Rose v. Mayberg

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WARREN DAVID ROSE, JR., 
Petitioner-Appellant,
No. 05-16881
v.
STEPHEN MAYBERG, Director,  D.C. No.
CV-03-01502-LKK
California Department of Mental
OPINION
Health,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
June 14, 2006—San Francisco, California
Filed July 18, 2006
Before: Procter Hug, Jr. and Diarmuid F. O’Scannlain,
Circuit Judges, and Jeffrey T. Miller,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Jeffrey T. Miller, United States District Judge for the
Southern District of California, sitting by designation.
7915
ROSE v. MAYBERG 7917
COUNSEL
David Porter, Assistant Federal Defender, Sacramento, Cali-
fornia, argued the cause for the appellant. Quin Denvir, Fed-
7918 ROSE v. MAYBERG
eral Defender, Dennis S. Waks, Acting Federal Defender, and
Ann C. McClintock, Assistant Federal Defender, Sacramento,
California, were on the briefs.
Judy Kaida, Deputy Attorney General, Sacramento, Califor-
nia, argued the cause for the appellee. Bill Lockyer, Attorney
General of California, Robert R. Anderson, Chief Assistant
Attorney General, Mary Jo Graves, Senior Assistant Attorney
General, and Brian G. Smiley, Deputy Attorney General, Sac-
ramento, California, were on the brief for the appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We consider whether a habeas petition must be granted
when a state court jury does not separately determine whether
a sexually violent predator suffers from a mental condition
that renders him dangerous beyond his control.
I
In 1982, Warren Rose—then serving in the United States
Navy in Guam— committed violent sexual offenses against
three eight-year-old girls. Rose was court-martialed, pled
guilty, and received a 13-year sentence in federal prison. He
was paroled in 1990, having served seven years. Rose then
violated the terms of his parole by contacting, hitting, and
twice raping his ex-girlfriend. He was returned to federal
prison for five years and was released in 1996. Less than a
year later, Rose reoffended, committing a lewd act on a
seven-year-old girl he was babysitting. He was convicted in
state court of committing a lewd and lascivious act upon a
child under the age of 14 and was sentenced to a term of three
years in state prison.
ROSE v. MAYBERG 7919
In 1999, the Sacramento County District Attorney’s Office
filed a petition to commit Rose involuntarily as a sexually
violent predator (“SVP”) pursuant to California’s Sexually
Violent Predator Act (“SVPA”). See CAL. WELF. & INST. CODE
§ 6600 et seq. The trial court denied the SVPA petition and
Rose received parole in 2000.
Less than a year later, Rose’s parole was revoked based on
charges that he had contact with a minor, gave false informa-
tion to his parole officer, and failed to maintain a logbook.
After hearing testimony from Rose, his parole agent, and oth-
ers, the state parole board found that Rose had violated two
special conditions of his parole, and assessed Rose four
months in prison for each violation.
Following Rose’s return to prison, the state filed a second
SVPA petition, which was tried to a California Superior Court
jury. There, Rose requested the following instruction, which
the trial court declined to give:
In order to find that [Rose] is a Sexually Violent
Predator, [the State] must establish beyond a reason-
able doubt that [Rose] is currently suffering from a
mental condition that renders him dangerous beyond
his control.
Rather, the trial court instructed the jury that:
The term “a sexually violent predator” means a
person who, (1) has been convicted of a sexually
violent offense against two or more victims for
which he or she received a sentence, and (2) has a
diagnosed mental disorder that makes him a danger
to the health and safety of others in that it is likely
that he will engage in sexually violent predatory
criminal behavior.
Further, the trial court instructed the jury on the require-
ments for finding a mental disorder:
7920 ROSE v. MAYBERG
“Diagnosed mental disorder” includes a congeni-
tal or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree con-
stituting the person a menace to the health and safety
of others.
