Johnson v. State Of Florida
Filing
24
OPINION AND ORDER. The State of Florida is dismissed as a named respondent. The petition for writ of habeas corpus (Doc. 1) is denied. Petitioner is denied a certificate of appealability. The Clerk of Court is directed to enter judgment accordingly; terminate any pending motions; and close this file. Signed by Judge Sheri Polster Chappell on 9/29/2015. (drn)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD W. JOHNSON,
Petitioner,
v.
Case No: 2:14-cv-447-FtM-38CM
STATE OF FLORIDA and
SECRETARY, DEPARTMENT OF
CHILDREN AND FAMILIES,
Respondents.1
/
OPINION AND ORDER2
Petitioner Edward W. Johnson (“Petitioner”) initiated this action on August 13, 2014
by filing a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1).
Petitioner is civilly committed at the Florida Civil Commitment Center (“FCCC”) in Arcadia,
Florida after being found a sexually violent predator under Florida Statutes §§ 394.91217. Id. He now challenges his continued confinement at the FCCC on the ground that
he was not appointed an independent mental health expert to evaluate his mental status
Because Petitioner is under the lawful authority and in the “custody” of the Florida
Department of Children and Families, the correct respondent in this habeas corpus
proceeding is the Secretary of the Florida Department of Children and Families. The
Attorney General of the State of Florida has filed a response on behalf of the secretary.
1
2
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other site does not affect the opinion of the court.
at his statutorily mandated probable cause hearing. Id. Respondent filed a response to
the petition; Petitioner declined to file a reply (Doc. 16; Doc. 20).
Upon review of the matter, the Court finds that the petition, construed as filed
pursuant to 28 U.S.C. § 2241, must be denied because Petitioner has not demonstrated
that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C.
§ 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).
I.
Background and Procedural History
On November 30, 2011, Petitioner was determined to be a Sexually Violent
Predator in need of treatment pursuant to Florida’s Sexually Violent Predator Act. See
Fla. Stat. §§ 394.910-17; (Doc. 14-1 at 71 (docket sheet, case no. 05-007446-CI)).
Subsequently, Petitioner was committed to the Florida Civil Commitment Center (Doc. 1
at 1).
Pursuant to statutorily mandated annual reviews, held on November 14, 2012, and
November 22, 2013, the circuit court determined that there was not probable cause to
believe that Petitioner’s condition had so changed that it was safe for him to be at large
or that Petitioner would not engage in acts of sexual violence if discharged (Doc. 14-1 at
76-78). Therefore, his commitment continued without a trial on his mental status. Id. at
80. Petitioner did not appeal the circuit court orders denying a trial.
On May 27, 2014, Petitioner filed a state petition for writ of habeas corpus in
Florida’s Second District Court of Appeal (Doc. 14-1 at 15). Petitioner argued that the
state court violated state law by failing to appoint “a qualified expert to conduct
examination yearly for determination of probable cause of annual review.” (Doc. 14-1 at
17). The petition was denied by Florida’s Second District Court of Appeal on July 24,
2014 (Doc. 14-1 at 102).
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Petitioner filed the instant petition in this Court on August 13, 2014 (Doc. 1).
Petitioner re-raises the same claim raised in his state habeas petition; namely, he asserts
that he was denied due process because of the state court’s failure to appoint a mental
health expert prior to his probable cause hearings. Id. Respondent urges that the petition
should be dismissed as time-barred or unexhausted (Doc. 16).
Alternatively,
Respondent argues that the petition is without merit. Id.
II.
Analysis
A.
The petition was timely filed
The Court construes the instant petition as challenging Petitioner’s continued civil
commitment, not the original commitment process. The continuation and/or execution
of an initially valid confinement is properly brought pursuant to 28 U.S.C. § 2241. See
Thomas v. Crosby, 371 F.3d 782, 810 (11th Cir. 2004) (collecting cases).
The
restrictions set forth in 28 U.S.C. § 2254, including a statute of limitation, applies to § 2241
petitions filed by petitioners in custody pursuant to the judgment of a state court. Peoples
v. Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004). Title 28 U.S.C. § 2244(d)(1) provides
that a one-year limitation period applies to habeas petitions filed by a person in custody
pursuant to the judgment of a state court. In this case, the limitations period began to
run on “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review[.]” Id. at § 2244(d)(1)((A).
The Sixth Judicial Circuit Court found probable cause for Petitioner's continued
commitment on December 2, 2012 and December 16, 2013 (Doc. 14-1 at 92-94).
