You're viewing Docket Item 21 from the case (HC) Sims v. On Habeas Corpus. View the full docket and case details.

Download this document:




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 1 of 9
















IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RANDY SCOTT SIMS,

Case No. 1:10-cv-02287 MJS (HC)

Petitioner,

ORDER REGARDING PETITION FOR WRIT
OF HABEAS CORPUS

v.



AUDREY KING, Acting Executive
Director,

Respondent.






Petitioner is involuntarily committed to Coalinga State Hospital as a sexually

violent predator (SVP) and proceeding pro se with a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Respondent Audrey King, Acting Executive Director of

Coalinga State Hospital, is hereby substituted as the proper respondent pursuant to Rule

25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Lewis A.

Martinez of the office of the California Attorney General. Both parties have consented to

Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 7, 12.)

I.



PROCEDURAL BACKGROUND

Petitioner is currently committed to Coalinga State Hospital pursuant to a

judgment of the Superior Court of California, County of Fresno, following jury trial in






1

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 2 of 9






1

2

3

4

5

6

7

8

9

which, on March 16, 2009, a jury found to be true the allegations that Petitioner was a

SVP. (Clerk’s Tr. at 263-64.) On March 17, 2009, the trial court ordered Petitioner

committed to Coalinga State Hospital. (Id.)



Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

District, which was denied on July 26, 2010. (Lodged Doc. 3.) The court affirmed the

holding of the trial court, except as to the commitment of Petitioner for an indeterminate

term. (Id. at 18.) The Court of Appeal remanded the matter back to the trial court to

determine the issues after the finality of the proceedings in People v. McKee, 47 Cal.4th

1172 (2010). Petitioner filed a petition for review with the California Supreme Court,

10

which was summarily denied on October 13, 2010. (Lodged Doc. 1; Pet. at 29.)

11



Petitioner filed the instant federal habeas petition on December 9, 2010. (Pet.,

12

ECF No. 1.) In his petition, Petitioner presents four claims for relief. Claim three of the

13

petition presents an equal protection challenge to his indefinite commitment. That

14

challenge was the subject of the remand by the California Court of Appeal. According to

15

the California Court of Appeal online docket, a second appeal was filed in the instant

16

matter on February 25, 2013, and it has yet to be adjudicated.

17



Respondent filed an answer to the petition on May 25, 2011. (Answer, ECF No.

18

13.) Petitioner filed a traverse on August 11, 2011 (Traverse, ECF No. 19.)

19

II.

STATEMENT OF THE FACTS1



A. Background


On direct appeal, the California Court of Appeal summarized as

follows:

On January 5, 1995, Sims pled to committing a lewd and lascivious
act by force on a child under the age of 14, a violation of Penal Code
section 288, subdivision (a), which is a qualifying prior under the SVPA.


On June 27, 2007, while Sims was at Wasco State Prison, the
Fresno County District Attorney’s Office filed a petition alleging that Sims
was an SVP and seeking to have him civilly committed. A jury trial


1 The Fifth District Court of Appeal’s summary of the facts in its July 26, 2010 opinion is presumed correct.
28 U.S.C. § 2254(e)(1).

20

21

22

23

24

25

26

27

28






2

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 3 of 9

commenced on the petition on January 7, 2009, but a mistrial was
declared on January 12.


A new trial commenced on March 4, 2009. Dr. Dawn Starr, a
psychologist who had interviewed Sims in May 2007, testified at the trial.
Starr determined that Sims had “fairly severe” developmental difficulties, a
general mood disorder, and some psychotic problems. Starr diagnosed
Sims as having nonexclusive type pedophilia, a qualifying mental disorder
under the SVPA.


Starr based her diagnosis of pedophilia in large part on Sims’s
history. On April 2, 1984, at approximately the age of 16, Sims tried to
force a seven-year-old boy to orally copulate him. On May 5, 1984, Sims
took another seven-year-old boy into a basement, pulled down the victim’s
pants and underwear, massaged the victim’s legs, and attempted to lie
down on top of the victim. Sims was interrupted when two people
happened upon the scene. Sims eventually admitted he took the victim to
the basement to “fuck him.”


In August 1984, when Sims was 16, he had intercourse with a
seven-year-old girl several times and fondled the genitals of the girl’s
three-year-old brother. For these offenses, Sims was sent to the California
Youth Authority and later to Napa State Hospital, where he remained until
he was 23 years old. While at Napa State Hospital, Sims had sex with a
13-year-old girl and anal sex with a person who was in a body cast.


