Free Answer to Complaint - District Court of California - California


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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KEVIN VIENNA Supervising Deputy Attorney General 5 ANTHONY DA SILVA, State Bar No. 159330 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2608 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. STEVEN MAYBERG, Warden, DAVID O'SHELL, 08CV0436 J (NLS) Petitioner, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KEVIN VIENNA Supervising Deputy Attorney General 5 ANTHONY DA SILVA, State Bar No. 159330 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2608 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 INTRODUCTION Petitioner David O'Shell ("O'Shell) is in Respondent's custody on a civil petition, in San v. STEVEN MAYBERG, Warden, Respondent. DAVID O'SHELL, Petitioner, 08CV0436 J (NLS) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

22 Diego County Superior Court Case No. MH 100473, after a jury found he was a sexually violent 23 predator ("SVP") within the meaning of California Welfare and Institution Code sections 660024 6604. (Lodgment 1 - Clerk's Transcript ("CT") at 159.) O'Shell is currently challenging his 25 commitment on appeal in California Court of Appeal, Fourth Appellate District, Division One, Case 26 No. D052192. (Lodgment 11.) 27 O'Shell filed a First Amended Petition ("Petition") in this Court where he claims that his

28 right to due process and Constitutional rights were violated because: (1) he did not have a probable
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1 cause hearing within ten days as required by California Welfare and Institutions Code section 6601.5 2 because the SVP petition was filed on November 16, 2006 and he did not appear in court until 3 December 1, 2006 (Pet. at 6 - Ground One); (2) at his appearance on December 1, 2006, he did not 4 consent to waive statutory time and the court set the case for a status conference on January 12, 5 2007 (Pet. at 7 - Ground Two); (3) at the status conference on January 12, 2007, he did not consent 6 to waive statutory time and the court calendared a probable cause hearing on April 25, 2007, which 7 was changed to April 24, 2007 (Pet. at 8 - Ground Three). 8 Because O'Shell's challenge to his SVP commitment is ongoing in the California Court

9 of Appeal, this Court should abstain and dismiss the Petition. In addition, O'Shell's claims were 10 raised in state habeas corpus petitions that were denied on the merits by the superior court and state 11 appellate court in reasoned decisions. (Lodgments 4, 6, 8.) O'Shell is not entitled to federal habeas 12 corpus relief because he has failed to meet his burden of showing that the state courts's denial of his 13 claims was contrary to, or an unreasonable application of established United States Supreme Court 14 precedent, or was based upon an unreasonable determination of the facts in light of the evidence 15 presented in the state court, as required by the Antiterrorism and Effective Death Penalty Act of 16 1996. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403, 412-13, 120 S. Ct. 1495, 146 17 L. Ed. 2d 389 (2000). 18 19 20 21 22 ARGUMENT I. THIS COURT SHOULD DISMISS THE PETITION BECAUSE O'SHELL'S CHALLENGE TO HIS SVP COMMITMENT IS CURRENTLY PENDING IN STATE COURT On June 27, 2008, O'Shell filed a direct appeal challenging his SVP commitment in

23 California Court of Appeal, Fourth Appellate District, Division One, Case No. D052192. 24 (Lodgment 11 at 2.) Federal courts generally may not enjoin ongoing state criminal proceedings. 25 Younger v. Harris, 401 U.S. 37, 49-53, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (Younger abstention 26 doctrine); Hirsh v. Justices of the Supreme Court of the State of California, 67 F.3d 708, 712 (9th 27 Cir. 1995). This abstention principle has been applied to collateral attacks on state convictions. 28 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489, 93 S. Ct. 1123, 35 L. Ed. 2d
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1 443 (1973). This rule has also been extended to the civil context. Ankenbrandt v. Richards, 504 2 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992); Middlesex County Ethics Comm. v. Garden 3 State Bar Assn., 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982); Ohio Civil Rights Comm'n 4 v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986). 5 Importantly, the abstention doctrine applies where the state action is civil in nature, such as in the 6 case of a Sexual Violent Predator proceeding. Coleman v. Mayberg, 2005 WL 1876061, *4, 2005 7 U.S. Dist. LEXIS 44142, *13 (N.D. Cal. Aug. 8, 2005) ("Younger applies to the pending SVPA 8 civil commitment proceedings"). 9 Younger abstention applies if the state proceeding is: (1) currently pending; (2) involves

10 an important state interest; and, (3) affords the petitioner an adequate opportunity to raise 11 constitutional claims. See Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. at 12 432. Here, O'Shell's direct appeal is currently pending. (Lodgment 11 at 2.) California has an 13 interest that potentially dangerous sexually violent predators not be released. The direct appeal 14 process affords O'Shell, through counsel, to raise his constitutional claims. 15 In this case, Younger requires dismissal of the petition, and a stay is not a proper option.

16 See, e.g., Gibson v. Berryhill, 411 U.S. 564, 577, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973) ("Younger 17 v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, 18 both state and federal, to the state courts"); Delta Dental Plan of Calif. Inc. v. Mendoza, 139 F.3d 19 1289, 1294 (9th Cir. 1998) ("When a case is one in which the Younger doctrine applies, the district 20 court has no discretion, it must dismiss"); Coleman v. Mayberg, 2005 WL 1876061, *4, 2005 U.S. 21 Dist. LEXIS 44142, *13 (dismissing petition without prejudice to refiling after SVPA commitment 22 proceedings, including appeal, are completed). Accordingly, O'Shell's Petition must be dismissed 23 24 25 26 O'Shell claims that his right to due process and Constitutional rights were violated II. O'SHELL'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY ANY DELAY IN HAS ARRAIGNMENT.

