(HC) Hunter v. Price

• Court: District Court, E.D. California
• Decided: May 8, 2020
• Docket: 1:19-cv-01678
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RONNIE M. HUNTER, Case No. 1:19-cv-01678-NONE-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 BRANDON PRICE, 15 Respondent.

16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On July 11, 1997, the District Attorney of Alameda County filed a petition in state court 22 to civilly commit Petitioner as a sexually violent predator (“SVP”) pursuant to California 23 Welfare and Institutions Code (“WIC”) section 6600. (1 Supp. CT1 97–99). That same day, the 24 Alameda County Superior Court found probable cause to believe that Petitioner is a sexually 25 violent predator as defined in WIC section 6600(a)(1), and thus, Petitioner should be detained 26 pending trial. (1 Supp. CT 111). 27 1 “Supp. CT” refers to the Supplemental Clerk’s Transcript on Appeal lodged by Respondent on January 28, 2020. 1 Petitioner was represented by counsel in state court at all times after the filing of the 2 commitment petition. On August 20, 1997, new counsel was appointed for Petitioner, and 3 Petitioner in open court waived his right to be tried within sixty days of the filing of the petition. 4 (1 Supp. CT 127). On September 5, 1997, the matter was transferred to a different judge pursuant 5 to Petitioner’s peremptory challenge. (1 Supp. CT 135). On September 12, 1997, Petitioner filed 6 a motion for judgment on the pleadings. (1 Supp. CT 208). On October 6, 1997, the motion was 7 denied, and the matter was continued for hearing on October 27, 1997 on summary judgment 8 regarding the petition. (1 Supp. CT 267). The case was repeatedly continued over the next two 9 years—once by stipulation of counsel, (1 Supp. CT 279); six times by request of Petitioner and 10 counsel, (1 Supp. CT 276–77, 285, 290, 292, 302); and the remaining continuances with no 11 explanation apparent in the record, (1 Supp. CT 278, 287–89, 291, 297). 12 On August 20, 1999, the superior court again found probable cause to believe that 13 Petitioner is a sexually violent predator as defined in WIC section 6600(a)(1), and thus, 14 Petitioner should be detained pending trial. (1 Supp. CT 311). On September 3, 1999, the 15 superior court ordered substitution of counsel for Petitioner. (1 Supp. CT 313). 16 On April 24, 2000, Petitioner filed a motion to dismiss the petition. (1 Supp. CT 362). On 17 May 19, 2000, the motion to dismiss was denied. (1 Supp. CT 368). That same day, Petitioner 18 filed a motion to continue the jury trial, which was set for June 5, 2000. (1 Supp. CT 369). The 19 continuance was granted, the June 5, 2000 trial date was vacated, and the jury trial was 20 rescheduled for August 14, 2000. (1 Supp. CT 379). 21 However, on August 2, 2000, the superior court again ordered substitution of counsel for 22 Petitioner. Thus, the August 14, 2000 trial date was vacated. (1 Supp. CT 389). Subsequently, the 23 case was repeatedly continued over the next three years—twice by stipulation of counsel, (2 24 Supp. CT 405, 410–12); four times by request of Petitioner and his counsel, (1 Supp. CT 391; 2 25 Supp. CT 406–07, 413); and the remaining continuances with no explanation apparent in the 26 record, (1 Supp. CT 390, 392). 27 On May 5, 2003, Petitioner, along with his counsel and the deputy district attorney, 1 date the action commenced. (2 Supp. CT 425). Thereafter, the case was again repeatedly 2 continued over the next three years—multiple times by request of Petitioner and his counsel, (2 3 Supp. CT 427–29, 463, 468, 472, 474); and the remaining continuances with no explanation 4 apparent in the record, (2 Supp. CT 434, 436, 440–41, 456–62, 464–67, 469, 473, 475–76, 480– 5 81). 6 On September 29, 2006, the superior court compelled Petitioner to interview with any 7 evaluating doctor from the Department of Mental Health. (2 Supp. CT 483). The matter was then 8 repeatedly continued until January 11, 2008, when an amended petition for commitment was 9 filed. (2 Supp. CT 484–85, 488, 500–03). On May 16, 2008, the superior court once more 10 ordered substitution of counsel for Petitioner. (2 Supp. CT 508). Subsequently for the next five 11 years, the case was repeatedly continued either by mutual consent, (2 Supp. CT 627), at the 12 request of Petitioner and his counsel, (2 Supp. CT 511–13, 640, 646), or with no explanation 13 apparent in the record, (2 Supp. CT 509–10, 628–39, 641; 3 Supp. CT 656–59, 661–63). 14 On August 13, 2012, Judge Gloria Rhynes of the Alameda County Superior Court found 15 probable cause to believe that Petitioner is a sexually violent predator as defined in WIC section 16 6600(a)(1), and thus, Petitioner should be detained pending trial. (3 Supp. CT 665–66). The case 17 was again repeatedly continued until August 4, 2014, when the superior court granted counsel’s 18 motion to withdraw. (3 Supp. CT 826). On August 15, 2014, new counsel was appointed for 19 Petitioner. (3 Supp. CT 829). 20 Meanwhile, on July 18, 2013, Petitioner filed a state habeas petition in the California 21 Supreme Court. (LD2 1). On October 15, 2014, the California Supreme Court denied the petition 22 “without prejudice to the filing of a petition for writ of mandate in the Court of Appeal if trial to 23 commit petitioner as a Sexually Violent Predator does not commence by the end of the calendar 24 year 2015.” (ECF No. 1 at 53).3 25 On June 17, 2015, Petitioner filed a federal habeas petition in the United States District 26 Court for the Northern District of California, asserting due process violations and ineffective 27

