Opinion
No. C 01-4890 CRB (PR), (Doc #10)
December 6, 2002
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
California's Sexually Violent Predator Act, Cal. Welf. Inst. Code § 6600 ("SVPA"), provides a court process by which certain offenders convicted of sexually violent crimes, whose current mental disorders make them likely to reoffend if free, may be involuntarily committed, at the end of their prison terms, for successive two-year periods of state hospital confinement and treatment as long as the disorder-related danger persists.
On April 13, 1998, the Superior Court of the State of California in and for the County of Santa Clara determined that petitioner was a sexually violent predator under SVPA, and committed him to Atascadero State Hospital for a period of two years. Petitioner unsuccessfully appealed to the California Court of Appeal and the Supreme Court of California.
On December 28, 1999, before petitioner's two-year commitment expired, the Santa Clara County District Attorney filed a petition to extend for two years petitioner's commitment under section 6604. Petitioner waived jury trial and submitted the case on the basis of the doctors' reports. On August 21, 2000, the superior court found beyond a reasonable doubt that petitioner met the criteria for recommitment under section 6604, and extended his commitment for two years, until April 13, 2002. Petitioner unsuccessfully appealed to the California Court of Appeal and the Supreme Court of California.
On December 12, 2001, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his August 21, 2000 two-year recommitment. He claims, among other things, that his predicate offenses (two separate lewd acts upon a child, orally copulating a child under the age of 16, and possessing child pornography) did not qualify as sexually violent offenses under SVPA's "substantial sexual conduct" standard. Per order filed on February 14, 2002, the court found that petitioner's claims appeared colorable under § 2254, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead filed a motion to dismiss the petition as moot because petitioner's August 21, 2000 two-year recommitment ended on April 13, 2002. Petitioner has filed an opposition and respondent has filed a reply.
DISCUSSION
Article III, § 2, of the Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation, the petitioner/plaintiff "must have suffered, or be threatened with, an actual injury traceable to the [respondent/defendant] and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).
An incarcerated (or paroled) convict's challenge to the validity of his conviction satisfies the case-or-controversy requirement because the incarceration (or the restrictions imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by the invalidation of the conviction. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some "collateral consequence" of the conviction — must exist if the suit is to be maintained and not considered moot. Id.
Courts may presume that a criminal conviction has continuing collateral consequences. See id. at 8-12 (noting that Supreme Court has been willing to accept hypothetical collateral consequences for criminal convictions); Evitts v. Lucey, 469 U.S. 387, 391 n. 4 (1985) (accepting as collateral consequence possibility that conviction may be used in future criminal proceeding to enhance sentence). But this presumption does not extend to other contexts. See Spencer, 523 U.S. at 13; Lane v. Williams 455 U.S. 624, 632-33 (1982). A petitioner who seeks to challenge the revocation of his parole, for example, must demonstrate that continuing collateral consequences exist if the underlying sentence has expired see Spencer, 523 U.S. at 14-18, or if the term imposed for violating parole has been served see Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987) (claim moot because petitioner cannot be released from term imposed for violating parole that he has already served). Claims of detriment in a future parole or sentencing proceeding, impeachment in a future criminal or civil proceeding, or use against him should he appear as a defendant in a future criminal proceeding do not constitute sufficient proof of collateral consequences. See Spencer, 523 U.S. at 14-16.
The rationale of Spencer v. Kemna applies to petitioner's instant federal habeas challenge to his civil recommitment under SVPA. Specifically, because petitioner does not attack the validity of his underlying criminal convictions, but rather the validity of his now-expired August 21, 2000 two-year civil recommitment under SVPA, he must demonstrate that continuing collateral consequences exist. Cf. United States v. Palomba, 182 F.3d 1121, 1122-23 (9th Cir. 1999) (rationale of Spencer v. Kemna applies where petitioner seeks to challenge expired sentence rather than underlying criminal conviction). Petitioner does not.