On August 31, 1994, Sims asked a seven-year-old girl to join him
for milk and cookies. When she did, he pulled off his pants and
underwear, attempted to pull off the girl’s pants and underwear, and put
his penis between her legs. The girl stated that on an earlier occasion
Sims had cornered her in a stairwell, pulled down his pants, and rubbed
his penis between her legs.


Sims also abused cocaine and had multiple parole revocations for
using cocaine. The intellectual tests given to Sims indicated he was “mildly
mentally retarded.” Sims had some medical problems, including asthma
and epilepsy.


Starr analyzed Sims’s risk of reoffense using the Static-99 and
Static-2002 actuarial tools. Sims’s score on the Static-99 placed him in the
high risk category; his score on the Static-2002 placed him in the highest
risk category. Sims’s risk factors included (1) multiple victims, other than
the victim of the qualifying offense, (2) prior sex offenses, other than the
qualifying offense, and (3) that the victims were unrelated.


Starr opined that Sims presented a serious and well-founded risk of
reoffending in a sexually violent manner if released. Sims’s age and
medical issues would not prevent him from committing sexually violent
offenses if released.


Dr. Carolyn Murphy, another psychologist, also evaluated Sims.
Murphy diagnosed Sims as having pedophilia and a psychotic disorder not
otherwise specified. The unspecified psychotic disorder was diagnosed
because Sims exhibited some hallucinations and some false beliefs about
his body. Murphy also concluded that Sims had a personality disorder with
antisocial traits.


3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28










Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 4 of 9

In addition to the Static-99 and Static-2002 tests, Murphy evaluated
Sims using the MnSOST-R (Minnesota Sex Offender Screening Tool-
Revised), another actuarial tool that looks at different factors than the
other two tests. Murphy opined that Sims presented a serious and well-
founded risk to reoffend in a sexually violent manner because of the
predatory crimes he had committed, the actuarial risk assessment, he
previously had violated community release, and he had not completed sex
offender treatment.


A third psychologist, Dr. Michael Musacco, also evaluated Sims.
Musacco’s diagnosis agreed with
two psychologists --
pedophilia. Musacco also found that Sims’s intelligence was in the low
borderline range and that Sims had a cocaine dependence. Musacco
administered the three actuarial tests and found that Sims scored at or
above the high risk range on each of the three tests. Musacco opined that
Sims was at high risk of reoffending.

the other


Sims presented

testimony

from a clinical psychologist, Dr.
Raymond E. Anderson. Anderson did not see evidence of a psychotic
disorder. Anderson opined that Sims was not a pedophile and that there
were no indicators that he was unable to control his behavior. Anderson
opined that Sims’s risk of reoffense was about five percent and Sims did
not present a serious risk of reoffense.


Dr. Jules Burstein, a clinical and forensic psychologist, also
evaluated Sims. Burstein found that Sims had a depressive disorder and
cocaine dependence, which was in remission. He concluded Sims did not
have a mental disorder that predisposed him to commit sexual offenses.
Sims was depressed because he had been “locked up a long time” and
wanted to be released.


Burstein did not agree with the diagnosis of pedophilia. Burstein
opined that statistical tests were “fraught with difficulties.” Burstein opined
that Sims would be at low risk for reoffending if he participated in
substance abuse treatment and sex offender treatment after release.


David Purvis, who has a master’s degree in social work, was the
director of a nonprofit institute. Purvis provided counseling in various
areas, including domestic violence, substance abuse, anxiety disorders,
and sex offender counseling. Sims had expressed an interest in Purvis’s
program. Purvis felt he could work with Sims and that Sims would be an
“interesting challenge.”


Sims’s younger brother, Michael, testified that he had a great
relationship with Sims and trusted him around his young son and niece.
He also trusted Sims around other people’s children. Michael was willing
to see that Sims registered as a sex offender and that he attended sex
offender and substance abuse treatment. Michael and Sims planned to
move to Texas to be near an aunt and uncle once Sims was released.


LaNell Williams operated

for sex offenders. Sims
previously had been in one of Williams’s facilities for about a year.
Williams was willing to work with Sims again.

facilities


Sims testified on his own behalf. Sims was “very sorry for what [he
had] done to [his] victims.” He claimed he never fantasized about sex with


4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28















Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 5 of 9

children. He was in phase one of sex offender treatment at the state
hospital when his treatment was interrupted by the trial. He wanted to
move to Texas and testified he would behave himself in Texas.


