, including the one regarding bail. Id., Ex. G. 21 A. 22 Ex Post Facto 23 24 25 26 27 28 1 Petitioner asserts that the SVPA discriminates against low income offenders. Pet. at 16. It is true that one of the evidentiary considerations in determining civil commitment is whether the defendant possessed the necessary resources to undertake treatment voluntarily. Ghilotti v. Superior Court, 27 Cal. 4th 888, 929 (2002). Petitioner’s claim is without merit. In Petitioner’s case, his prior offenses and responses to current evaluations were far more powerful factors in his detention than his income. The state court’s rejection of this claim was reasonable and is therefore entitled to AEDPA deference. Accordingly, this claim is DENIED. 7 1 Petitioner claims that the 2006 changes to the SVPA violate 2 the ex post facto clause by eliminating the biannual judicial 3 proceeding previously required to extend an SVP’s commitment. 4 Pet. at 5-6. 5 The ex post facto clause applies only to punishment for 6 7 criminal acts, whether punishment for an act not punishable at 8 the time it was committed, or punishment additional to that then 9 prescribed. Collins v. Youngblood, 497 U.S. 37, 42 (1990). To United States District Court For the Northern District of California 10 determine what constitutes punishment in an ex post facto claim 11 analysis, the Supreme Court has applied the double jeopardy 12 “intent-effects” test set out in United States v. Ward, 448 U.S. 13 242, 248–49 (1980); see also Smith v. Doe, 538 U.S. 84, 92 14 15 (2003). The two-pronged Ward test requires that the Court 16 inquire (1) whether the legislature intended to impose punishment 17 and, if not, (2) whether the sanction is so punitive in purpose 18 or effect as to negate the state’s intent to deem it civil. 19 Smith, 538 U.S. at 92. 20 The Court may reject the legislature’s intent under the second “effects” prong only where there is “the 21 22 23 clearest proof” to support such a finding. Id. The SVPA is a non-punitive statute under the initial intent 24 prong of the Ward test. 25 California Welfare and Institutions Code, rather than 26 California’s criminal code, differentiating it from the state’s 27 laws intended to punish criminal acts. 28 First, the SVPA is placed within the Second, language in Proposition 83 described the SVPA as designed to “commit and 8 1 control” as opposed to “punish.” 2 7, 2006) text of Prop. 83, § 2(h), p. 127. 3 California approved Proposition 83 in 2006, amending the SVPA and 4 thus expressing their intent that it serve as a civil commitment 5 Ballot Pamp., Gen. Elec. (Nov. The people of statute rather than as a mechanism to punish criminal conduct. 6 7 Under the second Ward prong, the SVPA’s effects are not so 8 punitive as to overcome the Act’s civil intent. 9 law’s effects, the Court shall consider the following test: United States District Court For the Northern District of California 10 11 12 13 14 15 16 In assessing a 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 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). The 17 most relevant factors of this test are “whether, in its necessary 18 19 operation, the regulatory scheme has been regarded in our history 20 and traditions as a punishment; imposes an affirmative disability 21 or restraint; promotes the traditional aims of punishment; has a 22 rational connection to a nonpunitive purpose; or is excessive 23 with respect to this purpose.” 24 Smith v. Doe, 538 U.S. 84, 97 (2003). 25 Consideration of these factors indicates that the SVPA’s 26 27 28 effect is non-punitive. First, while the SVPA involves an affirmative disability or restraint, civil commitment of sexually 9 1 violent predators has been historically regarded as a legitimate 2 non-punitive governmental objective. 3 U.S. 346, 363 (1997). 4 5 Kansas v. Hendricks, 521 Second, the SVPA cannot be said to serve the penological purpose of deterrence or retribution. It does not deter because 6 7 commitment is contingent on the inability to control sexually 8 violent urges. The threat of commitment is not likely to deter 9 SVPs from sexually violent crime because they, by definition, United States District Court For the Northern District of California 10 cannot control their impulses. 11 based on a currently “diagnosed mental disorder” rather than a 12 13 finding of scienter. Also, the SVPA commitment is Cal. Welf. & Inst. Code § 6600(a)(1), (c). This lack of a scienter requirement in the SVPA suggests that the 14 15 16 statute is not intended to promote the penological purpose of retribution. Finally, the duration of an SVPA commitment is both related 17 18 to the Act’s rehabilitative purpose and not excessive because 19 commitment is conditional upon a current mental disorder. 20 §§ 6605, 6608. Id. The former may not continue without the latter. 21 In sum, consideration of the relevant Mendoza-Martinez factors 22 23 strongly indicates that the SVPA’s effects are civil. It is important to note that the United States Supreme Court 24 25 denied a habeas challenge in circumstances similar to those 26 presented by Petitioner. 