SHELTON v. MAIN et al
Filing
11
OPINION. Signed by Judge Jose L. Linares. (jr)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAYMOND SHELTON,
Civil Action No. 14-1635 (JLL)
Petitioner,
v.
:
OPINION
DR. MERIL MAIN, et al.,
Respondents.
LINARES, District Judge:
Presently before the Court is the petition for a writ
of habeas corpus of Raymond Shelton
(“Petitioner”) brought pursuant to 28 U.S.C. 2254
challenging his involuntary commitment under
§
the New Jersey Sexually Violent Predator Act (ECF
No. 1), to which Respondents filed an answer.
(ECF No. 9). For the following reasons, the Cou
rt will deny the petition and no certificate of
appealability shall issue.
I.
BACKGROUND
Petitioner is currently civilly committed to the Spec
ial Treatment Unit (STU) in Avenel,
New Jersey, pursuant to New Jersey’s Sexually
Violent Predator Act (SVPA), N.J. Stat. Ann.
§
30:4-27.24 et seq. The facts relevant to Petit
ioner’s petition for a writ of habeas corpus are
set
forth in the opinion ofthe Superior Court ofNew
Jersey, Appellate Division, denying his challenge
to his civil commitment:
1
The predicate offense which resulted in [Peti
tioner’s]
commitment arose on September 27, 1997, after
[Petitioner] was
released from prison in the spring of 1996 for anot
her crime. On
that day, [Petitioner] and his co-defendant carja
cked two victims at
gunpoint. Thereafter, the police attempted to
pull the vehicle over
for speeding and a high speed car chase ensued
that ultimately
resulted in a crash. Subsequently, the police
recovered a semi
automatic gun from the vehicle.
On June 5, 1998, [Petitioner] pled guilty to carja
cking, [in
violation of N.J. Stat. Ann.
§] 2C:15-2, and was sentenced to a
twenty-year prison term with a ten-year
period of parole
ineligibility. On December 27, 2007, approxim
ately a week prior
to [Petitioner]’s parole eligibility date, the State
filed a Petition for
Civil Commitment under the SVPA.
On January 4, 2008, [Petitioner] was temporarily
committed
to the STU. After a probable cause hearing,
the judge found
[Petitioner] to be a sexually violent predator with
a high likelihood
of re-offending, and committed him to the
STU for a period of
twelve months. A full hearing was scheduled
within twenty days,
in accordance with [N.J. Stat. Ann.
§] 30:4-27.29; however,
appellant waived the twenty day hearing to purs
ue an interlocutory
appeal. The hearing was thereafter set for a later
date that year.
The present review was conducted on June 23
and 24, at
which time Judge Serena Perretti considered
the expert testimony
and written reports of psychiatrist How
ard Gilman, M.D.,
psychologist Timothy Foley, Ph.D.[,] and psyc
hologist Rosemary
Stewart, Psy.D.
According to the testimony and reports
presented,
[Petitioner] has had issues with sexual deviancy
since as early as
1979, when he was charged with aggravate
d sexual assault and
interference with custody of a child as a resul
t of his relationship
with a minor. who was eleven years old at
the time. [Petitioner]
pled guilty to second-degree sexual assault, [in
violation of N.J. Stat.
.
.
Pursuant to 28 U.S.C. § 2254(e)(1), the factu
al determinations of the state courts are presu
med
to be correct, and Petitioner bears the burden
of rebutting that presumption of correctness by
clear and convincing evidence.
2
Ann. §j 2C:12-2(a)(1). [Petitioner] was sentenced
to a seven-year
prison term.
Upon release, [Petitioner] was allegedly involved
in another
crime that involved the death of a man and rape
of a woman in his
apartment. On December 15, 1981, [Petitione
r] was charged with
homicide, [in violation of N.J. Stat. Ann. 2C:1
1-3, sexual assault,
§]
[in violation of N.J. Stat. Ann.
2C:14-2(c), terroristic threats, [in
§]
violation of N.J. Stat. Ann. §] 2C:12-3 and two coun
ts of aggravated
sexual assault, [in violation of N.J. Stat.
Ann. §] 2C:l4-2(a).
[Petitioner] was acquitted of all charges after
a jury trial.
