Opinion
James Sheppard, Petitioner, Pro se, Patton Hospital, Patton, CA.
Cliff Allenby, Director Department of State Hospitals, Respondent: Eric J Kohm, LEAD ATTORNEY, CAAG-Office of Attorney General, California Department of Justice; Scott A Taryle, CAAG-Office of Attorney General, Supervising Deputy Attorney General, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
PROCEEDINGS
On September 15, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. On September 18, 2014, the Court issued an order dismissing the Petition with leave to amend because petitioner had failed to clearly specify every ground for relief being alleged by him. The operative petition is the First Amended Petition (" FAP") filed by petitioner on September 24, 2014.
On November 12, 2014, respondent filed an Answer to the FAP, to which petitioner filed a Reply on November 19, 2014 and then an Addendum to the Reply (" Addendum") on December 3, 2014.
Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the FAP be denied.
BACKGROUND
On November 21, 1994, petitioner was convicted in Los Angeles County Superior Court of one count of willful, deliberate, and premeditated attempted murder and two counts of assault with a deadly weapon causing great bodily injury. (See Clerk's Transcript [" CT" ] 2-4, 7.) However, the Superior Court found petitioner not guilty by reason of insanity and ordered him committed to Patton State Hospital. (See CT 8-9.)
In November 2011, petitioner was placed in an outpatient program under the supervision of the Gateways conditional release program (" CONREP"). (See CT 3-36.) On June 21, 2012, the Superior Court held a hearing pursuant to a request by petitioner's treatment supervisor at CONREP to revoke petitioner's outpatient status. (See CT 10.) During a continued hearing on August 8, 2012, the Superior Court granted the request after finding sufficient evidence that petitioner needed extensive inpatient treatment and that petitioner was a danger to himself and to the public. (See CT 47-48; Reporter's Transcript on Appeal [" RT" ] 196-97.) Petitioner was ordered returned to Patton State Hospital. (See CT 48; RT 197.)
This was petitioner's fourth unsuccessful attempt at outpatient treatment since his original commitment to Patton State Hospital. During the three prior attempts, petitioner violated rules, went absent without leave (" AWOL"), and consumed alcohol. (See CT 23-24.)
Petitioner appealed, raising three claims corresponding to the three grounds for relief being alleged by him in the FAP. (See respondent's Notice of Lodgment, Lodgment 3.) On October 24, 2013, in an unpublished decision, the California Court of Appeal rejected petitioner's claims and affirmed the judgment revoking his outpatient status. (See Lodgment 6.) Petitioner's ensuing Petition for Review to the California Supreme Court raising the same three claims was summarily denied without comment or citation to authority on January 15, 2014. (See Lodgments 7-8.)
SUMMARY OF THE EVIDENCE PRESENTED AT THE HEARING
The following summary is taken from the " Factual Background" section of the California Court of Appeal opinion (see Lodgment 6 at 2-6):
The Court notes that recent Ninth Circuit cases have accorded the factual summary set forth in a state appellate court decision a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008), cert. denied, 555 U.S. 1112, 129 S.Ct. 926, 173 L.Ed.2d 132 (2009); Mejia v. Garcia, 534 F.3d 1036, 1039 n.1 (9th Cir. 2008), cert. denied, 555 U.S. 1117, 129 S.Ct. 941, 173 L.Ed.2d 141 (2009). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Tilcock, 538 F.3d at 1141. Here, petitioner has not purported to overcome the presumption of correctness accorded to the Court of Appeal's factual summary.
A. Facts underlying [petitioner's] commitment to state hospital.
In July 1994, " while in an acutely psychotic state precipitated by the sudden cessation of alcohol use, [petitioner] entered the home of an elderly woman and stabbed her with a knife. He then went to the office of her brother, with whom he had a complex and conflicted relationship. He hit the man, knocking him to the ground, and then kicked him in the head. The man's relationship to [petitioner] reportedly included elements of father, benefactor/employer, and lover. However, [petitioner] has stated experiencing a great deal of ambivalence and feeling uncomfortable about the sexual relationship. He has a significant history of alcohol to which his conflicted feelings about the relationship contributed. He was experiencing withdrawal from alcohol at the time of the incident, which contributed to command auditory hallucinations telling him to punish the victims and delusional beliefs that the two victims were his parents and, thus, he was the product of incest. "
[Petitioner] was charged with attempted murder and two counts of assault with a deadly weapon causing great bodily injury. He was found not guilty by reason of insanity (Pen. Code, § 1026) FN2 and placed in Patton State Hospital with a maximum term of commitment for life. [Petitioner's] primary psychiatric diagnosis was alcohol-induced psychotic disorder.