27 a Kansas civil commitment statute under the Ward “intent-effects” 28 test. In Hendricks, the Supreme Court upheld The Court reasoned that the potential for indefinite 10 1 confinement showed the rehabilitative, rather than punitive, 2 purpose of the statute. 3 addition, the Court found that the statute did not have a 4 retroactive effect because confinement was conditioned upon a 5 Hendricks, 521 U.S. at 361–62. In determination that the person was currently suffering from a 6 7 mental disorder. Id. The SVPA mirrors the Kansas statute in 8 that there is a potential for indefinite confinement but the 9 commitment lasts only so long as the detainee suffers from an United States District Court For the Northern District of California 10 11 12 ongoing, diagnosed mental disorder. Accordingly, the state court’s rejection of Petitioner’s ex post facto claim was reasonable and is entitled to AEDPA 13 deference. This claim is DENIED. 14 15 16 B. Double Jeopardy Petitioner claims that the SVPA violates the double jeopardy 17 clause, arguing that “saying [civil] detention is not punishment 18 because it is civil is a farce.” 19 20 Pet. at 10. Habeas relief is not warranted here. Conduct may be subject to both a criminal penalty and a separate civil remedy without 21 running afoul of the double jeopardy clause’s prohibition on 22 23 multiple criminal punishments for the same offense. Hudson v. 24 United States, 522 U.S. 93, 99 (1997). 25 Court rejected a double jeopardy claim because the challenged 26 statute was based on “the stated purposes of the commitment, 27 namely, to hold the person until his mental abnormality no longer 28 causes him to be a threat to others.” 11 In Hendricks, the Supreme Hendricks, 521 U.S. at 1 2 363. Also, the lack of an annual review in California’s SVPA 3 alone does not alter its non-punitive nature. 4 purpose of confinement under the SVPA are analogous to that of 5 Duration and the statute upheld in Hendricks because commitment lasts only as 6 7 8 long as the SVP is a threat. Id. at 348. The state court’s rejection of this claim was therefore reasonable and is entitled to AEDPA deference. 10 United States District Court For the Northern District of California 9 Petitioner’s double jeopardy claim is DENIED. 11 12 C. Accordingly, Due Process Petitioner claims that the SVPA violates his due process 13 rights because “all it takes for the D.A. to win is [to] rehash 14 15 past sexual crimes,” annual reviews are just “rubber stamps” 16 based on prior sexual conduct, there “is no realistic hope of 17 gaining freedom from the ‘treatment’ at Coalinga State Hospital,” 18 and SVP trials are “kangaroo courts where everyone knows the 19 outcome before the trial begins.” 20 Pet. at 13, 15, and 27. He also claims that the SVPA violates his substantive due process 21 rights. Id. at 5. 22 23 Habeas relief is not warranted here. First, Petitioner’s 24 allegations are conclusory. 25 allegations, a federal habeas petition “is expected to state 26 facts that point to a real possibility of constitutional error.” 27 Mayle v. Felix, 545 U.S. 644, 655 (2005) (internal quotation 28 marks and citation omitted). Rather than posing general Conclusory allegations, such as 12 1 2 those, are not sufficient. Second, the allegations contain no showing that Petitioner’s 3 due process rights were violated. 4 instance, that he did not receive notice or an opportunity to 5 He does not allege, for respond, or that the state failed to follow the proper statutory 6 7 procedures. SVPA procedural safeguards include a requirement 8 that the accused receive diagnoses from two psychiatrists or 9 psychologists, assistance of counsel, trial by jury on proof United States District Court For the Northern District of California 10 beyond a reasonable doubt, and a unanimous verdict. 11 Knapp, 379 F.3d 773, 781 (9th Cir. 2004); Cal. Welf. & Inst. Code 12 13 §§ 6602, 6604. Hubbart v. The record indicates that all the proper procedures were followed and the appropriate evidentiary 14 15 16 standards were used. Third, Petitioner’s allegations that the process is only a 17 rubber stamp and a “rehash” of prior offenses is not accurate. 18 In fact, the Act “precludes commitment based solely on evidence 19 of . . . prior crimes.” 20 1138, 1163-64 (1997). Hubbart v. Superior Court, 19 Cal. 4th Petitioner’s detention was based on many 21 factors, including evaluations by mental health professionals, 22 23 24 his age, and his prior offenses. Fourth, his allegations regarding treatment are conclusory. 25 He fails to point to specific facts about treatment and how it is 26 ineffective or why success is unrealistic. 27 foreclosed by Supreme Court precedent: 28 Also, this claim is “we have never held that the Constitution prevents a State from civilly detaining those 13 1 for whom no treatment is available, but who nevertheless pose a 2 danger to others.” Hendricks, 521 U.S. at 366. 