27 because he was not arraigned within ten days as required by California Welfare and Institutions 28 Code section 6601.5 since the SVP petition was filed on November 16, 2006, and he did not appear
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1 in court until December 1, 2006 (Pet. at 6 - Ground One) The superior court and state appellate 2 court properly denied O'Shell's claim on habeas corpus because he was in custody on his underlying 3 felony conviction prior to the filing of the SVP petition and he failed to show any prejudice or any 4 reason why the claimed delay for the probable cause hearing caused him any detriment or loss of 5 his due process or other Constitutional rights. (Lodgment 4 at 2-3; Lodgment 6.) O'Shell is not 6 entitled to federal habeas corpus relief because he has not met his burden of demonstrating that the 7 decisions by the state courts denying this claim on habeas corpus were neither contrary to, nor an 8 unreasonable application of established United States Supreme Court precedent, and were not based 9 upon an unreasonable determination of the facts in light of the evidence presented in the State courts. 10 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 403, 412-13. 11 12 A. California's Sexually Violent Predator Act California's Sexually Violent Predator's Act ("SVPA"), California Welfare and Institution

13 Code § 6600, et seq., establishes procedures whereby a person previously convicted of a "sexually 14 violent" offense against two or more victims and who has a "diagnosed mental disorder that makes 15 the person a danger to the health and safety of others" may be civilly committed. See Hydrick v. 16 Hunter, 500 F.3d 978, 983 (9th Cir. 2007.) On November 7, 2006, California voters passed 17 Proposition 83 (also known as "Jessica's Law"), amending the SVPA effective November 8, 2006. 18 Pursuant to Proposition 83, former California Welfare and Institution Code § 6604 was amended to 19 eliminate a two-year term provision and provided for an indeterminate term of confinement, subject 20 to the SVP's right to petition for release. People v. Shields, 155 Cal. App. 4th 559, 562, 65 Cal. 21 Rptr. 3d 922, 924 (2007). 22 Following the filing of a petition for a determination that an individual is a SVP, the

23 Superior Court must hold a hearing to determine whether there is probable cause to believe that the 24 person is likely to engage in sexually violent predatory criminal behavior upon release from prison. 25 California Welfare and Institution Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th 1138, 26 1146-47, 81 Cal. Rptr. 2d 492, 497, 969 P.2d 584 (1999). The probable cause hearing is mandatory 27 (Cal. Welf & Inst. Code § 6602(a)) and must begin within ten calendar days from the detention 28
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1 order. California Welfare and Institution Code § 6601.51/; see Cooley v. Superior Court, 29 Cal. 4th 2 228, 244-45, 127 Cal. Rptr. 2d 177, 189, 57 P.3d 654 (2002). A probable cause hearing may be 3 continued by a showing of good cause. California Welfare and Institution Code § 6602(b). Notably, 4 "there is no statutory outside time limit within which a probable cause hearing must be held after 5 the filing of the petition: `Unfortunately, the [SPVA] does not specify a time frame . . . for 6 conducting the probable cause hearing . . . [Citation.].'" People v. Hayes, 137 Cal. App. 4th 34, 43, 7 39 Cal. Rptr. 3d 747, 750 (2006). 8 If the court finds probable cause, the alleged predator must be detained in a "secure

9 facility" pending a jury trial to determine whether he is a SVP within the meaning of the SVPA. 10 California Welfare and Institution Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th at 114611 47, 81 Cal. Rptr. 2d at 497. After a trial at which the defendant is determined to be a SVP, the 12 defendant is committed to the custody of the California Department of Mental Health for an 13 indefinite term. California Welfare and Institution Code § 6604; Hubbart v. Superior Court, 19 Cal. 14 4th at 1147, 81 Cal. Rptr. 2d at 498; Hydrick v. Hunter, 500 F.3d at 983. 15 The SVPA is "designed to ensure that the committed person does not `remain confined

16 any longer than he suffers from a mental abnormality rendering him unable to control his 17 dangerousness.' [Citation.]" Hubbart v. Superior Court, 19 Cal. 4th at 1177, 81 Cal. Rptr. 2d at 517. 18 The SVPA provides two ways that a defendant can obtain review of his or her current mental 19 condition to determine if civil confinement is still necessary: (1) section 6608 permits a defendant 20 to petition for conditional release to a community treatment program; and, (2) section 6605 requires 21 22 23 24 25 26 27 28 1. Welfare and Institutions Code section 6601.5 (Stats. 2000, ch. 41, §2, pp. 102-03, eff. Jun. 26, 2000), reads: Upon filing of the petition and a request for review under this section, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be completed pursuant to section 6602. The probable cause hearing proved for in section 6602 shall commence within 10 calendar days of the date of the order issued by the judge pursuant to this section.
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1 an annual review of the defendant's mental status that may lead to an unconditional release. People 2 v. Cheek, 25 Cal. 4th 894, 898, 108 Cal. Rptr. 2d 181, 184; 24 P.3d 1204 (2001); People v. McKee, 3 160 Cal. App. 4th 1517, 1526, 73 Cal. Rptr. 3d 661, 685 (2008). 4 5 B. Applicable Federal Law "`[T]he Due Process Clause contains a substantive component that bars certain arbitrary,

6 wrongful government actions "regardless of the fairness of the procedures used to implement 7 them.'" [Citations.] Freedom from bodily restraint has always been at the core of the liberty 8 protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 9 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). That liberty interest, however, is not 10 absolute. Kansas v. Hendricks, 521 U.S. 346, 356, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). 11 Under certain circumstances, States have "provided for the forcible civil detainment of people who 12 are unable to control their behavior and who thereby pose a danger to the public health and safety." 13 Hendricks, 521 U.S. at 356-57. 14 It is clear that the full panoply of rights afforded to criminal defendants under the

15 Constitution are not applicable to SVPA defendants because the SVPA is civil in nature. See, e.g., 16 Allen v. Illinois, 478 U.S. 364, 371-72, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986) (Fifth Amendment 17 guarantee against compulsory self-incrimination inapplicable to commitment proceedings under 18 Illinois' Sexually Dangerous Persons Act because commitment proceedings were regulatory and not 19 criminal in nature); United States v. Perry, 788 F.2d 100, 118 (3rd Cir. 1986) ("The speedy trial 20 clause deals with the timeliness of criminal prosecutions, not civil commitment proceedings."); see 21 generally United States v. Burdell, 187 F.3d 1137, 1141 (9th Cir. 1999) (noting that because a 22 commitment hearing is civil in matter, the constitutional rights to which a defendant in a criminal 23 trial is entitled to do not adhere to a respondent in a commitment hearing). The United States 24 Supreme Court has not specifically applied a Sixth Amendment speedy trial right to claims by 25 detainees awaiting civil commitment hearings pursuant to acts such as California's SVPA. The 26 constitutional right to a speedy trial applies only to criminal prosecutions. The Sixth Amendment 27 states that in "all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . ." 28 U.S. Const. amend. VI. This right is applicable to the states through the due process clause of the
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1 Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 221-26, 87 S. Ct. 988, 18 L. Ed. 2 2d 1 (1967); Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). 3 The California Supreme Court has recognized that, "[b]ecause civil commitment involves

