George Wright v. Steven Mayberg

FILED
NOT FOR PUBLICATION JUN 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GEORGE WRIGHT, No. 10-55568
Petitioner - Appellant, D.C. No. 5:08-cv-00274-R-AN
v.
MEMORANDUM *
CLIFF ALLENBY, Acting Director,
Department of Mental Health; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued January 10, 2013
Submitted June 14, 2013
Pasadena, California
Before: REINHARDT, WARDLAW, and PAEZ, Circuit Judges.
George Wright appeals the dismissal of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his confinement as a Sexually
Violent Predator (“SVP”). See Cal. Welf. & Inst. Code § 6600(a)(1) et. seq.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1996). Wright raises six claims. He contends that (1) the state court violated his
federal due process right by concluding that he was barred by the doctrine of res
judicata from challenging his alleged 1968 conviction, which was a predicate for
the jury’s determination that he was an SVP; (2) there was insufficient evidence to
establish his 1968 felony conviction; (3) the state trial court lacked jurisdiction
over the State’s 2003 SVP petition because the State improperly relied upon a non-
existent prior felony conviction, namely the 1968 offense; (4) the State withheld
evidence relating to the 1968 conviction; (5) his procedural due process rights were
violated when the State failed to prove that he had acquired two valid predicate
prior felony convictions; and (6) the state court violated his due process rights by
arbitrarily refusing to submit to the jury the issue of whether his 1968 charge
resulted in a conviction. Although Wright characterizes these six theories as
distinct claims, they largely boil down to a single contention: his 2003 civil
commitment was unlawful because he does not have two prior convictions as
required by California’s SVP law. We disagree and affirm.1
1. Although Wright argues that the state court’s res judicata finding
constituted a due process violation, his allegations amount to an assertion that the
1
Our review of Wright’s § 2254 federal habeas petition is circumscribed
by the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2241 et seq.
2
state court erred in applying state res judicata law. In a habeas proceeding such as
this, we may not correct errors of state law. Lewis v. Jeffers, 497 U.S. 764, 780
(1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”);
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
Nor can Wright argue that he was denied due process by not having a “full
and fair opportunity” to contest the validity of the 1968 conviction in his 1999
commitment proceedings, Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 321,
328 (9th Cir. 1995), as he was represented by counsel in the 1999 proceedings and
made a knowing and voluntary decision to admit the allegations in the State’s
petition.
2. Irrespective of whether the state court of appeal’s sufficiency of the
evidence finding was unreasonable, Wright’s challenge is foreclosed by the court’s
res judicata determination. Wright failed to challenge the sufficiency of the
evidence when he was committed pursuant to SVP proceedings on two prior
occasions, the legal effect of which was to have established the conviction for the
purposes of his 2003 SVP proceedings.
3. Wright’s claim that the trial court lacked jurisdiction over the 2003 SVP
petition constitutes a repackaging of his central argument that the court erred in
3
finding the 1968 charge resulted in a conviction. Accordingly, it fails for the same
reasons.
4. Wright’s fourth claim is that the State violated Brady v. Maryland, 373
U.S. 83 (1963), by withholding records that revealed the 1968 charge was
dismissed in 1975. This claim fails because Wright has offered no explanation for
why he was unable to access these publicly available and self-evidently relevant
documents. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991).
5. Wright’s contention—that he was denied the procedural safeguard
contained in the SVP statute requiring that an offender be “convicted of a sexually
violent offense against two or more victims”—is misplaced.2 The state court’s
analysis correctly presumed that a conviction for offenses against at least two
victims was required. The state court merely concluded that the prosecution
sufficiently demonstrated that Wright satisfied the terms of the statute, having been
convicted of a sexually violent offense in 1968 and in 1989. Our analysis of that
2
When the State filed the 2003 SVP petition, it had to prove that (1)
Wright suffered from “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 criminal behavior” and (2) he had been “convicted of a sexually violent
offense against two or more victims.” Cal. Welf. & Inst. Code § 6600(a)(1)
(1996), amended by Prop. 83, § 27, approved Nov. 7, 2006; Hubbart v. Super. Ct.,
969 P.2d 584, 588 (Cal. 1999).
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issue is therefore foreclosed by the California state court’s application of its res
judicata doctrine.
6. Lastly, the state court’s refusal to submit the issue of whether Wright’s
1968 charge resulted in a conviction to the jury was not arbitrary because
California law expressly confers upon trial courts the authority to conclude that
such a fact is res judicata in a later proceeding. See, e.g., People v. Munoz, 28 Cal.
Rptr. 3d 295, 302 n.3 (Cal. Ct. App. 2005); see also People v. Lopez, 53 Cal. Rptr.
3d 549, 557–58 (Cal. Ct. App. 2006).3
AFFIRMED.
3
Wright also presented two uncertified issues for our review. We have
examined them and conclude they do not meet the standard for granting a
certificate of appealability. See Miller–El v. Cockrell, 537 U.S. 322, 336 (2003).
These claims challenge California’s new civil commitment statute, which Wright
has not been subject to. Although under this revised law Wright may be civilly
committed as an SVP if he has committed a sexually violent offense against only
one victim, see Cal. Welf. & Inst. Code § 6600(a)(1) (2006), the new law also
requires that Wright be subject to a new psychological evaluation by two
physicians who must agree that despite his being over 70 years of age, he is likely
to engage in acts of sexual violence if he does not receive appropriate treatment.
Id. at § 6601(d) (2012).
5