3 4 5 Fifth, his substantive due process claim is foreclosed by Hendricks. In that case, the Supreme Court rejected such a 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 challenge to a Kansas state statute similar to the SVPA: lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. Hendricks’ diagnosis as a pedophile, which qualifies as a “mental abnormality” under the Act, thus plainly suffices for due process purposes. Id. at 360. The state court’s rejection of these claims was therefore 14 15 16 reasonable and is entitled to AEDPA deference. Petitioner’s due process claims are DENIED. 17 D. 18 Petitioner’s claim that bail was excessive under the Eighth 19 20 Excessive Bail Amendment is DENIED. Pet. at 11. The custody that is subject to challenge in this federal habeas proceeding is not the state 21 court’s bail order because that order was rendered moot by 22 23 Petitioner’s subsequent civil commitment as an SVP. Petitioner 24 can now only challenge the proceeding that resulted in his 25 subsequent custody. 26 rejection of this claim was therefore reasonable and is entitled 27 to AEDPA deference. 28 E. See 28 U.S.C. § 2254(a). Equal Protection 14 The state court’s Petitioner claims that the SVPA violates his right to equal 1 2 protection because “sex offenders have a lower recidivism rate 3 than any other criminals except murderers.” 4 rational basis, the Act “creates an arbitrary and capricious 5 class of persons.” Because it lacks a Pet. at 5. 6 The equal protection clause prohibits the arbitrary and 7 8 unequal application of state law, “essentially a direction that 9 all persons similarly situated should be treated alike.” United States District Court For the Northern District of California 10 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). 11 12 13 City of Petitioner’s claim fails as a matter of law because he does not identify persons who are similarly situated, such as other civil detainees. His comparison of SVPs to criminals is inapt. 14 15 Civil and criminal detention are different by definition, as 16 shown in the Court’s discussion of his ex post facto claim in 17 Section I.A. 18 19 20 Furthermore, even if Petitioner had identified similarly situated persons (such as other civil detainees), his equal protection claim is foreclosed by Ninth Circuit precedent. 21 “[T]he Sexually Violent Predator Act does not create a capricious 22 23 24 custody scheme in violation of equal protection tenets.” v. San Diego County, 800 F.3d 1164, 1170 (9th Cir. 2015). The state court’s rejection of this claim was therefore 25 26 reasonable and is entitled to AEDPA deference. 27 DENIED. 28 Taylor II. Prior Convictions 15 This claim is Petitioner challenges his 2006 conviction for attempting to 1 2 annoy or molest a child. 3 of a possible future SVP commitment when he plead guilty in 2006; 4 an indefinite civil detention is disproportionate to the crime he 5 He asserts that he was given no warning committed in 2006; and that his 2006 arrest was a “springboard” 6 7 for the ultimate civil commitment. Pet. at 11-12, and 15. Habeas relief is not warranted here. 8 First, Petitioner cannot challenge his 2006 conviction by way of the instant 10 United States District Court For the Northern District of California 9 federal habeas action because his prior conviction may be 11 regarded as conclusively valid: 12 [W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. 13 14 15 16 17 Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04 (2001) (citation omitted).2 Because Petitioner has not shown 18 19 that any of his prior convictions is still open to direct or 20 collateral attack, he cannot challenge any of them here. 21 Accordingly, his claims that he would not have plead guilty in 22 2006 or that the 2006 conviction was a springboard to the SVP 23 determination cannot be the basis for federal habeas relief. 24 Second, Petitioner’s claim that his indefinite detention is 25 26 2 The only exception to this rule is when a petitioner asserts 27 denial of assistance of counsel in violation of the Sixth Amendment. Lackawanna, 532 U.S. at 404 (discussing “special status” of claims 28 under Gideon v. Wainwright, 372 U.S. 335 (1963)). Here, Petitioner has not asserted that he was denied the assistance of counsel. 16 1 disproportionate to his 2006 crime is without merit. 2 detention is not punishment for his 2006 crime, and therefore his 3 detention cannot be disproportionate. 4 imposed because he was adjudged an SVP, his 2006 conviction being 5 His The civil detention was just one of the considerations the jury took into account. 6 7 The state appellate court’s rejection of these claims was 8 therefore reasonable and is entitled to AEDPA deference. 9 claim is DENIED. United States District Court For the Northern District of California 10 11 12 13 This III. Sufficiency of the Evidence Petitioner asserts that there was insufficient evidence to classify him as an SVP. Specifically he alleges that the jury’s determination was not supported by evidence; the finding that he 14 15 had a mental illness was fabricated to keep him indefinitely 16 detained; Coles’s and Updegrove’s evaluations were invalid 17 because they were less thorough than those used by the defense’s 18 psychologists; and the evaluation methods used by the DMH are 19 invalid. 