4 a significant deprivation of liberty, a defendant in a SVP proceeding is entitled to due process 5 protections." People v. Otto, 26 Cal. 4th 200, 209, 109 Cal. Rptr. 2d 327, 334, 26 P.3d 1061 (2001). 6 "It is clear that `commitment for any purpose constitutes a significant deprivation of liberty that 7 requires due process protection.' [Citation.] Therefore, a State must have `a constitutionally 8 adequate purpose for the confinement.' [Citation.]" Jones v. United States, 463 U.S. 354, 361, 103 9 S. Ct. 3043, 77 L. Ed. 2d 694 (1983). "The Due Process Clause `requires that the nature and 10 duration of commitment bear some reasonable relation to the purpose for which the individual is 11 committed.' [Citation.]" Id. at 368. Even if an involuntary confinement was initially permissible 12 because it was founded on a constitutionally adequate basis, it cannot constitutionally continue after 13 that basis no longer exists. O'Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S. Ct. 2486, 45 L. 14 Ed. 2d 396 (1975); Foucha v. Louisiana, 504 U.S. at 77 (the committed person "may be held as long 15 as he is both mentally ill and dangerous, but no longer"). 16 17 C. Analysis of O'Shell's Claim As on state habeas corpus, O'Shell claims that his right to due process was violated

18 because the probable cause hearing did not commence within ten days after the date on which the 19 judge signed the order to produce him in court on November 16, 2006. O'Shell notes in his Petition 20 that his initial appearance in court was on December 1, 2007, which was fifteen days after the SVP 21 petition was filed. (First Amended Petition at 6, Ground One; see also Lodgment 4 at 2.) 22 O'Shell does not cite, and counsel for Respondent is not aware of, any United States

23 Supreme Court precedent holding that applies a Sixth Amendment speedy trial right to claims by 24 detainees awaiting civil commitment hearings pursuant to acts such as California's SVPA. Where 25 the Supreme Court has not addressed an issue in its holding, a state court adjudication on the issue 26 cannot be contrary to, or an unreasonable application of, clearly established federal law. Kane v. 27 Espitia, 546 U.S. 9, 9, 126 S. Ct. 407, 163 L. Ed. 2d 10 (2006). Accordingly, he is not entitled to 28 federal habeas corpus relief.
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1

Prior to the passage of Proposition 83 on November 7, 2006, if a defendant's parole was

2 about to expire before a probable cause hearing could be held, the State could request an "urgency 3 review" under California Welfare and Institution Code § 6601.5. The trial court then had to 4 determine whether the SVP petition, on its face, would support a finding of probable cause to 5 believe the defendant was likely to engage in sexually violent predatory criminal behavior upon the 6 defendant's release. If the trial court made a preliminary finding of probable cause, it had to order 7 the defendant detained until a probable cause hearing could be held. In that event, the probable 8 cause hearing had to begin not more than ten days later. See People v. Badura, 95 Cal. App. 4th 9 1218, 1222, 116 Cal. Rptr. 2d 336, 339-340 (2002), citing former California Welfare and Institution 10 Code § 6601.5, Stats. 1998, ch. 19, § 2. After the passage of Proposition 83, that code section is 11 essentially identical, except it allows the State to request such a review in all cases, not just when 12 a defendant's parole is about to expire (requiring an "urgency review"). People v. Badura, 95 Cal. 13 App. 4th at 1222-23, 116 Cal. Rptr. 2d at 340. The legislative history of the SVPA explained that, 14 "The purpose behind requiring that a SVP petition be filed while an inmate is in custody is twofold: 15 public protection and ensuring treatment to the dangerous mentally ill . . . ." Badura, 95 Cal. App. 16 4th at 1225, 116 Cal. Rptr. 2d at 342. 17 As previously discussed, on November 16, 2006, the SVP petition was filed and an order

18 was signed to produce O'Shell for "arraignment" on the petition on December 1, 2006. ((Lodgment 19 1 - CT at 1-63.) On December 1, 2006, O'Shell appeared with counsel in the San Diego County 20 Superior Court, denied the allegations in the SVP petition, and on his own motion a status 21 conference was set for January 12, 2007. (Petition - Exhibit "C" at 2; Lodgment 1 - CT at 139.) 22 O'Shell's probable cause hearing did not begin within ten calendar days from date that the

23 superior court judge signed the detention order. But as previously discussed, the SVPA does not 24 specify a time frame for conducting the probable cause hearing. People v. Hayes, 137 Cal. App. 4th 25 at 43, 39 Cal. Rptr. 3d at 750. This was not a case where O'Shell was on parole that was about to 26 expire. The SVPA does require a defendant to be in custody, pursuant to a determinate prison term, 27 a parole revocation term, or a 45-day evaluation hold when the initial SVP petition is filed. 28 California Welfare and Institution Code § 6601(a)(2). At the time the SVP petition was filed,
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1 O'Shell was in custody at the California State Prison at Solano serving his 21-year sentence. 2 (Lodgment 1 - CT at 5, 63.) Accordingly, a probable cause hearing within ten days under § 6601.5 3 was not necessary. See People v. Badura, 95 Cal. App. 4th at 1225-26, 116 Cal. Rptr. 2d at 342 4 (rejecting a defendant's claim that an SVP petition had to be dismissed and he had to be released 5 from custody because his probable cause hearing was held three days after his scheduled released 6 date); see also People v. Talhelm, 85 Cal. App. 4th 405, 406-08, 102 Cal. Rptr. 2d 150, 154-55 7 (2000) (rejecting a defendant's claim that his right to procedural due process was violated because 8 the SVPA proceedings were not completed prior to his scheduled release date). The superior court 9 properly denied O'Shell's petition on this basis as follows: 10 11 As noted, and as verified from the court file in MH 100473, as the time the Petition for Involuntary Treatment was filed, [O'Shell] was incarcerated at the Solano State Prison. Thus, he is, and has been, "detained" at least since 1996 on this particular case.