[Petitioner]’s encounters with the law cont
inued. On
January 28, 1984, a few weeks after being relea
sed following the
acquittal, [Petitioner] was arrested and charged
with the rape of
M.C. Police officers responded to the hospital
emergency room
where M.C. was admitted for injuries to her
head, face and upper
body. She told the responding officers she
had been tied to
[Petitioner]’s headboard for approximately
two days.
M.C.
revealed that she had met [Petitioner] on the
street and he invited
her to his apartment to drink. Later that even
ing, [Petitioner]
refused to allow her to leave. [Petitioner] then
forced her to take
off her clothes and struck her with a nightstick.
M.C. subsequently
passed out and when she regained consciousnes
s, she found herself
tied to [Petitioner]’s headboard.
M.C. stated during her
confinement, [Petitioner] had sex with her
multiple times and
repeatedly threatened to “dope her up” with a
needle.
[Petitioner] claimed he met M.C. on the street
and she asked
him where she could purchase marijuana.
After purchasing wine
and marijuana, M.C. went to [Petitionerj’s apar
tment where the two
drank, smoked and had sex. [Petitioner] claim
ed that M.C. then
used his bathroom and attempted to steal mon
ey and jewelry from
him, so he struck her with a nightstick. The
two then had sex again.
On September 17, [1984, Petitioner] pled
guilty to
aggravated sexual assault and was sente
nced to twenty years in
prison with a ten-year period of parole ineli
gibility. Shortly after
[Petitioner]’ s release from custody for the
sexual assault of M.C., he
committed the carjacking offense and was incar
cerated.
Dr. Gilman testified that [Petitioner] suffers
from antisocial
personality disorder and multiple subs
tance dependence in
3
institutional remission. Dr. Gilman opined [Petitione
r) is at high
risk to sexually reoffend and that the affect such diso
rders have on
[Petitioner], emotionally and cognitively, predispo
se him to commit
acts of sexual violence. Dr. Gilman posited [Peti
tioner] would
have serious difficulty controlling his sexually offen
ding behavior
as a result of his diagnoses as well as his histo
ry of sexually
offending, lack of ability to conform to ethical
and social norms,
continued minimizations of his crimes and lack of treat
ment for sex
offending or substance abuse.
According to Dr. Gilman, [Petitioner] scored eigh
t on the
Static-99R test indicating a high risk to reoffend.
In calculating this
score, Dr. Gilman included the acquitted homicide
and rape charges
from 1984 but testified that those charges only
amounted to one
point. Therefore, Dr. Gilman concluded that,
even without
including those charges, [Petitioner] would still
be considered a high
risk to offend.
Dr. Foley testified on behalf of [Petitioner]. He
diagnosed
[Petitioner] with polysubstance dependence
and antisocial
personality disorder. He offered, however, thos
e diagnoses do not
meet the statutory definition for mental abnormal
ity or personality
disorder as required by the SVPA, and he opined
that [Petitioner] is
not highly likely to commit sexually violent acts
in the future. In
reaching this determination, Dr. Foley relied
upon the fact that
[Petitioner] had no episodes of sexual miscondu
ct over the last
twenty-four years, the majority of which
[Petitioner] spent
incarcerated. Dr. Foley noted that he cons
idered [Petitioner]’s
relationship with the minor
in 1979 more than “just sexual
exploitation” premised on the fact that [Petitione
r] stated that [they]
had an ongoing romantic relationship as well
as a child together.
.
.
.
Dr. Foley acknowledged [Petitioner]’s high Stati
c-99R score
but opined that he felt it over-predicted [Petitione
r]’s risk to reoffend
given his age, as sex offense recidivism decr
eases with age and
[Petitioner] is now in his fifties.
Dr. Stewart, the psychologist at the STU wher
e [Petitioner]
is admitted, also testified. She concurred that
[Petitioner] suffers
from polysubstance dependence and antisocial
personality disorder.
Dr. Stewart testified she conducted an inter
view with [Petitioner]
and over the course of the interview, he adm
itted to abusing heroin,
alcohol, marijuana and cocaine.
[Petitioner] discussed his
4
discharge plans and indicated a desire to obtain emp
loyment and
participate in substance abuse treatment. Dr. Stew
art testified that
from a traditional perspective, [Petitioner] remains
at high risk to
sexually reoffend without protective factors and
supervision in
place. Without such supervision, she would not
recommend his
release. Dr. Stewart also used [the] Static-99R to
score [Petitioner]
and found him to scale at a plus seven.