20 Pet. at 2, 6-8. Petitioner’s claims are wholly conclusory. First, the 21 record flatly contradicts his claim that there was nothing to 22 23 support a finding that he was an SVP. Petitioner’s criminal 24 history and the evaluations by two psychologists provided 25 evidentiary support. 26 27 28 Second, the record also flatly contradicts his claim that a finding of mental illness was fabricated. All four psychologists diagnosed pedophilia and Petitioner has pointed to no evidence of 17 1 fabrication. 2 Third, Petitioner’s claim that the prosecutor’s 3 psychologists’ evaluations were not sufficiently thorough is 4 entirely conclusory. 5 He says only that his psychologists used more tests and interviewed him more thoroughly. He fails to 6 7 point to specific evidence showing exactly how the prosecutor’s 8 psychologists’ tests were not thorough and how those deficiencies 9 rendered their evaluations invalid. United States District Court For the Northern District of California 10 11 12 His fourth claim that the DMH evaluation methods are invalid is also conclusory and therefore fails to meet the specificity requirements of Mayle, 545 U.S. at 655. 13 The state court’s rejection of these claims was therefore 14 15 reasonable and is entitled to AEDPA deference. 16 DENIED. 17 IV. These claims are Trial Errors 18 19 20 21 Petitioner claims that there were several trial errors: (A) perjured and biased testimony; (B) instructional error; (C) the improper exclusion of evidence; and (D) the improper admission of prejudicial evidence.3 Pet. at 6-7, 11, 12-13, and 22 23 24 25 26 27 28 3 Petitioner also asserts that his rights were violated because he was denied access to the law library. Pet. at 12. The only evidence he cites is his request for a copy of the Constitution and Bill of Rights, to which the jail staff responded, “We do not have a law library.” Id., Ex. 6. Petitioner fails to show precisely how this deprivation adversely affected his defense. Also, at trial Petitioner had a copy of the Constitution, which of course included the Bill of Rights, which he marked as an exhibit and tried to enter into evidence. Ans., Ex. J, Vol. 6 at 1189. Finally, Faretta v. California, 422 U.S. 806 (1975), does not clearly establish a right to law library access for a self-representing criminal defendant. 18 1 15-16. 2 A. 3 Petitioner asserts that Dr. Updegrove and Dr. Coles were 4 5 Perjured and Biased Testimony dishonest about the percentage of people diagnosed with SVP out of the total number of persons they examine per year. Pet. at 7. 6 7 8 He further asserts that they were biased (and greedy) because they were paid employees of the DMH. Id. Habeas relief is not warranted here. 9 Petitioner alleges United States District Court For the Northern District of California 10 that Updegrove stated that he “referred 5% of people he examined 11 to SVP trials . . . when in fact he referred 20%.” 12 13 Id. He also alleges that Dr. Coles testified that he “referred 3% of people he examined to SVP trial . . . when he actually referred 14%.” 14 15 16 Id. Petitioner bases his percentages on DMH documents that give 17 Coles’s and Updegrove’s evaluation outcome percentages. 18 Exs. 3A and 3B. 19 frame within which the statistics can be evaluated. 20 Id., These documents, however, do not provide a time For example, Updegrove was speaking of the evaluations he made between 2007 21 and 2009. Ans., Ex. J, Vol. 5 at 917. Petitioner’s document, 22 23 however, appears to cover a larger time frame. Because the 24 document does not contradict Updegrove’s testimony, Petitioner 25 has not shown that the testimony was false. 26 27 Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005). 28 DENIED. 19 This claim is 1 Petitioner also misstates the meaning of Coles’s testimony. 2 His “3%” was the percentage of findings based on the total number 3 of persons referred state-wide, not those referred by Coles 4 personally. 5 Id., Vol. 4 at 805-06. Again, Petitioner fails to provide any evidentiary support for his claim that Coles and 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 Updegrove presented false testimony. The state court’s rejection of this claim was therefore reasonable and is entitled to AEDPA deference. Accordingly, this claim is DENIED. B. Instructional Error Petitioner asserts that the judge “made himself the highest law in the land!” when he gave the following standard jury 14 15 instruction (CALCRIM No. 200): “You must follow the law as I 16 explain it to you even if you disagree with it. If you believe 17 the attorneys or Respondent’s comments on the law conflict with 18 my instructions, you must follow my instructions.” 19 Ans., Ex. J, Vol. 6 at 1208. 