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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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PREN NOTHNAGEL,

) No. C 12-5976 CW (PR)
)
Petitioner,
) ORDER DENYING PETITION FOR A
) WRIT OF HABEAS CORPUS
v.
)
)
)
CLIFF ALLENBY,
)
Respondent.
)
___________________________ )

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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

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amended in 2006 by SB1128 and Proposition 83.

For the reasons set

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forth below, the petition for such relief is DENIED.
BACKGROUND
Petitioner is civilly committed at Coalinga State Hospital as

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a sexually violent predator (SVP).

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has a diagnosed mental disorder that makes the person a danger to

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An SVP is an individual “who

the health and safety of others in that it is likely that he or

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she will engage in sexually violent criminal behavior.”

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Welf. & Inst. Code § 6600(a).

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Cal.

In March 2009, a Humboldt County Superior Court jury found
true a petition that Petitioner, who was then sixty-five years

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old, is an SVP.

The trial court committed him to an indeterminate

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term in a facility to be designated by the California Department

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of Mental Health (DMH).

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United States District Court
For the Northern District of California

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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

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history, which included five criminal convictions for committing
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lewd and lascivious behavior with a child, and evaluated his risk
of reoffending.
Petitioner’s criminal history is as follows.

In 1975,

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Petitioner approached several eight- and nine-year-old boys and

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began masturbating in front of them.

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his penis.

He had one of the boys touch

Petitioner was consequently convicted of two counts of

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loitering where children were present.

Ans., Ex. J, Vol. 4 at

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812-13.
In 1978, Petitioner was arrested for masturbating in front of

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children in a park.

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placed on probation.

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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,

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engaged in masturbation, oral copulation, and sodomy.

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occasion, Petitioner tied the child up.

He threatened to “hunt

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down” and kill Cody if he told anyone.

Id. at 814; Ex. A at 26.

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On one

Petitioner was convicted of five counts of lewd and lascivious

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conduct with a child and sentenced to sixteen years in prison.
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Id., Ex. A at 6.
In 2006, Petitioner, then sixty-two, approached several young

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boys and asked if they wanted to see pornography.

The boys ran

United States District Court
For the Northern District of California

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away and reported the incident.

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count of attempting to annoy or molest a child and was sentenced

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to two years in prison.

Petitioner plead guilty to one

Id., Ex. J., Vol. 4 at 817-18; Pet., Ex.

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2A.

Coles and Updegrove evaluated his risk of reoffending using

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actuarial risk formulas, one of which was the Static 99.

They

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gave Petitioner a score of eight and seven (out of a possible

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twelve), respectively.

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reoffending.”

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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

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his risk of reoffending.

Id., Vol. 4 at 822.

Though they

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acknowledged that he did not actually molest anyone in 2006 when

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he was 62 years old, they noted that he exhibited the same “MO” as

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he had in prior offenses.

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has denied committing any sexual offenses and rejected the idea

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Id. at 818.

Also, because Petitioner

that he needs treatment, the doctors were not convinced that he

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would voluntarily seek treatment if released.

Id. at 836.

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Based on this and other evidence, both Coles and Updegrove
testified at the 2009 commitment proceeding that Petitioner had

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pedophilia and was likely to engage in sexually violent predatory
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criminal acts as a result of this disorder.

Id.

The doctors

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further explained that pedophilia is a chronic condition that

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individuals can manage, but that it can never go into remission.

United States District Court
For the Northern District of California

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Id. at 821.
Petitioner, who represented himself at trial, presented the
testimony of two psychologists, Drs. James Park and Otto Vanoni.

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Both also diagnosed pedophilia.

Id. at 667; Vol. 5 at 1027.

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However, Dr. Park believed Petitioner’s pedophilia was in

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remission.

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did not have a high risk of reoffending in a sexually violent

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predatory manner if released.

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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

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the likelihood of reoffending drops dramatically after the age of
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sixty.

Id., Vol. 4 at 659; Vol. 5 at 1030.

They also were

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convinced Petitioner’s 2006 offense was not indicative of the

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desire to reoffend; rather, it was simply a “stupid” offense with

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no evidence supporting the desire to molest.

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68; Vol. 5 at 1029.

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Id., Vol. 4 at 667-

Petitioner and his doctors asserted that he

had gained empathy and an understanding about the effects of his

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offenses on the victims.

Id., Vol. 4 at 672; Vol. 5 at 1031.

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The jury, as noted above, found that Petitioner was an SVP.
He appealed his 2009 civil commitment judgment.

In 2010, the

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state appellate court affirmed in part, reversed in part, remanded
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the case to the trial court for consideration of Petitioner’s

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equal protection claim, but stayed the trial court proceedings

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until the state supreme court decided People v. McKee, 207 Cal.

