UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 29 2015
SCOTT EMERSON FELIÈ, No. 10-16984 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 3:01-cv-03138-WHA
Northern District of California,
v. San Francisco
MICHAEL HENNESSEY, Sheriff,
ORDER
Respondent - Appellee.
Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,* Senior District
Judge.
The memorandum disposition filed on April 28, 2015, is amended by the
memorandum disposition filed concurrently with this order.
With these amendments, Appellant's petition for panel rehearing is
DENIED.
No further petitions shall be entertained.
*
The Honorable Michael A. Ponsor, Senior United States District
Judge for the District of Massachusetts, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED
SCOTT EMERSON FELIÈ, No. 10-16984 MAY 29 2015
MOLLY C. DWYER, CLERK
Petitioner - Appellant, D.C. No. 3:01-cv-03138-WHA
U.S. COURT OF APPEALS
v.
AMENDED MEMORANDUM*
MICHAEL HENNESSEY, Sheriff,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted April 14, 2015
San Francisco, California
Before: KOZINSKI and GRABER, Circuit Judges, and PONSOR,** Senior
District Judge.
Petitioner Scott Emerson Felix appeals from the district court's denial of his
habeas petition under 28 U.S.C. y 2254. Petitioner raises a due process claim
premised on errors in his 1998 civil commitment trial under California's Sexually
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael A. Ponsor, Senior United States District Judge
for the District of Massachusetts, sitting by designation.
Violent Predators Act (þSVPAþ), Cal. Welf. & Inst. Code yy 6600-6609.3. The
district court denied the petition. Reviewing de novo, Stanley v. Schriro, 598 F.3d
612, 617 (9th Cir. 2010), we affirm.
At the 1998 trial, the jury was instructed that it was required to find, beyond
a reasonable doubt, that Petitioner was more liµely than not to commit a sexually
violent crime in the future. In closing argument, the prosecutor told the jury that it
had to find only that Petitioner was þliµely to commit sexually violent crimes at
some point. . . . It doesn't have to be predatory.þ Four years later, the California
Supreme Court held that the SVPA þcontains an implied requirement that a trier of
fact must find beyond a reasonable doubt that the defendant is liµely to commit
sexually violent predatory criminal acts before the defendant can be committed as a
sexually violent predator.þ People v. Hurtado, 52 P.3d 116, 120 (Cal. 2002). That
holding rested not on federal or state due process requirements, but on the statutory
text and legislative history of the SVPA. Id. at 120-21.
At the outset, the state argues that the case is moot because Petitioner was
retried and recommitted in 2006 with the correct jury instruction. But, as
Petitioner correctly points out, þbut for his [allegedly] unlawful confinement in
1998[,] [he] would not have been subjected to subsequent recommitment
hearings.þ See Jacµson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1075 (9th
2
Cir. 2005) (noting that, when a petitioner is committed involuntarily under the
SVPA, þany future petition to recommit [the petitioner] could be traced bacµ,
through preceding petitions, to his initial confinementþ). That he was retried in
2006 does not preclude Petitioner from challenging his current commitment on the
ground that it was caused by the allegedly unconstitutional 1998
proceeding--without which he could not have been retried and recommitted.
Even though the district court had dismissed the case as moot, we may
nonetheless affirm because Petitioner's claim that the jury instruction and the
prosecutor's statements in the 1998 trial violated his federal due process rights fails
on the merits.
A proceeding may violate state law without running afoul of federal due
process requirements. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)
(holding that a petitioner may not þtransform a state-law issue into a federal one
merely by asserting a violation of due processþ). To demonstrate that a
misstatement of state law in a jury instruction or a prosecutor's closing argument
violated federal due process, a petitioner must show that the error þrendered the
ultimate verdictþ in the case unreliable. Lanµford v. Arave, 468 F.3d 578, 585 (9th
Cir. 2006). Petitioner has not made that showing here. In the context of the SVP
Act, behavior is þpredatoryþ if it is þdirected at a stranger, a casual acquaintance, or
3
someone cultivated for victimization as defined [elsewhere in the Act.]þ Hurtado,
52 P.3d at 118. In 1982, Petitioner was convicted of sexual offenses against six
different victims. People v. Felix, 87 Cal. Rptr. 3d 482, 484 (Ct. App. 2008). All
six were strangers. In the 1998 trial, the state introduced evidence about those
crimes, as well as testimony that Petitioner had behaved inappropriately toward
two casual acquaintances. The state introduced no evidence that Petitioner ever
had committed a sexual offense against a friend or a relative. The testimony
concerning Petitioner's girlfriend pertained to emotional and physical abuse, but
did not suggest sexual abuse. Thus, there is no þreasonable probability that . . . the
result of the proceeding would have been different had the erroneous instruction
not been given.þ Lanµford, 468 F.3d at 585 (internal quotation marµs omitted)
(ellipsis in original).
Petitioner also argues that permitting civil commitment of sexually violent
offenders without a finding that they are liµely to commit future predatory crimes
violates federal due process principles because (1) the absence of such a finding
subjects too broad a class of individuals to forcible confinement and (2) the
þpredatoryþ qualifier is the functional equivalent of an element of the charge; when
a jury instruction omits an element, such omission violates federal due process.
We need not decide the merits of these constitutional arguments, though, because
4
there was no þsubstantial and injurious effectþ on the jury's verdict. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marµs omitted). As we
have explained, all of the evidence at the 1998 trial of Petitioner's past sexual
crimes and behavior involved strangers and casual acquaintances. Accordingly,
any error in the failure to require an express finding that liµely future crimes would
be committed against strangers or casual acquaintances was harmless beyond a
reasonable doubt. Id.
AFFIRMED.
5