20 Habeas relief is not warranted here. Pet. at 11; First, it is not clear 21 what constitutional violation Petitioner is asserting. Because 22 23 his claim is conclusory and lacks detail, it fails to meet the 24 specificity requirements of Mayle, 545 U.S. at 655. 25 insofar as Petitioner claims that the court’s instruction 26 violated due process, it is without merit. 27 a standard instruction, one given to ensure that the jury applies 28 Second, The trial court gave the correct legal standard rather than whatever standard counsel 20 1 or witnesses have suggested is the correct one. 2 has Petitioner shown that this instruction so infected the entire 3 trial that the resulting conviction violates due process. 4 Estelle v. McGuire, 502 U.S. 62, 72 (1991). 5 In no way then See The state court’s rejection of this claim was therefore 6 7 8 reasonable and is entitled to AEDPA deference. claim is DENIED. C. 9 United States District Court For the Northern District of California 10 11 12 13 Accordingly, this Exclusion of Evidence Petitioner asserts the court erred because he was barred from showing the jury a document regarding the recidivism rates of sex offenders. Pet. at 12. When Petitioner sought to introduce the document at trial, the trial court asked, “What is 14 15 16 17 18 19 20 21 it? What is the source or what is the title of it?” Petitioner responded: I didn’t have the first page on here. I forget what the exact title is. It is not just Ohio — it gives a National Department of Justice — it gives the recidivism rate from the reports they have. It is not just Ohio it is other states there. It is very important about the — it goes into a little about the constitution and so on here. It is very relevant to this case showing the recidivism rate, showing what studies use is a lot lower than what people think. 22 23 24 Ans., Ex. J, Vol. 6 at 1188. The trial court excluded this evidence because it lacked a proper foundation and was hearsay. 25 Id. at 1190. Though it was excluded as evidence, Petitioner was 26 27 28 allowed to read the document to the jury. Id., Ex. 5 at 1076-80. The exclusion of evidence does not violate the due process 21 1 clause unless “it offends some principle of justice so rooted in 2 the traditions and conscience of our people as to be ranked as 3 fundamental.” 4 (quotation omitted). 5 Montana v. Egelhoff, 518 U.S. 37, 43 (1996) The defendant, not the state, bears the burden to demonstrate such a violation. Id. at 47. “While the 6 7 Constitution thus prohibits the exclusion of defense evidence 8 under rules that serve no legitimate purpose or that are 9 disproportionate to the ends that they are asserted to promote, United States District Court For the Northern District of California 10 well-established rules of evidence permit trial judges to exclude 11 evidence if its probative value is outweighed by certain other 12 13 factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 14 15 16 U.S. 319, 326 (2006). In deciding if the exclusion of evidence violates the due 17 process right to a fair trial or the right to present a defense, 18 a reviewing court balances five factors: (1) the probative value 19 of the excluded evidence on the central issue; (2) its 20 reliability; (3) whether it is capable of evaluation by the trier 21 of fact; (4) whether it is the sole evidence on the issue or 22 23 merely cumulative; and (5) whether it constitutes a major Chia v. Cambra, 360 F.3d 997, 24 part of the attempted defense. 25 1004 (9th Cir. 2004); Drayden v. White, 232 F.3d 704, 711 (9th 26 Cir. 2000). 27 28 Habeas relief is not warranted here. factors weighs in Petitioner’s favor. 22 None of the Chia First, the document had at 1 best only slight probative value. 2 trend. 3 Petitioner is likely to reoffend. 4 reliable. 5 Such statistics show a general They do not indicate with any precision whether Second, the document was not Petitioner had no personal knowledge of how the document was created or how the results were calculated. For 6 7 this same reason, it could not be evaluated by the trier of fact. The last two factors are not relevant. 9 whether Petitioner, based on the specific circumstances of his 10 United States District Court For the Northern District of California 8 case, was likely to reoffend, not whether, generally speaking, 11 sex offenders were likely to reoffend. 12 13 The issue at trial was Furthermore, Petitioner’s presentation of the evidence to the jury renders moot any claim that the “exclusion” of the 14 15 evidence adversely affected his trial. The state court’s rejection of this claim was therefore 16 17 reasonable and is entitled to AEDPA deference. 18 claim is DENIED. 19 D. 20 Accordingly, this Admission of Prejudicial Evidence Petitioner claims that the trial court violated his due 21 process rights when it admitted (1) a confidential report from 22 23 24 1992, and (2) documentary evidence containing allegations of sodomy and violence.4 Pet. at 12, 13-14, and 15-16. 