2 “LD” refers to the documents electronically lodged by Respondent on January 28, 2020. (ECF No. 8). 1 assistance of counsel. Hunter v. King, No. 1:15-cv-01611-LJT, ECF No. 1. On October 19, 2015, 2 the matter was ordered to be transferred to the United States District Court for the Eastern 3 District of California. Id., ECF No. 7. On May 26, 2016, the Court dismissed the petition, 4 abstaining pursuant to Younger v. Harris, 401 U.S. 37 (1971), and finding that Petitioner failed 5 to allege a constitutional violation. Hunter v. King, No. 1:15-cv-01611-JLT, 2016 WL 3019119 6 (E.D. Cal. May 26, 2016). 7 In the meantime, a jury trial was scheduled for March 2016. (1 RT4 1). On January 22, 8 2016, the superior court made a factual finding that no trial demand was made in the trial court 9 prior to January 8, 2016. (CT5 5; 1 RT 8). On March 28, 2016, the jury trial commenced. (CT 10 37). On April 25, 2016, Petitioner was found to be a sexually violent predator pursuant to 11 California Welfare and Institutions Code section 6600 et seq. after a jury trial in the Alameda 12 County Superior Court. (CT 47). Petitioner was “committed to an indeterminate term to the 13 California Department of Mental Health for appropriate treatment and confinement at Coalinga 14 State Hospital.” (CT 91). On July 8, 2019, the California Court of Appeal, First Appellate 15 District affirmed the judgment. People v. Hunter, No. A148799, 2019 WL 2912727 (Cal. Ct. 16 App. July 8, 2019). On September 18, 2019, Petitioner’s petition for review was denied by the 17 California Supreme Court. (ECF No. 1 at 55). 18 On December 2, 2019, Petitioner filed the instant federal petition for writ of habeas 19 corpus. (ECF No. 1). In the petition, Petitioner generally argues that he is entitled to habeas relief 20 on the following grounds: (1) Judge Cartwright improperly presided over proceedings after her 21 recusal; (2) the extreme delay in bringing Petitioner to trial; and (3) ineffective assistance of 22 counsel. Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 9, 13). 23 III. 24 STANDARD OF REVIEW 25 Relief by way of a petition for writ of habeas corpus extends to a person in custody 26 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 27 4 “RT” refers to the Reporter’s Transcript on Appeal lodged by Respondent on January 28, 2020. (ECF No. 8). 1 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 2 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 3 by the U.S. Constitution. Petitioner is currently confined at Coalinga State Hospital, which is 4 located within the Eastern District of California. 28 U.S.C. § 2241(d). 5 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 6 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 7 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 8 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 9 therefore governed by its provisions. 10 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 11 unless a petitioner can show that the state court’s adjudication of his claim: 12 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 13 determined by the Supreme Court of the United States; or

14 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 15 State court proceeding. 16 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538 17 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413. 18 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 19 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 20 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this 21 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as 22 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, 23 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles 24 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, 25 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal 26 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in 27 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of 1 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. 2 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an 3 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552 4 U.S. at 126; Moses, 555 F.3d at 760. 5 If the Court determines there is governing clearly established Federal law, the Court must 6 then consider whether the state court’s decision was “contrary to, or involved an unreasonable 7 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. 8 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 9 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 10 of law or if the state court decides a case differently than [the] Court has on a set of materially 11 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The 12 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character 13 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New 14 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to 15 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the 16 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to” 17 clearly established Supreme Court precedent, the state decision is reviewed under the pre- 18 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc). 