12 (Lodgment 4 at 3.) 13 In Barker v. Wingo, the United States Supreme Court specified four factors to be

14 considered in determining whether a defendant's right to a speedy trial under the Sixth Amendment 15 had been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's 16 assertion of the right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. at 530. 17 Although the right to a speedy trial applies only to criminal prosecutions, the United States Supreme 18 Court in United States v. Eight Thousand Eight Hundred and Fifth Dollars ($8,850) in U.S. 19 Currency, 461 U.S. 555, 103 S. Ct. 2005, 76 L. Ed. 2d 143(1983), considered whether the four20 factor balancing test developed in Barker was the appropriate analysis to use in evaluating claims 21 that a delay in filing civil forfeiture proceedings violated the constitutional guarantee of due process. 22 Id. at 556. In that case, the government had delayed 18 months in filing a civil proceeding for 23 forfeiture of the currency seized by U.S. Customs officials as the claimant had passed through 24 airport customs. Ibid. After applying the Barker factors to the circumstances of that case, the 25 Supreme Court concluded that the post-seizure delay of 18 months, although a "substantial period 26 of time," did not violate due process (Id. at 569-70) and implicitly had not "become so prolonged 27 that the dispossessed property owner ha[d] been deprived of a meaningful hearing at a meaningful 28 time." Id. at 563. Case law relating to speedy civil commitment trial rights is sparse. But case law
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1 relating to civil commitment trial rights is sparse. The law surrounding speedy trial rights in the 2 criminal trial context may be instructive in analyzing O'Shell's claim. See Atwood v. Vilsack, 338 3 F. Supp. 2d 985, 994 (S.D. Iowa 2004) (applying Sixth Amendment speedy trial right law to analyze 4 denial of a speedy justice claim by pretrial detainees awaiting civil commitment hearings pursuant 5 to Iowa's Sexually Violent Predator Act). 6 The first Barker factor is the length of the delay, which entails a dual inquiry. First, as a

7 threshold matter, only if the delay is "presumptively prejudicial" will a court inquire into the 8 remaining Barker factors. Barker, 407 U.S. at 530. Second, "if the accused makes this showing, 9 the court must then consider, as one factor among several, the extent to which the delay stretches 10 beyond the bare minimum needed to trigger judicial examination of the claim." Doggett v. United 11 States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). Depending on the nature of 12 the charges, lower courts have generally found post-accusation delay presumptively prejudicial as 13 it approaches one year. Doggett, 505 U.S. at 652 n.1; McNeely v. Blanas, 336 F.3d 822, 826 (9th 14 Cir. 2003) (three year delay presumptively prejudicial); United States v. Gregory, 322 F.3d 1157, 15 1162 (9th Cir. 2003) (22-month delay between first superseding indictment and trial date was 16 presumptively prejudicial but did not weigh heavily in defendant's favor because it was not 17 excessively long). In Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the Ninth Circuit concluded 18 that a year-long confinement of a civil detainee who has held in the general criminal population of 19 a county jail pending commitment under California's SVPA created a rebuttable presumption that 20 the confinement was punitive in violate of substantive due process. Id. at 934-35. 21 In denying O'Shell's state habeas petition, the superior court properly concluded that

22 "[O'Shell] has failed to show any prejudice or reason why this delay has caused him any detriment 23 or loss of due process rights." (Lodgment 4 at 3.) O'Shell's complaint that his initial court 24 appearance was five days after the 10 day period upon which the probable cause hearing should have 25 commenced under California Welfare and Institutions Code section 6601.5 (Pet. at 6 - Ground One) 26 does not show any presumptive prejudice under the first Barker factor. The slightly over five month 27 delay (159 day) delay between November 16, 2006, when the SVP petition was filed and the 28 superior court judge ordered that O'Shell be produced from state prison to court (Lodgment 1 - CT
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1 at 1-63), and April 24, 2007, when his probable cause hearing was held (Lodgment 1 - CT at 143; 2 Lodgment 3 - RT at 1-107), also does not fall within the one-year period that the United States 3 Supreme Court and the Ninth Circuit have found to be a presumptively prejudicial delay under the 4 first Barker factor. 5 Because the delay claimed by O'Shell is not "presumptively prejudicial," this Court need

6 not inquire into the remaining Barker factors. Barker, 407 U.S. at 530. But the remaining factors 7 do not assist O'Shell's claim. The second Barker factor is reasons for the delay. Barker v. Wingo, 8 407 U.S. at 530. At his initial appearance on December 1, 2006, on O'Shell's own motion a status 9 conference was set for January 12, 2007, because his assigned counsel, Deputy Public Defender 10 Dalen Duong was in trial. (Petition - Exhibit "C" at 2; Lodgment 1 - CT at 139.) On January 12, 11 2007, O'Shell and his attorney, Deputy Public Defender Dalen Duong, were present in court. The 12 probable cause hearing pursuant to Welfare and Institutions Code § 6602 was set for April 25, 2007. 13 (Lodgment 1 - CT at 140.) On March 29, 2007, by stipulation of counsel the date of the probable 14 cause hearing was changed to April 24, 2007. (Lodgment 1 - CT at 141.) Presumably, these 15 matters were continued to allow O'Shell's counsel to prepare for the probable cause hearing. A 16 probable cause hearing is a full adversarial evidentiary hearing. People v. Butler, 68 Cal. App. 4th 17 421, 432-35, 80 Cal. Rptr. 2d 357, 364-66 (1998); In re Parker, 60 Cal. App. 4th 1453, 1466-70, 71 18 Cal. Rptr. 2d 167, 176-79 (1998). When two psychologists or psychiatrists agree, based on 19 standardized assessment protocol, that a prisoner is a sexually violent predator, the district attorney 20 may file an initial commitment petition. California Welfare and Institution Code §

21 6601(c),(d),(h),(i); see also People v. Badura, 95 Cal. App. 4th at 1222, 116 Cal. Rptr. 2d at 339. 22 In O'Shell's case, assessments by consulting psychologist Jeremy Coles, Ph.D and clinical 23 psychologist Thomas R. MacSpeiden, Ph.D., supported the SVP petition. (Lodgment 1 - CT at 1024 60.) Doctors Coles and MacSpeiden were examined by O'Shell's counsel, Dalen Duong, at the 25 probable cause hearing. (Lodgment 3 - RT at 7-58, 73-75, 77-96.) 26 The third Barker factor is defendant's assertion of the speedy trial right. Barker v. Wingo,