FN2.B. History of [petitioner's] outpatient placements.
[Petitioner] was first released from state hospital in March 1998, but he was readmitted in May 1998 after drinking alcohol and leaving the treatment facility. He also violated the terms and conditions of his treatment by maintaining contact with his male victim.
He was released a second time to a community outpatient treatment program in April 2000. After leaving the facility without permission, he failed an alcohol and drug screening in November 2000. He was missing until February 2001 and returned to Patton in May 2001.
[Petitioner] was released a third time to a locked rehabilitation facility in January 2006. In August 2006, however, he jumped a fence and bought alcohol, which he shared with his peers on his return to the facility. He reportedly intimidated his roommate into drinking with him. After going AWOL from the facility, he was readmitted to Patton in September 2006.
C. [Petitioner's] current release to an outpatient program.
In 2011, Dr. Anna Kafka, a psychologist and evaluation manager for Gateways Conditional Release Program (CONREP), evaluated [petitioner] for outpatient placement from Patton to CONREP, and he was approved for release to that facility, where he lived. [Petitioner] signed an agreement concerning the terms and conditions of his release to CONREP. He agreed not to have alcohol, to leave the premises only with the permission of his outpatient supervisor, to provide all information about his finances to CONREP, and to obtain approval of all people he wanted to contact.
On the morning of April 22, 2012, [petitioner] signed out from CONREP with a " buddy pass" -- a pass allowing [petitioner] to leave with a peer -- to go to church. When the peer decided not to go, [petitioner] left alone, in violation of CONREP's rules. After going to church, [petitioner] drank and spent the night outside. The next morning, he took a bus to Pasadena to visit Clayton Gibson, the nephew of his male victim. This nephew also managed [petitioner's] money, and [petitioner] asked him to transfer $500 to Geraldine West, the elderly mother of a patient at Patton. FN3
FN3.After leaving the nephew, [petitioner], later that night, was admitted to the Alhambra Medical Center just before 9:00 p.m. He had a blood alcohol content of .431 and lacerations above his left eye and on his hands. According to the medical records, a passerby called 911 after finding [petitioner] lying on the sidewalk. At that time he voiced no cardiac or respiratory complaints. [Petitioner], however, told Dr. Kafka that after leaving church he had a heart attack and fainted, which was how he ended up in the hospital. According to hospital staff, there was no indication [petitioner] suffered a recent heart attack. After being in the hospital for about 12 hours, [petitioner] pulled out his I.V. and left against medical advice.
Eight hours later, about 5:30 p.m. on April 24, he was readmitted to the hospital, after being found asleep in front of a church. His blood alcohol content was .421, and he did not complain of cardiac symptoms. After being at the hospital for about three and one-half hours, [petitioner] again left against medical advice. [Petitioner] told Dr. Kafka that he walked to Seal Beach, where Geraldine West lived, intending to see her. Police detained him in the early morning hours and took him to St. Mary's Medical Center because he reported having a heart attack.
D. Experts' opinions.
In Dr. Kafka's opinion, [petitioner's] outpatient status should be revoked based on his " history, remote history in CONREP as well as recent history in CONREP, and his current functioning." This was [petitioner's] third time in CONREP and his fourth time on conditional release. [Petitioner] had been unable to maintain sobriety and comply with rules for more than a little over seven months; hence, he was unable to complete a year of outpatient treatment successfully. Dr. Kafka found the circumstances of this " AWOL were particularly alarming, " because he was drinking heavily and was en route to the home of " a wealthy elderly woman" who did not know he was coming and to whom he had sent money. " So it was setting the stage for a scenario where he was going to show up unannounced at the home of this woman, asking for his money, while heavily inebriated or perhaps by that point withdrawing from alcohol because of lack of funds, and it was setting the stage for reoffense."