19 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if 20 the state court identifies the correct governing legal principle from [the] Court’s decisions but 21 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 22 “[A] federal court may not issue the writ simply because the court concludes in its independent 23 judgment that the relevant state court decision applied clearly established federal law erroneously 24 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer, 25 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists 26 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” 27 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the 1 the Court determines that the state court decision is objectively unreasonable, and the error is not 2 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious 3 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 4 The Court looks to the last reasoned state court decision as the basis for the state court 5 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859 6 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the 7 reasoning from a previous state court decision, this Court may consider both decisions to 8 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 9 2007) (en banc). “When a federal claim has been presented to a state court and the state court has 10 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the 11 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 12 99. This presumption may be overcome by a showing “there is reason to think some other 13 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v. 14 Nunnemaker, 501 U.S. 797, 803 (1991)). 15 Where the state courts reach a decision on the merits but there is no reasoned decision, a 16 federal habeas court independently reviews the record to determine whether habeas corpus relief 17 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 18 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional 19 issue, but rather, the only method by which we can determine whether a silent state court 20 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot 21 analyze just what the state court did when it issued a summary denial, the federal court must 22 review the state court record to determine whether there was any “reasonable basis for the state 23 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or 24 theories . . . could have supported, the state court’s decision; and then it must ask whether it is 25 possible fairminded jurists could disagree that those arguments or theories are inconsistent with 26 the holding in a prior decision of [the Supreme] Court.” Id. at 102. 27 /// 1 IV. 2 REVIEW OF CLAIMS 3 A. Judicial Recusal 4 Petitioner asserts that a judge who is recused from a proceeding must remain disqualified 5 from hearing any part of the case, and that all of Judge Cartwright’s orders after her 6 disqualification—specifically her denial of Petitioner’s Ronje motion—are void and must be 7 vacated. (ECF No. 1 at 20–24). Respondent argues that relief is not warranted on this ground 8 because: (1) it is sounded in state law; (2) Judge Cartwright’s denial was superseded by Judge 9 Allan Hymer’s order requiring a new probable cause determination; and (3) unlawfulness in a 10 pretrial holding order could not invalidate a later commitment based on the jury’s determination 11 based on proof beyond a reasonable doubt. (ECF No. 9 at 7). 12 This claim was raised in Petitioner’s state habeas petition filed in the California Supreme 13 Court. (LD 2). The petition was “denied without prejudice to the filing of a petition for writ of 14 mandate in the Court of Appeal if trial to commit petitioner as a Sexually Violent Predator does 15 not commence by the end of the calendar year 2015.” (ECF No. 1 at 53). The Court presumes 16 that the California Supreme Court adjudicated this claim on the merits, see Johnson, 568 U.S. at 17 301, but there is no reasoned state court decision. Accordingly, AEDPA’s deferential standard of 18 review applies, and the Court “must determine what arguments or theories ... could have 19 supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists 20 could disagree that those arguments or theories are inconsistent with the holding in a prior 21 decision of [the Supreme] Court.” Richter, 562 U.S. at 102. 22 1. Pertinent Factual Background 23 On August 1, 2008, counsel for Petitioner filed a motion for Judge Joan Cartwright to 24 recuse herself. The basis for recusal was Judge Cartwright’s prosecution of Petitioner on one of 25 the underlying charges that formed the basis of the SVP petition more than twenty-one years 26 prior. (2 Supp. CT 514). On August 8, 2008, the motion for recusal was granted. (2 Supp. CT 27 619). 