                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 TIMOTHY J. SEEBOTH,                               No. 12-17062
               Petitioner-Appellant,
                                                     D.C. No.
                      v.                          2:10-cv-02875-
                                                    MCE-TJB
 CLIFF ALLENBY, Director D.M.H.;
 AUDREY KING,
            Respondents-Appellees.                    OPINION


      Appeal from the United States District Court
          for the Eastern District of California
 Morrison C. England, Jr., Chief District Judge, Presiding

                    Argued and Submitted
          April 14, 2015—San Francisco, California

                       Filed June 18, 2015

    Before: Alex Kozinski and Susan P. Graber, Circuit
   Judges, and Michael A. Ponsor,* Senior District Judge.

                    Opinion by Judge Graber




 *
   The Honorable Michael A. Ponsor, Senior United States District Judge
for the District of Massachusetts, sitting by designation.
2                      SEEBOTH V. ALLENBY

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s denial of a habeas
corpus petition asserting that the absence of a provision in
California’s Sexually Violent Predator Act (SVPA) setting
forth a time within which to hold a trial extending the term of
commitment is facially unconstitutional.

    The petitioner claimed that the lack of a timing provision
for sexually violent predators (SVPs) violates the Equal
Protection Clause of the Fourteenth Amendment because,
under California law, other civilly committed persons –
mentally disordered offenders and individuals found not
guilty by reason of insanity – have a statutory right to a
recommitment trial within a specified period. The state
courts held that SVPs are not similarly situated to mentally
disordered offenders and individuals found not guilty by
reason of insanity for the purpose of challenging the lack of
a timing provision in the SVPA.

   Reviewing under the Antiterrorism and Effective Death
Penalty Act of 1996, the panel did not need to resolve the
question of whether a citation by the California Supreme
Court to People v. Duvall (In re Duvall), 886 P.2d 1252 (Cal.
1995), constitutes a reasoned decision, and in turn did not
need to decide which state court issued the last reasoned
decision, because the California Supreme Court and Superior


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   SEEBOTH V. ALLENBY                        3

Court decisions in this case share common reasoning that
does not apply federal law unreasonably.

    The panel held that state courts may reasonably apply the
rational basis test when considering equal protection
challenges to civil commitment laws.

    The panel held that with respect to the procedural steps in
the civil commitment process that are at issue here, the state
courts reasonably concluded that the state legislature had a
rational reason to distinguish between individuals who have
been found to be mentally ill and dangerous and individuals
who have been found to be mentally ill and sexually
dangerous. The panel therefore concluded that it was not
objectively unreasonable for the state courts to hold that the
lack of a timing provision in the SVPA does not deprive
SVPs of equal protection of the laws, and that the California
courts did not contravene clearly established federal law.


                         COUNSEL

Michael B. Bigelow (argued), Sacramento, California, for
Petitioner-Appellant.

Tami M. Krenzin (argued), Deputy Attorney General, Kamala
D. Harris, Attorney General of California, Michael P. Farrell,
Senior Assistant Attorney General, and Brian G. Smiley,
Supervising Deputy Attorney General, Sacramento,
California, for Respondents-Appellees.
4                  SEEBOTH V. ALLENBY

                         OPINION

GRABER, Circuit Judge:

    In this habeas case, Petitioner Timothy Seeboth claims
that California’s Sexually Violent Predator Act (“SVPA”),
Cal. Welf. & Inst. Code §§ 6600–6609.3, is unconstitutional
on its face. Specifically, he asserts that the absence of a
provision setting forth a time within which to hold a trial
extending the term of his commitment denies him equal
protection of the laws because, under California law, other
civilly committed persons have a statutory right to a
recommitment trial within a specified period. The state
courts and the district court denied relief. Because the
California state courts reasonably held that this aspect of the
SVPA does not deprive Petitioner of equal protection of the
laws, we affirm.