On March 16, 2009, the jury found Sims was an SVP. The trial

court ordered Sims committed for an indefinite term.

People v. Sims, F057352, 2010 Cal. App. Unpub. LEXIS 5820, at *2-*8 (Cal. App.

2010).

III.

DISCUSSION





A.

Pending State Proceedings

As the challenged state proceeding is still being adjudicated, this Court must

abstain from granting relief based on abstention grounds, under Younger v. Harris, 401

1

2

3

4

5

6

7

8

9

10

U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). Under principles of comity and

11

federalism, a federal court should not interfere with ongoing state criminal proceedings

12

by granting injunctive or declaratory relief absent extraordinary circumstances. Id. at 43-

13

54. The rationale of Younger applies to non-criminal proceedings when important state

14

interests are involved. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n,

15

457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982); SJSVCCPAC v. City of

16

San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). Younger abstention is required when (1)

17

state proceedings, judicial in nature, are pending; (2) the state proceedings involve

18

important state interests; and (3) the state proceedings afford adequate opportunity to

19

raise the constitutional issue. Middlesex, 457 U.S. at 432. A fourth requirement has

20

been articulated by the Ninth Circuit: that "the federal court action would enjoin the state

21

proceeding or have the practical effect of doing so, i.e., would interfere with the state

22

proceeding in a way that Younger disapproves." SJSVCCPAC, 546 F.3d at 1092 (citing

23

cases).

24

The rationale of Younger applies throughout appellate proceedings, requiring that

25

state appellate review of a state court judgment be exhausted before federal court

26

intervention is permitted. See Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11, 95 S. Ct.

27

1200, 43 L. Ed. 2d 482 (1975). Moreover, a petitioner who intends to seek federal

28

habeas corpus relief must await the outcome of his state court appeal before doing so;






5

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 6 of 9






1

2

3

4

5

6

7

8

9

that appeal may result in reversal of the petitioner's conviction on some other ground,

thereby mooting the claims raised in his federal habeas petition. See Sherwood v.

Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (citations omitted).

Here, Petitioner has filed a mixed petition that includes an unexhausted equal

protection claim. Upon remand, the state trial court was charged with reconsidering

Petitioner's challenge to the constitutionality of his civil commitment once McKee is

decided. The state proceedings in McKee, and application of the outcome of McKee to

Petitioner's case, involve the important state interest of regulating the detention of

SVPs. Those proceedings, as well as California's habeas process, afford an opportunity

10

for Petitioner to raise his constitutional challenge. Further, adjudicating the present

11

petition would interfere with the Court of Appeal's directive to the trial court to reconsider

12

Petitioner's equal protection challenge and the Court of Appeal's direct review of that

13

determination.

14

While the present petition is not presently ripe for review, the Ninth Circuit has

15

instructed that in such instances, dismissal is not appropriate prior to providing

16

Petitioner an opportunity to stay the proceedings. Henderson v. Johnson, 710 F.3d 872,

17

874 (9th Cir. 2013) ("Although district courts cannot adjudicate mixed petitions,

18

Sherwood does not undermine the important precedent requiring district courts first to

19

grant leave to amend and, if requested, to consider a petitioner's eligibility for a stay.")

20

21





A.

Standards for Granting a Stay

A court may stay a petition and hold it in abeyance pursuant to either Kelly v.

22

Small, 315 F.3d 1063 (9th Cir. 2002), or Rhines v. Weber, 544 U.S. 269 (2005). See

23

King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Kelly and Rhines set out different

24

procedures and requirements for imposing a stay. Under Kelly, the petitioner amends

25

his petition to delete any unexhausted claims. The court then stays and holds in

26

abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity

27

to proceed to state court to exhaust the deleted claims. Id. (citing Kelly, 315 F.3d at

28

1070-71.) Later, the petitioner amends his petition to add the newly-exhausted claims to






6

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 7 of 9






1

2

3

4

5

6

7

8

9

the original petition. Id. Under Rhines, a petitioner must meet three pre-conditions for a

stay of a mixed petition: (1) a finding of good cause for petitioner's failure to exhaust all

his claims before filing his habeas action; (2) a finding that the unexhausted claims are

potentially meritorious; and (3) no indication that the petitioner engaged in intentionally

dilatory tactics. Rhines, 544 U.S. at 278. If all three preconditions exist, the court should

stay the habeas case and hold it in abeyance, leaving the mixed petition intact while the

petitioner returns to state court to present his unexhausted claims.



