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.