United States District Court
For the Northern District of California

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App. 4th 1325 (2012).

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denied his petitions for review and for habeas corpus.

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Ans., Ex. E.

The state supreme court
Id., Exs.

G and I.

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In 2011, he filed a federal habeas petition, which this Court
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dismissed without prejudice to refiling after the state supreme

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court decided McKee.

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his federal petition.

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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

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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
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state court’s adjudication of the claim: “(1) resulted in a

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decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a

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decision that was based on an unreasonable determination of the
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facts in light of the evidence presented in the State court

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proceeding.”

28 U.S.C. § 2254(d).

The first prong applies both

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to questions of law and to mixed questions of law and fact,

United States District Court
For the Northern District of California

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Williams (Terry) v. Taylor, 529 U.S. 362, 407–09 (2000), while

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the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court
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authority, that is, falls under the first clause of § 2254(d)(1),

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only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the

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state court decides a case differently than [the Supreme] Court

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has on a set of materially indistinguishable facts.”

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(Terry), 529 U.S. at 412–13.

Williams

A state court decision is an

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“unreasonable application of” Supreme Court authority, falling
under the second clause of § 2254(d)(1), if it correctly

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identifies the governing legal principle from the Supreme Court’s

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decisions but “unreasonably applies that principle to the facts

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of the prisoner’s case.”

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habeas review may not issue the writ “simply because that court

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Id. at 413.

The federal court on

concludes in its independent judgment that the relevant
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state-court decision applied clearly established federal law

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erroneously or incorrectly.”

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application must be “objectively unreasonable” to support

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granting the writ.

Id. at 411.

Id. at 409.

Rather, the

Under 28 U.S.C. § 2254(d)(2),

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a state court decision “based on a factual determination will not
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be overturned on factual grounds unless objectively unreasonable

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in light of the evidence presented in the state-court

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proceeding.”

United States District Court
For the Northern District of California

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Miller-El, 537 U.S. at 340; see also Torres v.

Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

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DISCUSSION
I.

Constitutionality of the SVPA

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Petitioner claims that the SVPA violates the (A) ex post
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facto, (B) double jeopardy, (C) due process, (D) excessive bail,

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and (E) equal protection clauses.1

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rejected Claims A, B, and C: “the SVPA does not contravene due

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process, ex post facto, or double jeopardy principles.”

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Ex. E at 1.

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The state appellate court

Ans.,

The state supreme court summarily denied all claims,

including the one regarding bail.

Id., Ex. G.

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A.

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Ex Post Facto

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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.

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Petitioner claims that the 2006 changes to the SVPA violate

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the ex post facto clause by eliminating the biannual judicial

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proceeding previously required to extend an SVP’s commitment.

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Pet. at 5-6.

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The ex post facto clause applies only to punishment for
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criminal acts, whether punishment for an act not punishable at

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the time it was committed, or punishment additional to that then

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prescribed.

Collins v. Youngblood, 497 U.S. 37, 42 (1990).

To

United States District Court
For the Northern District of California

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determine what constitutes punishment in an ex post facto claim

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analysis, the Supreme Court has applied the double jeopardy

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“intent-effects” test set out in United States v. Ward, 448 U.S.

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242, 248–49 (1980); see also Smith v. Doe, 538 U.S. 84, 92
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(2003).

The two-pronged Ward test requires that the Court

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inquire (1) whether the legislature intended to impose punishment

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and, if not, (2) whether the sanction is so punitive in purpose

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or effect as to negate the state’s intent to deem it civil.

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Smith, 538 U.S. at 92.

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The Court may reject the legislature’s

intent under the second “effects” prong only where there is “the

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clearest proof” to support such a finding.

Id.

The SVPA is a non-punitive statute under the initial intent

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prong of the Ward test.

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California Welfare and Institutions Code, rather than

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California’s criminal code, differentiating it from the state’s

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laws intended to punish criminal acts.

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First, the SVPA is placed within the

Second, language in

Proposition 83 described the SVPA as designed to “commit and
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control” as opposed to “punish.”

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7, 2006) text of Prop. 83, § 2(h), p. 127.

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California approved Proposition 83 in 2006, amending the SVPA and

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thus expressing their intent that it serve as a civil commitment

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Ballot Pamp., Gen. Elec. (Nov.
The people of

statute rather than as a mechanism to punish criminal conduct.

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Under the second Ward prong, the SVPA’s effects are not so

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punitive as to overcome the Act’s civil intent.

