FILED
NOT FOR PUBLICATION SEP 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY RUSS, No. 11-17328
Petitioner - Appellant, D.C. No. 1:09-cv-01904-DLB
v.
MEMORANDUM**
AUDREY KING,* Acting Executive
Director,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Argued and Submitted November 17, 2014
San Francisco, California
Before: HAWKINS and RAWLINSON, Circuit Judges, and LYNN, District
Judge.***
*
Audrey King is substituted for her predecessor pursuant to Fed. R.
App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The Honorable Barbara M. G. Lynn, District Judge for the United
States District Court for the Northern District of Texas, sitting by designation.
Petitioner Roy Russ (Russ) appeals from a district court judgment denying
his petition for habeas relief. He challenges the constitutionality of his
confinement pursuant to a civil commitment petition filed in state court in 2007.
Russ contends that the California Sexually Violent Predator Act (SVPA), as
amended by Proposition 83, violates the Due Process Clause of the federal
constitution. He further submits that the act impermissibly changed the two-year
confinement term to an indefinite one, and requires civil offenders to assume the
burden of proof when petitioning for release. In light of our opinion in Taylor v.
San Diego County, Case No. 12-55030, filed contemporaneously herewith,
rejecting a similar argument, we affirm the district court’s denial of federal habeas
relief.
As noted by the California Court of Appeal, the SVPA contains
constitutionally appropriate procedures and requirements, ensuring that the
commitment period is “only potentially indefinite.” Indeed, there are several
methods to terminate commitment if the SVP criteria are no longer met. These
procedural safeguards ensure that the committed person is not in indefinite
confinement, but that the person remain confined only so long as the SVP criteria
are met.
2
At the time of his civil confinement, Russ was mentally ill and had been
determined to be dangerous, with a high likelihood of committing further sexual
offenses. Thus, there was no due process violation in committing him civilly. See
Foucha v. Louisiana, 504 U.S. 71, 85-86 (1992).
The United States Supreme Court has not definitively addressed the
constitutionality of release procedures that place the burden of proof upon the
person challenging the continued commitment. Cf. Addington v. Texas, 441 U.S.
418, 425-27 (1979) (holding that for an initial civil commitment, the state has the
burden of proof). We decline to extend the reach of Addington to continued civil
commitments. See Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam)
(cautioning against extending the holdings of Supreme Court cases); see also
Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam) (same).
AFFIRMED.
3