                                                                            FILED
                            NOT FOR PUBLICATION                              APR 28 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

SCOTT EMERSON FELIX,                             No. 10-16984

              Petitioner - Appellant,            D.C. No. 3:01-cv-03138-WHA

  v.
                                                 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. § 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 ("SVPA"), Cal. Welf. & Inst. Code §§ 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 likely 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 "likely to commit sexually violent crimes at

some point. . . . It doesn’t have to be predatory." Four years later, the California

Supreme Court held that the SVPA "contains an implied requirement that a trier of

fact must find beyond a reasonable doubt that the defendant is likely to commit

sexually violent predatory criminal acts before the defendant can be committed as a

sexually violent predator." 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, "but for his [allegedly] unlawful confinement in

1998[,] [he] would not have been subjected to subsequent recommitment

hearings." See Jackson v. Cal. Dep’t of Mental Health, 399 F.3d 1069, 1075 (9th


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Cir. 2005) (noting that, when a petitioner is committed involuntarily under the

SVPA, "any future petition to recommit [the petitioner] could be traced back,

through preceding petitions, to his initial confinement"). 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 "transform a state-law issue into a federal one

merely by asserting a violation of due process"). 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 "rendered the

ultimate verdict" in the case unreliable. Lankford 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 "predatory" if it is "directed at a stranger, a casual acquaintance, or


                                           3
someone cultivated for victimization as defined [elsewhere in the Act.]" 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. Thus, there is no

"reasonable probability that . . . the result of the proceeding would have been

different had the erroneous instruction not been given." Lankford, 468 F.3d at 585

(internal quotation marks omitted) (ellipsis in original).

      Petitioner also argues that permitting civil commitment of sexually violent

offenders without a finding that they are likely 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

"predatory" 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

there was no "substantial and injurious effect" on the jury’s verdict. Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted). As we


                                           4
have explained, all of the evidence at the 1998 trial of Petitioner’s past crimes and

behavior involved strangers and casual acquaintances. Accordingly, any error in

the failure to require an express finding that likely future crimes would be

committed against strangers or casual acquaintances was harmless beyond a

reasonable doubt. Id.

      AFFIRMED.




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