27 407 U.S. at 530. The record shows that O'Shell failed to assert any due process violation because 28 of any delay when he initially appeared in court and denied the allegations in the SVP petition on
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1 December 1, 2006. (Petition - Exhibit "C" at 2-3; Lodgment 1 - CT at 139.) In his declaration in 2 support of the instant Petition, O'Shell declares that he did not personally waive, or authorize his 3 counsel to make any time waive, and that the superior court did not ask him to waive, the 10 day 4 period noted in California Welfare and Institution Code § 6601.5. (Petition, Exhibit "C" at 2.) But 5 O'Shell's "failure to assert the right will make it difficult for [him] to prove that he was denied a 6 speedy trial." Barker v. Wingo, 407 U.S. at 532. 7 The fourth Barker factor is prejudice. Barker v. Wingo, 407 U.S. at 530. Actual prejudice

8 can be shown in three ways: (1) oppressive pretrial incarceration; (2) anxiety and concern of the 9 accused; and (3) the possibility that the accused's defense may be impaired. Doggett v. United 10 States, 505 U.S. at 654; Barker v. Wingo, 407 U.S. at 532. "Of these, the most serious is the last, 11 because the inability [of the accused] adequately to prepare his case skews the fairness of the entire 12 system." Id. In denying O'Shell's state habeas corpus petitions, both the superior court and the state 13 appellate court noted that O'Shell had failed to show any prejudice or reason why the claimed delay 14 was detrimental or caused any violation of his due process rights. (Lodgment 4 at 4; Lodgment 6 15 at 2.) O'Shell does not provide any evidence, including in his own declaration, pointing to any 16 specific damage to his defense stemming from the delay in his probable cause hearing. 17 Based on the foregoing, the state courts properly concluded that O'Shell was responsible

18 for the delay in his probable cause hearing and that he did not appropriately assert any speedy trial 19 right or due process violation. A review of the four Barker factors supports the decisions by the 20 state courts in denying O'Shell's claims on state habeas corpus. The record also shows that the 21 California Legislature's twin concerns were met in this case: (1) that a defendant not be kept in 22 custody beyond the defendant's release date without a showing of good cause; and, (2) that 23 potentially dangerous sexually violent predators not be released. See People v. Badura, supra, 95 24 Cal. App. 4th at 1226, 116 Cal. Rptr. 2d at 342. In any event, because the United States Supreme 25 Court has not specifically applied a Sixth Amendment speedy trial right to claims by detainees 26 awaiting civil commitment hearings pursuant to acts such as California's SVPA, the state court's 27 denial of O'Shell's claim cannot be contrary to, or an unreasonable application of, clearly 28 established federal law. Kane v. Espitia, 546 U.S. at 9. Accordingly, he is not entitled to federal
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1 habeas corpus relief as to this claim. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 403, 4122 13. 3 4 5 6 O'Shell contends that his right to due process and Constitutional rights were violated III. O'SHELL'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY CONTINUANCE OF THE PROBABLE CAUSE HEARING

7 because did not consent to waive the ten day period for a probable cause hearing as required by 8 California Welfare and Institutions Code section 6601.5 either: (1) at his appearance on December 9 1, 2006 (Pet. at 7 - Ground Two); or, (2) at the status conference on January 12, 2007, where the 10 court calendared a probable cause hearing on April 25, 2007 (Pet. at 8 - Ground Three). O'Shell is 11 not entitled to federal habeas corpus relief because he has not met his burden of demonstrating that 12 the decisions by the state courts denying this claim on habeas corpus were neither contrary to, nor 13 an unreasonable application of established United States Supreme Court precedent, and were not 14 based upon an unreasonable determination of the facts in light of the evidence presented in the State 15 courts. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 403, 412-13. 16 17 A. Factual and Procedural Background On December 1, 2006, at O'Shell appeared in superior court regarding a probable cause

18 hearing under California Welfare and Institution Code § 6602. O'Shell was represented by Deputy 19 Public Defender Jane Kinsey because his assigned attorney, Deputy Public Defender Dalen Duong, 20 was in trial. Attorney Kinsey proposed setting a status conference in January, and the probable 21 cause hearing in April of 2007. (Petition - Exhibit "C" at 2.) The prosecutor, Deputy District 22 Attorney Phyllis Shess, asked that a status conference be set on January 12, 2007, to allow attorney 23 Duong to clear his current trial calender and appear in this matter. (Petition - Exhibit "C" at 2.) The 24 following discussion occurred: 25 26 MS. KINSEY: 27 THE COURT: 28
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THE COURT:

There will be the arraignment now. We'll set it for status on trial and get formal dates. That's fine. So go ahead, counsel, and arraign him.

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1 2 3 4 5 6 7 8 9 10

MS. KINSEY:

Your honor, Mr. O'Shell is on a [Cal. Welf. & Inst. Code §] 6600 petition. He denies the petition at this time and requests probable cause for a jury trial. At this point, then, waive any time to have a probable cause hearing within a reasonable time so I can set it for status in January? Yes. Note the time waiver. Put the matter over until January. Counsel, what date? January 12th. Status set for January 12th at 9:00 o'clock in Department 11. Thank you.