The jury concluded that Rose was a sexually violent preda-
tor within the meaning of the SVPA. Consequently, Rose was
placed in custody for a two-year period, consistent with the
SVPA. Though his original two-year civil commitment term
expired in 2003, the State filed recommitment petitions in
2003 and 2005, and Rose remains in Atascadero State Hospital.1
After exhausting the claims relevant to this petition in state
court, Rose timely filed a petition for a writ of habeas corpus
in federal district court, contending that it was error for the
state trial judge to refuse to instruct the jury that it must find
him “dangerous beyond his control.” The district court denied
the petition and Rose timely appealed.2
II
Rose contends that the state court’s refusal to instruct the
jury that it must find that he was “dangerous beyond his con-
1
Because the 2003 and 2005 SVPA petitions depend on the legality of
the 2001 SVPA petition, the claim is not moot. Cf. Hubbart v. Knapp, 379
F.3d 773, 777-78 (9th Cir. 2004) (concluding that even if each California
SVPA recommitment proceeding is a separate and distinct civil action, the
court may still address a habeas petition challenging the first SVPA com-
mitment in order to ensure that the claim is fully litigated).
2
Rose also contends that the state courts failed to apply the principles
of res judicata and collateral estoppel to his petition, in violation of due
process. He further contends that the application of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, to his
habeas petition is unconstitutional. In a concurrently filed memorandum
disposition, we affirm the district court’s denial of Rose’s petition as to
both of these grounds.
ROSE v. MAYBERG 7921
trol” was an unreasonable application of Kansas v. Hendricks,
521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002).3
See 28 U.S.C. § 2254(d)(1).
A
In Kansas v. Hendricks, the Supreme Court analyzed the
constitutionality of the Kansas Sexually Violent Predator Act,
which “establishes procedures for the civil commitment of
persons who, due to a ‘mental abnormality’ or a ‘personality
disorder,’ are likely to engage in ‘predatory acts of sexual vio-
lence.’ ” 521 U.S. at 350 (citing KAN. STAT. ANN. § 59-29a01
et seq. (1994)). There, the Supreme Court determined that the
Act satisfied substantive due process considerations, explain-
ing that:
We have sustained civil commitment statutes when
they have coupled proof of dangerousness with the
proof of some additional factor, such as a “mental
3
Pursuant to AEDPA, we review the district court’s decision to deny a
habeas petition de novo. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.
2002). Relevant here, AEDPA provides that a habeas petition must be
denied unless the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
A decision is “contrary to” federal law if it reaches a conclusion “oppo-
site to that reached by [the Supreme Court] on a question of law” or
reached an opposite result from the Supreme Court based on “facts that are
materially indistinguishable from a relevant Supreme Court precedent.”
Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision involves an “un-
reasonable application” of federal law if it (1) “correctly identifies the
governing rule but then applies it to a new set of facts in a way that is
objectively unreasonable,” or (2) “extends or fails to extend a clearly
established legal principle to a new context in a way that is objectively
unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002)
(citation omitted); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(“The ‘unreasonable application’ clause requires the state court decision
to be more than incorrect or erroneous. The state court’s application of
clearly established law must be objectively unreasonable.”).
7922 ROSE v. MAYBERG
illness” or “mental abnormality.” See, e.g., . . . Allen
v. Illinois, 478 U.S. 364, 366 (1986) (Illinois statute
permitting commitment of “mentally ill” and danger-
ous individual); Minnesota ex rel. Pearson v. Pro-
bate Court of Ramsey Cty., 309 U.S. 270, 271-272
(1940) (Minnesota statute permitting commitment of
dangerous individual with “psychopathic personali-
ty”). These added statutory requirements serve to
limit involuntary civil confinement to those who suf-
fer from a volitional impairment rendering them dan-
gerous beyond their control. The Kansas Act is
plainly of a kind with these other civil commitment
statutes: It requires a finding of future dangerous-
ness, and then links that finding to the existence of
a “mental abnormality” or “personality disorder” that
makes it difficult, if not impossible, for the person to
control his dangerous behavior. Kan. Stat. Ann.