In United States v. Palomba, 182 F.3d 1121 (9th Cir. 1999), the defendant challenged his sentence as having been based on an incorrect criminal history calculation, which, he claimed, resulted in a lengthier sentence than should have been imposed. Palomba, 182 F.3d at 1122. At the time of his appeal, Palomba had finished the final supervised release portion of his sentence. Id. at 1123. The Ninth Circuit ruled that in light of Spencer's holding that collateral consequences cannot be presumed where a defendant has already served his entire sentence, Palomba did not have standing to challenge his completed sentence. Id. The court disapproved its prior cases to the contrary, stating that its "cases reviewing completed sentences because of collateral consequences in future sentencing . . . are thus no longer good law." Id.
Petitioner notes that before his August 21, 2000 two-year recommitment expired on April 13, 2002, the Santa Clara County District Attorney filed a new petition to extend for another two years his commitment under section 6604. This new proceeding is not a qualifying collateral consequence of the now-expired August 21, 2000 two-year recommitment (or of the also now-expired original April 13, 1998 two-year commitment). Under California law, a new petition to extend for another two years an offender's commitment constitutes a new and separate civil action. "Indeed, the SVPA does not use the term `petition for recommitment,' but instead refers to `the filing of a new petition for commitment' under this article." Butler v. Superior Court (Butler), 78 Cal.App.4th 1171, 1180 (2000) (emphasis in original) (noting that new petition will focus on the offender's mental condition at the end of the previous two-year term and consequently will involve new facts and circumstances from those in the previous proceeding(s)). In order for petitioner to be recommitted for an additional two-year term, the district attorney again must prove beyond a reasonable doubt that petitioner is currently a sexually violent predator. Cal. Welf Inst. Code §§ 6604, 6605. That petitioner's now-expired initial commitment and subsequent recommitment may be of relevance in further recommitment proceedings is not sufficient to demonstrate collateral consequences under Spencer v. Kemna. Cf. Spencer, 523 U.S. at 14-16 (claims of detriment in a future parole or sentencing proceeding, impeachment in a future criminal or civil proceeding, or use against him should he appear as a defendant in a future criminal proceeding do not constitute sufficient proof of collateral consequences).
Petitioner claims that his petition would not be moot if respondent had not sought an extension of time to answer. Not so. Petitioner's recommitment term expired on April 13, 2002, two days before the date by which the court ordered respondent to file an answer. The subsequent extension of time did not cause the petition to be moot. Moreover, petitioner's suggestion that respondent's seeking of an extension of time should somehow excuse mootness is without merit. See id. at 18 (rejecting similar claim and stating that "mootness, however it may have come about, simply derives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so").
Nor is there any indication whatsoever that respondent engaged in dilatory tactics. The extension of time sought was not unreasonable.
Petitioner also claims that should this court dismiss his petition "due to mootness because the two-year commitment under attack has expired since the timely filing, then California's SVPA would forever escape federal review, effectively stonewalling petitioner at the state level every two years." Although petitioner's claim has some surface appeal, it is without merit.
There is a well-established exception to the mootness doctrine where a claim is "capable of repetition yet evading review." Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994); Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985). However, there is no basis for expanding this exception to where a claim is simply capable of repetition yet evading federal review. Here, where California affords petitioner generous state judicial review of his initial commitment and all subsequent recommitments under SVPA (including a right to direct appeal and annual review of his mental condition), it cannot be said that petitioner's claims will evade review unless his federal habeas petitions can be filed and resolved before his commitment/recommitment terms expire. Cf. Roe v. Wade, 410 U.S. 113, 125 (1973) (right to abortion claim capable of repetition yet evading review because usual appellate process exceeds nine months). The "capable of repetition yet evading review" exception is not in order here.
The exception is limited to extraordinary circumstances where two elements combine: (1) the challenged action is of limited duration, too short to be fully litigated prior to its cessation or expiration, and (2) there is reasonable expectation that the same complaining party will be subjected to the same action again. Wiggins, 760 F.2d at 1011.
Petitioner may also be able to avoid his federal habeas actions becoming moot by exhausting his state judicial remedies faster via California's habeas and extraordinary writ processes.