When Dr. Kafka discussed what happened with [petitioner], he lacked insight. He said that CONREP's rules and being in the system triggered his drinking, and that if he were free of CONREP and could be his own man and do just an alcohol rehabilitation program, then he wouldn't have this problem. Based on this, Dr. Kafka said that [petitioner] " is clearly not where we thought he was in terms of his understanding about his potential for relapse and his potential for violence, as well as his understanding of the things that trigger relapse and violence." He does not even appear ready to have a conversation about this, " to accept feedback from others about what really may be at the root of these things and what needs to be done to manage it. So for that -- for those reasons, we believe he is not somebody who can be managed in outpatient at this time. He needs to return to the state hospital and receive intensive long-term treatment there." This was the unanimous opinion of the administration at CONREP.
From December 2011 to April 22, 2012, [petitioner] was a client of Diane Levy, a forensic clinician and primary therapist at Gateways Satellite. Levy testified that she met with [petitioner] once a week and, until he went AWOL, [petitioner] said he was doing well. During their therapy sessions, Levy and [petitioner] discussed his alcoholism. In Levy's opinion, [petitioner's] outpatient status should be revoked. He needs extended inpatient treatment to learn to recognize warning signs and triggers for his behavior. Levy acknowledged, however, that [petitioner] had not had a relapse of his psychotic symptoms during any of his prior outpatient failures.
PETITIONER'S CLAIMS HEREIN
Petitioner claims that the revocation of his outpatient status violated his federal due process rights in three respects: (1) petitioner no longer has a mental illness; (2) the trial court failed to cite clear and convincing evidence that petitioner was demonstrably dangerous; and (3) the trial court abused its discretion in failing to consider an alcohol recovery program as an outpatient placement option. (See FAP at 5-6; see also Addendum at 3-4.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"):
" An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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 (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."
Under the AEDPA, the " clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions " as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).
Although a particular state court decision may be both " contrary to" and " an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413. A state court decision is " contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on " materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is " unconstrained by § 2254(d)(1)." See Williams, 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, " so long as neither the reasoning nor the result of the state-court decision contradicts them." See Early, 537 U.S. at 8.
State court decisions that are not " contrary to" Supreme Court law may be set aside on federal habeas review only " if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.'" See Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an " unreasonable application, " a petitioner must show that the state court's application of Supreme Court law was " objectively unreasonable." Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An " unreasonable application" is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Moreover, review of state court decisions under § 2254(d)(1) " is limited to the record that was before the state court that adjudicated the claim on the merits." See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).
In his Addendum to his Reply (" Addendum"), petitioner has attached a letter he wrote to the Superior Court, dated September 1, 2012, describing petitioner's history with one of the victims. (See Addendum at 9-12.) The letter does not appear to be a part of the record before the state courts that adjudicated his claims on the merits because it post-dated the Superior Court's August 8, 2012 judgment and because it was not included or referenced as a part of petitioner's direct appeal in the California Court of Appeal and California Supreme Court.
The same standard of objective unreasonableness applies where the petitioner is challenging the state court's factual findings under 28 U.S.C. § 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (" [A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."); Bruce v. Terhune, 376 F.3d 950, 954 (9th Cir. 2004); Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004). In Taylor, the Ninth Circuit observed that " [s]uch a challenge may be based on the claim that the finding is unsupported by sufficient evidence, . . . that the process employed by the state court is defective, . . . or that no finding was made by the state court at all." See id. at 999 (internal citations omitted). In order to conclude that a state court finding was unsupported by substantial evidence in the state court record, the reviewing federal habeas court " must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." See id. at 1000. In order to conclude that the state court fact-finding process was defective in some material way, the reviewing federal habeas court " must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate." See id. Examples in this latter category are where the state court " makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence"; where the state courts " plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim"; and where the state court " has before it, yet apparently ignores, evidence that supports petitioner's claim." See id. at 1001. " Once the state court's fact-finding process survives this intrinsic review . . . the state court's findings are dressed in a presumption of correctness . . . ." Id. at 1000.
As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011):
" Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here [i.e., where there was no reasoned state-court decision], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court."
Furthermore, " [a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. at 786-87.