§ 59-29a02(b) (1994). The precommitment require-
ment of a “mental abnormality” or “personality dis-
order” is consistent with the requirements of these
other statutes that we have upheld in that it narrows
the class of persons eligible for confinement to those
who are unable to control their dangerousness.
Id. at 358.
[1] The Kansas Supreme Court subsequently interpreted the
Hendricks decision to hold—similar to Rose’s contention—
that “commitment under the [Kansas SVPA] is unconstitu-
tional absent a finding that the defendant cannot control his
dangerous behavior.” In re Crane, 7 P.3d 285, 290 (Kan.
2000). Upon grant of certiorari, the Supreme Court of the
United States squarely rejected the Kansas Supreme Court’s
view, concluding that involuntary commitment statutes may
be upheld if “(1) ‘the confinement takes place pursuant to
proper procedures and evidentiary standards,’ (2) there is a
finding of ‘dangerousness either to one’s self or to others,’
and (3) proof of dangerousness is ‘coupled . . . with the proof
ROSE v. MAYBERG 7923
of some additional factor, such as a ‘mental illness’ or ‘mental
abnormality.’ ” Crane, 534 U.S. at 409-10 (quoting Hen-
dricks, 521 U.S. at 357-58).
[2] The Court dismissed the contention that Hendricks
required “total or complete lack of control,” id. at 411, but
concluded that it does require some “lack-of-control” determi-
nation, id. at 412. That is, “there must be proof of serious dif-
ficulty in controlling behavior,” id. at 413, which “must be
sufficient to distinguish the dangerous sexual offender whose
serious mental illness, abnormality, or disorder subjects him
to civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case,” id. at 413 (citing
Hendricks, 521 U.S. at 357-58; Foucha v. Louisiana, 504 U.S.
71, 82-83 (1992)).
B
Here, the California Court of Appeal reviewing Rose’s
claim of instructional error reasoned that the jury instructions
did not violate Hendricks and Crane:
The statutory language in the [California] SVPA
is similar to the language used in the Kansas act
upheld in Hendricks and Crane. People v. Buffington
74 Cal. App. 4th 1149, 1154 (1999). Like the Kansas
statute, California’s SVPA requires the jury to find
that the offender has a “diagnosed mental disorder”
that affects his “emotional or volitional capacity,”
which “predisposes” him to the commission of crim-
inal sexual acts and makes it “likely that he will
engage in sexually violent predatory criminal behav-
ior.” Under Crane these criteria are sufficient to
establish the offender has a current mental condition
that causes him serious difficulty in controlling his
behavior.
People v. Rose, 2003 WL 657727, *7 (Cal. Ct. App. 2003).
7924 ROSE v. MAYBERG
The California Supreme Court reached the same conclusion
shortly thereafter in People v. Williams, 74 P.3d 779, 793
(Cal. 2003).
III
Rose claims he is entitled to habeas relief because the trial
court failed to instruct the jury that it had to find Rose was
“currently suffering from a mental condition that renders him
dangerous beyond his control.” This failure to instruct the
jury, Rose argues, amounts to a due process violation, and an
unreasonable application of Hendricks and Crane.
A
In Crane, the Supreme Court specifically stated that a find-
ing of complete inability to control one’s behavior is not nec-
essary to satisfy due process. The Court declined to give the
phrase “ ‘lack of control’ a particularly narrow or technical
meaning,” but rather recognized that “in cases where lack of
control is at issue, ‘inability to control behavior’ will not be
demonstrable with mathematical precision. It is enough to say
that there must be proof of serious difficulty in controlling
behavior.” Crane, 534 U.S. at 413. Tellingly, Crane reversed
the Kansas Supreme Court’s strict view of Hendricks’s lack-
of-control requirement.