         FACTS AND PROCEDURAL HISTORY

    A. The SVPA and Other California Civil Commitment
       Laws

    California has enacted a set of civil commitment statutes
that are triggered only after criminal charges have been filed.
Hubbart v. Superior Court, 969 P.2d 584, 587 (Cal. 1999).
The SVPA, which is one such statute, reflects the California
legislature’s “concern over a select group of criminal
offenders who are extremely dangerous as the result of
mental impairment, and who are likely to continue
committing acts of sexual violence even after they have been
punished for such crimes.” Id. The state may file a petition
to civilly commit a person as a sexually violent predator
(“SVP”) if that individual (1) has been convicted of a
                      SEEBOTH V. ALLENBY                              5

sexually violent offense against one or more victims and
(2) suffers from a diagnosed mental disorder that makes it
likely that he or she will engage in sexually violent criminal
behavior in the future.1 Cal. Welf. & Inst. Code § 6600(a)(1).
The SVPA then provides for a probable cause hearing and a
jury trial, at which the state must prove beyond a reasonable
doubt that the individual meets those criteria.            Id.
§§ 6602–6603; People v. McKee, 223 P.3d 566, 574–75 (Cal.
2010).

    In its original form, the SVPA provided for commitment
for two-year terms. Orozco v. Superior Court, 11 Cal. Rptr.
3d 573, 578 (Ct. App. 2004). At the end of each term, and
after a new trial, the individual could be recommitted. Id. at
578–79. In November 2006, California adopted Proposition
83, which “changed the commitment term for SVPs from
renewable two-year periods to an indeterminate period.”
Seeboth v. Mayberg, 659 F.3d 945, 947 (9th Cir. 2011).
Thus, for individuals committed or recommitted after 2006,
there is no need for future recommitment proceedings. See
Bourquez v. Superior Court, 68 Cal. Rptr. 3d 142, 144 (Ct.
App. 2007) (holding that pending petitions for two-year
extensions would be considered petitions for indefinite
terms). Proposition 83 also changed the substantive
requirements for civil commitment under the SVPA. Before
2006, the SVPA authorized civil commitment only if the
person had been convicted of sexually violent offenses
against two or more victims. Cal. Welf. & Inst. Code


 1
   The state may file a commitment petition under the SVPA only while
the individual is in custody pursuant to a determinate prison term, as a
result of a parole revocation term, or under a special SVPA “hold” that
temporarily extends a term of imprisonment or parole. Cal. Welf. & Inst.
Code § 6601(a)(2).
6                  SEEBOTH V. ALLENBY

§ 6600(a) (1996). After Proposition 83, only one victim was
required. 2006 Cal. Legis. Serv. Prop. 83 (West).

     An individual also may be committed as a mentally
disordered offender (“MDO”). To be committed as an MDO,
a person must (1) stand convicted of a crime involving force,
violence, or serious bodily injury; and (2) have a severe
mental disorder that was a cause of, or an aggravating factor
in, the commission of that crime. Cal. Penal Code § 2962;
People v. Collins, 12 Cal. Rptr. 2d 768, 770 (Ct. App. 1992).

    Finally, California law authorizes the civil commitment
of an individual who has been found not guilty by reason of
insanity (“NGI”). In California, the question of sanity is
determined separately, after a conviction. Cal. Penal Code
§ 1026(a); In re Moye, 584 P.2d 1097, 1100 (Cal. 1978). If
the individual was insane at the time of the offense and has
not regained sanity, the court may commit the person for up
to the maximum term of the sentence that could have been
imposed for the crime. Moye, 584 P.2d at 1100. Civil
commitment may extend beyond the period of that maximum
sentence if (1) the person was convicted of a felony and
(2) the person represents a substantial danger of physical
harm to others by reason of a mental disease, defect, or
disorder. Cal. Penal Code § 1026(b)(1).

    B. Facts and Procedural History in This Case

           Over the course of more than 30 years,
       [Petitioner] was convicted nine times for
       crimes involving deviant sexual acts with
       children.     Based on his convictions,
       [Petitioner] was first determined to be a
       sexually violent predator (“SVP”) in 1997 in
                         SEEBOTH V. ALLENBY                              7

          a civil jury trial proceeding. He was held for
          consecutive two-year terms from 1997 until
          2005 . . . . While [Petitioner] was still in
          custody for the 2003–05 term, the California
          District Attorney filed a petition in May 2005
          to extend [Petitioner]’s commitment from the
          end of that 2003–05 term.