THE COURT:

MS. KINSEY: THE COURT: THE CLERK: MS. KINSEY: THE CLERK: MS. KINSEY:

11 (Petition - Exhibit "C" at 2-3; Lodgment 1 - CT at 139.) 12 On January 12, 2007, O'Shell appeared in court for a status conference where he was

13 represented by his counsel, Dalen Duong. The probable cause hearing was set for April 24, 2007. 14 (Lodgment 1 - CT at 140.) 15 16 B. State Court Review O'Shell presented this claim in his state habeas corpus petitions. (See Lodgment Nos. 4,5,

17 7, 9.) The superior court denied this claim, stating that: "In fact, according to the Court's minutes, 18 [O'Shell]] waived statutory time, and it appears that the Status Conference for January 12, 2007, was 19 as a result of [O'Shell]'s own motion." (Lodgment 4 at 3.) The Court of Appeal initially denied 20 this claim as follows: 21 22 23 24 25 26 27 28 (Lodgment 6 at 2.) The Court of Appeal denied O'Shell's second habeas petition in that court as follows: The petition is procedurally barred because it is repetitive, and [O'Shell] has not established an exception to the procedural bar. (In re Clark (1993) 5 Cal.4th 750, 765, 767-768.) The petition also fails to state a prima facie case for relief because [O'Shell]
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O'Shell is improperly attempting to use habeas corpus as a vehicle to bypass a decision by his attorney of record not to file a motion to dismiss. He has not shown that he requested new counsel or attempted to revoke his purported time waivers. O'Shell has not provided copies of the relevant documents (the petition, a request for review under Welf. & Inst. Code, § 6601.5, the November 16, 2006 order, or any minute orders or transcripts). The petition is denied.

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has not established that his trial counsel's decisions to waive time for and request a continuance of the probable cause hearing fell outside counsel's general authority to control all decisions affecting trial tactics and court proceedings. (See, e.g., Townsend v. 2 Superior Court (1975) 15 Cal.3d 774, 781.) The petition is denied. (Lodgment 8 .) 3 1 4 The California Supreme Court denied the petition containing this claim without comment

5 or citation. (Lodgment 10.) 6 7 C. Applicable Law and Analysis When a defendant chooses to be represented by counsel, the defendant is obligated to

8 follow counsel's exercise of professional judgment and control of the defense. All strategic and 9 tactical decisions other than the decisions to plead guilty, waive a jury and testify are the "exclusive 10 province" of defense counsel and may not be overridden by a defendant without waiver of the right 11 to counsel. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983); 12 Waiwright v. Sykes, 433 U.S. 72, 93, n.1, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Burger, C.J., 13 concurring); Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965) (counsel's 14 deliberate choice of strategy is binding on his client); United States v. Wadsworth, 830 F.2d 1500, 15 1509 (9th Cir. 1987) (trial tactics are clearly within realm of powers committed to the discretion of 16 defense counsel); ABA Standards of Criminal Justice: Prosecution and Defense Function, Standard 17 4-5.2 (3d ed. 1993) (strategic and tactical decisions, such as what motions are to be made, ultimately 18 are to be made by defense counsel, not by the defendant). In Florida v. Nixon, 543 U.S. 175, 187, 19 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), the Supreme Court explained that, although an attorney 20 has a duty to consult with a client regarding "important decisions," including questions of 21 overarching defense strategy, citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 22 80 L. Ed. 2d 674 (1984)), that obligation does not require the attorney to obtain the defendant's 23 consent to "every tactical decision", citing Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 24 98 L. Ed. 2d 798 (1988) (an attorney has authority to manage most aspects of the defense without 25 obtaining his client's approval). 26 A California SVP probable cause hearing may be continued by a showing of good cause.

27 California Welfare and Institution Code § 6602(b); see also Cal. Penal Code § 1050(e)(continuance 28 of criminal matters granted upon showing of good cause); Cal. R. Ct., rule 3.1332 (continuance of
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1 trial on affirmative showing of good cause). The unavailability of a party or trial counsel because 2 of death, illness, or other excusable circumstances may indicate good cause for a continuance. Cal. 3 R. Ct., rule 3.1332(c)(2)&(3). Other factors include whether counsel is engaged in another trial; 4 whether the parties have stipulated to a continuance; and, whether the interests of justice are best 5 served by the continuance. Cal. R. Ct., rule 3.1332(d)(8), (9) & (10). A decision to grant a 6 continuance is within the sound discretion of the trial court. People v. Johnson, 26 Cal. 3d 557, 570, 7 162 Cal. Rptr. 431, 439, 606 P.2d 738 (1980). On the issue of consent, a defendant will be deemed 8 to have consented to a continuance when the defendant has failed to make an affirmative objection 9 to a further delay. Townsend v. Superior Court, 15 Cal. 3d 774, 783, 126 Cal. Rptr. 251, 257-58, 10 543 P.2d 619 (1975). 11 As previously discussed, O'Shell declares that he did not personally waive, or authorize

12 his counsel to make any time waive, and that the superior court did not ask him to waive, the 10 day 13 period noted in California Welfare and Institution Code § 6601.5. (Petition, Exhibit "C" at 2.) But 14 he failed to make an affirmative objection to any further delay either at his initial appearance on 15 December 1, 2006, where his counsel Deputy Public Defender Jane Kinsey moved for a 16 continuance, or during his second appearance on January 12, 2007, where his counsel, Deputy 17 Public Defender Dalen Duong, requested a continuance (Petition - Exhibit "C" at 2-3; Lodgment 18 1 - CT at 139, 140), which the California courts properly deemed as him having consented to these 19 continuances. People v. Johnson, 26 Cal. 3d at 570, 162 Cal. Rptr. at 439. In denying this claim 20 on habeas corpus, the superior court properly noted that the court minutes reflected that O'Shell had 21 waived statutory time, and the continuance of the status conference was the result of his own motion. 22 (Lodgment 4 at 3.) The state appellate court reasoned that O'Shell had "not shown that he

23 requested new counsel or attempted to revoke his purported time waivers." (Lodgment 6 at 2.) 24 The record indicates that O'Shell's counsels' decision to move for the continuances was

25 based on tactical decisions. The first one was because his assigned trial counsel was in trial on 26 another matter (Petition - Exhibit "C" at 2; Lodgment 1 - CT at 139), which is good cause for a 27 continuance. Cal. R. Ct., rule 3.1332(c)(3) & (d)(8). The second continuance request presumably 28 was to allow his assigned defense counsel, Dalen Duong, to obtain the appearance and prepare for
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1 the probable cause hearing the examination of Jeremy Coles, Ph.D., and Thomas MacSpeiden, 2 Ph.D., who provided the assessments to allow the prosecutor to file the SVP petition against O'Shell. 3 (Lodgment 1 - CT at 140; Lodgment 3 - RT at 7-58, 73-75, 77-96.) This is also a showing of good 4 cause for the continuance. See Cal. R. Ct., rule 3.1332(c)(1) (unavailability of essential lay or expert 5 witness) & (d)(5) (prejudice parties or witnesses will suffer as result of the continuance). It is 6 notable that the State stipulated to both continuance requests (Petition - Exhibit "C" at 2; Lodgment 7 1 - CT at 139, 140). See Cal. R. Ct., rule 3.1332(d)(9). 8 The Court of Appeal correctly noted that O'Shell's failed to show "that his trial counsel's

