                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            OCT 04 2011
                     UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                       U .S. C O U R T OF APPE ALS




JACKIE ROBINSON,                                 No. 10-56117

               Plaintiff - Appellant,
                                                 D.C. No. 3:09-cv-00346-IEG
  v.

STEPHEN MAYBERG, et al.,                         MEMORANDUM *
               Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                  Irma E. Gonzalez, Chief District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Jackie Robinson appeals from the district court’s judgment denying his

28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,

and we affirm.

       Robinson was involuntarily committed to the custody of the Department of

Mental Health in December 2006 under California’s Sexually Violent Predators

Act (“SVPA”), Welfare and Institutions Code § 6600 et seq. He contends that



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application of the version of the SVPA in effect at the time of his retrial, rather

than the version in effect at the time of his first trial, which resulted in a

deadlocked jury, violated his due process rights. The state court’s decision

denying this claim was neither contrary to nor based upon an unreasonable

application of clearly established federal law, including Kansas v. Hendricks, 521

U.S. 346, 370-71 (1997). See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S.

362, 409-10 (2000).

         Robinson next contends that the SVPA violates due process by providing for

an indeterminate term of commitment that Robinson can terminate only by proving

that he is no longer a sexually violent predator. Given the Supreme Court’s

reservation of the issue of the constitutional adequacy of procedures for release that

place the burden of proof on the person challenging an indefinite commitment,

see Jones v. United States, 463 U.S. 354, 362, 363 n.11 (1983), the state court’s

rejection of this claim was neither contrary to, nor based upon an unreasonable

application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1);

Williams, 529 U.S. at 409-10; Alberni v. McDaniel, 458 F.3d 860, 865-66 (9th Cir.

2006).

         Robinson also contends that the SVPA violates his equal protection rights

because other civil commitment schemes, such as that governing mentally

disordered offenders, provide for periodic judicial review of a commitment in


                                             2                                   10-56117
proceedings in which the state bears the burden of proof. This claim fails because

the state could reasonably have concluded that the unique danger posed by sexually

violent predators warrants placing the burden on them to establish their suitability

for release. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 409-10; Hubbart v.

Knapp, 379 F.3d 773, 781 (9th Cir. 2004) (Supreme Court has not addressed level

of scrutiny applicable to equal protection challenges to civil commitment

schemes); Heller v. Doe, 509 U.S. 312, 320-21 (1993) (under rational basis review,

classifications must be upheld “if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification”) (internal quotations and

citation omitted).

      We construe Robinson’s additional arguments as a renewal of his motion to

expand the certificate of appealability. So construed, the motion is denied. See 9th

Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)

(per curiam). Robinson’s request for judicial notice of the California Supreme

Court’s decision in People v. McKee, 47 Cal. 4th 1172 (Cal. 2010) is denied as

unnecessary.

      AFFIRMED.




                                           3                                     10-56117