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law’s effects, the Court shall consider the following test:

United States District Court
For the Northern District of California

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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

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most relevant factors of this test are “whether, in its necessary
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operation, the regulatory scheme has been regarded in our history

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and traditions as a punishment; imposes an affirmative disability

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or restraint; promotes the traditional aims of punishment; has a

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rational connection to a nonpunitive purpose; or is excessive

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with respect to this purpose.”

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Smith v. Doe, 538 U.S. 84, 97

(2003).

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Consideration of these factors indicates that the SVPA’s
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effect is non-punitive.

First, while the SVPA involves an

affirmative disability or restraint, civil commitment of sexually

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violent predators has been historically regarded as a legitimate

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non-punitive governmental objective.

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U.S. 346, 363 (1997).

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Kansas v. Hendricks, 521

Second, the SVPA cannot be said to serve the penological
purpose of deterrence or retribution.

It does not deter because

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commitment is contingent on the inability to control sexually

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violent urges.

The threat of commitment is not likely to deter

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SVPs from sexually violent crime because they, by definition,

United States District Court
For the Northern District of California

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cannot control their impulses.

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based on a currently “diagnosed mental disorder” rather than a

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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

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statute is not intended to promote the penological purpose of
retribution.
Finally, the duration of an SVPA commitment is both related

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to the Act’s rehabilitative purpose and not excessive because

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commitment is conditional upon a current mental disorder.

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§§ 6605, 6608.

Id.

The former may not continue without the latter.

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In sum, consideration of the relevant Mendoza-Martinez factors
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strongly indicates that the SVPA’s effects are civil.
It is important to note that the United States Supreme Court

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denied a habeas challenge in circumstances similar to those

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presented by Petitioner.

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a Kansas civil commitment statute under the Ward “intent-effects”

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test.

In Hendricks, the Supreme Court upheld

The Court reasoned that the potential for indefinite
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confinement showed the rehabilitative, rather than punitive,

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purpose of the statute.

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addition, the Court found that the statute did not have a

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retroactive effect because confinement was conditioned upon a

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Hendricks, 521 U.S. at 361–62.

In

determination that the person was currently suffering from a

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mental disorder.

Id.

The SVPA mirrors the Kansas statute in

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that there is a potential for indefinite confinement but the

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commitment lasts only so long as the detainee suffers from an

United States District Court
For the Northern District of California

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ongoing, diagnosed mental disorder.
Accordingly, the state court’s rejection of Petitioner’s ex
post facto claim was reasonable and is entitled to AEDPA

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deference.

This claim is DENIED.

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B.

Double Jeopardy

Petitioner claims that the SVPA violates the double jeopardy

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clause, arguing that “saying [civil] detention is not punishment

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because it is civil is a farce.”

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Pet. at 10.

Habeas relief is not warranted here.

Conduct may be subject

to both a criminal penalty and a separate civil remedy without

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running afoul of the double jeopardy clause’s prohibition on
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multiple criminal punishments for the same offense.

Hudson v.

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United States, 522 U.S. 93, 99 (1997).

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Court rejected a double jeopardy claim because the challenged

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statute was based on “the stated purposes of the commitment,

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namely, to hold the person until his mental abnormality no longer

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causes him to be a threat to others.”
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In Hendricks, the Supreme

Hendricks, 521 U.S. at

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363.
Also, the lack of an annual review in California’s SVPA

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alone does not alter its non-punitive nature.

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purpose of confinement under the SVPA are analogous to that of

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Duration and

the statute upheld in Hendricks because commitment lasts only as

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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.

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United States District Court
For the Northern District of California

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Petitioner’s double jeopardy claim is DENIED.

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C.

Accordingly,

Due Process

Petitioner claims that the SVPA violates his due process

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rights because “all it takes for the D.A. to win is [to] rehash
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past sexual crimes,” annual reviews are just “rubber stamps”

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based on prior sexual conduct, there “is no realistic hope of

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gaining freedom from the ‘treatment’ at Coalinga State Hospital,”

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and SVP trials are “kangaroo courts where everyone knows the

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outcome before the trial begins.”

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Pet. at 13, 15, and 27.

He

also claims that the SVPA violates his substantive due process

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rights.

Id. at 5.

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Habeas relief is not warranted here.

First, Petitioner’s

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allegations are conclusory.

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allegations, a federal habeas petition “is expected to state

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facts that point to a real possibility of constitutional error.”

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Mayle v. Felix, 545 U.S. 644, 655 (2005) (internal quotation

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marks and citation omitted).

Rather than posing general

Conclusory allegations, such as
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those, are not sufficient.
Second, the allegations contain no showing that Petitioner’s

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due process rights were violated.