[3] The state court rightly noted that Crane “made clear
that a standard of total inability to control one’s behavior is
not a constitutional prerequisite to an SVP commitment.”
Rose, 2003 WL 657727, *6. Indeed, “the [Supreme Court]
explained that ‘[i]nsistence upon absolute lack of control
would risk barring the civil commitment of highly dangerous
persons suffering severe mental abnormalities.’ ” Id. (quoting
Crane, 534 U.S. at 411-12). It follows that the California state
court did not engage in an unreasonable interpretation of
Crane when it concluded that the jury’s findings in Rose’s
commitment proceeding were sufficient to maintain his civil
ROSE v. MAYBERG 7925
commitment. Here, the jury instructions required the jury to
consider whether Rose suffered from “a diagnosed mental dis-
order that makes him a danger to the health and safety of oth-
ers in that it is likely that he will engage in sexually violent
predatory criminal behavior.” While the jury did not conclude
that Rose was completely unable to control his behavior, it
did find that Rose suffered from a “diagnosed mental disor-
der,” which “affect[ed] the emotional or volitional capacity
that predisposes the person to the commission of criminal sex-
ual acts in a degree constituting the person a menace to the
health and safety of others.” As Crane requires, such finding
“distinguish[es] the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist con-
victed in an ordinary criminal case.” 534 U.S. at 413 (citing
Hendricks, 521 U.S. at 357-58; Foucha, 504 U.S. at 82-83).
[4] We are satisfied that the California court did not make
an objectively unreasonable interpretation of Crane’s require-
ment of “proof of serious difficulty”—as opposed to complete
inability, as Rose would have it—“in controlling behavior.”
Id. (emphasis added).
B
Prior cases in this and other circuits affirm the reasonable-
ness of the state court’s application of Crane and Hendricks.
1
In Brock v. Seling, 390 F.3d 1088 (9th Cir. 2004) (per
curiam), we considered what types of mental disorders could
qualify for civil commitment under Washington’s Sexually
Violent Predator Act. See WASH. REV. CODE § 71.09.020.
Brock clarified that “Crane speaks to outer limits rather
than specific elements. Crane does not require ‘total or com-
plete’ lack of control, but only ‘some’ showing of an abnor-
7926 ROSE v. MAYBERG
mality that makes it ‘difficult, if not impossible for the
dangerous person to control his dangerous behavior.’ ” Id. at
1091 (quoting Crane, 534 U.S. at 411). We stated that:
Whether predicated on expert testimony that Brock
suffered from a paraphilia that rendered him unable
to control his desire to rape or testimony suggesting
an antisocial personality marked by impulsivity, or
both, the jury undoubtedly found that Brock’s condi-
tion evinced “serious difficulty” in controlling
behavior. This is sufficient. Crane declined to
require that the condition posing serious difficulty be
a volitional one.
Id.Rose contends that Brock decided only the narrow question
of what types of disorders or abnormalities were sufficient to
merit civil commitment. We agree that Brock addressed that
narrow question; however, it also bears on Rose’s alleged
instructional error. While Brock addressed the types of disor-
ders sufficient under Crane, it also necessarily implies that a
jury instruction requiring a finding of “total or complete lack
of control” is not required, because the disorder or abnormal-
ity need not be one requiring total or complete lack of control.
Brock therefore supports our conclusion that the state court
was not objectively unreasonable in holding that due process
does not require a jury to determine if Rose was completely
unable to control his behavior.4
4
Indeed, we note that California is not the only state to reach this con-
clusion. See, e.g., In re Commitment of Laxton, 647 N.W.2d 784, 793-95
(Wisc. 2002) (holding that Crane does not require a separate jury determi-
nation of “level of volitional control”); In re Linehan, 594 N.W.2d 867,
875 (Minn. 1999) (holding that the Minnesota act comports with Hen-
dricks because it “requires a finding of future dangerousness, and then
links that finding to the existence of a ‘mental abnormality’ or ‘personality
ROSE v. MAYBERG 7927
2
Our decision also accords with the Seventh and Eighth Cir-
cuits, which have also addressed the issue. In both Laxton v.