Seeboth, 659 F.3d at 946 (citations and footnotes omitted).
Petitioner’s trial for the 2005 recommitment petition did not
take place until September 2010. He currently is in custody
because that proceeding resulted in an order committing him
for an indefinite term. Id. at 947.

    In this appeal, Petitioner argues that the SVPA is facially
unconstitutional because it fails to establish a time period
within which a recommitment trial must occur.2 Petitioner
claims that the lack of a timing provision violates the Equal
Protection Clause of the Fourteenth Amendment because
there is a timing provision in the civil commitment laws that
apply to MDOs and NGIs.               See Cal. Penal Code
§ 1026.5(b)(4) (providing that an NGI has a right to a trial
that commences “no later than 30 calendar days prior to the
time the person would otherwise have been released, unless
that time is waived by the person or unless good cause is
shown”); id. § 2972(a) (same for MDOs).

    Petitioner filed a state habeas petition in the Sacramento
County Superior Court (“Superior Court”) asserting, among
other claims, that the absence of a timing provision in the
SVPA violated his equal protection rights under the federal
and state constitutions. The Superior Court denied his equal

 2
     For simplicity, we refer to such a provision as a “timing provision.”
8                   SEEBOTH V. ALLENBY

protection claim on the merits, holding in part: “Petitioner
has not shown that he is similarly situated to the other types
of long-term civil commitments.” Petitioner next filed a state
habeas petition in the California Court of Appeal, which
denied the petition without an opinion. Finally, after filing
further petitions in Superior Court and the Court of Appeal,
Petitioner filed a state habeas petition in the California
Supreme Court. The California Supreme Court denied the
petition, citing People v. Duvall (In re Duvall), 886 P.2d
1252, 1258 (Cal. 1995), without a narrative explanation.

    Petitioner filed a petition for writ of habeas corpus under
28 U.S.C. § 2254. The district court denied the petition,
holding that the state courts’ rejection of the equal protection
claim “cannot be said to have been an unreasonable
application of clearly established federal law.” Petitioner
timely appeals.

                        DISCUSSION

    We review de novo the district court’s denial of habeas
relief. Juan H. v. Allen, 408 F.3d 1262, 1269 n.7 (9th Cir.
2005). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), we may not grant habeas relief

       with respect to any claim that was adjudicated
       on the merits in State court proceedings unless
       the adjudication of the claim—

            (1) resulted in a decision that was contrary
       to, or involved an unreasonable application of,
       clearly established Federal law, as determined
       by the Supreme Court of the United States; or
                    SEEBOTH V. ALLENBY                        9

            (2) resulted in a decision that was based
       on an unreasonable determination of the facts
       in light of the evidence presented in the State
       court proceeding.

28 U.S.C. § 2254(d). Under this deferential standard, we may
grant relief only if the state court’s decision was “objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000).

   A. Identifying the State Court Decision Under Review

    Our recent decision in Curiel v. Miller, 780 F.3d 1201,
1203–04 (9th Cir. 2015), causes us to question which state
court decision is the “last reasoned decision” that we must
review. Curiel suggests that a citation to Duvall alone might
not constitute sufficient “reasoning” to make the California
Supreme Court’s order more than a summary denial. See id.
at 1204–05. We have held that, when a state’s highest court
summarily denies a habeas petition, we “look through” that
denial to the “last reasoned state-court decision,” Cannedy v.
Adams, 706 F.3d 1148, 1158 (9th Cir.), as amended on denial
of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied,
134 S. Ct. 1001 (2014), which in this case is the California
Superior Court’s order. But we need not resolve the question
whether a citation to Duvall constitutes a reasoned decision
because the California Supreme Court and Superior Court
decisions share common reasoning that does not apply federal
law unreasonably.