1 Despite this recusal, on September 9, 2011, Judge Cartwright held a hearing on 2 Petitioner’s motion pursuant to In re Ronje, 179 Cal. App. 4th 509 (Cal. Ct. App. 2009).6 (ECF 3 No. 1 at 39–40). Judge Cartwright denied Petitioner’s motion for dismissal, granted the 4 alternative motion for new evaluations and a new probable cause hearing, and denied the motion 5 for the appointment of new evaluators. (2 Supp. CT 533, 647). New evaluations were conducted, 6 and on August 13, 2012, Judge Gloria Rhynes found probable cause to believe that Petitioner is a 7 sexually violent predator as defined in WIC section 6600(a)(1), and thus, Petitioner should be 8 detained pending trial. (3 Supp. CT 665–66; Supp. RT7 2–3, 9–10, Aug. 13, 2012). 9 Thereafter, Petitioner’s Ronje motion was reheard due to the matter having been litigated 10 before Judge Cartwright despite her recusal. (3 Supp. CT 671–73). On March 29, 2013, Judge 11 Allan Hymer denied the motion to dismiss, denied the motion for new evaluators, granted the 12 request for new evaluations, and granted the request for a new probable cause hearing. (3 Supp. 13 CT 714–15). Judge Hymer also ordered that Judge Rhynes’ August 13, 2012 probable cause 14 determination remained in full force and effect. (3 Supp. CT 713). 15 2. Analysis 16 Any error in Judge Cartwright ruling on Petitioner’s Ronje motion was rendered harmless 17 by the rehearing conducted by Judge Hymer and his subsequent ruling, which mirrored Judge 18 Cartwright’s order. Therefore, the state court’s denial of Petitioner’s claim regarding Judge 19 Cartwright’s participation in his case after her recusal was not contrary to, or an unreasonable 20 application of, clearly established federal law, nor was it based on an unreasonable determination 21 of fact. The state court’s decision was not “so lacking in justification that there was an error well 22 understood and comprehended in existing law beyond any possibility for fairminded 23 disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief 24 on this ground. 25

6 In Ronje, the California Court of Appeal found that the assessment protocol used to evaluate an SVP pretrial 26 detainee was invalid as an underground regulation. The court found that the appropriate remedy was to order new evaluations using a valid assessment protocol and to conduct another probable cause hearing based on those new 27 evaluations. Ronje, 179 Cal. App. 4th at 513–14. 7 “Supp. RT” refers to the Supplemental Reporter’s Transcript on Appeal lodged by Respondent on January 28, 1 B. Trial Delay 2 Petitioner asserts that the nineteen-year delay in bringing him to trial on the civil 3 commitment petition violates due process. (ECF No. 1 at 24–26). Respondent argues that 4 Petitioner is not entitled to habeas relief on this ground because there is no right to a speedy trial 5 in a civil case and that as a matter of res judicata it has been found that there was no unfair delay 6 of trial. (ECF No. 9 at 7–9). 7 This claim was raised in Petitioner’s state habeas petition filed in the California Supreme 8 Court, which denied the petition “without prejudice to the filing of a petition for writ of mandate 9 in the Court of Appeal if trial to commit petitioner as a Sexually Violent Predator does not 10 commence by the end of the calendar year 2015.” (ECF No. 1 at 53). The Court presumes the 11 California Supreme Court adjudicated the claim on the merits. As there is no reasoned state court 12 decision, this Court “must determine what arguments or theories . . . could have supported, the 13 state court’s decision; and then it must ask whether it is possible fairminded jurists could 14 disagree that those arguments or theories are inconsistent with the holding in a prior decision of 15 [the Supreme] Court.” Richter, 562 U.S. at 102. 16 1. Res Judicata 17 The Court first addresses Respondent’s assertion that “as a matter of res judicata it has 18 been found, adverse to Petitioner, that there was no unfair delay of trial; rather, for the most part 19 the delay resulted because Petitioner wanted it, and indeed he was able to benefit from it.” (ECF 20 No. 9 at 8) (citing Hunter, 2016 WL 3019119 at *6–7). The Ninth Circuit, however, has held 21 “that even after the AEDPA, the rule is as it has always been: Res judicata does not apply to 22 habeas cases.” Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 538 (9th Cir. 1998) 23 (en banc), cert. denied, 526 U.S. 1060 (1999), abrogated in part on other grounds by Woodford 24 v. Garceau, 538 U.S. 202 (2003). See Mayle v. Felix, 545 U.S. 644, 661 n.6 (2005) (rejecting 25 “assumption that claim preclusion operates in habeas cases largely as it does in mine-run civil 26 cases”). Accordingly, the Court finds that res judicata is not applicable. 27 /// 1 2. Analysis 2 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 3 trial[.]” U.S. Const. amend. VI (emphasis added). A speedy trial is a fundamental right 4 guaranteed by the Sixth Amendment and imposed upon the states by the Due Process Clause of 5 the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). However, 6 civil commitment proceedings are distinct from criminal prosecutions, and the Supreme Court 7 has not addressed whether there is a due process right to a speedy civil commitment trial. See 8 Kansas v. Hendricks, 521 U.S. 346, 364–65 (1997) (noting that a state’s decision to provide 9 numerous procedural and evidentiary protections in SVP proceedings “does not transform a civil 10 commitment proceeding into a criminal prosecution”); United States v. Perry, 788 F.2d 100, 118 11 (3d Cir.1986) (“The speedy trial clause deals with the timeliness of criminal prosecutions, not 12 civil commitment proceedings.”). 