Here, the three claims corresponding to the three grounds for relief alleged in the FAP were raised by petitioner on direct appeal and denied by the California Court of Appeal in a reasoned decision. The same claims were then presented in petitioner's Petition for Review, which the California Supreme Court summarily denied. Accordingly, for purposes of applying the AEDPA standard of review here, the California Court of Appeal decision on direct appeal constitutes the relevant state court adjudication on the merits. See Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (where state supreme court denied discretionary review of decision on direct appeal, the decision on direct appeal is the relevant state-court decision for purposes of the AEDPA standard of review).
DISCUSSION
A. Applicable legal authority
" It is clear that 'commitment for any purpose constitutes a significant deprivation of liberty that requires due process protections.'" Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) ( quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). " Therefore, a State must have a 'constitutionally adequate purpose for the confinement.'" Id. at 361 ( quoting O'Connor v. Donaldson, 422 U.S. 563, 574, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)). " [A] finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society." Id. at 366.
Under California law, " once a defendant has been found not guilty by reason of insanity, he is no longer a criminal defendant, but a person subject to civil commitment." See People v. Lara, 48 Cal.4th 216, 222 n.5, 106 Cal.Rptr.3d 208, 226 P.3d 322 (2010). After a period of commitment in a state hospital, an insanity acquittee may be released from the hospital and placed on outpatient status if the director of the hospital and the community program director so recommend, and the court approves the recommendation after hearing. See Cal. Penal Code § § 1026.1(c), 1600 et seq.; People v. McDonough, 196 Cal.App.4th 1472, 1490, 127 Cal.Rptr.3d 124 (2011); People v. Sword, 29 Cal.App.4th 614, 619-20, 34 Cal.Rptr.2d 810 (1994). However, " [o]utpatient status is not a privilege given the [offender] to finish out his sentence in a less restricted setting; rather, it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [offender] and cause no undue hazard to the community." See People v. Cross, 127 Cal.App.4th 63, 72, 25 Cal.Rptr.3d 186 (2005) ( citing Sword, 29 Cal.App.4th at 620). While an insanity acquittee is on outpatient status, either his treatment supervisor or the prosecutor may request revocation of that status. See Cal. Penal Code § § 1608, 1609. When such a request is made, an insanity acquittee must be afforded notice and a hearing prior to the revocation of his outpatient status. See In re McPherson, 176 Cal.App.3d 332, 338, 222 Cal.Rptr. 416 (1985); In re Anderson, 73 Cal.App.3d 38, 47-48, 140 Cal.Rptr. 546 (1977). Where, as here, it is the treatment supervisor who requests revocation of an insanity acquittee's outpatient status, the hearing court must find that the insanity acquittee requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision. See Cal. Penal Code § 1608; McPherson, 176 Cal.App.3d at 339.
B. Analysis
1. petitioner's mental illness
In Ground One of the FAP, petitioner claims that, at the time of the revocation hearing, he was no longer mentally ill because his primary diagnosis was alcohol-related and because he had not had psychotic symptoms for 18 years. (See FAP at 5; see also Addendum at 3.) In rejecting this claim, the California Court of Appeal reasoned as follows (see Lodgment 6 at 8):
[Petitioner] relies on Foucha v. Louisiana (1992) 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437, to support his . . . argument that revocation of his outpatient status violated his due process rights because he is no longer mentally ill. Foucha reiterated that an " acquittee may be held as long as he is both mentally ill and dangerous, but no longer." (Id. at p. 77.) In Foucha, however, the state conceded that the defendant no longer suffered from a mental illness, although he did have an antisocial personality. No such concession was made by the state here. In fact, the evidence was that [petitioner] drank so heavily, he passed out and visited the nephew of his victim. Although Dr. Kafka and Levy acknowledged that there was no evidence [petitioner's] ongoing alcohol abuse caused him to have other psychotic episodes, they did not say that his primary diagnosis of alcohol induced psychosis was no longer valid. It may be [petitioner's] opinion he suffers only from alcoholism, but that was not the experts' opinions. [Petitioner] offered no contrary expert opinion concerning his mental condition.
