Stearns v. Schmidtt

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall mail to petitioner a copy of the Court's 28 U.S.C. & #167; 2254 Petition for Writ of Habeas Corpus form. IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of this Memorandum and Order to file an amended petition in the manner described above. Petitioner is cautioned that failure to timely comply with this Memorandum and Order will result in the dismissal of the petition. Signed by Magistrate Judge John M. Bodenhausen on 10/19/16. (Note: Copy of Courts 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus form mailed this date.)(ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELLIOT STEARNS,
Petitioner,
v.
DAVE SCHMIDTT,
Respondent.

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No. 4:16 CV 1584 JMB

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of petitioner Elliot Stearns for leave to
commence this action without payment of the filing fee. (Docket No. 2). Having reviewed
petitioner’s financial affidavit, the Court concludes that petitioner lacks sufficient funds to pay
the filing fee, and will grant the motion. Petitioner will also be given leave to file an amended
petition.
In the instant petition, petitioner avers that he is presently confined in the Southeast
Missouri Mental Health Center after pleading not guilty by reason of insanity in state court in
Phelps County, Missouri. Petitioner raises the following four grounds for relief:
1.

Counsel was ineffective for causing petitioner to be declared mentally
unfit to stand trial;

2.

“Entrapment,” in that defense counsel coerced petitioner to plead not
guilty by reason of insanity;

3.

“Illegal confinement on the grounds of enticement and solicitation,” in
that the sole plea offered was not guilty by reason of insanity; and

4.

“Soled into Mondo Bondage” in that “I’m not progressing I’m digressing
I’m going back to the ape stage.”

(Docket No. 1 at 5-10).

Discussion
The Court has been unable to locate any information about petitioner on Missouri
Case.Net, the state of Missouri’s online docketing system. However, based upon the averments
in the instant petition, petitioner was not “convicted” of a crime; he was found not guilty by
reason of insanity and committed to the custody of the state of Missouri. 1 He therefore lacks a
basis to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a state
conviction, because there is no “conviction” to attack.
Under section 552.040 of the Revised Statutes of Missouri, a committed person may file
a petition pursuant to under 28 U.S.C. § 2254 for either conditional or unconditional release, but
the instant petition does not clearly indicate an attempt to seek either form of release, or set forth
any information concerning whether petitioner has properly sought such release in state court.
Even so, in an abundance of caution, the Court will address the avenues for such relief below.
Conditional release is for a limited duration and is qualified by reasonable conditions.
See Mo. Rev. Stat. ' 552.040. To obtain conditional release a petitioner must prove, by clear and
convincing evidence, that he Ais not likely to be dangerous to others while on conditional
release.@ Mo. Rev. Stat. ' 552.040.12(6). A conditional release implies that despite a mental
disease or disorder, the committed person is eligible for limited freedom from a mental health
facility, subject to certain conditions. Greeno v. State, 59 S.W.3d 500, 504 (Mo. banc 2001).

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In Missouri, when the circuit court accepts the defendant's plea of not guilty by reason
of mental disease or defect, the defendant is deemed acquitted of the charges on the ground of
mental disease or defect excluding responsibility. Taylor v. State, 262 S.W.3d 231, 238 (Mo.
banc 2008) (AIf defendant succeeds on his affirmative defense, he is absolved of criminal
responsibility.@). Thus, a defendant's success in arguing that he or she is not guilty by reason of
mental disease or defect effectively acquits the defendant of the charged crime. Those
individuals are commonly referred to as Ainsanity acquittees.@ See Grass, 643 F.3d at 581; State
v. Revels, 13 S.W.3d 293, 294 (Mo. banc 2000).

