F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O N A L D W A

Y N E T A Y L O R , Petitioner-Appellant

,

v

.

S A N D I E G O C O U

N T Y ; A T T O R

N E Y G E N E R A L F O R T H E S T A T E O F C A L I F O R

N I A ; A U D R

E Y K I N G , * Acting Ex e cutive Director, Coaling a State Hospital, Respondents-Appellees

. N o. 12-55030

D.C. No. 3:10-cv-01122- L AB -PCL

OPI NI ON

A ppeal from the United States District Court for the Southern District of California L a rry A. B urns, District J udg e, Presiding

Arg ued and Submitted November 17, 2014—San F rancisco, California

F iled September 9, 2015

* A u d rey Kin g is s u b s t itu ted f or h er p red ecesso r pu rsu an t to Fed

. R. A p p. P . 4 3 (c)(2 ).T A Y L O R V

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B efore: Michael Daly

Hawkins and J ohnnie B . Rawlinson, Circuit J udg es, and B arbara M. G. L y nn, District J udg e

. * *

Opinion by

J udg e Rawlinson

SUMMARY * * *

Habeas Corpus

The panel affirmed the district court’s denial of a h abeas
corpus petition challeng ing a state-court o rder committing the petitioner indefinitely for involuntary treatment as a sex ually violent predator.

T h e p a nel held that the district court did not err i n deny ing a c laim that California’s Sex ually Violent Predator Act violates the Equal Protection Clause because it contains release procedures that are more onerous than those placed on other c ivilly committed detainees. The p anel c oncluded that individuals committed under California’s L a nterman-Petris Short Act were not similarly situated to those committed under the SVPA.

The panel held that, g iven t he absence of e stablished Supreme Court precedent, the d istrict court also did not err in

** T h e Ho n o rab le B arb ara M. G. L y n n , D istric t J u d g e f

o r th e Un ited States District Co u rt f

o r th e No rth ern District o f T ex as, s ittin g b y d esig n atio n

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T A Y L O R V

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deny ing a claim that the SVPA v i o l ates the Due Process Clause because it contains a burden-shifting scheme r e q uiring the detainee to prove that he is no long er a s e x ually violent predator in order to terminate his commitment.

COUNSEL

Kurt David Hermansen, L aw Of fice of Kurt David Hermansen, San Dieg o, California, for Petitioner-Appellant.

Kamala D. Harr i s , Attorney General of California, J ulie Garland, Senior Ass i s tant A ttorney General, J ennifer A

. J adovitz

, Deputy Attorney General, Kevin Vienna (arg ued), Supervising Deputy Attorney General, San Dieg o, California, for Respondent-Appellee.

OP INION

RAW L I NSON, Circuit J udg e:

I n this appeal, Ro n ald Tay lor (Tay lor) seeks federal habeas c orpus relief from a state-court order committing him indefinitely for involuntary tre a t ment as a sex ually violent predator, in accordance with California law. Two issues were certified f or a ppeal by a motions panel of this Court. The first i s s u e is whether California’s Sex ually Violent Predator Act violates the Equal Protection Clause because it contains release procedures that are more onerous than those placed on other civilly committed detainees. The second is whether the
statute violates the federal D ue Process C l a use because it contains a burd e n-shifting scheme requiring the detainee toT A Y L O R V

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prove that he is no long er a sex ually violent predator in order to terminate his commitment.

On habeas review, we affirm the district c ourt’s denial o f Tay lor’s habeas petition because the state c ourts’ denial o f relief was not contrary to or an unreasonable a pplication o f controlling Supreme Court precedent.

I. BACKGROUND

Tay lor was convicted o f c ommitting forcible rape in 1975, 1979, a

nd 1989 ag ainst three separate victims. The
state courts determined that Tay lor was a sex u a l l y violent predator, a

nd in 2005, T a y l o r was committed to the State Department of Mental Health.