25 4 Petitioner alleges that “invalid evidence” was admitted. The only example he gives is Updegrove’s testimony, based on a 1992 27 report, that Petitioner was “virtually unable to function in the adult world.” Pet. at 15. Petitioner has not shown why this 28 evidence is invalid, or how its admission violated his federal constitutional rights. The claim is DENIED. 26 23 1 1. Report 2 Prior to trial, Petitioner moved to exclude a 1992 report 3 regarding whether Petitioner should be placed on supervised 4 probation. 5 Mr. Nothnagel seeks to have that report excluded and not considered by the expert witnesses because he says that he was told that it was a confidential report. I don’t believe that is the law. In fact, the report was submitted to the Court to determine the eligibility as to whether Mr. Nothnagel was eligible to be placed on supervised probation. It wasn’t a report that was generated pursuant to a treatment plan — typically, if a psychologist is providing treatment, there are certain confidentialities that arise. But in this case, there — this was not the purpose of the report. The report was to aid the Court in deciding whether Mr. Nothnagel should be placed on probation. Because it wasn’t pursuant to a court-ordered treatment plan, there’s no patient-psychologist privilege. 6 7 8 9 10 United States District Court For the Northern District of California The trial court admitted the report: 11 12 13 14 15 16 Ans., Ex. J, Vol. 4 at 615. At trial, Petitioner objected to the 1992 report because he thought it was confidential. Here, he 17 claims that the report should have been updated by its preparer, 18 19 20 21 as required by California Welfare and Institutions Code section 6603. Habeas relief is not warranted here. First, the report was 22 not confidential, but rather was prepared for court use. 23 the SVPA does not require that old evaluations be updated. 24 Second, Rather, the statute merely allows the prosecutor to request that 25 the DMH update its evaluations. Cal. Welf. & Inst. Code 26 27 28 § 6603(c)(1). Furthermore, that section applies only to reports prepared under California Welfare and Institutions Code section 24 1 6601, not to reports regarding a person’s eligibility for 2 supervised probation. 3 4 5 The state court’s rejection of this claim was therefore reasonable and is entitled to AEDPA deference. Accordingly, this claim is DENIED. 6 7 8 9 2. Documentary Evidence The documents at issue here are part of the court file on Petitioner’s 1991 offenses. In 1992, Petitioner plead guilty to United States District Court For the Northern District of California 10 five counts of oral copulation with 11-year-old Cody. 11 to the probation report, Cody stated in an interview that he 12 13 According engaged in mutual acts of oral copulation with Petitioner. He also stated that one time Petitioner tied him up and ejaculated 14 15 16 17 in his mouth. Another time, Petitioner sodomized him and threatened to kill him if he told anyone. Ans., Ex. A at 26. At trial, the court admitted this documentary evidence, 18 which includes his answers to a lie detector test, over 19 Petitioner’s objections: 20 21 22 23 24 25 26 27 28 Well, basically, the law says that the existence of the predicate offenses, which are the [Cal. Penal Code §] 288 charges [for lewd and lascivious acts with person under the age of fourteen], and the details underlying the offenses may be established by multiple-level hearsay evidence, such as transcripts or preliminary hearings, trial, probation reports, sentencing reports, mental health evaluations, sometimes police reports. That’s under Welfare and Institutions Code Section 6600 Subsection (a) subsection (3), People versus Otto, O-T-T-O, 26 Cal.4th 200 at 208. Those cases in — and that statute stands for the proposition that the defendant in a case such as this has no due process right to confront and cross-examine witnesses. Statements and police reports are used by the expert 25 witnesses in determining whether the defendant is an SVP. Statements are admissible under the Welfare and Institutions Code Section 6600(a)(3) provided they have some basis of reliability. 1 2 3 4 Ans., Ex. J, Vol. at 752. Here, Petitioner claims that the evidence should have been 5 6 excluded as unreliable. 7 however, aside from conclusory allegations. 8 fails to meet the specificity requirements of Mayle, 545 U.S. at 9 655. He offers nothing to support this, His claim, then, Also, the Supreme Court “has not yet made a clear ruling United States District Court For the Northern District of California 10 11 that admission of irrelevant or overtly prejudicial evidence 12 constitutes a due process violation sufficient to warrant 13 issuance of the writ.” 14 (9th Cir. 2009). 15 16 Holley v. Yarborough, 568 F.3d 1091, 1101 Any claim that the admission of this evidence violated his rights under the confrontation clause or the rule against the 17 admission of hearsay is without merit. First, the Sixth 18 19 Amendment’s confrontation clause does not apply to civil 20 commitment proceedings, at which only the protections of due 21 process apply. 