In continuing [Petitioner] ‘s civil commitment
the [trial]
judge found the testimony of Dr. Gilman to be
credible and his
diagnosis not disputed by any of the other experts.
The judge found
there was clear and convincing evidence that [Peti
tioner] suffers
from an abnormal mental condition and personalit
y disorder and, as
such, was a sexually violent predator in need of com
mitment.
In re Civil Commitment ofR.S., No. A-51-08T2, 2013
WL 3367641,
at *1..3 (N.J. App. Div. July 8), cerfif denied, 77
A.3d 489 (N.J.
2013).
in continuing Petitioner’s civil commitment purs
uant to the SVPA, the state trial judge
made the following findings.
All the persons testifying agree as to the diagnosi
s of this
[Petitioner]. All agree that he is substance-depende
nt and has an
anti-social personality disorder. All of the witn
esses agree that
these conditions combined and were in place at
the time [Petitioner]
committed his two sexually violent acts.
It is clear and not disputed that this [Petitione
r] committed
his first sexually violent offense after previous
ly having faced
judicial proceedings. Upon release from priso
n on account of the
[Petitioner]’s first sexually violent offense, he com
mitted a second
sexually violent offense within months of
release and while on
parole supervision
it is clear that the [Petitioner] cannot be
deterred from sexually violent offenses by prior
incarceration or
supervision.
.
.
.
The court is clearly convinced
5
.
.
.
that [Petitioner] is a
sexually violent predator. He suffers from a diagnose
d condition.
[T]hese conditions predispose him to commit sexually
violent
acts.
•
.
[lit is highly likely that the [Petitioner] will
commit a
sexually violent offense within the foreseeable
future if he was not
committed for treatment and for the protection of
the public from
the danger which he clearly presents.
Id. at *3
Following the trial court’s ruling recommitting
him to the STU under the SVPA, Petitioner
appealed to the New Jersey Appellate Division
, challenging the sufficiency of the evidence used
to commit him and raising the same additional three
claims he makes before this Court. (Exhibit
D attached to ECF No. 9). On July 8, 2013, the
Appellate Division affirmed for substantially the
same reasons placed on the record by the state trial
court, finding that “the [trial] judge’s findings
are amply supported by substantial credible evidence
” and that Petitioner’s long history including
multiple serious sexual offenses combined with
his mental disorders amply supported the trial
judge’s conclusions. KS., 2013 WL 3367641 *4
at
The Appellate Division likewise dismissed
Petitioner’s remaining claims, finding that they
“lack[ed] sufficient merit to warrant discussion
in
a written opinion.” Id. Petitioner filed a petit
ion for certification to the New Jersey Supr
eme
Court, which was denied on October 31, 2013
. In re Civil Commitment of R.S., 77 A.3d
489
(2013). Petitioner thereafter filed the instant
habeas petition.
6
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C.
§ 2254(a), the district court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only
on
the ground that he is in custody in violation
of the Constitution or laws or treaties of the Unit
ed
States.” The petitioner has the burden of estab
lishing his entitlement to relief for each claim
presented in his petition based upon the reco
rd that was before the state court. See Eley
v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013);
see also Parker v. Matthews,
U.S.
---,132 S.
Ct. 2148, 2151(2012). Under the statute, as amen
ded by the Anti-Terrorism and Effective Deat
h
Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), distr
ict courts are required to give great deference
to
the determinations of the state trial and appellate
courts. See Renico v. Lett, 559 U.S. 766, 77273 (2010).
---
---,
Where a claim has been adjudicated on the meri
ts by the state courts, the district court shall
not grant an application for a writ of habeas corp
us unless the state court adjudication
(1) resulted in a decision that was contrary
to, or involved an
unreasonable application of, clearly establishe
d Federal law, as
determined by the Supreme Court of the Unit
ed States; or
(2) resulted in a decision that was base
d on an unreasonable
determination of the facts in light of the evid
ence presented in the
State court proceeding.
28 U.S.C.
§ 2254(d)(1)-(2). Federal law is clearly established for the purposes
of the statute
where it is clearly expressed in “only the hold
ings, as opposed to the dicta” of the opinions
of the
United States Supreme Court. See Woods v.
Donald, U.S.