Presumably, these are the state court decisions now challenged by Petitioner, with each
suffering from the same alleged defect. Because Petitioner did not appeal the state
court’s 2012 probable cause finding, and there do not appear to be any tolling motions
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filed within a year of the order, any federal habeas challenge to Petitioner’s 2012 probable
cause hearing is untimely. However, the instant Petition was filed within one year of the
December 16, 2013 probable cause order. Consequently, although Petitioner does not
clarify which probable cause order he believes to be unconstitutional, as it relates to his
2013 probable cause hearing, the instant petition is not time-barred.
B.
The petition is exhausted
An exhaustion requirement applies to § 2241 petitions. Crosby, 371 F.3d at 812
(“Among the most fundamental common law requirements of § 2241 is that petitioners
must first exhaust their state court remedies”). Respondent argues that exhaustion is
lacking because Petitioner did not directly appeal the probable cause orders (Doc. 16 at
18).
Indeed, a state court’s determination that there is not probable cause to believe
that a person’s mental condition has changed such that he will not commit acts of sexual
violence in the future is an appealable order. See, e.g., Westerheide v. State, 888 So. 2d
702 (Fla. 5th DCA 2004) (appeal of order denying request for a trial on the issue of
sexually violent predator’s entitlement to release from custody); In re Commitment of
Allen, 927 So. 2d 1070 (Fla. 2d DCA 2006) (same); Holder v. State, 123 So. 3d 136 (Fla.
5th DCA 2013) (same).
However, Petitioner initiated a petition for writ of habeas corpus directly to the state
appellate court in which he raised the identical issue as raised in the instant petition (Doc.
14-1 at 16-57). The appellate court denied the petition without opinion. Id. at 102. The
appellate court's silent denial qualifies as an opinion on the merits. Childers v. Floyd, 642
F.3d 953, 967–68 (11th Cir. 2011); see also Ferguson v. Culliver, 527 F.3d 1144, 1146
(11th Cir. 2008). Consequently, Petitioner exhausted his sole ground for relief as it
relates to his 2013 probable cause hearing.
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C.
Merits
The Involuntary Civil Commitment of Sexually Violent Predators Act (“the Act”)
provides the procedures for civilly committing sexually violent predators. See Fla. Stat.
§§ 394.910–.932. The Act also requires annual mental examinations of persons
committed under the Act, and the reports from those examinations are to be provided to
the circuit court. Id. at § 394.918(1). Committed persons may also retain their own
qualified professional to examine them, and may petition the court for release. Id. at §
394.918(1). The court is then to “hold a limited [probable cause] hearing to determine
whether there is probable cause to believe that the person's condition has so changed
that it is safe for the person to be at large and that the person will not engage in acts of
sexual violence if discharged.” Id. at § 394.918(3). The committed person has the right
to present evidence at the probable cause hearing, and Florida Law places the burden
upon the committed individual to establish probable cause to believe that his condition
has changed before the state is required to prove at a trial that it is not safe for the person
to be at large. Allen, 927 So.2d at 1073. If the court determines that probable cause
exists, “the court shall set a trial before the court on the issue.” Fla. Stat. § 394.918(3).
The sole claim in the instant petition is that the state did not appoint a psychologist
or psychiatrist to conduct an independent mental health examination of Petitioner prior to
his probable cause hearing (Doc. 1 at 5). In support of this proposition, Petitioner asserts
that the Department of Children and Families was required under § 394.932(1) to find,
and pay for, an independent evaluation of Petitioner’s mental health prior to the probable
cause hearing (Doc. 1 at 6). In support of these assertions, Petitioner directs the Court
to Florida Statute § 394.918(1) and Spivey v. State, 100 So. 3d 1254 (Fla. 5th DCA 2012).
Florida Statute § 394.918 provides in part that the committed person “may retain, or if the
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person is indigent and so requests, the court may appoint, a qualified professional to
examine [him].” Id. at § 394.918(1). In Spivey, Florida’s Fifth District Court of Appeal
determined that if a civilly committed individual finds his own, independent, medical expert
who recommends release at the probable cause hearing, the finding is sufficient to
establish probable cause, entitling the individual to a trial. Spivey, 100 So. 3d at 1255.
To the extent Petitioner argues that the state court erred under state law by not
providing him with the “qualified professional” he desired, the claim is not cognizable on
federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t is not the province
of a federal habeas court to reexamine state-court determinations on state-law
questions.”). The limitation on federal habeas review applies with equal force when a
petition, which truly involves only state law issues, is couched in terms of alleged
constitutional violations. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988).
Rather, in order to obtain habeas relief under § 2241, Petitioner must demonstrate
that he “is in custody in violation of the Constitution or laws or treaties of the United
States[.]” 28 U.S.C. § 2241(c)(3). In Foucha v. Louisiana, 504 U.S. 71 (1992), the United
States Supreme Court recognized that in order to commit an individual to a mental
institution in a civil proceeding, due process requires the state to prove by clear and
convincing evidence “that the person sought to be committed is mentally ill and that he
requires hospitalization for his own welfare and protection of others.” Id. (citing Addington
v. Texas, 441 U.S. 418 (1979)).
