NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMMY L. PAGE, No. 20-17073

Petitioner-Appellant, D.C. No. 1:16-cv-00522-AWI-JLT v.

AUDREY KING, Acting Exec Dir, CA Dept MEMORANDUM* of Mental Health,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Argued and Submitted August 12, 2021 San Francisco, California

Before: SILER,** CHRISTEN, and FORREST, Circuit Judges.

Sammy L. Page is currently confined as a Sexually Violent Predator (SVP)

awaiting trial for recommitment under California’s Sexually Violent Predator Act

(SVPA), California Welfare & Institutions Code § 6600 et seq. In 2012, Page filed

a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. the State violated his Fourteenth Amendment due process rights by detaining him

pretrial based on an outdated and scientifically invalid probable cause finding

involving a Paraphilia Not Otherwise Specified (NOS) diagnosis.

The Northern District of California abstained, Page v. King, 2015 WL

5569434 (N.D. Cal. Sept. 21, 2015), but we vacated and remanded the matter for

further proceedings. The case was then transferred to the Eastern District of

California, and Page filed a first amended petition. The Eastern District also

abstained, Page v. King, 2017 WL 11373232 (E.D. Cal. Feb. 24, 2017), but we

vacated and remanded again and, in doing so, suggested that any constitutional

claims Page might have regarding his confinement should be brought under the

Fourth Amendment, as opposed to the Fourteenth Amendment. Page v. King, 932

F.3d 898, 905 (9th Cir. 2019).

Following remand, Page filed a brief on his Fourteenth Amendment claim, a

motion for leave to file a second amended petition to include a Fourth Amendment

claim, and a motion to declare state court exhaustion of his Fourth Amendment

claim unnecessary or excused. In 2020, the magistrate judge issued findings and

recommendations that Page’s motion be denied and that the State’s motion to

dismiss be granted, which the district court adopted. Page subsequently appealed.

The district court issued a certificate of appealability (COA) as to whether Page’s

“continued pretrial detention pursuant to California’s [SVPA] violates his rights

2 under the Fourth Amendment or the due process clause of the Fourteenth

Amendment.”1

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). Page has not asserted a viable

Fourteenth Amendment claim under Manuel v. City of Joliet, 137 S. Ct. 911, 919

(2017), which held that “[i]f the complaint is that a form of legal process resulted

in pretrial detention unsupported by probable cause, then the right allegedly

infringed lies in the Fourth Amendment,” not the due process clause. Page claims,

as the plaintiff did in Manuel, that there was no probable cause to support his

detention and such finding was due to fraud perpetrated on the court.

Page filed a motion for leave to file a second amended petition to assert his

legal theories under the Fourth Amendment, but such amendment would be futile

because his theories fail under the Fourth Amendment for the same reasons that

they fail under the Fourteenth Amendment. “Denial of leave to amend is reviewed

for an abuse of discretion.” Dougherty v. City of Covina, 654 F.3d 892, 897 (9th

Cir. 2011). “Dismissal without leave to amend is improper unless it is clear, upon

de novo review, that the complaint could not be saved by any amendment.”

1 The State argues that Page raises several issues that are uncertified for appeal. It is true that the district court’s order granting COA mainly discussed whether Paraphilia NOS is highly controversial and consideration of the diagnosis as a predicate for the deprivation of liberty by the State is warranted. However, the court ultimately presented a broader issue in the order that encompasses Page’s arguments on appeal.

3 Thinket Ink Info Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.

2004). But a “district court does not err in denying leave to amend where the

amendment would be futile.” Id. (internal citation omitted). An amendment is

futile when “no set of facts can be proved under the amendment to the pleadings

that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-

Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).

First, Page argues that his recommitment proceedings should be dismissed

because his diagnoses of Paraphilia NOS and Anti-Social Personality Disorder

(ASPD)2 are medically invalid under California law. However, “federal habeas

corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62,

67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). And federal

precedent does not require a civil commitment to be based upon a uniformly

recognized mental health disorder. See Kansas v. Hendricks, 521 U.S. 346, 359

(1997). States may, in defining who may be civilly committed, employ mental

health categories that “do not fit precisely with the definitions employed by the

medical community.” Id.

2 Page also argues that his ASPD diagnosis is invalid because the state abandoned the diagnosis and the court based its 2006 probable cause finding exclusively on his Paraphilia NOS diagnosis. However, as Page failed to raise this argument in the district court, he forfeited it on appeal. Smith v. Swarthout, 742 F.3d 885, 893 n.3 (9th Cir. 2014).

4 Second, Page argues that the probable cause finding is based on stale

evaluations because they no longer meet the SVPA’s requirement of current

diagnoses and two concurring expert opinions.3 However, this issue presents a

state law violation that is not grounds for federal habeas relief. See Estelle, 502

U.S. at 67–68.

Finally, Page alleges that the recommitment proceedings are based on

insufficient evidence because the probable cause finding was based on written

reports without live testimony. Construed as a sufficiency of the evidence claim or

a confrontation clause claim, Page’s argument fails either way.

On federal habeas corpus review, the court’s inquiry into the sufficiency of

evidence is limited. The standard of review has long been “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements . . . beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). Although the United States Supreme Court

has not specifically addressed the standard of proof required to support a civil

commitment under a state’s SVPA, it has held that, “[t]o meet due process

demands,” the standard of proof must be higher than the preponderance-of-the-

3 Page contends that the district court improperly treated the Northern District’s 2015 decision, which we vacated and remanded, as persuasive authority. However, a vacated opinion may still be persuasive, even if not binding. See Spears v. Stewart, 283 F.3d 992, 1017 n. 16 (9th Cir. 2002) (“Vacated opinions remain persuasive, although not binding authority.”).

5 evidence standard but may be lower than the beyond a reasonable doubt standard.

Addington, v. Texas, 441 U.S. 418, 430–33 (1979).

Page does not set forth facts that guide this analysis and we cannot

determine whether the state’s proceeding violated state law. See Estelle, 502 U.S.

at 67. The court’s decision did not involve an unreasonable application of clearly

established Supreme Court precedent. See Carey v. Musladin, 549 U.S. 70, 77

(2006) (where Supreme Court precedent gives no clear answer, “it cannot be said

that the state court ‘unreasonab[ly] appli[ed] clearly established Federal law.’”).

Further, the Sixth Amendment’s confrontation clause does not attach in civil

commitment proceedings. Carty v. Nelson, 426 F.3d 1064, 1073 (9th Cir. 2005).

The “fact that a proceeding will result in loss of liberty does not ipso facto mean

that the proceeding is a ‘criminal prosecution’ for purposes of the Sixth

Amendment.” Middendorf v. Henry, 425 U.S. 25, 37 (1976).

Accordingly, the district court’s denial of Page’s motion for leave to file a

second amended petition and granting of the state’s motion to dismiss are

AFFIRMED. Page’s Motion to Enlarge or Supplement the Record is DENIED.

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