13 “[W]hen a Supreme Court case “does not ‘squarely address[ ] the issue in th[e] case’ or 14 establish a legal principle that ‘clearly extend[s]’ to a new context to the extent required by the 15 Supreme Court . . . it cannot be said, under AEDPA, there is ‘clearly established’ Supreme Court 16 precedent addressing the issue before us, and so we must defer to the state court’s decision.” 17 Moses, 555 F.3d at 754 (second, third, and fourth alterations in original) (quoting Wright, 552 18 U.S. at 125). Therefore, the state court’s denial of Petitioner’s claim regarding the timeliness of 19 his civil commitment trial was not contrary to, or an unreasonable application of, clearly 20 established federal law, nor was it based on an unreasonable determination of fact. The state 21 court’s decision was not “so lacking in justification that there was an error well understood and 22 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 23 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on this ground. 24 C. Ineffective Assistance of Counsel 25 Petitioner asserts that his counsel was ineffective for failing to adequately investigate and 26 present the claims raised in the instant petition. (ECF No. 1 at 16–17). Respondent argues that 27 there is no Sixth Amendment right to assistance of counsel in civil proceedings and in any event, 1 This ineffective assistance of counsel claim was included in the state habeas petition filed 2 in the California Supreme Court, which denied the petition “without prejudice to the filing of a 3 petition for writ of mandate in the Court of Appeal if trial to commit petitioner as a Sexually 4 Violent Predator does not commence by the end of the calendar year 2015.” (ECF No. 1 at 53). 5 The Court presumes the California Supreme Court adjudicated the claim on the merits. As there 6 is no reasoned state court decision, this Court “must determine what arguments or theories . . . 7 could have supported, the state court’s decision; and then it must ask whether it is possible 8 fairminded jurists could disagree that those arguments or theories are inconsistent with the 9 holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102. 10 “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance 11 of counsel for his defense.” U.S. Const. amend. VI. However, while civil commitment 12 proceedings “constitute[] a significant deprivation of liberty that requires due process 13 protection,” Addington v. Texas, 441 U.S. 418, 425 (1979), the “fact that a proceeding will result 14 in loss of liberty does not ipso facto mean that the proceeding is a ‘criminal prosecution’ for 15 purposes of the Sixth Amendment,” Middendorf v. Henry, 425 U.S. 25, 37 (1976). The Supreme 16 Court has not addressed whether there is a constitutional right to counsel in civil commitment 17 proceedings. Cf. Turner v. Rogers, 564 U.S. 431, 441 (2011) (“[T]he Sixth Amendment does not 18 govern civil cases.”); Austin v. United States, 509 U.S. 602, 608 (1993) (“The protections 19 provided by the Sixth Amendment are explicitly confined to ‘criminal prosecutions.’”); Carty v. 20 Nelson, 426 F.3d 1064, 1073 (9th Cir. 2005) (finding “the Sixth Amendment right to 21 confrontation does not attach in civil commitment proceedings”); Young v. King County, 70 F. 22 App’x 939, 940 (9th Cir. 2003) (unpublished) (holding that person civilly committed under 23 Washington’s SVP act did not have right to effective assistance of counsel). 24 “[W]hen a Supreme Court case “does not ‘squarely address[ ] the issue in th[e] case’ or 25 establish a legal principle that ‘clearly extend[s]’ to a new context to the extent required by the 26 Supreme Court . . . it cannot be said, under AEDPA, there is ‘clearly established’ Supreme Court 27 precedent addressing the issue before us, and so we must defer to the state court’s decision.” wOOe 4:40 OUINMIN SPA MMU POO IOUT EN PAY oN VI

1 | U.S. at 125). Therefore, the state court’s denial of Petitioner’s ineffective assistance of counsel 2 | claim was not contrary to, or an unreasonable application of, clearly established federal law, nor 3 | was it based on an unreasonable determination of fact. The state court’s decision was not “so 4 | lacking in justification that there was an error well understood and comprehended in existing law 5 | beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, 6 | Petitioner is not entitled to habeas relief on this ground. 7 V. 8 RECOMMENDATION 9 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 10 | writ of habeas corpus be DENIED. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 15 | written objections with the court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 17 | objections shall be served and filed within fourteen (14) days after service of the objections. The 18 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 19 | § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time 20 | may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 21 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. OF. nf ee 24 | Dated: _May 8, 2020_ ef 05 UNITED STATES MAGISTRATE JUDGE

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