                                                                        FILED
                     UNITED STATES COURT OF APPEALS                      SEP 30 2010

                                                                     MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                     U.S . CO U RT OF AP PE A LS




MARCUS LEE RAWLS,                             No. 07-56455

              Petitioner - Appellant,         D.C. No. CV-03-00724-
                                              MMM(AN)
  v.                                          Central District of California,
                                              Riverside
MELVIN HUNTER,

              Respondent - Appellee.          ORDER


Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.




The petition for rehearing is granted. The memorandum disposition filed on

December 21, 2009 is withdrawn. A superseding memorandum disposition will be

filed concurrently with this order.
                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 30 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MARCUS LEE RAWLS,                                 No. 07-56455

              Petitioner - Appellant,             D.C. No. CV-03-00724-
                                                  MMM(AN)
  v.

MELVIN HUNTER,                                    MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                     Argued and Submitted December 11, 2009
                               Pasadena, California

Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.




       Marcus Lee Rawls appeals the district court's denial of his petition for a writ

of habeas corpus. We affirm in part, reverse in part, and remand for an evidentiary

hearing.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I.

      We first address the question of mootness. Rawls has completed serving the

term of commitment that he challenges in this petition and has since been

recommitted several times.

      We have previously held that under some circumstances a subsequent re-

commitment under the Sexually Violent Predator Act (SVPA) does not render

moot a petition for habeas corpus. Hubbart v. Knapp, 379 F.3d 773 (9th Cir.

2004). In Hubbart, the state claimed that relief from Hubbart's original term

would be 'meaningless and his case [was] therefore moot.' Id. at 777. However,

we held that the petition was not moot because it was capable of repetition but

evading review. Id. at 777. The test for this 'well-established exception to

mootness,' id., is whether '(1) the challenged action [is] in its duration too short to

be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party [will] be subject to the same action

again.' Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marµs

omitted) (alterations in original).

      As to the first factor, we previously held that a two-year commitment under

the SVPA is 'too short to be fully litigated prior to . . . [its] expiration.' Hubbart,

379 F.3d at 778 (emphasis and alterations in original). In fact, it is 'almost certain


                                      Page 2 of 8
that a state detainee under California's civil commitment scheme for sexually

violent predators will be unable to exhaust state remedies and fully litigate a

habeas petition in federal courts within two years.' Id. (internal quotation marµs

omitted). It is irrelevant that the California courts have already ruled on Rawls's

claims because 'for purposes of determining mootness in connection with

California's repeating pattern of two-year commitments under the SVPA, a federal

constitutional claim evades review if the challenged action expires before a federal

appellate court has the opportunity to fully consider the allegation.' Id. (emphasis

added). While Rawls filed his initial habeas petition in 2003, he has not reached a

federal appellate court until now, long after his two year term expired. Thus, if we

were to find this claim moot, each of his subsequent commitments would also

evade review.

      Now turning to the second factor, we find that Rawls's claim is capable of

repetition because there is a reasonable expectation that Rawls could be subject to

the same action again. As the language of the exception states, the question is

whether the controversy is 'capable of repetition and not . . . whether the claimant




                                     Page 3 of 8
has demonstrated that a recurrence of the dispute was more probable than not.'

Honig v. Doe, 484 U.S. 305, 319 n.6 (1988) (emphasis added).1

      The principle that a defendant may not be unnecessarily placed in physical

restraints during trial was clearly established Supreme Court precedent at the time

of the commitment hearing that Rawls challenges on this appeal. See Gonzalez v.

Pliler, 341 F.3d 897, 904-05 (9th Cir. 2003) (finding that this principle dated bacµ

to Illinois v. Allen, 397 U.S. 337 (1970)). And yet, Rawls was subjected to the

shacµling. It is reasonable to believe that a California trial court could subject him

to the same treatment again, despite the fact that to do so would again be contrary

to existing Supreme Court precedent.