9 decisions to waive time for and request a continuance of the probable cause hearing fell outside 10 counsel's general authority to control all decisions affecting trial tactics and court proceedings." 11 (Lodgment 8, citing Townsend v. Superior Court 15 Cal. 3d at 781, 126 Cal. Rptr. at 256.) O'Shell's 12 due process or other Constitutional rights were not violated because his counsel were not required 13 to obtain his consent to their tactical decisions to seek a continuance of his probable cause hearing. 14 Florida v. Nixon, 543 U.S. at 187; Taylor v. Illinois, 484 U.S. at 417-18. Strategic choices, made 15 after consideration of the law and facts relevant to plausible options, are "virtually unchallengeable." 16 Strickland v. Washington, 466 U.S. at 690. O'Shell's counsel's decisions to seek continuances were 17 not professionally unreasonable based on the situation that counsel faced at the time. See Nazarenus 18 v. United States, 69 F.3d 1391, 1394 (8th Cir. 1995). In any event, counsels' conduct did not 19 prejudice O'Shell's defense at the probable cause hearing or change the result of the proceeding. 20 Strickland v. Washington, 466 U.S. at 689-90; Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 21 2000), quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) 22 (petitioner only entitled to relief under 28 U.S.C. § 2254 if he shows "substantial and injurious effect 23 or influence in determining the jury's verdict."). That is, "actual prejudice" must be present. Brecht 24 v. Abrahamson, 507 U.S. at 637. 25 The state courts' determination of this issue was not contrary to, or an unreasonable

26 application of, clearly established United States Supreme Court precedent. 28 U.S.C. § 2254(d); 27 Williams v. Taylor, 529 U.S. at 403, 412-13. It is clear from the record that any alleged error did 28 not have a substantial and injurious effect in determining the jury's verdict that O'Shell is a sexually
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1 violent predator. Brecht v. Abrahamson, 507 U.S. at 623, 637. Accordingly, O'Shell has failed to 2 meet his burden that he is entitled to federal habeas corpus relief as to this claim. 3 4 CONCLUSION Based on the foregoing, Respondent respectfully requests that O'Shell's Petition for Writ

5 of Habeas Corpus be dismissed, that all further proceedings be terminated, and that this Court deny 6 any request for a certificate of appealability 7 8 9 10 11 12 13 14 15 16 17 18 ADS:jr 19 20 21 22 23 24 25 26 27 28
08CV0436
80263008.wpd

Dated: July 24, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General KEVIN VIENNA Supervising Deputy Attorney General

s/Anthony Da Silva ANTHONY DA SILVA Deputy Attorney General Attorneys for Respondent

SD2008801116

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1 2 3 INTRODUCTION 4 ARGUMENT 5 6 7 8 A. 9 B. 10 C. 11 III. 12 13 A. 14 B. 15 C. 16 CONCLUSION 17 18 19 20 21 22 23 24 25 26 27 28 II. I.

TABLE OF CONTENTS Page 1 2

THIS COURT SHOULD DISMISS THE PETITION BECAUSE O'SHELL'S CHALLENGE TO HIS SVP COMMITMENT IS CURRENTLY PENDING IN STATE COURT O'SHELL'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY ANY DELAY IN HAS ARRAIGNMENT California's Sexually Violent Predator Act Applicable Federal Law Analysis of O'Shell's Claim

2 3 4 6 7

O'SHELL'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY CONTINUANCE OF THE PROBABLE CAUSE HEARING Factual and Procedural Background State Court Review Applicable Law and Analysis

13 13 14 15 18

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1 2 3 Cases 4 Allen v. Illinois 478 U.S. 364 5 106 S. Ct. 2988 92 L. Ed. 2d 296 (1986) 6 Ankenbrandt v. Richards 7 504 U.S. 689 112 S. Ct. 2206 8 119 L. Ed. 2d 468 (1992)

TABLE OF AUTHORITIES Page

6

3 10

9 Atwood v. Vilsack 338 F. Supp. 2d 985 (S.D. Iowa 2004) 10 Barker v. Wingo 11 407 U.S. 514 92 S. Ct. 2182 12 33 L. Ed. 2d 101 (1972) 13 Braden v. 30th Judicial Circuit Court of Kentucky 410 U.S. 484 14 93 S. Ct. 1123 35 L. Ed. 2d 443 (1973) 15 Brecht v. Abrahamson 16 507 U.S. 619 113 S. Ct. 1710 17 123 L. Ed. 2d 353 (1993) 18 Coleman v. Mayberg 2005 WL 1876061, *4 19 2005 U.S. Dist. LEXIS 44142, *13 (N.D. Cal. Aug. 8, 2005) 20 Cooley v. Superior Court 29 Cal. 4th 228 21 127 Cal. Rptr. 2d 177 189, 57 P.3d 654 (2002) 22 Delta Dental Plan of Calif. Inc. v. Mendoza 23 139 F.3d 1289 (9th Cir. 1998) 24 Doggett v. United States 505 U.S. 647 25 112 S. Ct. 2686 120 L. Ed. 2d 520 (1992) 26 27 28

7, 9-12

2

17

3

5 3

10, 12

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TABLE OF AUTHORITIES (continued) 1 2 Florida v. Nixon 543 U.S. 175 3 125 S. Ct. 551 160 L. Ed. 2d 565 (2004) 4 Foucha v. Louisiana 5 504 U.S. 71 112 S. Ct. 1780 6 118 L. Ed. 2d 437 (1992) 7 Gibson v. Berryhill 411 U.S. 564 8 93 S. Ct. 1689 36 L. Ed. 2d 488 (1973) 9 Henry v. Mississippi 10 379 U.S. 443 85 S. Ct. 564 11 13 L. Ed. 2d 408 (1965) 12 Hirsh v. Justices of the Supreme Court of the State of California 67 F.3d 708 (9th Cir. 1995) 13 Hubbart v. Superior Court 14 19 Cal. 4th 1138 81 Cal. Rptr. 2d 492 15 497, 969 P.2d 584 (1999) 16 Hydrick v. Hunter 500 F.3d 978 (9th Cir. 2007) 17 In re Parker 18 60 Cal. App. 4th 1453 71 Cal. Rptr. 2d 167 (1998) 19 Jones v. Barnes 20 463 U.S. 745 103 S. Ct. 3308 21 77 L. Ed. 2d 987 (1983) 22 Jones v. Blanas 393 F.3d 918 (9th Cir. 2004) 23 Jones v. United States 24 463 U.S. 354 103 S. Ct. 3043 25 77 L. Ed. 2d 694 (1983) 26 Kane v. Espitia 546 U.S. 9 27 126 S. Ct. 407 163 L. Ed. 2d 10 (2006) 28 Page

