Barley v. Alabama Department of Mental Health et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/13/15. (SAC )
2015 Jul-13 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALABAMA DEPARTMENT OF MENTAL
HEALTH and ROXANNA BENDER, in
her official capacity as
Director of Taylor Hardin
Secure Medical Facility,
) Case No.: 5:14-cv-01543-WMA-SGC
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.
On April 27,
2015, petitioner, who is represented by counsel, filed objections
to the report and recommendation.
For the reasons that
follow, the court concludes that petitioner’s objections are due to
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
(Doc. 1 at 1; Doc. 1-1 at 2).
Since that time,
petitioner has been confined at Taylor Hardin Secure Medical
(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
See Commentary to Rule 11.6 ALA. R. CRIM. PRO.
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
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
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
(Doc. 1 at 4).
Because the state trial court reviewed
Petitioner’s confinement and renewed his commitment after the
petition was moot.
(Doc. 10 at 3).
Petitioner raises three objections to the magistrate judge’s
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.
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).
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).
Accordingly, petitioner argues the State trial
objections are addressed in reverse order, below.
petitioner’s commitment after he had been confined for more than a
year without review was first raised in petitioner’s objections to
the magistrate judge’s report and recommendation.
(See Doc. 11 at
respondents’ contention that the renewed commitment mooted the
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.
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
Petitioner received his procedural due process,
and the violation was cured when the state trial court belatedly
While petitioner may have suffered some damage as a result, his
remedy does not lie in habeas.
A temporary denial of procedural
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.
were a suit for civil damages, petitioner’s claims arguably would
not be mooted by the state trial court’s belated renewal of his
However, a habeas petitioner is limited to attacking
“the fact or length of his confinement” and civil damages are not
Preiser v. Rodriguez, 411 U.S. 475, 494 (1973).
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.
procedural due process violations alleged in the petition.
Timms, 664 F.3d at 455 n.19; Magassouba, 544 F.3d at 411.
the extent the petition seeks release, it is without merit given
subsequent events and is due to be denied on that basis.
denial will be with prejudice as to the events giving rise to this
petition but without prejudice as to any future violations that may
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.
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
The Alabama Supreme Court has held that this section
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").
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.
extent the petition seeks release from confinement, it will be
denied on the merits and for failure to exhaust available state
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
A separate order will be entered.
DONE this 13th day of July, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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