      Several factors support a reasonable expectation that Rawls's shacµling

experience could be repeated. First, in Decµ v. Missouri, 544 U.S. 622, 629 (2005),

the Supreme Court held that trial judges have þdiscretionþ to restrain defendants

based on case-by-case factors, including þpotential security problemsþ specific to a

particular trial; yet most trial judges have either no or little experience with

commitment proceedings on which to base such judgments. Second, SVPA

commitment proceedings ordinarily taµe place in civil courtrooms, which may not


      1
       Rawls has had subsequent commitment hearings and does not allege that he
was shacµled at those hearings. But, that is not dispositive of this issue. The
question is whether the action is capable of repetition. We find that it is.

                                      Page 4 of 8
have the high degree of security typical of criminal courtrooms. Third, defendants

liµe Rawls who are subject to commitment and re-commitment under the SVPA,

and may well receive a number of hearings during their lifetime, are accused of

being liµely to engage in violent criminal behavior. Rawlsù 2001 proceeding

illustrates these points. The judge presiding over his 2001 hearing found the

security situation at the þhistoricþ civil courthouse to be sufficient grounds for

shacµling, but the Court of Appeal held that to be an error, albeit harmless. There

is reason, therefore, to believe that a state court judge could some day decide in

good faith to shacµle this particular defendant when he returns for an SVPA

hearing. Because Rawls's claim is capable of repetition but evading review, it is

not moot.

                                       II.
      Rawls argues that the Court of Appeal's harmless error analysis was

erroneous because the court failed to apply the Chapman harmless error standard.

See Chapman v. California, 386 U.S. 18 (1967). However, there is no clearly

established Supreme Court precedent holding that the Chapman harmless error

standard applies to constitutional errors in civil commitment proceedings.

Accordingly, the state court's failure to apply Chapman was not an unreasonable

application of clearly established Supreme Court precedent. 28 U.S.C. 2254(d)(1).



                                      Page 5 of 8
                                          III.

      Rawls next argues that the Court of Appeal came to an unreasonable

determination of the facts when it found that the jury only briefly 'glimps[ed]' him

in shacµles. We agree. It is uncontested that Rawls was fully shacµled in anµle

bracelets, waist chains, and handcuffs for the first four days of his five-day

commitment proceeding. 'The state court's determination that the jury could not

have seen the shacµles during trial was unreasonable in the absence of any inquiry

to establish the facts concerning what the jury could see.' Dyas v. Poole, 317 F.3d

934, 936-37 (9th Cir. 2003). 'When we determine that the state court fact-finding

is unreasonable . . . we have an obligation to set those findings aside and, if

necessary, maµe new findings.' Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir.

2004). Here, new factual findings are necessary to determine what the jury saw.

Accordingly, we remand to the district court for an evidentiary hearing. See id.

(holding that if new evidence must be taµen before new factual findings can be




                                     Page 6 of 8
made, we must remand to the district court to hold an evidentiary hearing and

maµe findings in the first instance).2




                                             IV.

      Rawls also challenges the Court of Appeal's conclusion that the limitations

the trial court placed on his cross-examination of the state's expert witness did not

violate Due Process. The trial court refused to permit Rawls to cross-examine the

state's expert about her reliance on a penile plethysmograph (PPG) test. The Court

of Appeal concluded that this limitation did not violate Due Process because the

expert's reliance on the PPG test was a 'minor' or 'subsidiary' point. Rawls

argues that this was an unreasonable determination of the facts. We disagree. The

Court of Appeal's determination is not unreasonable in light of the expert's

testimony that her opinion would not have been different absent the PPG results

and that the test merely corroborated other information on which she had relied.


      2
          If the district court determines that Rawls's shacµling at the 2001 hearing
was unconstitutional and that the writ should issue, it should then further examine
whether Rawls's subsequent re-commitment hearings relied on factual findings
from the 2001 hearing. See Carty v. Nelson, 426 F.3d 1064, 1071-72 (9th Cir.
2005) (noting that if the initial SVPA commitment hearing were to be found
unconstitutional, re-commitment hearings that relied on factual findings from the
initial hearing would also be unconstitutional). If those re-commitment hearings
did rely on factual findings from the 2001 hearing, then Rawls would be entitled to
a new untainted commitment hearing with shacµling used only if necessary.

                                         Page 7 of 8
Each party shall bear its own costs.

AFFIRMED in part, REVERSED in part and REMANDED.




                              Page 8 of 8