The pre-2006 versio n of the statute limited civil

comm i t m ents to two-y ear terms and only p ermitted

ex tensions w hen the state proved bey o nd a reasonable doubt that the c o m m itted person remained a sex ually violent
p redator. See California W e lfare and I nstitutions C o d e § 6604 (2005). I n late 2006, the s t a t u t e was substantially cha n ge d throug h the initiative process. Among other chang es, Proposition 83 replaced the two-y e ar civil

c o m m i tment period with an indefinite term of commitment. See California W elfare and I nstitutions Code ( W &I ) § 6604 (2006); see also People v. McKee
, 223 P.3d 566, 5 6 9–70 (Cal. 2010).

Post-2006, at the initial hearing

, the state is still r equired
to prove bey ond a r easonable doubt that the individual meets the statutory definition o f sex ually violent predator. See W & I § 6604; see also McKee
, 2 2 3 P .3d at 569–70. Additionally

, the 2006 amend m ent requires the Department of StateT A Y L O R V

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Hospitals to annually ex amine the committed person and file

a r e p ort indicating whether the person still satisfies t h e definition o f a s e x u a l ly violent p redator, or whether a conditional release or unconditional discharg e is appropriate. See id . § 6604.9(a),(b).

I f the Department of Mental Health finds that the person warrants conditi o n a l release or u nconditional discharg e a nd the state contests that finding

, the state must prove bey o nd a reasonable doubt that the person still meets the definition of

a sex ually violent predator. See id

. §§ 6604.9(d )

– ( f); 6605. However, a committed p erson may file a petition for conditional release before the court, “with o r w i t h out the recommendati o n or concurrence of the Director of State Hospitals.

. . . ” Id

. § 6608(a). I n that instance, the committed
person must prove by a preponderance of the evidence that he

no long er meets the statutory definition of a sex ually violent predator. S

ee id . § 6608(i).

After the statute w as amended, the dis t rict attorney filed

a civil commitment petition pursuant to the amended statute, seeking to recommit Tay lor for an indeterminate period. The trial judg e found probable cause to believe that the alleg ations that T ay lor continued to meet the definition of a sex ually violent p redator were true. A jury trial was held to determine whether T ay lor actuall y c ontinued to meet the statutory definition of a sex ually violent predator. Du r ing trial,
psy cholog ists who had evaluated Tay lor testified.T A Y L O R V

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A. Trial Testim ony.

1. Dr. Dana Putnam

Dr. Putnam ex plained that ex amination of a sex ually violent p redator includes three prong s: 1 ) the offense o f conviction; 2 ) t h e ex istence of a qualify ing mental disorder; and 3) the likelihood that t h e a c cused will c ommit future

sex ually violent acts due to his mental condition.

Dr

. Putnam testified that the sex ual offenses committed by Tay lor satisfied the first prong of the evaluation criteria.

Dr. Putnam diag n osed Tay l or with “paraphilia not otherwise specified relating to n on-consenting behavior, nonconsenting sex ual behavior, with females.” 1 H e found that Tay lor had a clear history o f deviant a sp e c t s o f rape, not found in normative b ehavior, as evide n c e d by strang ling a fifty -y ear- o l d woman before raping her, or p lacing a pillowcase over a w oman’s head prior to raping her. He also noted there were “sadistic element[ s] ” t o Tay lor’s r apes. I n addition, Dr. Putnam d iag nos e d T ay lor with a ntisocial personality d isorder, which ag g ravate d the paraphilia disorder. D r. Putnam also noted Tay lor’s lack of remorse, a s he denied raping the victims or blamed them for the h arm he caused. The combination of diso r d e rs satisfied the second
prong of Dr. Putnam’s criteria.

F inally

, Dr. Putnam c onducted a risk a s s e ssment to determine T ay lor’s likelihood to commit and be convicted o f

1 P arap h ilia g en erally in v o lv es “ in ten se o r cu rren t sex u al f

an tas i es,

u rg es, o r b eh av io rs o v er a p erio d g reater th an six m o n th s th at in v o lv e

. . . n o n co n sen tin g p erso n s. . . .”T A Y L O R V

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another sex u al offense. F oll o w i ng the assessment, Dr. Putnam opined “that treatment in the communi t y would not suffice to reduce [ Tay lor’s] r isk to the point that he would no lo ng er be likely to commit future sex ually violent predatory offenses.” T hus, Tay lor met all three prong s of Dr. Putnam’s criteria for continued civil commitment.