The Court concurs with the Court of Appeal that Foucha is distinguishable. As noted above, the statute governing petitioner's outpatient revocation proceeding, Cal. Penal Code § 1608, only required the trial court to find that petitioner needed extended inpatient treatment or refused to accept further outpatient treatment and supervision. See also McPherson, 176 Cal.App.3d at 339. Section 1608 did not require the trial court to find anew that petitioner suffered from a mental illness before ordering revocation of his outpatient status, because petitioner's mental illness (and dangerousness) were presumed from his insanity acquittal until petitioner proved otherwise. See Sword, 29 Cal.App.4th at 623-24 (insanity acquittee seeking outpatient status bears burden of showing by preponderance of evidence that he is no longer mentally ill or dangerous); In re Franklin, 7 Cal.3d 126, 141, 101 Cal.Rptr. 553, 496 P.2d 465 (1971) (insanity acquittee carries presumption of continued insanity until his release hearing); see also Jones, 463 U.S. at 366 (" It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment.").
Moreover, even assuming arguendo that a finding of mental illness was required as a basis for revocation of petitioner's outpatient status, the Court finds that it was not objectively unreasonable for the California Court of Appeal to conclude that ample uncontradicted evidence supported such a finding. The Supreme Court has noted that the definition of " mental illness" generally used in civil commitment proceedings is " devoid of any talismanic significance" and need not fit precisely with the definitions employed by the medical community. See Kansas v. Hendricks, 521 U.S. 346, 359, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Here, Dr. Kafka did use definitions widely employed by the medical community by giving uncontradicted testimony that petitioner was not merely an alcoholic, but had three diagnoses under Axis I of the Diagnostic and Statistical Manual of Mental Disorders-IV (" DSM"): alcohol-induced psychotic disorder with delusions, alcohol-induced psychotic disorder with hallucinations, and alcohol dependence in a controlled environment. (See RT 67-68.) By virtue of their inclusion in the DSM, petitioner's diagnosed conditions fell squarely within the definition of " mental illness" widely employed by courts in civil commitment proceedings. See, e.g., People v. Superior Court (Williams), 233 Cal.App.3d 477, 490, 284 Cal.Rptr. 601 (1991) (insanity acquittee's mental disorder was sufficient basis for extended commitment in part where it was identified in DSM); see also Gee v. Bartow, 593 F.3d 556, 575-76 (7th Cir.) (noting that the DSM " is a highly influential and useful tool" for defining mental disorders for purposes of civil commitment proceedings), cert. denied, 560 U.S. 953, 130 S.Ct. 3396, 177 L.Ed.2d 304 (2010); United States v. Carta, 592 F.3d 34, 40 (1st Cir. 2010) (rejecting due process challenge to civil commitment where " there is no conflict between the DSM and the government's position"); Hendricks, 521 U.S. at 372 (Kennedy, J., concurring) (noting that pedophilia was a proper basis for civil confinement in part where the condition was " at least described in the DSM-IV").
Here, Dr. Kafka gave uncontradicted testimony that petitioner's diagnoses remained valid under the DSM despite the passage of time (see RT 70-71), thus squarely rejecting the significance of petitioner's absence of psychotic symptoms during the 18 years after the crimes, most of which petitioner spent in the controlled environment of a state mental hospital. See United States v. Weed, 389 F.3d 1060, 1073 (10th Cir. 2004) (finding that insanity acquittee still suffered from mental defect, even though he no longer showed symptoms of psychosis, where testifying doctors agreed he " may still suffer from a condition not triggered since the time of the crime"); United States v. Murdoch, 98 F.3d 472, 476 (9th Cir. 1996) (finding that insanity acquittee's compliance in a controlled environment " does not mean that he no longer suffers from a mental disease which causes his dangerous propensities").