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instance, that he did not receive notice or an opportunity to

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He does not allege, for

respond, or that the state failed to follow the proper statutory

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procedures.

SVPA procedural safeguards include a requirement

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that the accused receive diagnoses from two psychiatrists or

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psychologists, assistance of counsel, trial by jury on proof

United States District Court
For the Northern District of California

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beyond a reasonable doubt, and a unanimous verdict.

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Knapp, 379 F.3d 773, 781 (9th Cir. 2004); Cal. Welf. & Inst. Code

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§§ 6602, 6604.

Hubbart v.

The record indicates that all the proper

procedures were followed and the appropriate evidentiary

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standards were used.
Third, Petitioner’s allegations that the process is only a

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rubber stamp and a “rehash” of prior offenses is not accurate.

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In fact, the Act “precludes commitment based solely on evidence

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of . . . prior crimes.”

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1138, 1163-64 (1997).

Hubbart v. Superior Court, 19 Cal. 4th

Petitioner’s detention was based on many

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factors, including evaluations by mental health professionals,
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his age, and his prior offenses.
Fourth, his allegations regarding treatment are conclusory.

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He fails to point to specific facts about treatment and how it is

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ineffective or why success is unrealistic.

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foreclosed by Supreme Court precedent:

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Also, this claim is

“we have never held that

the Constitution prevents a State from civilly detaining those
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for whom no treatment is available, but who nevertheless pose a

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danger to others.”

Hendricks, 521 U.S. at 366.

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Fifth, his substantive due process claim is foreclosed by
Hendricks.

In that case, the Supreme Court rejected such a

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United States District Court
For the Northern District of California

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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

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reasonable and is entitled to AEDPA deference.

Petitioner’s due

process claims are DENIED.

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D.

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Petitioner’s claim that bail was excessive under the Eighth

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Excessive Bail

Amendment is DENIED.

Pet. at 11.

The custody that is subject to

challenge in this federal habeas proceeding is not the state

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court’s bail order because that order was rendered moot by
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Petitioner’s subsequent civil commitment as an SVP.

Petitioner

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can now only challenge the proceeding that resulted in his

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subsequent custody.

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rejection of this claim was therefore reasonable and is entitled

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to AEDPA deference.

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E.

See 28 U.S.C. § 2254(a).

Equal Protection
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The state court’s

Petitioner claims that the SVPA violates his right to equal

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protection because “sex offenders have a lower recidivism rate

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than any other criminals except murderers.”

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rational basis, the Act “creates an arbitrary and capricious

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class of persons.”

Because it lacks a

Pet. at 5.

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The equal protection clause prohibits the arbitrary and

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unequal application of state law, “essentially a direction that

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all persons similarly situated should be treated alike.”

United States District Court
For the Northern District of California

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Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).

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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.

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Civil and criminal detention are different by definition, as

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shown in the Court’s discussion of his ex post facto claim in

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Section I.A.

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Furthermore, even if Petitioner had identified similarly
situated persons (such as other civil detainees), his equal
protection claim is foreclosed by Ninth Circuit precedent.

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“[T]he Sexually Violent Predator Act does not create a capricious
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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

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reasonable and is entitled to AEDPA deference.

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DENIED.

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Taylor

II.

Prior Convictions
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This claim is

Petitioner challenges his 2006 conviction for attempting to

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annoy or molest a child.

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of a possible future SVP commitment when he plead guilty in 2006;

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an indefinite civil detention is disproportionate to the crime he

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He asserts that he was given no warning

committed in 2006; and that his 2006 arrest was a “springboard”

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for the ultimate civil commitment.

Pet. at 11-12, and 15.

Habeas relief is not warranted here.

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First, Petitioner

cannot challenge his 2006 conviction by way of the instant

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United States District Court
For the Northern District of California

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federal habeas action because his prior conviction may be

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regarded as conclusively valid:

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[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.

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Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04
(2001) (citation omitted).2

Because Petitioner has not shown

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that any of his prior convictions is still open to direct or

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collateral attack, he cannot challenge any of them here.

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Accordingly, his claims that he would not have plead guilty in

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2006 or that the 2006 conviction was a springboard to the SVP

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determination cannot be the basis for federal habeas relief.

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Second, Petitioner’s claim that his indefinite detention is

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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.
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disproportionate to his 2006 crime is without merit.

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detention is not punishment for his 2006 crime, and therefore his

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detention cannot be disproportionate.

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imposed because he was adjudged an SVP, his 2006 conviction being

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His

The civil detention was

just one of the considerations the jury took into account.

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The state appellate court’s rejection of these claims was

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therefore reasonable and is entitled to AEDPA deference.

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claim is DENIED.

United States District Court
For the Northern District of California

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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

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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