2. Dr. J o h n Hupka

D r. Hupka ag reed with D r. Putnam r eg a rding t h e appropriate e valuation criteria. He also shared Dr. Putnam’s views that Tay lor committed qualify ing c rimes, suffered from
p a r a p hilia, a sex ual deviance, and from an antisocial personali t y d i s order. Dr. Hupka joined Dr. Putnam in predicting that Tay lor would likely eng ag e in sex ually violent predatory behavior if released.

The jury returned a verdict finding that Tay lor continued
to meet the c riteria to b e civilly comm i t ted as a sex ually violent predator, a

nd Tay lor was committed to t h e S t a te Department of Mental Health for an indeterminate term.

B. State Court Decisions

Among other arg uments made before the California Court of Appeal, Tay

lor asserted that the civil commitment statute violated state and federal due process by placing the burden of proof on him to establish e lig ibility for conditional release and violated his state and federal rig h t to equal protection, a s

sex ually violent predators are treated differently than other civilly committed offenders

. The Court of Appeal rejected Tay lor’s due process and equal protection claims.T A Y L O R V

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After the California S u p r e m e C o u

r t d e c lined discretionary review, Tay

lor filed a habeas petition in federal court.

C. Federal Court Decision

Rely ing on Jones v. United States
, 463 U.S. 354, 356–57 (1983) and the stat e c ourt’s finding s, the mag istrate judg e recommended denial of Tay lor’s due process challeng e to the portion o f th e statute assig ning the burden of proof to the petitioner to establish that he no long er qualified a s a sex ually violent p redator. The mag istrate judg e noted the absence o f clea r l y established federal law p rohibiting California from

a s sig ning Tay lor the burden of p roof. Therefore, the
mag istrat e j u d ge found that the state court d id not unreasonably apply

clearly established federal law.

Citing Addington v. Texas
, 441 U.S. 418, 431 ( 1979), the

m a gi s trate judg e noted that to decide Tay lor’s equal protection claim, the appropriate inquiry is whether state law treated all similarly situated detainees the sa m e

. T he
mag istr a t e judg e mentioned the state appellate court’s reliance o n H

ubbart v. Knapp
, 3 79 F .3d 773, 781–82 (9th Cir. 2004). I n Hubbart

, this court determined that the state court reasonably f

ound that sex ually violent predators were not denied equal protection when compar e d to other civilly

comm i t t ed offenders. See Hubbart

, 3 79 F .3d at 782. The Hubbart p anel recog niz e d the distinction betwe e n sex ually violent predators and mentally disordered offenders, a nd discerned no c o n f

lict with c learly e stablished federal law. See id. Fu rt h er, the Hubbart panel determined that even if

sex ually violent predators were similarly situated to other civilly committed o ffender s , the sex ually violent p redator
statute was narrowly tailored to further the state’s compelling interest in containing sex ually v iolent predators. See id

. atT A Y L O R V

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781–82. The mag istrate judg e ultimately determined that the
state court decision w as not contr ar y t o or an unreasonable application of clearly established federal l a w

. The district
court a dopted the mag istrate judg e’s finding s in their entirety

.

This court subse q u e ntly g r anted a certificate o f appealability as t o t he following issues: “1) whether California’s SVPA violates the Equal Protection Clause; a nd 2) whether the SVPA violates the Due Process C l ause because it places a burden on the petitioner to prove he is no long er dang erous in order to terminate his de t ention.” (citations omitted).

II. STANDARDS OF REV IEW

Under the A ntiterrorism a nd Effective Death Penalty A ct of 1996 (AEDPA), we review the district court’s denial of a federal habeas petition de novo

. See Hibbler v

. B e n e detti

, 693 F

. 3d 1 140, 1145–46 (9th Cir. 2 012). To prevail, a h abeas petitioner must demonstrate that the st a t e court’s decision

was contrary to or involved an unreas o nable application o f United States Supreme Court precedent. See Burt v. Titlow

, 134 S. Ct. 10, 15 (2013). The petitioner must establish that “the state court’s ruling o n the claim bein g p re sented in federal court was so lacking in justification that there was an

error

. . . bey ond any po s s ibility for fairminded disag reement.

