                   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                            NOT FOR PUBLICATION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.




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