22 prosecutions, the accused shall enjoy the right . . . to be 23 confronted with the witnesses against him”); Carty v. Nelson, 426 24 U.S. Const. amend. VI. (“In all criminal F.3d 1064, 1073 (9th Cir. 2005). Second, the Ninth Circuit has 25 held that the rule in People v. Otto, 26 Cal. 4th 200 (2001), the 26 27 28 California Supreme Court case under which the trial court admitted the hearsay evidence, sufficiently protects a person’s 26 1 due process rights of confrontation. 2 Id. at 1074-75. Furthermore, any claim that the state court erred in 3 admitting the evidence under state law is not remediable on 4 federal habeas review. 5 The state appellate court’s ruling that the evidence was properly admitted under state law binds this 6 7 federal habeas court. Bradshaw v. Richey, 546 U.S. 74, 76 8 (2005). Finally, only if there are no permissible inferences 9 that the jury may draw from the evidence can its admission United States District Court For the Northern District of California 10 violate due process. 11 (9th Cir. 1991). 12 Jammal v. Van de Kamp, 926 F.2d 918, 920 Here, the jury could have made permissible inferences regarding Petitioner’s criminal history. 13 The state court’s rejection of this claim was therefore 14 15 reasonable and is entitled to AEDPA deference. 16 claim is DENIED. 17 V. Accordingly, this 18 19 20 Sixth Amendment Claims Petitioner claims that (A) standby and appellate counsel rendered ineffective assistance; and (B) the trial court violated his rights in various ways. 21 A. Standby and Appellate Counsel 22 1. 23 24 Standby Counsel Petitioner claims that his standby counsel was never present 25 in court. 26 has not detailed how standby counsel’s absence adversely affected 27 his defense. 28 Even if he had a right to standby counsel, Petitioner The claim, then, fails to meet the specificity requirements of Mayle, 545 U.S. at 655. 27 Also, the appointment of 1 standby counsel was for the benefit of the administration of 2 justice, not to help Petitioner. 3 “to relieve the judge of the need to explain and enforce basic 4 rules of courtroom protocol or to assist the defendant in 5 Courts appoint standby counsel overcoming routine obstacles that stand in the way of the 6 7 8 defendant’s achievement of his own clearly indicated goals.” McKaskle v. Wiggins, 465 U.S. 168, 184 (1984). The state appellate court’s denial of this claim was 9 United States District Court For the Northern District of California 10 therefore reasonable and is entitled to AEDPA deference. 11 Accordingly, this claim is DENIED. 12 2. 13 Appellate Counsel Petitioner claims that appellate counsel rendered 14 15 ineffective assistance by refusing to appeal any issues other 16 than unfairness and unequal protection of the law. 17 13.)5 18 19 20 (Pet. at Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A defendant therefore 21 must show that counsel’s advice fell below an objective standard 22 23 24 25 26 27 28 of reasonableness and that there is a reasonable probability 5 Petitioner’s claim that California’s First District Appellate Court refused to let him add his own brief or to discharge his appointed counsel, Pet. at 3, is DENIED. Because the right to counsel on appeal is founded in the due process clause of the Fourteenth Amendment, rather than the Sixth Amendment right to counsel, “none of the Sixth Amendment’s protections, including a criminal defendant’s qualified right to choice of counsel, extends to a criminal appeal.” Tamalini v. Stewart, 249 F.3d 895, 901 (9th Cir. 2001). 28 1 that, but for counsel’s unprofessional errors, he would have 2 prevailed on appeal. 3 Cir. 1989). 4 5 Miller v. Keeney, 882 F.2d 1428, 1434 (9th It is important to note that appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested 6 7 by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); 8 Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 9 882 F.2d at 1434. Appellate counsel therefore will frequently United States District Court For the Northern District of California 10 remain above an objective standard of competence and have caused 11 his client no prejudice for the same reason -- because he 12 13 declined to raise a weak issue. Id. Habeas relief is not warranted here. As discussed at length 14 15 above, none of Petitioner’s claims has merit. Therefore, 16 appellate counsel’s failure to raise these claims on appeal 17 cannot constitute ineffective assistance of counsel. 18 19 20 The state court’s rejection of this claim was therefore reasonable and is entitled to AEDPA deference. Accordingly, this claim is DENIED. 21 B. Trial Court 22 23 Petitioner claims that the trial court violated his Sixth 24 Amendment rights by denying his requests (1) to change counsel; 25 and (2) for the appointment of advisory counsel. 26 27 28 1. Motion to Change Counsel Petitioner claims that the trial court violated his Sixth Amendment rights when it denied his motion to change counsel. 