. . .” Id

. at 16 (citation omitted). I t is n o t within a federal h abeas court’s province “to reex a mine statec ourt determinations on state-law questions.

. . .” Hayes v. Ayers
, 632 F .3d 500, 5 1 7 (9th Cir. 2011) (citation o m i t t e d). W e rev i ew the last reasoned decision from the state courts. See Hibbler , 693 F .3d at 1146.T A Y L O R V

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III. DISCUSSION

A. Equal P rotection Claim

Tay lor submits that the s t a te c ourt’s denial of his equal protection claim was con t r a ry to Baxstrom v. H

erold

, 3 8 3 U.S. 107 (1966). Tay lor specifically arg u es tha t indivi d uals who are committed under the L a nterman-Petris Short (L PS) Act 2 a

re similarly situ a t e d to those committed under the Sex ually

Violent Predators Act, y et the former are treated more favorably

.

U n d e r the L PS Act, an individual may be involuntarily committed for increasing ly long er p eriods, commencing with

an initial detention o f 7 2 h ours f or evaluation and treatment

o f a person who is a dang er to himself or others or gr a v el y disabled. S

e e In re Smith

, 178 P.3d 4 46, 4 5 6 ( 2 0 0 8 ). The initial commitment may b e ex tended for 14 day s of ex tensive
treatment and an additional 14 day s if t h e i n d ividual is suicidal. See id

. An additional 30-day confin e ment is available if further intensive treatment is indicate d. S ee id

. An ind i v i d ual who is determined to be “imminently dang erous” may be inv o luntarily committed for 180 day s “bey ond the 1 4

- day p eriod.” Id

. T h e 180-day commitment requires a showing that an individual:

as a result of mental disorder or mental defect,
pr e sents a demonstrated dang er of inflicting substantial phy sical harm upon ot h e rs; a nd
must have atte m p ted, inflicted, or made a serious threat of subs t a n tial phy sical harm

2 T h e L an term a n -P etris S h ort A ct is co d if ied at Calif

o rn ia W elf

are & In stitu tio n s Co d e § 5 0 0 0
, et seq

.T A Y L O R V

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upon a nother

. . . that

. . . resulted in his being take n into c ustody

, or must have ex p ressed a serious threat of substanti a l phy sical harm
upon a nother w ithin seven day s of being taken into custody and that threat

. . . resulted in his being taken into custody

.

Id . (citations and internal quotation marks omitted).

Renewable one-y e a

r “ c onservatorships” are provided for in t h e L PS A ct if an individual is “found to be g ravely disabled either by being manifestly unable to t a ke care o f oneself or being in c ustody o n a c riminal cha r g e a nd f ound incompetent to st a n d t r ial and h aving a mental disorder causing o ne to be d a n g e r ous to others.” Id

. (citations omitted).

Be c a u se those c o mmitted under the L PS are subject to one-y ear renewable periods of d etention

, rather than the indeterminate detention available under the Sex ually Violent Predators Act, Tay

lor asserts an equal protection claim.

The state counters that the California Supreme Court has affirmed that those detained pursuant to the L PS Act are not similarly situated to sex ually v iolent predators. See McKee
, 223 P.3d at 5 80–81; see a lso Litmon v. Harris
, 7 68 F .3d 1237, 1243 (9th Cir. 2014) (concluding that mentally disordered offenders and menta lly d isordered sex offenders

are not similarly situated to sex ually violent p redators). The state maintains that L PS Act detainees do not pose the same special dang ers as sex ually violent predators; t h a t sex ually violent predators have not demonstrated the capacity to avoid future felonious conduct; and that L PS Act detainees a reT A Y L O R V

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gr avely d isabled and unable to care for themselves, or “ s o impaired as to be incompetent to stand trial . . .”

T he state’s arg ument is more compelling

. W h e n conducting an equal protection analy sis, we first identify the
g roups b eing compared. “The g roups must be comprised of similarly situated p ersons so that the f actor m o t ivating the alleg ed discrimination can be identified.