The Foucha Court further concluded that it is
“unconstitutional for a State to continue to confine a harmless, mentally ill person,” and
that the committed mentally ill person “is entitled to release when he has recovered his
sanity or is no longer dangerous.” Id. at 77 (citing Jones v. United States, 463 U.S. 354,
368 (1983)).
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The holding of Foucha is not at odds with the facts of the instant case. It is his
continued confinement, not his initial commitment, which Petitioner now challenges. 3
Unlike the petitioner in Foucha, Petitioner presents no evidence, other than his own
unsubstantiated assertions, that the mental condition for which he was initially committed
has changed. Instead, Petitioner argues that, in violation of Florida Statute § 394.918(1),
the state failed to find, hire, and pay for an independent mental health professional to
testify that he is no longer a sexually violent predator. Notably, § 394.918(1) allows,
rather than requires, the committed individual to retain an independent mental health
expert. Id. Petitioner does not assert that he was forbidden from retaining his own, paid
independent mental health expert and presenting that expert’s report at a probable cause
hearing. In fact, that is precisely what the individual in Spivey did. 100 So. 3d at 1254.
Petitioner points to no Supreme Court precedent or other federal law that exempts a civilly
committed individual from bearing the burden of finding, and paying for, the experts he
wishes to present in a probable cause hearing.4 Accordingly, Petitioner is not entitled to
federal habeas relief on his claim. See Benham v. Ledbetter, 785 F.2d 1480, 1491–92
(11th Cir. 1986) (the procedure of placing the burden of proof on the insanity aqcuittee at
3
To the extent Petitioner challenges his initial commitment, the challenge is both
untimely and without merit. The Act under which Petitioner was civilly committed in 2011
required the State to show by clear and convincing evidence that Petitioner qualified as
a sexually violent predator at his initial commitment trial. Fla. Stat. § 394.917(1). The
procedures set forth in the Act comported with the substantive demands of due process
because Petitioner was provided an opportunity to challenge the reasons claimed for his
commitment prior to his detention. Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (“We
have consistently upheld such involuntary commitment statutes provided the confinement
takes place pursuant to proper procedures and evidentiary standards.”).
4
The records in this case show that Petitioner had $6,721.61 in his resident account
immediately prior to filing the instant habeas petition (Doc. 8). In a January 5, 2014 letter
attached to his state habeas petition, Petitioner informed his lawyer that he has “seven
thousand dollars cash, plus a trust fund.” (Doc. 14-1 at 34).
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the release proceeding under Georgia's statutory scheme did not violate due process);
Williams v. Wallis, 734 F.2d 1434, 1440 (11th Cir. 1984) (“[D]ue process does not forbid
placing the burden of proof on the acquittee at the habeas proceeding to prove by a
preponderance of the evidence that he is no longer mentally ill or dangerous”); Dorsey v.
Solomon, 604 F.2d 271, 274 (4th Cir. 1979) (finding proper to place the burden of proving
fitness for release on inmates who were previously committed in accordance with
constitutionally adequate procedure).
III.
Certificate of Appealability
Under 28 U.S.C. § 2253, a certificate of appealability must issue to appeal a final
order in a habeas proceeding “in which the detention complained of arises out of process
issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). The Eleventh Circuit has broadly
construed this language to require a petitioner who appeals the denial of 2241 habeas
petition pertaining to disciplinary proceedings to obtain a certificate of appealability,
finding that the prisoner's detention originated “out of process issued by a State court.”
Medberry v. Crosby, 351 F.3d 1049, 1063 (11th Cir. 2003); see also Sawyer v. Holder,
326 F.3d 1363, 1364 n. 3 (11th Cir. 2003) (finding state prisoners, as opposed to federal
prisoners, who proceed under 2241 must obtain a certificate of appealability).
Consequently, in an abundance of caution, the Court considers whether a certificate of
appealability should issue in connection with the denial of this § 2241 petition.
“A [COA] may issue ... only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). To make such a showing,
petitioner must demonstrate that “reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
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presented were adequate to deserve encouragement to proceed further[.]” Miller–El v.
Cockrell, 537 U.S. 322, 335–36 (2003) (internal quotations omitted). Petitioner has not
made the requisite showing in these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
ACCORDINGLY, it is hereby ORDERED:
1.
The State of Florida is dismissed as a named respondent.
2.
The petition for writ of habeas corpus (Doc. 1) is DENIED.
3
Petitioner is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to enter judgment accordingly; terminate any
pending motions; and close this file.
DONE and ORDERED in Fort Myers, Florida on this 29th day of September, 2015.
SA: OrlP-4
Copies: Edward W. Johnson
Counsel of Record
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