125 S. Ct. 1372, 1376 (2015).
“When reviewing state criminal convictions
on collateral review, federal judges are requ
ired to
---
7
---,
---,
afford state courts due respect by overturning their
decisions only when there could be no
reasonable dispute that they were wrong.”
Id. Where a petitioner challenges an allegedly
erroneous factual determination of the state cour
ts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and
tihe applicant shall have the burden of rebutting
the presumption of correctness by clear and conv
incing evidence. 28 U.S.C. 2254(e)(l).
§
B. The New Jersey SVPA
The New Jersey Sexually Violent Predator Act
provides a means for the state to civilly
commit individuals who have been convicted
of certain sexually violent offenses and therefore
qualify as “sexually violent predators.” N.J.
Stat. Ann. § 30:4-27.26. Under the act, a sexu
ally
violent predator is a
Person who has been convicted, adjudicated delin
quent or found not
guilty by reason of insanity for commission
of a sexually violent
offense, or has been charged with a sexually
violent offense but
found to be incompetent to stand trial, and suffe
rs from a mental
abnormality or personality disorder that mak
es the person likely to
engage in acts of sexual violence if not confined
in a secure facility
for control, care and treatment.
N.J. Stat. Ann.
§ 30:4-27.26(b). “When it appears that a person may meet the criteria
an “agency with jurisdiction,” such as the New
Jersey Department of Corrections,
of an SVP,
provides notice
to the New Jersey Attorney General at least
ninety days before the anticipated release
of this
individual.” Greenfield v. Dep’t of Corr.,
Civil Action No. 09-1969, 2011 WL 3203
730, at *6
(D.N.J. July 27, 2011) (citing N.J. Stat. Ann
. § 30:4-27.26; 3:4-27.27(a)(l)). Upo
n receiving
such notice, the Attorney General, if he
concludes that public safety warrants invo
luntary civil
commitment of the individual involved, may
bring an action for commitment under the
SVPA.
8
Id.
Under the statute, such an involuntary commitment proc
edure may follo
w from the release of
an offender from jail so long as the offender suffe
rs from a requisite mental abnormality or
personality disorder and the offender is therefore
likely to engage in acts of sexual violence if not
confined in a secure treatment facility. N.J. Stat.
Ann. § 30:4-27.26; 30:4-27.28; 30:4-27.32(a).
To initiate the commitment of an individual
being released from imprisonment, the
Attorney general must file a petition for com
mitment, supported by “two clinical certifications
,
one of which must be from a psychiatrist who has
examined the individual no more than three days
before the submission of the petition for com
mitment.” Greenfleld, 2011 WL 3203730 at *6
(citing NJ. Stat. Ann. § 30:4-27.26, 30:4-27.2
8). Upon the filing of such a petition, the trial
court conducts a temporary commitment hear
ing where that court examines the supportin
g
certificates and must determine if probable caus
e exists to believe that the committee qualifies
as
a sexually violent predator under the act.
Id. If the court finds probable cause, it issue
s a
temporary commitment order pending a final
hearing, which is normally scheduled within twen
ty
days of the initial hearing. Id.; N.J. Stat. Ann
. § 30:4-27.28(f), 30:4-27.29(a).
in advance of the final hearing, the committe
e is provided with copies of the clinical
certificates and their supporting documents, the
temporary commitment order, and a statemen
t of
the committee’s rights at the final hearing. N.J.
Stat. Ann. § 30:4-27.30(a). Those rights inclu
de
the right to counsel and the appointment of
counsel if the committee is indigent, the
right to be
present during the final hearing absent prior
conduct which would prevent the court
from
reasonably conducting the hearing in the com
mittee’s presence, the right to present evid
ence, the
right to cross-examine witnesses, and the
right to a hearing in camera. Greenfield,
2011 WL
3203730 at *6 (citing N.J. Stat. Ann. 30:4
-27.31). Following the appointment of coun
§
sel where
9
necessary, the final hearing is conducted. Id. At that
hearing, the trial court hears evidence,
including expert testimony from psychiatrists and members
of the treatment team who have treated
the committee during his temporary commitment who
have within the last five days prior to the
hearing conducted a personal examination of the com
mittee. Id. If the court, following the
hearing, concludes by clear and convincing evidence that
the committee qualifies as an SVP, the
court issues an order involuntarily committing the SVP
to the STU. Id. The SVP may thereafter
appeal the court’s order or petition for discharge from
the STU at any time, and by statute will
receive annual review hearings at which the state is again
required to prove by clear and convincing
evidence that commitment as the SVP is warranted. Id.