. . .” Arizona Dream Act Coal. v

. B r e wer , 757 F

. 3d 1053, 1064 (9th Cir. 2 014) (citation omitted). W h ile the g roup members may differ in

some respects, they must be similar in the respects pertinent to the State’s policy

. See id

. Althoug h b o th sex u ally violent predators and L PS A ct detaine es a

re civilly detained, that is where the similarity

en d s i n respect to California’s policy concerns. California has enacted a detai led statutory scheme disting uishing the two classifications of mentally ill individuals. Cf. W & I § 6600(a)–(h) 3 ; W & I § 5008 ( d efining the pros p e ctive committed individual as suffering from a “menta l h ealth disorder”).

Tay lor’s reliance on Baxstrom is misp l a c e d

. B a xstrom involved a statutory scheme in w hich mentally ill prisoners

were transferred to civil commitment upon the ex piration of their sentences witho u t a j ury trial to d emonstrate whether confinement was still warranted. See Baxstrom , 383 U.S. at

3 S ee, e.g

. , W & I § 6 6 0 0 (a)(1 ): “ Sex u ally v io len t p red ato r m ean s a p erso n w h o h as b een co n v i cted o f a sex u ally v io len t o f f en se ag ain st on e

o r m o re v i ctim s a n d w

h o h as a d iag n o sed m en tal d iso rd er th at m ak es th e p erso n a d an g er to th e h ealth an d saf ety o f o t h ers in th at it is lik ely t

h at h e

o r sh e w ill en g ag e i n s e x u a l l y v io len t crim in al b eh av io r.” (in tern al
q u o tatio n m ark s o m itted ) (em

p h asis ad d ed ).T A Y L O R V

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111–13. All other mentally ill indiv i d u als were afforded a jury trial “of the question of t h e ir sanity .” I d. at 111. The Supreme Court held that, having m a d e a jury trial available

on the issue o f sanity

, the state could not arbitrarily withhold

a j u r y trial f

rom some mentally ill persons. There wa s n o basis for disting uishin g mentally ill persons nearing the e nd of a prison term from other mentally ill person s in terms o f “the opportunity to show whether a person is mentally ill at all.” Id . This reasoning is inapplicable to Tay lor’s situation. Under Califo r n ia’s statutory scheme, T ay lor had the same opportunity as all other c ivilly co mmitted persons to challen ge the petition seeking his commitment. See W & I § 6604.

Tay lor’s r eliance on Jackson v. Indiana

, 406 U.S. 715 (1972) is similarly unavailing

. I n J ackson

, the p etitioner demonstrated mental defectiveness and had pending criminal charg es f iled ag ainst him when the trial c o u r t civilly committed him until he was certified as sa n e. S ee 406 U.S.
at 7 1 7–19. Given J ackson’s condition and the dim prog nosis from the two treating psy cholog ists, h e wa s unlikely to ever be deemed competent to stand trial. See id

. at 718–19. Under these circumstances, the Supreme Court determined that “subjecting J ackson to a more lenient commi t m e nt standard and to a more string ent standard of r e l ease than those
g enerally a

pplicable to all others n ot charg ed with offenses, and by thus condemning him in effect to pe r m a n ent institutionaliz ation without t h e showing required for commitment o r the opportunity for release” under other statutory provisions violated the Equal Protection Clause. Id

. at 730.

Unlike the facts in Jackson

, the Sex ually Violent Predator Act does not create a capricious custody scheme in violationT A Y L O R V

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of equal p rotection tenets. Sex u ally v iolent predators a re only desig nated as such after: 1) two ps y c h o log ists and/or
psy chia t ri s t s evaluate the individual to determine if h e has committed a sex ually violent c rime and otherwise meets the

sex ually violent predator criteria, including likelihood of reoffending ; 2 ) the state files a petition for civil commi t m e nt; 3) there is a probable cause hearing to determine whether the petition alleg ations are true b ey ond a rea sonable doubt; a nd 4) a jury renders a verdict finding bey ond a reasonable doubt that the accused meets the statutory definition of a sex u ally violent predator. See W& I § § 6601(d)–(i); 6603(a). All o f these conditions were met for Tay lor. Most importantly

, just

as with other civilly co m m i tted detainees, Tay lor has an opportunity f

or release. See id

. at §§ 6604.9(d)–(f); 6605(a)–(c); see also 6608(a)–(k).

