FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR L. SMITH, JR., 

No. 07-35857 Petitioner-Appellant,

D.C. No.

v.  CV-07-05039-RBL

HENRY RICHARDS,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

March 13, 2009—Seattle, Washington

Filed June 23, 2009

Before: William A. Fletcher, Ronald M. Gould and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

7577
COUNSEL

Allen M. Ressler, Ressler & Tesh, PLLC, Seattle, Washington, for the petitioner.

Gregory J. Rosen, Assistant Attorney General, Corrections

Division, Olympia, Washington, for the respondent.

OPINION

TALLMAN, Circuit Judge:

We must decide whether a pending detainer in one state

renders invalid a sex offender’s civil commitment in another

state. Arthur Smith, a detainee at Washington’s Special Commitment Center on McNeil Island, appeals the district court’s

denial of his petition for a writ of habeas corpus. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm.

I

In 1993, a King County Superior Court jury convicted

Arthur Smith of rape in the second degree. The details of that

crime are not at issue here, and are not fit to print in the public

records. The trial court imposed an exceptional sentence of

144 months of confinement and two additional years of community placement.

Smith had been convicted of two prior rapes in Alaska in

1978 and 1979. The facts of those two crimes are also not at

issue. He was sentenced to 15 years’ imprisonment on each

count, to run concurrently. In 1982, he escaped from prison.

He was quickly re-apprehended and sentenced to an additional four years, to run consecutive to his sentences for rape.

Smith was released on discretionary parole on April 15, 1991.

SMITH v. RICHARDS 7579
He reported as directed for about five months, then failed to

return. The Alaska authorities had no idea of Smith’s whereabouts until he was arrested on August 7, 1992, for the Washington rape.

Upon learning that Smith had been arrested and incarcerated in Washington, Alaska authorities filed a detainer and

parole warrant for his failure to report. Alaska requested

advance notice of Smith’s eventual release from the Washington Department of Corrections so Alaska authorities could

take him into custody. The Alaska detainer and warrant were

still pending when Smith’s term of incarceration in Washington ended1

 and create the unusual circumstances at issue here.

On March 4, 2003, the day before Smith was scheduled to

be released from prison in Washington, the King County

Prosecuting Attorney filed a petition to have Smith civilly

committed pursuant to Washington Revised Code (RCW)

71.09. The matter proceeded to a jury trial, and the civil jury

found beyond a reasonable doubt that Smith was a sexually

violent predator for purposes of RCW 71.09.020(18). The

Superior Court entered an Order of Commitment. Smith

appealed, raising statutory and constitutional arguments. The

Washington Court of Appeals rejected his claims, and the

Washington State Supreme Court denied his petition for

review. In re Det. of Smith, 122 P.3d 736 (Wash. Ct. App.

2005), petition for review denied by 142 P.3d 609 (Wash.

2006).

Smith then filed a petition for writ of habeas corpus under

28 U.S.C. § 2254. The district court concluded the state

1On October 12, 2008, the Alaska parole board announced that the

parole violation warrant was quashed. However, this action did not render

Smith’s federal habeas petition moot because the warrant and detainer

were in place at the time Smith was civilly committed, giving rise to his

statutory and constitutional arguments. The government agrees with our

conclusion that the claims are not moot. 

7580 SMITH v. RICHARDS
court’s decision was not contrary to, or an unreasonable application of, Supreme Court precedent and denied the petition.

We granted a certificate of appealability on the question

whether Smith’s civil commitment violated his right to due

process.

II

A

This case is governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). See Lindh

v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a writ

of habeas corpus shall be denied unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). We review de novo a district court’s decision to

grant or deny a habeas petition. Campbell v. Rice, 408 F.3d

1166, 1169 (9th Cir. 2005) (en banc).

B

Washington law provides that “[w]hen it appears that [ ] a

person who at any time previously has been convicted of a

sexually violent offense is about to be released from total confinement,” the prosecuting attorney may file a petition alleging the person is a “sexually violent predator.” RCW

71.09.030 (1995) (amended 2009). This petition initiates civil

commitment proceedings.

Smith argued before the Washington courts that he was not

“about to be released from total confinement” because as soon

as his Washington sentence ended, he would be immediately

transferred to “confinement” in Alaska pursuant to that state’s

detainer. He claimed the Washington legislature intended to

SMITH v. RICHARDS 7581
address individuals who were about to be released from confinement into the community, not from Washington confinement into another state’s confinement. The Washington Court

of Appeals rejected Smith’s interpretation of the statute, holding that “total confinement” means confinement in Washington state institutions. In re Smith, 122 P.3d at 739-40.

The Court of Appeals proceeded to address Smith’s claim

that this interpretation infringed his liberty interests. Smith

argued the court’s construction of “about to be released from

total confinement” would mean he could be civilly committed

even though he posed no threat to the community—he would

be safely locked behind Alaskan bars. The Court of Appeals

rejected this argument. Id. at 740-41. It correctly noted that a

state may only limit fundamental liberty interests by regulations that are 1) justified by a compelling state interest and 2)

narrowly drawn. Id.; see Washington v. Glucksberg, 521 U.S.

702, 721 (1997). However, the court concluded that the statute, including the new construction of “about to be released

from total confinement,” was narrowly tailored to the compelling interest of community safety. It reasoned: 

If the State does not initiate civil commitment proceedings against sexually violent predators such as

Smith, it creates the serious risk that such predators

will not receive the necessary treatment and will

return to Washington and commit further crimes

against Washington residents. The requirement of

narrow tailoring does not compel this court to accept

Smith’s interpretation of “about to be released from

total confinement.”