    It is undisputed that the Superior Court reached the merits
of Petitioner’s claim, which the court discussed at some
length. Petitioner argues, however, that the California
Supreme Court dismissed on a procedural ground. If that
were so, then we would review Petitioner’s claims de novo,
10                      SEEBOTH V. ALLENBY

in light of the state’s failure to raise procedural default. But,
in the particular context of this case, we hold that the
California Supreme Court’s citation to Duvall signals that it,
too, reached the merits. The page of Duvall cited by the
California Supreme Court discusses both procedural and
substantive requirements for habeas petitioners, including the
requirement to plead facts sufficient to state a claim.
886 P.2d at 1258. Petitioner brought a facial challenge to the
SVPA, which did not require him to allege any facts about his
situation beyond the undisputed and properly pleaded fact
that he had been civilly committed as an SVP. Thus, in
context, a procedural ruling would not have made sense.
Accordingly, we interpret the citation to Duvall to mean that
the California Supreme Court understood Petitioner’s equal
protection claim, but determined that it lacked merit. See
Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008)
(holding that, “unless a court expressly (not implicitly) states
that it is relying upon a procedural bar, we must construe an
ambiguous state court response as acting on the merits of a
claim, if such a construction is plausible”).3


  3
    Petitioner contends that we previously have held that an otherwise
unexplained citation to Duvall signifies that the state court denied relief
on a procedural ground. But the cases that Petitioner cites did not
interpret a freestanding citation to Duvall; they interpreted a citation to
Duvall alongside a citation to Ex Parte Swain, 209 P.2d 793, 796 (Cal.
1949). We have held that citation to Duvall and Swain together
constitutes “dismissal without prejudice, with leave to amend to plead
required facts with particularity.” Cross v. Sisto, 676 F.3d 1172, 1177 (9th
Cir. 2012); accord Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir.
2005); King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (per curiam),
abrogated in part on other grounds as recognized in Waldrip v. Hall,
548 F.3d 729, 733 (9th Cir. 2008). The citations to Swain carry particular
weight because the Swain court discussed the pleading standard and then
dismissed the habeas petition without prejudice. 209 P.2d at 796; Cross,
676 F.3d at 1176. We are not required to interpret a citation to Duvall
                       SEEBOTH V. ALLENBY                              11

    The Superior Court held that Petitioner had failed to show
that SVPs are “similarly situated” to MDOs and NGIs. The
California Supreme Court’s broader determination that there
was no merit to Petitioner’s equal protection challenge
encompasses that ruling. Because we hold that the state
courts reasonably reached that common conclusion, we need
not and do not decide which state court issued the “last
reasoned decision.” Barker, 423 F.3d at 1091. The result is
the same whichever decision we review.

    B. Equal Protection Analysis

    The Fourteenth Amendment prohibits a state from
“deny[ing] to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. The
Equal Protection Clause does not require identical treatment;
rather, it “guarantees that the government will not classify
individuals on the basis of impermissible criteria.” Coal. for
Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997).
Because “legislative classifications as a general rule are
presumptively valid under the Equal Protection Clause,” we
ordinarily must uphold a legislative classification if it is
“‘rationally related to a legitimate state interest.’” Id.
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985)).

    Certain exceptions to that general rule trigger heightened
judicial scrutiny. If the classification targets a suspect class
or burdens the exercise of a fundamental right, we apply strict
scrutiny and ask whether the statute is narrowly tailored to
serve a compelling governmental interest. Wright v. Incline


alone in the same way that we would interpret citations to both Duvall and
Swain.
12                  SEEBOTH V. ALLENBY

Vill. Gen. Improvement Dist., 665 F.3d 1128, 1141 (9th Cir.
2011). If a law discriminates against a quasi-suspect class, it
is subject to intermediate scrutiny; to survive a constitutional
challenge, such discrimination must substantially relate to an
important governmental objective. Latta v. Otter, 771 F.3d
456, 479–80 (9th Cir. 2014), petitions for cert. filed,
83 U.S.L.W. 3589 (U.S. Dec. 30, 2014) (No. 14-765), (U.S.
Jan. 2, 2015) (No. 14-788), and (U.S. Apr. 9, 2015) (No. 14-
1214).