2. petitioner's dangerousness
In Ground Two of the FAP, petitioner claims that the trial court failed to make a requisite finding of petitioner's dangerousness before revoking his outpatient status. (See FAP at 5-6; see also Addendum at 4.) In rejecting this claim, the California Court of Appeal reasoned as follows (see Lodgment 6 at 8-10):
Again citing Foucha, [petitioner] finally argues that although [Penal Code] section 1608 does not require a showing of dangerousness by clear and convincing evidence, such a showing is constitutionally mandated. [footnote omitted] (Foucha v. Louisiana, supra, 504 U.S. at p. 80 [" The State may also confine a mentally ill person if it shows 'by clear and convincing evidence that the individual is mentally ill and dangerous'" ]; see also People v. DeGuzman, supra, 33 Cal.App.4th at p. 420 [" Section 1608 requires a finding that the patient needs extended inpatient treatment or refuses to accept further outpatient treatment. It does not require the court to find that the patient is a danger to the health and safety of others" ].) The first problem with this argument is that this case does not concern whether [petitioner] should be committed or whether his commitment should be extended. The issue here concerns whether his outpatient status should be revoked, namely, in what placement should his treatment continue .
The second problem with [petitioner's] argument is that even if we agreed a dangerousness finding was necessary, the trial court made that finding. The court, after noting that defendant, while AWOL, had enough alcohol in his system to kill himself and that he contacted his victim's relative, said :
" I don't have to find that you are a danger to other people here, at least as I understand the rules here. Under [section] 1608, when it's the program that is requesting revocation, as opposed to a prosecutor, if there is sufficient evidence to establish that you need extended inpatient treatment or you refuse to accept further outpatient treatment, supported by competent evidence, then your status can be revoked and rightly should be revoked if those findings exist .
" But as I was listening to the testimony unfold and understanding what was going on, that you put yourself in such a high state of intoxication where you wind up in a hospital with a gash over your eye, any reasonable person would say that you are a danger to yourself under those conditions, let alone other people. And as I say, if we were to take this scenario and extend it to a more private setting where you were not on the sidewalk or out in the public or in some place where someone could find you and bring you into a hospital, at some point in time you have to withdraw from that alcohol, and that brings us to the original diagnosis that led you to your commitment in the first place. Alcohol and its abuse in your life and those other diagnoses that you feel were one time affairs are inextricably tied together."
" But I am finding that there was sufficient evidence to convince me that you are in need of extended inpatient treatment and that, based upon the totality of evidence that I heard, you are not in a condition to accept further outpatient treatment, based upon your statements, your attitude, and your conduct in April that led you to this courtroom today. I'm also, though I'm not required to consider the possibility of your danger to the public, I am finding also that based upon your conduct after you AWOL-ed from your CONREP facility in this particular instance, which formed a pattern of AWOLs that pre-existed your current dilemma, that you do in your actions constitute a danger to the public. And I believe that these are directly tied into the diagnoses for which you were originally committed."
The Court concurs with the Court of Appeal that Foucha does not apply here. The Court also concurs with the Court of Appeal that the second fallacy of this claim is that the trial court did make a finding of dangerousness.
Moreover, to the extent that petitioner is disputing the trial court's finding of dangerousness, the Court concurs with the trial court's reasoning. Evidence was presented at the hearing that, during the latest AWOL incident, petitioner sustained lacerations over his eyes and hands and was hospitalized with blood alcohol levels that were so high (.431 and .421, respectively) that he was diagnosed with acute toxic encephalopathy secondary to alcohol. (See RT 21, 24, 145.) Evidence also was presented that petitioner had gone AWOL on each of the three previous occasions he was released to outpatient treatment programs. (See RT 70.) Evidence also was presented that petitioner was en route to Mrs. West's home in order to conduct a financial transaction, without her knowledge and without CONREP's permission. (See RT 34-36.) Although petitioner points out that he did not physically harm Mrs. West or others, his conduct nonetheless was persuasive evidence of his continuing dangerousness because it shared some similarities to his underlying crimes, it violated multiple rules at CONREP, and it arguably threatened Mrs. West's property. (See RT 61, 119.)
Finally, the Court notes that petitioner's commission of the underlying criminal acts leading to his civil commitment was itself compelling evidence of his continuing dangerousness. See Jones, 463 U.S. at 364 (evidence that insanity acquittee had committed a crime beyond a reasonable doubt was " at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding"). In this context, " dangerousness" does not even require violent acts. See id. at 365 and n.14 (rejecting contention that insanity acquittee's dangerousness could not be proven with non-violent property crimes). Here, however, petitioner had been found beyond a reasonable doubt to have stabbed an elderly woman in her home and struck and kicked her brother in the head. The Court also notes that neither the fact that 18 years had elapsed since petitioner's crimes without a recurrence of psychotic symptoms nor the fact that petitioner had done reasonably well during that time in the controlled setting of Patton State Hospital was dispositive of the dangerousness issue. See Jones, 463 U.S. at 369 (" There simply is no necessary correlation between severity of the offense and the length of time necessary for recovery."); Francis S. v. Stone, 221 F.3d 100, 117 (2d Cir. 2000) (rejecting due process challenge by insanity acquittee who exhibited dangerous conduct reasonably linked to his mental illness while he was an outpatient, even though he refrained from dangerous behavior while hospitalized).
