Barley v. Alabama Department of Mental Health et al

Filing 12

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/13/15. (SAC )

FILED
2015 Jul-13 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HERMAN BARLEY,
Petitioner,
v.
ALABAMA DEPARTMENT OF MENTAL
HEALTH and ROXANNA BENDER, in
her official capacity as
Director of Taylor Hardin
Secure Medical Facility,
Respondents.

)
)
)
)
) Case No.: 5:14-cv-01543-WMA-SGC
)
)
)
)
)
)
)
)

MEMORANDUM OPINION
On April 14, 2015, the magistrate judge entered a report
recommending that this petition for writ of habeas corpus brought
by the petitioner, Herman Barley, be construed as invoking 28
U.S.C. § 2241 and be dismissed as moot.

(Doc. 10).

On April 27,

2015, petitioner, who is represented by counsel, filed objections
to the report and recommendation.

(Doc. 11).

For the reasons that

follow, the court concludes that petitioner’s objections are due to
be

overruled

and

recommendation

is

that
due

to

the
be

magistrate
accepted

judge’s

and

adopted,

report
as

and

herein

supplemented.
In 2004, the Circuit Court of Madison County found petitioner
incompetent to stand trial for first degree burglary and committed
him to the Alabama Department of Mental Health to be restored to
competency.

(Doc. 1 at 1; Doc. 1-1 at 2).

Since that time,

petitioner has been confined at Taylor Hardin Secure Medical
Facility.

(Doc. 1 at 2).

In Jackson v. Indiana, 406 U.S. 715 (1979), the Supreme Court
established the constitutional standard for pretrial confinement of
incompetent criminal defendants.

That standard is incorporated

into Rule 11.6(d) of the ALABAMA RULES OF CRIMINAL PROCEDURE, which
requires a state trial court to conduct an annual review of a
pretrial detainee’s confinement and to assess his competency and
dangerousness.

See Commentary to Rule 11.6 ALA. R. CRIM. PRO.

At

the time the instant petition was filed, nearly twenty (20) months
had elapsed since the state trial court’s last order of commitment.
(See Doc. 1 at 2).

On August 13, 2014, a week after the instant

petition was filed, the state trial court renewed petitioner’s
commitment.

(Doc. 7-2).

Petitioner’s confinement at Taylor Hardin for more than a
decade without being restored to competency or civilly committed is
not the focus of the petition.

Likewise, nowhere does petitioner:

(1) contend he is competent to stand trial; or (2) challenge the
substance

of

commitment.

the

state

trial

court’s

most

recent

order

of

Rather, the petition complains of the state trial

court’s failure to timely review his confinement, as required by
Rule 11.6 ALA. R. CRIM. PRO. and Jackson v. Indiana, 406 U.S. 715.
The petition also seeks petitioner’s release from confinement on
that basis.

(Doc. 1 at 4).

Because the state trial court reviewed

2

Petitioner’s confinement and renewed his commitment after the
petition

was

filed,

petition was moot.

the

magistrate

judge

concluded

that

the

(Doc. 10 at 3).

Petitioner raises three objections to the magistrate judge’s
conclusion

that

the

petition

is

moot.

(Doc.

11).

First,

petitioner posits that the state trial court’s belated review of
his confinement constitutes voluntary cessation of the prohibited
conduct and contends that respondents have not met the burden
required to moot petitioner’s claims via voluntary cessation.
(Doc. 11 at 1-2).

Specifically, petitioner argues the state’s

conduct establishes that he will likely suffer future violations of
his rights under Jackson v. Indiana and Rule 11.6.

Next, for

similar reasons, petitioner contends that the State’s conduct falls
under an exception to the mootness doctrine as being capable of
repetition yet evading review.

(Id. at 3-4).

Finally, petitioner

contends that the State lacked authority to renew his confinement
once the valid commitment order lapsed because more than a year had
passed since the state trial court’s last order of commitment.
(Id. at 4-5).
court’s

renewed

Accordingly, petitioner argues the State trial
commitment

order

is

invalid.

Petitioner’s

objections are addressed in reverse order, below.
The

contention

that

the

State

lost

authority

to

renew

petitioner’s commitment after he had been confined for more than a
year without review was first raised in petitioner’s objections to

3

the magistrate judge’s report and recommendation.
4-5

(acknowledging

“this

issue

was

not

(See Doc. 11 at

raised”

in

reply

to

respondents’ contention that the renewed commitment mooted the
petition)).