    Petitioner concedes that the SVPA does not discriminate
against a suspect or quasi-suspect class. He contends
nevertheless that the state courts were bound to employ
heightened scrutiny because civil commitment burdens a
fundamental right. It is true that we have suggested, without
deciding, that “the rational basis test with a sharper focus”
may apply to civil commitment laws. Hickey v. Morris,
722 F.2d 543, 546 (9th Cir. 1984) (internal quotation marks
omitted). But because we are reviewing the state courts’
decision under AEDPA, the question is not what test we
would use were we reviewing de novo, but what “clearly
established” United States Supreme Court precedent the state
courts were bound to apply. Williams, 529 U.S. at 412.
Although the Supreme Court has characterized civil
commitment as a “significant deprivation of liberty,”
Addington v. Texas, 441 U.S. 418, 425 (1979), it also has
examined challenges to civil commitment statutes using
rational basis review, see Baxstrom v. Herold, 383 U.S. 107,
111–12 (1966) (holding that the petitioner was deprived of
equal protection of the laws because “there [was] no
conceivable basis” for the statutory distinction between two
different groups of mentally ill individuals). The Court has
never specified clearly what standard of review applies.
United States v. Sahhar, 917 F.2d 1197, 1201 (9th Cir. 1990);
                       SEEBOTH V. ALLENBY                             13

cf. Foucha v. Louisiana, 504 U.S. 71, 116 (1992) (Thomas, J.,
dissenting) (criticizing the majority’s analysis of a due
process challenge to a civil commitment statute because,
“[f]irst, the Court never explains whether we are dealing here
with a fundamental right, and . . . [s]econd, the Court never
discloses what standard of review applies”). Accordingly,
state courts reasonably may apply the rational basis test when
considering equal protection challenges to civil commitment
laws.4

    The state courts held that SVPs are not similarly situated
to MDOs and NGIs for the purpose of challenging the lack of
a timing provision in the SVPA. That holding amounts to a
determination that the state has a constitutionally sufficient
reason for treating the groups differently. See City of
Cleburne, 473 U.S. at 439 (“The Equal Protection Clause . . .
essentially . . . direct[s] that all persons similarly situated
should be treated alike.”). The state courts did not specify
which level of scrutiny they applied in adjudicating
Petitioner’s claim.5 But because the courts reasonably could


      4
      Indeed, most federal appellate courts that have addressed the
appropriate standard of review for equal protection challenges to civil
commitment statutes have held that rational basis review applies. United
States v. Timms, 664 F.3d 436, 446–47 (4th Cir. 2012); United States v.
Carta, 592 F.3d 34, 44 (1st Cir. 2010); Varner v. Monohan, 460 F.3d 861,
865 (7th Cir. 2006); United States v. Weed, 389 F.3d 1060, 1071 (10th Cir.
2004). But see Francis S. v. Stone, 221 F.3d 100, 111–12 (2d Cir. 2000)
(concluding that “[s]ome form of intermediate level scrutiny” applies).
  5
     Petitioner argues that the state courts had to apply strict scrutiny
because the California Supreme Court has held that procedural provisions
of the SVPA are subject to strict scrutiny. People v. McKee, 223 P.3d
566, 588 (Cal. 2010). But the California Supreme Court’s decision in
McKee does not change our evaluation on habeas review, for two reasons.
First, our inquiry is whether the state court unreasonably applied clearly
14                      SEEBOTH V. ALLENBY

have used the rational basis standard, we cannot grant habeas
relief unless Petitioner shows that it was objectively
unreasonable to conclude, Williams, 529 U.S. at 409, that
there was a rational relationship between the differential
treatment and a legitimate governmental purpose, Coal. for
Econ. Equity, 122 F.3d at 702. He cannot carry that heavy
burden.