3. alcohol treatment program
In Ground Three of the FAP, petitioner claims that the trial court improperly failed to consider whether petitioner should be placed in an alcohol treatment program. (See FAP at 6.) In rejecting this claim, the California Court of Appeal reasoned as follows (see Lodgment 6 at 7-8):
[Petitioner's] . . . contention is that the trial court violated his due process rights by failing to consider sending him to an alcohol treatment program. At issue, however, was [petitioner's] fourth release to an outpatient program. On the three prior occasions [petitioner] was released from state hospital to an outpatient facility, he violated the terms and conditions of his release by drinking alcohol and leaving the facility without permission. [Petitioner's] current release was no different. He left the premises on a " buddy pass, " although he was unaccompanied. While gone, he drank, becoming so intoxicated he passed out and had to be taken to the hospital, where his blood alcohol level was found to be well above the legal limit. Against medical advice, [petitioner] left the hospital but was readmitted hours later, still with a blood alcohol content above the legal limit. [Petitioner] again left the hospital but was detained by police. In addition to the overwhelming evidence that [petitioner] was drinking, the circumstances of this incident was " particularly alarming" to Dr. Kafka, because [petitioner] tried to see an elderly lady. This was reminiscent of [petitioner's] underlying crime, which involved him stabbing an elderly woman. Both Dr. Kafka and Levy, [petitioner's] therapist, recommended revoking [petitioner's] outpatient status. They both said that [petitioner] lacked understanding about his potential for relapse and for violence. According to Dr. Kafka, the entire CONREP administration agreed that [petitioner's] outpatient status should be revoked .
Despite this overwhelming evidence supporting the trial court's decision, [petitioner] argues he should have been placed in an alcohol rehabilitation program, because he has never had a second psychotic episode induced by his drinking. The trial court expressly said it was not considering that option. Given that [petitioner's] alcohol abuse was a focus of his therapy sessions with Levy and [petitioner] nonetheless drank each time he was placed in an outpatient setting, the court's decision not to consider the option of such a program, which, in any event, was not the issue before the court, was supported by the record .
As a preliminary matter, the Court notes that petitioner has cited no legal authority, let alone clearly established Supreme Court precedent, for the proposition that federal due process required the trial court here to consider an alcohol treatment program as an alternative to commitment in a mental hospital. The Court therefore has no basis for finding that the California Court of Appeal's rejection of this claim either was contrary to or involved an unreasonable application of clearly established Supreme Court law. See Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (holding that " it is not 'an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court"); Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 746-47, 169 L.Ed.2d 583 (2008) (per curiam) (" Because our cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law." (internal quotation marks omitted)); Musladin, 549 U.S. at 77 (" Given the lack of holdings from this Court regarding" the claim, " it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" (alterations in original)); Brewer v. Hall, 378 F.3d 952, 955 (9th Cir.) (" If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law."), cert. denied, 543 U.S. 1037, 125 S.Ct. 814, 160 L.Ed.2d 602 (2004).
Moreover, even assuming arguendo that the trial court was required to consider placing petitioner in an alcohol treatment program, the Court concurs with the Court of Appeal that the record here amply supported the denial of such a placement. The record reflected that, although petitioner had received alcohol treatment at Patton and CONREP in the past, it did not stop him from drinking so much alcohol during his latest AWOL incident that he was hospitalized with blood alcohol levels of .431 and .421, respectively. (See RT 21, 24, 130.) The record also called into question the future effectiveness of an alcohol treatment program because, as noted, mere alcoholism did not adequately capture all of petitioner's mental illnesses. (See RT 67.)
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the operative First Amended Petition and dismissing this action with prejudice.