California’s ex pressed leg islative policy is to protect the public from the increased dang e r posed b y sex ually violent predators. S

ee Litmon
, 7 68 F .3d at 1242. C o n s i dering this policy

, both we and the state of Califo rnia have recog niz ed that sex ually violent predators are n ot s i m i l a rly situated to other civilly committed individuals. See id. at 1243; see also M c Kee
, 223 P.3d at 581 (noting that “those who a r e reasonably determined to represent a g r e ater dang er may be treated differently

”).

W e are not persuaded b y Tay lor’s attempt to disting uish Hubbart because that case involv ed a pre-Proposition 83 version of the Sex ually Violent Preda t o r A c t. B oth the former and current versions of the statute contain v i rtually identical d efinitions of a sex u a l l y violent predator and both versions aim to identify

, treat and detain t h o se individuals identified u nder the statute. See W & I § 6600(a)(1) ( 2005);

see also W& I § § 6600(a)(1) ( 2006). Therefore, our ruling inT A Y L O R V

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Hubbart remains the law of the circuit. See United States v. Hieng
, 679 F .3d 1131, 1139 (9th Cir. 2012). I n any event, we have made the same r

uling post-Proposition 83. See Litmon
, 768 F .3d at 1243 (holding that sex ually violent predators a re not similarly

situated to other civil detainees).

Tay lor a lso sug g ests t h at we should employ the more

ex p ansive Califo rnia equal protection analy sis. B ut we a re not bound by state law when deciding a n issue raised under the United States Constitution. See Slovik v. Y ates , 556 F .3d 747, 753 n.6 (9th Cir. 2009).

I n sum, the Californi a Court of Appeal did not unreasonably a

pply clearly established federal law to Tay lor’s equal protection claim by determining that sex u ally vi o lent predators are not similarly situated to other civilly committed offenders. See Seeboth v

. Allenby

, 789 F. 3 d 1 0 99, 1105–06 (9th Cir. 2015) (so holding and similarly rejecting petitioner’s reliance on Baxstrom ).

B. Due P r ocess Claim

Tay lor contends that the C a l i fornia Court o f Appeal decision rested on an unreasonable application of Addington and Jones

. He submits that “ Jones ex pressly did not approve release proceeding s that shifted the burden to the committed individ u a l

. . .” He further c o ntends that under Addington

, 441 U. S. at 4 32–33, the Due Process Clause compels a showing by the state throug h clear and c onvincing evidence that the committ e d individual is both mentally ill a nd dang erous. Specifically

, Tay lor posits that the Sex ually V i o lent Predator Act impermissibly shifts the burden o f proof, requiring a committed sex ually violent predat o r toT A Y L O R V

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p r o v e b y a preponderance of the evidence that he n o long e r meets the statutory

definition of a sex ual predator.

T h e state c ounters that T ay lor’s due process chall e n ge must fail because no Suprem e Court precedent p rohibited amendments to the Sex ually Violent Predator Act to chang e the burden to the detainee to establish the rig ht to release.

Due process is a flex ible stan d a r d requiring such

“ p r o c e d u r a l p r o t ec t i o n s a s t h e p a r t i cu l a r s i t u a t i o n demands[ .] ” W

ilkinson v. Austi n , 545 U.S. 209, 224 (2005) (citation omitted). The Californi a C o urt o f Appeal determined that in Jones
, the Un i t e d S tates Supreme Court

“ implicitly approved a review procedure similar to the on e ” used in Tay lor’s proceeding s. The Court of Appeal noted that th e Jones statutory scheme provided several alternatives for the detainee to seek release. As in the Sex ually Violent Predator Act, under the procedure a t i s s u e in J ones , the detainee was entitled to a judicial hearing to determine elig ibility for release, where he was requ i r e d t o prove by a preponderance of the evidence that he was no long er mentally ill or dang erous. I n the a lternative, he could obtain a certificate of r ecovery fr o m the requisite state ag ency