29 1 The relevant facts are as follows. Petitioner was represented by 2 Kevin Robinson, a public defender. Petitioner filed a motion to 3 change counsel. 4 Robinson because he would not allow Petitioner to present opening 5 He told the trial court that he objected to or closing arguments or otherwise address the jury. Robinson 6 7 responded that he told Petitioner that as long as he was 8 represented by counsel he could not address the jury in the ways 9 he suggested. Robinson did say, however, that he told Petitioner United States District Court For the Northern District of California 10 that he could address the jury through his testimony, if he took 11 the stand. 12 13 The trial court denied the motion to change counsel. However, the trial court explained to Petitioner that when “being represented by counsel, you have the right to testify, . . . tell 14 15 the jury what you’d like to have them hear and be told, but 16 counsel does conduct the proceedings and do make the arguments, 17 statements.” 18 Petitioner signed a Faretta waiver to represent himself. 19 290-929. 20 Ans., Ex. J. Vol. 2 at 281. Subsequently Id. at When a defendant voices a seemingly substantial complaint 21 about counsel, the trial judge should make a thorough inquiry 22 23 into the reasons for the defendant’s dissatisfaction. The 24 inquiry only need be as comprehensive as the circumstances 25 reasonably permit, however. 26 (9th Cir. 1992). 27 have granted a motion for substitution of counsel, the reviewing 28 King v. Rowland, 977 F.2d 1354, 1357 In determining whether the trial judge should habeas court may consider the extent of the conflict, whether the 30 1 trial judge made an appropriate inquiry into the extent of the 2 conflict, and the timeliness of the motion to substitute counsel. 3 Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005). The 4 ultimate inquiry is whether the Petitioner’s Sixth Amendment 5 right to counsel was violated. Schell v. Witek, 218 F.3d 1017, 6 7 1024-25 (9th Cir. 2000). In other words, the habeas court 8 considers whether the trial court’s denial of or failure to rule 9 on the motion “actually violated [the criminal defendant’s] United States District Court For the Northern District of California 10 constitutional rights in that the conflict between [the criminal 11 defendant] and his attorney had become so great that it resulted 12 13 in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that 14 15 16 17 fell short of that required by the Sixth Amendment.” Id. at 1026. Habeas relief is not warranted here. The record shows that 18 the trial court’s denial of the motion was reasonable: 19 court inquired into the basis of Petitioner’s motion, and assured 20 him that Robinson provided correct legal advice. the trial That Robinson 21 would not allow Petitioner to act in a way contrary to court 22 23 procedure does not show that there was an impediment that 24 resulted in an attorney-client relationship that fell short of 25 that required by the Sixth Amendment. 26 client that he could address the jury, but that he had to do so 27 in a court-appropriate way. 28 Robinson informed his The state court’s rejection of this claim was therefore 31 1 reasonable and is entitled to AEDPA deference. 2 claim is DENIED. 3 4 5 2. Accordingly, this Appointment of Advisory Counsel Petitioner’s claim that the trial court violated his Sixth Amendment rights by failing to appoint advisory counsel is 6 7 DENIED. There is no constitutional right to the appointment of 8 advisory counsel. United States v. Kienenberger, 13 F.3d 1354, 9 1356 (9th Cir. 1994). Petitioner has a right to represent United States District Court For the Northern District of California 10 himself or be represented by counsel and “[t]he failure of the 11 trial court to give him a ‘hybrid’ representation to which he was 12 13 not legally entitled did not violate his Sixth Amendment right to counsel.” Yokely v. Hedgepeth, 801 F. Supp. 3d 925, 945 (C.D. 14 15 16 Cal. 2011). The state court’s denial of this claim was therefore 17 reasonable and is entitled to AEDPA deference. 18 claim is DENIED. 19 20 Accordingly, this CONCLUSION The state court’s denial of Petitioner’s claims did not 21 result in a decision that was contrary to, or involved an 22 23 unreasonable application of, clearly established federal law, nor 24 did it result in a decision that was based on an unreasonable 25 determination of the facts in light of the evidence presented in 26 the state court proceeding. 27 28 Accordingly, the petition is DENIED. A certificate of appealability will not issue. Reasonable jurists would not “find the district court’s assessment of the 32 1 constitutional claims debatable or wrong.” 2 529 U.S. 473, 484 (2000). 3 appealability from the Court of Appeals. 4 5 Slack v. McDaniel, Petitioner may seek a certificate of The Clerk shall enter judgment in favor of Respondent, and close the file. 6 7 8 9 IT IS SO ORDERED. DATED: February 2, 2016 CLAUDIA WILKEN United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33

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