FILED
UNITED STATES COURT OF APPEALS SEP 30 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
MARCUS LEE RAWLS, No. 07-56455
Petitioner - Appellant, D.C. No. CV-03-00724-
MMM(AN)
v. Central District of California,
Riverside
MELVIN HUNTER,
Respondent - Appellee. ORDER
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
The petition for rehearing is granted. The memorandum disposition filed on
December 21, 2009 is withdrawn. A superseding memorandum disposition will be
filed concurrently with this order.
FILED
NOT FOR PUBLICATION SEP 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MARCUS LEE RAWLS, No. 07-56455
Petitioner - Appellant, D.C. No. CV-03-00724-
MMM(AN)
v.
MELVIN HUNTER, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted December 11, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Marcus Lee Rawls appeals the district court's denial of his petition for a writ
of habeas corpus. We affirm in part, reverse in part, and remand for an evidentiary
hearing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
We first address the question of mootness. Rawls has completed serving the
term of commitment that he challenges in this petition and has since been
recommitted several times.
We have previously held that under some circumstances a subsequent re-
commitment under the Sexually Violent Predator Act (SVPA) does not render
moot a petition for habeas corpus. Hubbart v. Knapp, 379 F.3d 773 (9th Cir.
2004). In Hubbart, the state claimed that relief from Hubbart's original term
would be 'meaningless and his case [was] therefore moot.' Id. at 777. However,
we held that the petition was not moot because it was capable of repetition but
evading review. Id. at 777. The test for this 'well-established exception to
mootness,' id., is whether '(1) the challenged action [is] in its duration too short to
be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject to the same action
again.' Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marµs
omitted) (alterations in original).
As to the first factor, we previously held that a two-year commitment under
the SVPA is 'too short to be fully litigated prior to . . . [its] expiration.' Hubbart,
379 F.3d at 778 (emphasis and alterations in original). In fact, it is 'almost certain
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that a state detainee under California's civil commitment scheme for sexually
violent predators will be unable to exhaust state remedies and fully litigate a
habeas petition in federal courts within two years.' Id. (internal quotation marµs
omitted). It is irrelevant that the California courts have already ruled on Rawls's
claims because 'for purposes of determining mootness in connection with
California's repeating pattern of two-year commitments under the SVPA, a federal
constitutional claim evades review if the challenged action expires before a federal
appellate court has the opportunity to fully consider the allegation.' Id. (emphasis
added). While Rawls filed his initial habeas petition in 2003, he has not reached a
federal appellate court until now, long after his two year term expired. Thus, if we
were to find this claim moot, each of his subsequent commitments would also
evade review.
Now turning to the second factor, we find that Rawls's claim is capable of
repetition because there is a reasonable expectation that Rawls could be subject to
the same action again. As the language of the exception states, the question is
whether the controversy is 'capable of repetition and not . . . whether the claimant
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has demonstrated that a recurrence of the dispute was more probable than not.'
Honig v. Doe, 484 U.S. 305, 319 n.6 (1988) (emphasis added).1
The principle that a defendant may not be unnecessarily placed in physical
restraints during trial was clearly established Supreme Court precedent at the time
of the commitment hearing that Rawls challenges on this appeal. See Gonzalez v.
Pliler, 341 F.3d 897, 904-05 (9th Cir. 2003) (finding that this principle dated bacµ
to Illinois v. Allen, 397 U.S. 337 (1970)). And yet, Rawls was subjected to the
shacµling. It is reasonable to believe that a California trial court could subject him
to the same treatment again, despite the fact that to do so would again be contrary
to existing Supreme Court precedent.