. See Jones
, 463 U.S. at 356–57. The presence of these procedural safeg uards persuaded the Supreme Court that t he statutory scheme was constitutionally permissible. I n similar fashion, and a s described, the Sex ually Violent Predator Act also provides several mechanisms throug h which a p etitioner may terminate h is indefinite term o f c o nfinement. Contrary to Tay lor’s arg ument, the California Court of Appeal reasonably relied o n the Supreme Court’s rationale in Jones a s clearly established federal law.T A Y L O R V

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Addingt o n is not clearly established federal law o n the issue o f re-commitment procedures because Addington addressed only the state’s burden of proof f o r initial

c o m mitment. See 441 U.S. at 432–33. Therefore, it c a n n o t be fairly said that the holding in A ddington approving a clear and c onvincing standard o f p roof as constitutionally permissible a

ppli es in the contex t of a re-commitment. Tay lor urg es us to ex tend the holding of Addington to the rec ommitment process. However, the Supreme Cour t h a s recently clarified that a state court is not re q u i re d to ex tend the holding of a Supreme Court case to avoid unreasonably apply ing f ederal law. See W

hite v. W oodall

, 134 S. Ct. 1697, 1706 (2014).

Foucha v. Louisiana
, 504 U.S. 71 ( 1 9 9 2), does not constitute clearly established law either. I n Foucha

, the defendant was insane a

nd dang erous a t t he time of his conviction; he was f

o und not g uilty by r e as o n of insanity

. See id

. at 74, 76. However, the defendant w a s not mentally ill at the time of h is commitment. S ee id

. at 78. The Supreme Court determined that the L ouisiana statute failed to provide fair and reasonable procedures because F o ucha’s continued confinement w as on the basis of dang erousness alone. See id

. at 8 5–86. To pass constitutional muster, a civil confinement
st a t u t e must c ommit an offender based on a finding o f dang erousness and of a present mental illness. See id

. a t 86.

Un l i k e in Foucha

, Tay lor w as not confined based solely

on a finding of dang erousness. Moreover, as not e d a b ove, fair and reasonable procedures and safeg uards ex ist to ensure that a sex u ally violent predator is confined only as long as the
person is mentally ill and dang erous. See W & I § 6600(a)(1).T A Y L O R V

. S A

N D I E G O C T Y

. 18

I mportantly

, the Supreme Court has not defin i t i vely

a ddressed the constitutionality of release procedures th at place the burden of p r o o f upon the individual challeng ing continued c ommitment. Cf. Addington

, 441 U .S. at 4 3 2

– 33 (addressing initial commitment procedures). I n this circumstance, where there is no clearly established federal law, the state court decision cannot be deemed unreasonable. See Glebe v. Frost , 135 S. Ct. 429, 431 (2014).

F i nally

, neither Addington

, J o n es , nor Foucha were decided under the AEDPA standard. According ly

, they offer

no g uidance for habeas r eview u nder the AEDPA. See Cullen

v. P inholster

, 1 31 S. Ct. 1388, 1410–11 (2011 ) ; Harrington

v. Richter

, 562 U .S. 86, 101 (2011). As with his equal protection claim, we conclude that the state court’s denial o f Tay lor’s due process claim was not contrary to or an unreasonable application of clearly established federal law.

IV

. CONCLUSION

S e x u ally violent predators are in a special categ ory o f civilly commi t t e d o f

f e n d e r s b e c a u s e t h e y h ave a demonstrated sex ually violent criminal history and a re mentally ill, thereby p ortending the likeli h o od o f future

sex ually violent b ehavior. Given the n ature of the harm they represent to themselv e s and the community

, the state has an elevated interest in ensuring that they are ide ntified, treated, and detained for as long as th e y m eet the sex ually violent predator criteria. B ecause sex ually violent predators are not similarly s i t u ated to other categ ories of mentally impaired detainees, the California Court of Appeal’s denial of Tay lor’s equal protection c laim was not contrary to or an unreasonable application of federal law.T A Y L O R V

. S A

N D I E G O C T Y

. 19

Given the absence of e s tablished Supreme Court precedent reg arding the c onstitu t i o nality of release procedures that place the burden of proof upon the individual challeng ing continued c o m m i tment, the California Court o f Appeal could not and did not unreasonably apply federal law in deny ing Tay lor’s due process claim.

AF F IRMED

.