Unconditional release, by contrast, can be granted only if the petitioner shows Aby clear
and convincing evidence that he does not have, and in the reasonable future is not likely to have,
a mental disease or defect rendering him dangerous to the safety of himself or others.@ Mo. Rev.
Stat. ' 552.040.7(6). Thus, Missouri places the burden on the insanity acquittee to prove that he
qualifies for conditional or unconditional release by clear and convincing evidence. Grass, 643
F.3d 579; Mo. Rev. Stat. 552.040.7(6) & 552.040.12(6); State v. Rottinghaus, 310 S.W.3d 319,
324 (Mo. Ct. App. 2010).
Clear and convincing evidence is Aevidence that instantly tilts the scales in the affirmative
when weighed against the evidence in opposition so that the court is left with the abiding
conviction that the evidence is true.@ Greeno, 59 S.W.3d at 505 (internal citations omitted).
When an individual is acquitted by reason of mental disease or defect for a dangerous felony, in
order to grant conditional or unconditional release, the court also must find that the individual Ais
not now and is not likely in the reasonable future to commit another violent crime@ and Ais aware
of the nature of the violent crime committed ... and presently possesses the capacity to appreciate
the criminality of the violent crime ... and ... to conform [his or her] conduct to the requirements
of law in the future.@ Mo. Rev. Stat. ' 552.040.20. The denial of a petition for either conditional
or unconditional release is Awithout prejudice to the filing of another application after the
expiration of one year from the denial of the last application.@ Mo. Rev. Stat. ' 552.040.13.
Title 28 U.S.C. ' 2254(b) prohibits a grant of habeas relief on behalf of a person in state
custody unless that person has exhausted the remedies available in the courts of the State. AThe
exhaustion requirement of ' 2254(b) ensures that the state courts have the opportunity fully to
consider federal-law challenges to a state custodial judgment before the lower federal courts may

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entertain a collateral attack upon that judgment.@ Duncan v. Walker, 533 U.S. 167, 178B79
(2001). The exhaustion requirement prevents a federal court from granting a habeas petition
based on a constitutional violation that could be redressed adequately by pursuing an avenue of
state relief Astill open to the habeas applicant at the time he files his application in federal court.@
Humphrey v. Cady, 405 U.S. 504, 516 (1972).
Most cases defining the contours of the exhaustion requirement arise from challenges to
state custody following criminal conviction.

However, the Supreme Court's holding that

exhaustion requires a fair presentation that is satisfied Aby invoking one complete round of the
State's established appellate review process,@ O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999),
applies with equal force when a habeas petitioner seeks to challenge state custody pursuant to a
civil commitment. See Beaulieu v. Minnesota, 583 F.3d 570, 575 (8th Cir. 2009). ATo satisfy the
exhaustion requirement, [the confined person] must apply for release under section 552.040
before filing a petition for a writ of habeas corpus. Additionally, if the application for release is
denied, the confined person must appeal to the Missouri Court of Appeals.@ Kolocotronis v.
Holcomb, 925 F.2d 278, 279 (8th Cir. 1991) (internal citation omitted). 2
This Court can find no record on Missouri Case.Net that petitioner has applied for
conditional or unconditional release or appealed the denial of such an application in any state

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Kolocotronis goes on to hold that Aif unsuccessful [in the Missouri Court of Appeals],
[the confined person must] apply for transfer to the Missouri Supreme Court.@ In 2001, after both
Kolocotronis was decided, the Missouri Supreme Court amended Supreme Court Rule 83.04 to
provide that A[t]ransfer by this Court is an extraordinary remedy that is not part of the standard
review process for purposes of federal habeas corpus review.@ See Randolph v. Kemna, 276 F.3d
401, 404 (8th Cir. 2002). Following this amendment, the Eighth Circuit has held that it is not
necessary to apply for transfer to the Missouri Supreme Court to exhaust state remedies for
purposes of ' 2254. See Id.

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court. As a result, to the extent petitioner is seeking conditional or unconditional release,
petitioner’s application for writ of habeas corpus appears to be subject to dismissal due to his
failure to exhaust his available state remedies.
However, because it is not entirely clear what petitioner’s claims are, and because the
Court can find no record of petitioner’s state case and is therefore unsure of the exact nature
thereof, the Court will allow petitioner an opportunity to file an amended petition. If petitioner
does have a state court “conviction” to challenge, he must provide the Court with information
about that state court conviction, including the charges he was convicted of and the sentence he
received, the dates of such conviction and sentence, and a valid Missouri state case number. He
must also provide the Court with all information concerning any post-conviction motions or
appeals he filed. If, however, petitioner is seeking conditional or unconditional release, he
should specifically say so in the amended petition, and should also clearly set forth the manner in
which he has satisfied the exhaustion requirement. Petitioner is reminded that he must use the
Court-provided form when filing an amended petition.
Accordingly,
IT IS HEREBY ORDERED that petitioner=s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to petitioner a copy of
the Court’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus form.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of
this Memorandum and Order to file an amended petition in the manner described above.

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Petitioner is cautioned that failure to timely comply with this Memorandum and Order
will result in the dismissal of the petition.
Dated this 19th day of October, 2016.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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