Scott Felix v. Michael Hennessey , 600 F. App'x 589 ( 2015 )

FILED
NOT FOR PUBLICATION APR 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT EMERSON FELIX, No. 10-16984
Petitioner - Appellant, D.C. No. 3:01-cv-03138-WHA
v.
MEMORANDUM*
MICHAEL HENNESSEY, Sheriff,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted April 14, 2015
San Francisco, California
Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,** Senior
District Judge.
Petitioner Scott Emerson Felix appeals from the district court’s denial of his
habeas petition under 28 U.S.C. § 2254. Petitioner raises a due process claim
premised on errors in his 1998 civil commitment trial under California’s Sexually
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael A. Ponsor, Senior United States District Judge
for the District of Massachusetts, sitting by designation.
Violent Predators Act ("SVPA"), Cal. Welf. & Inst. Code §§ 6600-6609.3. The
district court denied the petition. Reviewing de novo, Stanley v. Schriro, 598 F.3d
612, 617 (9th Cir. 2010), we affirm.
At the 1998 trial, the jury was instructed that it was required to find, beyond
a reasonable doubt, that Petitioner was more likely than not to commit a sexually
violent crime in the future. In closing argument, the prosecutor told the jury that it
had to find only that Petitioner was "likely to commit sexually violent crimes at
some point. . . . It doesn’t have to be predatory." Four years later, the California
Supreme Court held that the SVPA "contains an implied requirement that a trier of
fact must find beyond a reasonable doubt that the defendant is likely to commit
sexually violent predatory criminal acts before the defendant can be committed as a
sexually violent predator." People v. Hurtado, 52 P.3d 116, 120 (Cal. 2002). That
holding rested not on federal or state due process requirements, but on the statutory
text and legislative history of the SVPA. Id. at 120–21.
At the outset, the state argues that the case is moot because Petitioner was
retried and recommitted in 2006 with the correct jury instruction. But, as
Petitioner correctly points out, "but for his [allegedly] unlawful confinement in
1998[,] [he] would not have been subjected to subsequent recommitment
hearings." See Jackson v. Cal. Dep’t of Mental Health, 399 F.3d 1069, 1075 (9th
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Cir. 2005) (noting that, when a petitioner is committed involuntarily under the
SVPA, "any future petition to recommit [the petitioner] could be traced back,
through preceding petitions, to his initial confinement"). That he was retried in
2006 does not preclude Petitioner from challenging his current commitment on the
ground that it was caused by the allegedly unconstitutional 1998
proceeding—without which he could not have been retried and recommitted.
Even though the district court had dismissed the case as moot, we may
nonetheless affirm because Petitioner’s claim that the jury instruction and the
prosecutor’s statements in the 1998 trial violated his federal due process rights fails
on the merits.
A proceeding may violate state law without running afoul of federal due
process requirements. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)
(holding that a petitioner may not "transform a state-law issue into a federal one
merely by asserting a violation of due process"). To demonstrate that a
misstatement of state law in a jury instruction or a prosecutor’s closing argument
violated federal due process, a petitioner must show that the error "rendered the
ultimate verdict" in the case unreliable. Lankford v. Arave, 468 F.3d 578, 585 (9th
Cir. 2006). Petitioner has not made that showing here. In the context of the SVP
Act, behavior is "predatory" if it is "directed at a stranger, a casual acquaintance, or
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someone cultivated for victimization as defined [elsewhere in the Act.]" Hurtado,
52 P.3d at 118. In 1982, Petitioner was convicted of sexual offenses against six
different victims. People v. Felix, 87 Cal. Rptr. 3d 482, 484 (Ct. App. 2008). All
six were strangers. In the 1998 trial, the state introduced evidence about those
crimes, as well as testimony that Petitioner had behaved inappropriately toward
two casual acquaintances. The state introduced no evidence that Petitioner ever
had committed a sexual offense against a friend or a relative. Thus, there is no
"reasonable probability that . . . the result of the proceeding would have been
different had the erroneous instruction not been given." Lankford, 468 F.3d at 585
(internal quotation marks omitted) (ellipsis in original).
Petitioner also argues that permitting civil commitment of sexually violent
offenders without a finding that they are likely to commit future predatory crimes
violates federal due process principles because (1) the absence of such a finding
subjects too broad a class of individuals to forcible confinement and (2) the
"predatory" qualifier is the functional equivalent of an element of the charge; when
a jury instruction omits an element, such omission violates federal due process.
We need not decide the merits of these constitutional arguments, though, because
there was no "substantial and injurious effect" on the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted). As we
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have explained, all of the evidence at the 1998 trial of Petitioner’s past crimes and
behavior involved strangers and casual acquaintances. Accordingly, any error in
the failure to require an express finding that likely future crimes would be
committed against strangers or casual acquaintances was harmless beyond a
reasonable doubt. Id.
AFFIRMED.
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