The court has discretion to consider or not consider

this new argument, which was not presented to the magistrate judge.
See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
Because there is some overlap between the newly-raised argument and
properly raised objections, the court will exercise its discretion
and address petitioner’s new argument regarding the validity of the
state trial court’s most recent commitment order.
Even if petitioner had properly raised the foregoing argument
in reply to respondents’ answer, it would fail on the merits.
Petitioner contends that because Alabama law does not provide for
renewal of a forensic commitment after the time for review has
lapsed, the state trial court’s renewed commitment order is invalid
and petitioner is due to be released via a federal writ.
at 4-5).

(Doc. 11

Petitioner cites no authority for this proposition, and

this court is unaware of any such authority.

The petition is

based on a temporary violation of petitioner’s procedural due
process rights.

Petitioner received his procedural due process,

and the violation was cured when the state trial court belatedly
reviewed petitioner’s

confinement

and

renewed

his

commitment.

While petitioner may have suffered some damage as a result, his
remedy does not lie in habeas.

A temporary denial of procedural

4

due process which is subsequently cured does not mandate release of
the aggrieved party.

See United States v. Timms, 664 F.3d 436, 455

n.19 (4th Cir. 2012) (proper remedy for due process violation is
not release but to conduct required hearing); United States v.
Magassouba, 544 F.3d 387, 411 (2nd Cir. 2008).
Next, petitioner’s properly raised objections, which are based
on voluntary cessation and conduct capable of repetition but
evading review, might have merit in a non-habeas context.

If this

were a suit for civil damages, petitioner’s claims arguably would
not be mooted by the state trial court’s belated renewal of his
commitment.

However, a habeas petitioner is limited to attacking

“the fact or length of his confinement” and civil damages are not
available.

Preiser v. Rodriguez, 411 U.S. 475, 494 (1973).

When

the state trial court renewed petitioner’s commitment, it mooted
the petition to the extent it seeks a hearing under Rule 11.6.
Accordingly, the report and recommendation will be adopted and
accepted in part, as supplemented, infra.

It is true that the

state trial court’s most recent commitment order did not moot
petitioner’s request for release from confinement.
previously

noted,

release

is

not

the

proper

However, as

remedy

for

procedural due process violations alleged in the petition.
Timms, 664 F.3d at 455 n.19; Magassouba, 544 F.3d at 411.

the
See

Thus, to

the extent the petition seeks release, it is without merit given
subsequent events and is due to be denied on that basis.
5

This

denial will be with prejudice as to the events giving rise to this
petition but without prejudice as to any future violations that may
occur.
While not addressed in the report and recommendation, the
court further concludes that petitioner’s failure to exhaust his
available state court remedies provides a basis on which to deny
the petition insofar as it requests release from confinement.

In

response to the magistrate judge’s order to show cause, respondents
argue that petitioner failed to exhaust his state remedies because
he did not move the state trial court for a renewed order of
commitment prior to filing the instant petition.

(Doc. 7 at 4).

In reply, petitioner notes there is no right to appeal from a preconviction commitment order under Rule 11.6 and thus contends that
his claims were exhausted.

(Doc. 9 at 3).

Petitioner is correct that there is no right to appeal a
forensic commitment order under Rule 11.6. See Wells v. State, 877
So. 2d 642, 644 (Ala. 2003).

Because the petition is moot to the

extent it seeks a hearing under Rule 11.6, the court need not
address whether petitioner was required to move for such a hearing
in the state trial court in order to exhaust his state remedies.
However, to the extent the petition seeks release from confinement,
a remedy via a petition for habeas corpus in state court was
available. The Alabama legislature has provided that “[a]ny person
confined as insane may prosecute a writ of habeas corpus.” ALA. CODE

6

§ 15-21-3.
provides

The Alabama Supreme Court has held that this section

a

means

incompetency.

to

challenge

pre-trial

detention

due

to

Wells, 877 So. 2d at 644 (incompetent pretrial

detainee’s “remedy is to file a petition for a writ of habeas
corpus according to

§ 15-21-3, Ala. Code 1975").

Accordingly, to

the extent the petition seeks release from confinement, it is also
due to be denied as unexhausted.
For all of the foregoing reasons, and after having carefully
reviewed and considered de novo all the materials in the court
file, the magistrate judge’s findings are hereby ADOPTED IN PART
and her recommendation is ACCEPTED, AS SUPPLEMENTED HEREINABOVE.
Specifically, to the extent the petition seeks a state trial court
review of his confinement, it will be dismissed as moot.

To the

extent the petition seeks release from confinement, it will be
denied on the merits and for failure to exhaust available state
remedies.

This denial will be with prejudice as to the events

giving rise to the instant petition but without prejudice as to any
future violations that may occur.

Petitioner’s objections (Doc.

11) are necessarily OVERRULED. Because this matter is construed as
arising under 28 U.S.C. § 2241, a certificate of appealability is
not required.
A separate order will be entered.

7

DONE this 13th day of July, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

8