In re Smith, 122 P.3d at 741. We adopt the state court’s construction of its statute, see Bradshaw v. Richey, 546 U.S. 74,

76 (2005), and consider whether the statute, so construed, violates Smith’s federal due process rights.

[1] Freedom from physical restraint is at the core of the liberty protected by the Due Process Clause, but states may

7582 SMITH v. RICHARDS
nonetheless provide for civil detainment of those who are

mentally ill and pose a danger to public safety. Kansas v.

Hendricks, 521 U.S. 346, 356-58 (1997); Addington v. Texas,

441 U.S. 418, 426-27 (1979). Explicit findings of current dangerousness and mental illness are necessary to meet the

requirement that the statute be narrowly tailored. Foucha v.

Louisiana, 504 U.S. 71, 77-78 (1992). These conditions must

be proven by clear and convincing evidence. Addington, 441

U.S. at 432-33. 

[2] Though these requirements are constitutional in nature,

the Supreme Court recognizes that the standards for mental

illness and dangerousness will be defined by state law. See

Hendricks, 521 U.S. at 357-58 (discussing standard for dangerousness as set forth in Kansas’s Sexually Violent Predator

Act); Foucha, 504 U.S. at 75 (referring to mental illness and

dangerousness findings as “statutory preconditions” to civil

commitment); id. at 82 (discussing the evidentiary burden

imposed by the Louisiana statute). Washington’s standards for

mental illness and dangerousness have been deemed to satisfy

due process requirements. See Seling v. Young, 531 U.S. 250,

258-64 (2001). A federal habeas court therefore considers

only whether a state court’s decision unreasonably applied the

law or “was based on an unreasonable determination of the

facts.” 28 U.S.C. § 2254(d)(1)-(2); see also Lockyer v.

Andrade, 538 U.S. 63, 70-73 (2003).

[3] The Washington Court of Appeals reasonably assessed

the law and facts according to the standards defined in RCW

71.09. The court explained that Smith remained dangerous

because he might go to Alaska and serve his time, but could

readily return to Washington and re-offend. This prediction is

entirely reasonable. Smith has already committed one crime

in Washington while on Alaska parole. Alaskan authorities

obtained the warrant because Smith had disappeared while on

parole, and Smith’s parole supervisor labeled him “likely to

flee.” His argument that the Alaska detainer renders him

harmless to the Washington community might be persuasive

SMITH v. RICHARDS 7583
if he were facing a life sentence. However, assuming his

parole is revoked, Smith will serve only 215 days in prison in

Alaska before being released to community supervision. The

possibility that he will present a threat to the Washington

community even if released to Alaska authorities is quite substantial.

[4] Smith also contends he would not pose a threat to the

Washington community because Washington could extradite

him and re-initiate civil commitment proceedings at the end

of his Alaska imprisonment. The argument fails. The Washington Court of Appeals concluded that, as a matter of Washington law, Washington authorities would lose jurisdiction to

civilly commit Smith if he were extradited to Alaska. In re

Smith, 122 P.3d at 740. Though Washington could enforce

Smith’s term of community placement after he served his

Alaska sentence, it could not re-initiate civil commitment proceedings. See RCW 71.09.025, 71.09.030. This holding supports the Washington court’s conclusion that Smith would

remain dangerous to the Washington community.

The Supreme Court has not clearly spoken on the question

of how, if at all, one state’s detainer affects another state’s

application of its laws in this context. This silence alone is

sufficient to uphold the Washington Court of Appeals decision under AEDPA. See Carey v. Musladin, 549 U.S. 70, 77

(2006).

[5] We therefore conclude that the Washington Court of

Appeals reasonably applied federal law in holding Washington’s civil commitment statute was narrowly tailored. The

court also reasonably assessed the facts in determining that

Smith would remain a threat to the community even if he

were temporarily incarcerated in Alaska. Any restraint on

Smith’s liberty derives solely and independently from these

valid legal and factual determinations. The pending Alaska

detainer does not render unconstitutional Smith’s permissible

civil commitment.

7584 SMITH v. RICHARDS
C

Smith next alleges the detainer will prevent him from ever

meeting Washington’s requirements for conditional release.

His argument relates to RCW 71.09.090, which provides for

conditional release to a less restrictive alternative, and RCW

71.09.092, which sets forth certain findings a court must make

before conditional release may be granted. 

We decline to reach this argument because it “is not only

unexhausted, it is actually raised for the first time on this

appeal.” Lopez v. Schriro, 491 F.3d 1029, 1039 (9th Cir.

2007). Smith’s due process arguments before the state courts

and district court rested solely on RCW 71.09.030. We

granted a limited certificate of appealability with respect to

the question “whether [Smith] was denied due process by the

state court’s application of RCW 71.09.030.” None of the

materials below mention RCW 71.09.090 or 71.09.092. Smith

cannot “sweep this claim” within his due process challenge to

RCW 71.09.030. Lopez, 491 F.3d at 1039. We therefore

decline to expand the certificate of appealability to address

this issue.

III

The Washington Court of Appeals reasonably applied federal law in concluding that Smith’s civil commitment did not

violate due process.

AFFIRMED.

SMITH v. RICHARDS 7585