                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 25 2016

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



                             FOR THE NINTH CIRCUIT


SAMMY L. PAGE,                                    No. 13-17352

              Petitioner - Appellant,             D.C. No. 3:12-cv-03721-WHA

 v.
                                                  MEMORANDUM*
AUDREY KING,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted September 16, 2015
                             San Francisco, California

Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,** Senior
District Judge.

      Sammy L. Page (“Page”) appeals the district court’s denial of his motion,

filed pursuant to Fed. R. Civ. P. 60(b)(6), for reconsideration of the district court’s

order dismissing his 28 U.S.C. § 2241 habeas corpus petition. Page’s § 2241

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
petition challenged the basis for his pre-trial detention while awaiting resolution of

a 2006 petition, filed by Alameda County pursuant to the California Sexually

Violent Predators Act (“SVPA”), to recommit him as a sexually violent predator.

Cal. Welf. & Inst. Code § 6600 et seq. We vacate the district court’s denial of

Page’s Rule 60(b) motion and remand to the district court so it can reconsider

whether it had jurisdiction over the motion and Page’s § 2241 petition.

      In November 1997, after Page served a full jail sentence for a prior

conviction, California petitioned to civilly commit him under the SVPA. A year

later, after appointment of a public defender and Page’s personal waiver of the time

for a probable cause hearing, the superior court held the hearing and determined

that there was probable cause to hold Page pending trial. Five years later, in May

2004, the superior court held a trial on the petition and committed Page for a two-

year term. Before the end of the two-year term, California petitioned to recommit

Page to a second two-year term. In May 2006, the superior court found probable

cause to detain Page until trial on the recommitment petition. This decade-old

probable cause hearing was the last time a judge reviewed Page’s civil

commitment. After a change in state law, California amended its petition to

request Page’s indefinite commitment. The superior court has continued Page’s




                                           2
recommitment proceedings at least twenty-eight times over the last ten years. The

record before us does not disclose the causes of this considerable delay.1

      In 2012, Page filed this § 2241 petition in the Northern District of

California. In it, Page asserted that recent developments in the field of psychiatry

call into question the diagnosis that served as the basis for his commitment in

2004. Page contended that he had no opportunity to present this new evidence in

either his original commitment proceeding or any subsequent proceeding. When

Page’s § 2241 petition was presented to the district court, a probable cause hearing

was scheduled in Page’s recommitment proceeding, and the district court

dismissed the petition based on Younger v. Harris, 401 U.S. 37 (1971). This court

affirmed that dismissal in January 2013. In July 2013, Page filed a “Motion for

Relief,” which the district court ultimately construed as a Federal Rule of Civil

Procedure 60(b) motion for reconsideration of its earlier order dismissing Page’s

habeas petition. The district court denied Page’s Rule 60(b) motion in a roughly

one-page order, finding that it merely “reiterate[d] arguments [Page] made on




      1
            In pending motions, Page asks us to take judicial notice of various
documents, including portions of the record in his state recommitment proceeding.
We grant Page’s motion as to this state court record but deny the remainder of
Page’s motions as moot.

                                          3
appeal that the analysis underlying the dismissal of his [habeas] petition was

erroneous.”

      Page now argues on appeal of the denial of his “Motion for Relief” that,

pursuant to this court’s decision in Gilbertson v. Albright, 381 F.3d 965, 973 (9th

Cir. 2004) (en banc), or, alternatively, pursuant to the bad-faith exception to

Younger, see Gilbertson, 381 F.3d at 983-84, the original dismissal under Younger

was improper. Page also argues that the state court proceedings were not actually

ongoing for purposes of Younger, because, at the time Page filed his § 2241

petition, he had been detained pursuant to the recommitment petition for over six

years awaiting trial. When the district court decided both the petition and the

subsequent Rule 60(b) motion, Page awaited a recently-scheduled new probable

cause hearing on updated psychiatric evaluations in his state suit. But after his

§ 2241 petition and motion for reconsideration were denied, the hearing was

vacated.

      We do not resolve the merits of Page’s appeal because there is a more

fundamental question that went unanswered in the district court’s orders: whether

the district court had jurisdiction to issue them. As a general rule, § 2241 petitions

“must be heard in the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 865

(9th Cir. 2000) (per curiam). Because Page is confined in Fresno County, his


                                           4
custodial court was the district court encompassing that County–the Eastern

District of California. 28 U.S.C. § 84. Page filed his suit in the Northern District

of California, the district court encompassing Alameda County, where the

recommitment petition is pending. Id.

      We vacate the district court’s order denying Page’s Rule 60(b) motion and

remand so that the district court can consider whether it had jurisdiction to decide

the motion and Page’s § 2241 petition. If the district court decides that it lacked

jurisdiction, it should vacate its order denying the § 2241 petition and transfer this

matter to the Eastern District.

      VACATED AND REMANDED.

      Each party shall bear its own costs in this case.




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