Several factors support a reasonable expectation that Rawls's shacµling
experience could be repeated. First, in Decµ v. Missouri, 544 U.S. 622, 629 (2005),
the Supreme Court held that trial judges have þdiscretionþ to restrain defendants
based on case-by-case factors, including þpotential security problemsþ specific to a
particular trial; yet most trial judges have either no or little experience with
commitment proceedings on which to base such judgments. Second, SVPA
commitment proceedings ordinarily taµe place in civil courtrooms, which may not
1
Rawls has had subsequent commitment hearings and does not allege that he
was shacµled at those hearings. But, that is not dispositive of this issue. The
question is whether the action is capable of repetition. We find that it is.
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have the high degree of security typical of criminal courtrooms. Third, defendants
liµe Rawls who are subject to commitment and re-commitment under the SVPA,
and may well receive a number of hearings during their lifetime, are accused of
being liµely to engage in violent criminal behavior. Rawlsù 2001 proceeding
illustrates these points. The judge presiding over his 2001 hearing found the
security situation at the þhistoricþ civil courthouse to be sufficient grounds for
shacµling, but the Court of Appeal held that to be an error, albeit harmless. There
is reason, therefore, to believe that a state court judge could some day decide in
good faith to shacµle this particular defendant when he returns for an SVPA
hearing. Because Rawls's claim is capable of repetition but evading review, it is
not moot.
II.
Rawls argues that the Court of Appeal's harmless error analysis was
erroneous because the court failed to apply the Chapman harmless error standard.
See Chapman v. California, 386 U.S. 18 (1967). However, there is no clearly
established Supreme Court precedent holding that the Chapman harmless error
standard applies to constitutional errors in civil commitment proceedings.
Accordingly, the state court's failure to apply Chapman was not an unreasonable
application of clearly established Supreme Court precedent. 28 U.S.C. 2254(d)(1).
Page 5 of 8
III.
Rawls next argues that the Court of Appeal came to an unreasonable
determination of the facts when it found that the jury only briefly 'glimps[ed]' him
in shacµles. We agree. It is uncontested that Rawls was fully shacµled in anµle
bracelets, waist chains, and handcuffs for the first four days of his five-day
commitment proceeding. 'The state court's determination that the jury could not
have seen the shacµles during trial was unreasonable in the absence of any inquiry
to establish the facts concerning what the jury could see.' Dyas v. Poole, 317 F.3d
934, 936-37 (9th Cir. 2003). 'When we determine that the state court fact-finding
is unreasonable . . . we have an obligation to set those findings aside and, if
necessary, maµe new findings.' Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir.
2004). Here, new factual findings are necessary to determine what the jury saw.
Accordingly, we remand to the district court for an evidentiary hearing. See id.
(holding that if new evidence must be taµen before new factual findings can be
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made, we must remand to the district court to hold an evidentiary hearing and
maµe findings in the first instance).2
IV.
Rawls also challenges the Court of Appeal's conclusion that the limitations
the trial court placed on his cross-examination of the state's expert witness did not
violate Due Process. The trial court refused to permit Rawls to cross-examine the
state's expert about her reliance on a penile plethysmograph (PPG) test. The Court
of Appeal concluded that this limitation did not violate Due Process because the
expert's reliance on the PPG test was a 'minor' or 'subsidiary' point. Rawls
argues that this was an unreasonable determination of the facts. We disagree. The
Court of Appeal's determination is not unreasonable in light of the expert's
testimony that her opinion would not have been different absent the PPG results
and that the test merely corroborated other information on which she had relied.
2
If the district court determines that Rawls's shacµling at the 2001 hearing
was unconstitutional and that the writ should issue, it should then further examine
whether Rawls's subsequent re-commitment hearings relied on factual findings
from the 2001 hearing. See Carty v. Nelson, 426 F.3d 1064, 1071-72 (9th Cir.
2005) (noting that if the initial SVPA commitment hearing were to be found
unconstitutional, re-commitment hearings that relied on factual findings from the
initial hearing would also be unconstitutional). If those re-commitment hearings
did rely on factual findings from the 2001 hearing, then Rawls would be entitled to
a new untainted commitment hearing with shacµling used only if necessary.
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Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part and REMANDED.
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