Bartow, 421 F.3d 565 (7th Cir. 2005), and Linehan v. Milc-
zark, 315 F.3d 920 (8th Cir. 2003), the state courts (Wiscon-
sin and Minnesota, respectively), had concluded that a
separate and independent jury finding of inability to control
was not necessary. Laxton, 421 F.3d at 571; Linehan, 315
F.3d at 924.
In Laxton, the state court had “concluded that civil commit-
ment under the statute does not require ‘a separate factual
finding regarding the individual’s serious difficulty in control-
ling behavior’ because this finding is implicit in the statute’s
definition of a ‘sexually dangerous person.’ ” 421 F.3d at 571(quoting In re Commitment of Laxton, 647 N.W.2d 784, 793
(Wisc. 2002)). Reviewing Crane and Hendricks, the Seventh
Circuit concluded:
disorder’ that makes it difficult, if not impossible, for the person to control
his dangerous behavior”); State v. Ehrlich, 204 Ariz. 15, 19 (2002) (con-
cluding that a jury finding of a “mental disorder that makes the person
likely to engage in acts of sexual violence” was sufficient to satisfy
Crane); In re Luckabaugh, 568 S.E.2d 338, 348 (S.C. 2002) (“Crane does
not mandate a court must separately and specially make a lack of control
determination, only that a court must determine the individual lacks con-
trol while looking at the totality of the evidence.”); State v. White, 891 So.
2d 502, 509 (Fla. 2004); State v. Varner, 800 N.E.2d 794, 798 (Ill. 2003)
(“In our view, Crane did not hold that the Constitution requires a specific
determination by the fact finder in every case that a person lacks volitional
control[.]”); In re Dutil, 768 N.E.2d 1055 (Mass. 2002); Van Grinsven v.
G.R.H. (In re G.R.H.), 711 N.W.2d 587 (N.D. 2006); Shivaee v. Common-
wealth, 613 S.E.2d 570 (Va. 2005); In re Det. of Thorell, 72 P.3d 708, 715
(Wash. 2003) (“We conclude that Crane requires a determination that a
potential SVP has serious difficulty controlling dangerous, sexually preda-
tory behavior, but does not require a separate finding to that effect.”); In
re Commitment of Almaguer, 117 S.W.3d 500, 504 (Tex. App. 2003).
7928 ROSE v. MAYBERG
In light of the Supreme Court’s decision in Crane to
vacate the judgment of the Kansas Supreme Court,
the absence of more precise language concerning a
lack-of-control element, and the Court’s own
acknowledgment that bright-line rules are inappro-
priate in this context, we cannot agree with petition-
er’s contention that Crane clearly establishes that the
jury must be instructed and specifically find that
petitioner has serious difficulty in controlling his
behavior.
Id. at 572.
Similarly, in Linehan, the Minnesota Supreme Court had
previously held that Hendricks requires that those civilly com-
mitted be “ ‘sexually dangerous persons . . . whose present
disorder or dysfunction does not allow them to adequately
control their sexual impulses, making it highly likely that they
will engage in harmful sexual acts in the future.’ ” 315 F.3d
at 924 (quoting In re Linehan, 594 N.W.2d 867, 876 (Minn.
1999)). The Eighth Circuit concluded that the state’s result
was not objectively unreasonable because it required a “find-
ing of ‘lack of adequate control’ in relation to a properly diag-
nosed disorder or dysfunction, as well as findings of past
sexual violence and resultant likelihood of future sexually
dangerous behavior.” Id. at 927.
[5] We are satisfied that a state court does not engage in an
objectively unreasonable application of Crane and Hendricks
by failing to require a separate jury finding of complete
inability to control one’s conduct.
III
For the foregoing reasons, the decision of the district court
is AFFIRMED.