    The state’s interest in preventing violent crime is more
than legitimate; it is compelling. United States v. Salerno,
481 U.S. 739, 749 (1987). The narrower question is whether
it was objectively unreasonable for the state courts to hold
that the state legislature had a rational reason to distinguish
between individuals who have been found to be mentally ill
and dangerous (MDOs and NGIs) and individuals who have
been found to be mentally ill and sexually dangerous (SVPs).
With respect to the procedural steps in the civil
recommitment process that are at issue here, the state court
reasonably concluded that California may make such a
distinction. See Thielman v. Leean, 282 F.3d 478, 485 (7th
Cir. 2002) (“[I]t is not unreasonable for the State to believe
that a person with a mental disorder of a sexual nature is
qualitatively more dangerous than another mental patient who
nonetheless threatens danger to himself or others.”); see also
Kansas v. Hendricks, 521 U.S. 346, 364–65 (1997)


established federal law. 28 U.S.C. § 2254(d)(1). A state court decision
cannot change the content of that law. Williams, 529 U.S. at 412. Second,
McKee could not have bound the state court to apply a particular level of
scrutiny here, even if its holding were otherwise relevant, because it issued
nine months after the California Supreme Court denied relief in
Petitioner’s case. See Williams, 529 U.S. at 390 (stating that, under
AEDPA, a habeas petitioner may challenge a state court’s application of
a rule of law only if that rule was “clearly established at the time [the]
state-court conviction became final”).
                   SEEBOTH V. ALLENBY                       15

(upholding Kansas’ civil commitment law for sexually
violent predators against a due process challenge, in part
because the law applied to a “narrow class of particularly
dangerous individuals”).

    Petitioner argues that the state’s sole justification for
treating SVPs differently from other violent offenders who
are civilly committed is that sexually violent offenders have
a higher recividism rate than do other violent offenders. He
claims that insufficient data support that assertion. But even
assuming equal rates of recidivism, it is not unreasonable to
conclude, as the Seventh Circuit has, that a state rationally
may decide that sexually violent crime is qualitatively more
dangerous than other kinds of violent crime. Thielman,
282 F.3d at 485; cf. ACLU of Nev. v. Masto, 670 F.3d 1046,
1057 (9th Cir. 2012) (holding that, even in the absence of
evidence of a higher recidivism rate for sex offenders, there
is a “legitimate public safety interest in monitoring sex-
offender presence in the community”).

    Moreover, the nature of the crime is not the only
difference between SVPs, on the one hand, and MDOs and
NGIs, on the other. Unlike the MDO statute or the NGI
statute, the version of the SVPA in effect when Petitioner’s
recommitment was initiated required that the particular
offender already had been convicted of sexually violent
offenses against at least two victims. Cal. Welf. & Inst. Code
§ 6600(a) (2000). It was not unreasonable for the state courts
to conclude that a state legislature rationally may decide that
a person who has committed sexually violent offenses against
more than one victim is more likely to recidivate than is a
person who has been convicted of a single crime against a
single victim or a single felony that need not involve a direct
victim.
16                  SEEBOTH V. ALLENBY

    Petitioner also argues that the state courts’ denial of relief
is an unreasonable application of Baxstrom, 383 U.S. 107.
According to Petitioner, Baxstrom established that, in the
arena of involuntary civil commitment, a state may not deny
a right to one group of committed persons that it confers on
another group of committed persons. Baxstrom did not sweep
so broadly. The civil commitment law at issue in Baxstrom
afforded the right to have a trial and a jury determination of
sanity before a person could be civilly committed. Id. at 111.
But a person nearing the end of a penal sentence had no such
right and could be civilly committed without a jury trial. Id.
at 110. The Supreme Court held that the state could not deny
those nearing the end of a prison term “the jury review
available to all other persons civilly committed” in the state.
Id. Baxstrom did not address whether state laws could
differentiate between sexually violent offenders and other
violent offenders, nor did the Court consider less drastic
procedural distinctions between groups. Here, all the
allegedly similar groups receive trials before being civilly
committed. The state court did not apply Baxstrom
unreasonably.

    It was not objectively unreasonable for the state courts to
hold that the lack of a timing provision in the SVPA does not
deprive SVPs of equal protection of the laws. We cannot say
that the California courts contravened clearly established
federal law. 28 U.S.C. § 2254(d)(1).

     AFFIRMED.