Rhines does not go into detail as to what constitutes good cause for failure to

exhaust, and the Ninth Circuit has provided no clear guidance beyond holding that the

10

test is less stringent than an "extraordinary circumstances" standard. Jackson v. Roe,

11

425 F.3d 654, 661-62 (9th Cir. 2005). Several district courts have concluded that the

12

standard is more generous than the showing needed for "cause" to excuse a procedural

13

default. See, e.g., Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (applying

14

the Supreme Court's mandate on remand). This view finds support in Pace v.

15

DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L. Ed. 2d 669 (2005), where the

16

Supreme Court acknowledged that a petitioner's "reasonable confusion" about the

17

timeliness of his federal petition would generally constitute good cause for his failure to

18

exhaust state remedies before filing his federal petition. 544 U.S. at 416-17.

19



However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit

20

ruled that petitioner did not show good cause by arguing that he was "under the

21

impression" that his counsel had raised all claims before the state court of appeal.

22

Wooten, 540 F.3d at 1024. The Ninth Circuit explained that finding good cause in that

23

argument "would render stay-and-abey orders routine" and "would run afoul of Rhines

24

and its instruction that district courts should only stay mixed petitions in 'limited

25

circumstances.'" Wooten, 540 F.3d at 1024.

26



Here, it is unclear if Petitioner could make the required showing of good cause

27

for a stay under Rhines. However, the Kelly procedure, which has remained available

28

even after the Supreme Court's ruling in Rhines, does not require a showing of good






7

Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 8 of 9






1

2

3

4

5

6

7

8

9

cause. King, 564 F.3d at 1140. The Court must still deny a request for a stay and

abeyance under Kelly if the new claims are facially without merit and therefore cannot

be added to the existing habeas petition after they are exhausted in state court. King,

564 F.3d at 1141.



The Court notes that it is questionable whether Petitioner's unexhausted claim for

equal protection presents, at this stage, a facially meritorious claim. Upon remand the

state court in McKee found that the disparate treatment of SVP's did not violate

McKee's equal protection rights. People v. McKee, 207 Cal. App. 4th 1325, 1348 (Cal.

App. 2012) ("We, like the trial court, conclude the disparate treatment of SVP's under

10

the Act is reasonable and factually based and was adequately justified by the People at

11

the evidentiary hearing on remand. Accordingly, we conclude the Act does not violate

12

McKee's constitutional equal protection rights.") Other California Courts of Appeal have

13

likewise agreed. See People v. McDonald, 214 Cal. App. 4th 1367, 1380 (Cal. App. 4th

14

Dist. 2013); People v. Landau, 214 Cal. App. 4th 1, 48 (Cal. App. 2013); People v.

15

McCloud, 213 Cal. App. 4th 1076, 1086 (Cal. App. 2013); People v. McKnight, 212 Cal.

16

App. 4th 860, 864 (Cal. App. 2012). Of course, this Court shall refrain from addressing

17

the merits of such claim, as required by Younger. However, the Court desires to place

18

Petitioner on notice of issues that he may address should he request a stay from this

19

Court.

20



Accordingly, Petitioner is hereby ordered within thirty days to notify the Court

21

should he request a stay of the present mixed petition to exhaust state court remedies,

22

or whether Petitioner wishes to withdraw the sole unexhausted claim, claim three, and

23

proceed with the remaining claims.

24

IV.

CONCLUSION AND ORDER

25



Accordingly, it is ORDERED that:

1. Petitioner must either file: (a) a motion to stay the proceedings, or (b) notice of

intent to withdraw his unexhausted claim within thirty (30) days of the date of

service of this order.


8

26

27

28





Case 1:10-cv-02287-MJS Document 21 Filed 07/30/13 Page 9 of 9

2. Petitioner is forewarned that failure to comply this order will result in dismissal

of the petition pursuant to Local Rule 110.













IT IS SO ORDERED.


Dated: July 29, 2013


DEAC _Signat ure- END:





ci4d6

/s/ Michael J. Seng
UNITED STATES MAGISTRATE JUDGE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28






9