15, 17

6, 7

3

15 2

4, 5 4, 5

11

15 10

7

7, 12
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TABLE OF AUTHORITIES (continued) 1 2 3 Kansas v. Hendricks 521 U.S. 346 4 117 S. Ct. 2072 138 L. Ed. 2d 501 (1997) 5 McNeely v. Blanas 6 336 F.3d 822 (9th Cir. 2003) 7 Middlesex County Ethics Comm. v. Garden State Bar Assn. 457 U.S. 423 8 102 S. Ct. 2515 73 L. Ed. 2d 116 (1982) 9 Nazarenus v. United States 10 69 F.3d 1391 (8th Cir. 1995) 11 Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc. 477 U.S. 619 12 106 S. Ct. 2718 91 L. Ed. 2d 512 (1986) 13 O'Connor v. Donaldson 14 422 U.S. 563 95 S. Ct. 2486 15 45 L. Ed. 2d 396 (1975) 16 People v. Badura 95 Cal. App. 4th 1218 17 116 Cal. Rptr. 2d 336 (2002) 18 People v. Butler 68 Cal. App. 4th 421 19 80 Cal. Rptr. 2d 357 (1998) 20 People v. Cheek 25 Cal. 4th 894 21 108 Cal. Rptr. 2d 181 24 P.3d 1204 (2001) 22 People v. Hayes 23 137 Cal. App. 4th 34 39 Cal. Rptr. 3d 747 (2006) 24 People v. Johnson 25 26 Cal. 3d 557 162 Cal. Rptr. 431 26 606 P.2d 738 (1980) 27 28
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3 17

3

7

8, 11

11

6

5, 8

16

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TABLE OF AUTHORITIES (continued) 1 2 People v. McKee 60 Cal. App. 4th 1517 3 73 Cal. Rptr. 3d 661 (2008) 4 People v. Otto 26 Cal. 4th 200 5 109 Cal. Rptr. 2d 327 26 P.3d 1061 (2001) 6 People v. Shields 7 155 Cal. App. 4th 559 65 Cal. Rptr. 3d 922 (2007) 8 People v. Talhelm 9 85 Cal. App. 4th 405 102 Cal. Rptr. 2d 150 (2000) 10 Sassounian v. Roe 11 230 F.3d 1097 (9th Cir. 2000) 12 Strickland v. Washington 466 U.S. 668 13 104 S. Ct. 2052 80 L. Ed. 2d 674 (1984) 14 Taylor v. Illinois 15 484 U.S. 400 108 S. Ct. 646 16 98 L. Ed. 2d 798 (1988) 17 Townsend v. Superior Court 15 Cal. 3d 774 18 126 Cal. Rptr. 251 543 P.2d 619 (1975) 19 United States v. Burdell 20 187 F.3d 1137 (9th Cir. 1999) Page

6

7

4

9 17

15, 17

15, 17

16, 17 6

21 United States v. Eight Thousand Eight Hundred and Fifth Dollars ($8,850) in U.S. Currency 461 U.S. 555 22 103 S. Ct. 2005 76 L. Ed. 2d 143 (1983) 9 23 United States v. Gregory 24 322 F.3d 1157 (9th Cir. 2003) 10 25 United States v. Perry 788 F.2d 100 (3rd Cir. 1986) 26 United States v. Wadsworth 27 830 F.2d 1500 (9th Cir. 1987) 28
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TABLE OF AUTHORITIES (continued) 1 2 3 Waiwright v. Sykes 433 U.S. 72 4 97 S. Ct. 2497 53 L. Ed. 2d 594 (1977) 5 Williams v. Taylor 6 529 U.S. 362 120 S. Ct. 1495 7 146 L. Ed. 2d 389 (2000) 8 Younger v. Harris 401 U.S. 37 9 91 S. Ct. 746 27 L. Ed. 2d 669 (1971) 10 Constitutional Provisions 11 United States Constitution 12 Fifth Amendment Sixth Amendment 13 Fourteenth Amendment 14 Statutes 15 Antiterrorism and Effective Death Penalty Act ("AEDPA") Pub. L. No. 104-132, 110 Stat. 1214 (1996) 16 California Penal Code 17 § 1050(e) 18 California Welfare and Institution Code §§ 6600-6604 19 § 6600 20 § 6601(a)(2) § 6601(c),(d),(h),(i) 21 § 6601.5 § 6602 22 § 6602(a) § 6602(b) 23 § 6604 § 6605 24 § 6608 25 Stats. 1998 ch. 19, § 2 26 Stats. 2000 27 ch. 41, § 2, pp. 102-03 28
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2, 4, 13

2

6 6, 7 7

2 15 1 4 8 11 2, 3, 5, 8, 10, 12, 13, 16 11, 13 4, 5 5, 15 4, 5 5 5 8 5

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TABLE OF AUTHORITIES (continued) 1 2 Title 28 United States Code § 2254 3 § 2254(d) 4 Court Rules 5 California Rules of Court rule 3.1332 6 rule 3.1332(c)(1) rule 3.1332(c)(2)&(3) 7 rule 3.1332(c)(3) & (d)(8) rule 3.1332(d)(8), (9) & (10) 8 rule 3.1332(d)(9) 9 Other Authorities 10 ABA Standards of Criminal Justice: Prosecution and Defense Function Standard 4-5.2 (3d ed. 1993) 11 California's Sexually Violent Predator's Act ("SVPA") 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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15 17 16 16 16 17

15 4

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