(citing N.J. Stat. Ann. § 30:4-27.35,
30:4-27.36). Although an individual’s commitment as
an SVP often follows the end of a criminal
sentence, such commitment is civil, and not criminal in
nature. See Araunno v. Hayman, 284 F.
App’x 144, 150 (3d Cirj; cert. denied, 131 S. Ct. 835 (201
0).
C. Analysis
Petitioner raises three claims in his habeas petition, all
of which were previously rejected
on the merits by the New Jersey state courts: that his
commitment under the SVPA was improper
as the sentence from which he was being released
was not a sexual offense and his resulting
commitment was therefore not supported by the evid
ence as the state could not show that he
presently poses a significant threat of harm for sexu
al re-offense, that Petitioner’s commitment
under the SVPA was improper as the parole board had
already determined that Petitioner was not
likely to reoffend as part of its decision to cond
itionally release Petitioner and the Attorney
General’s resort to the use of the SVPA circumve
nted the proper procedure for appealing a parole
10
board determination, and that the state courts erred
in concluding that the state had proven
by clear
and convincing evidence that Petitioner qual
ified for commitment as an SVP. As Petitione
r’s first
and third claims both argue that, under
the circumstances, the trial court’s conclusio
n that
Petitioner should be committed was not supp
orted by the evidence, this Court will exam
ine those
claims together. This Court will first examine
Petitioner’s second claim, however.
1.
Petitioner’s claim that the State improp
erly used the SVPA to circumvent the
proper
procedure for appealing a parole board
determination
Petitioner argues that as he was conditionally
released by the New Jersey Parole Board, the
Attorney General’s decision to commit him
as an SVP rather than to appeal the Parole
Board’s
decision to the Appellate Division violated
his Due Process rights. Petitioner’s argu
ment is
couched in his assertion that the SVPA was
“not intended to allow the Attorney General
means to
override a decision of the parole Board with
which he disagrees, but was intended to be
employed
in situations where there was not [anjoth
er determination by a concomitant part of the
executive
branch regarding the danger by the presen
ce of an individual in the community.” (ECF
No. 1 at
12). The inherent flaw in Petitioner’s argu
ment serving as a means for relief in a fede
ral habeas
corpus case is that Petitioner is essentially
arguing that the state courts misapplied New
Jersey law.
“Federal habeas corpus relief does not lie
for errors of state law.” Estelle v. McGui
re. 502
U.S. 62, 67 (1991); see also Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir.
1997); Smith v
Horn, 120 F.3d 400, 414 (3d Cir. 1997);
Greenfield, 2010 WL 3203730 at *4• Rel
ief may be
obtained in a federal habeas case only
for violations of the Constitution, laws,
or treaties of the
United States. McGuire, 502 U.S. at
68. It “is not the province of a federal
habeas court to
11
reexamine state-court determinations on state-law ques
tions.” Id. at 67-68. As such, “[ejrrors of
state law cannot be repackaged as federal error
s simply by citing the Due Process Clause.”
Johnson, 117 F.3d at 110. As Petitioner’s claim
is that the state court erred in construing state
laws, both those establishing state parole procedur
es and the SVPA, Petitioner’s claim cannot be
repackaged as a Due Process claim and is not
a cognizable basis for relief in a federal habeas
petition. Id.
While this conclusion is dispositive of Petit
ioner’s claim, this Court also notes that
Petitioner’s assertion, as a matter of state law,
appears to be wholly incorrect. While Petitione
r
asserts that the SVPA was intended only to
apply in the absence of a parole board determina
tion
that an individual was likely to reoffend, and
thus could only be used for prisoners who did
not
receive parole, that assertion is contradicted
by the text of the SVPA. The SVPA is not so limit
ed
as it provides the Attorney General with the
ability to initiate a court proceeding again
st any
individual qualifying as an SVP even where
that individual has long since been released
from
prison. See N.J. Stat. Ann.
§ 30:4-27.28(b). The statute further provides that the Attorney
General’s authority to initiate commitment proc
edures under the state’s parens patriae pow
er
extends to “any person” who qualifies as a sexu
ally violent predator under the act. N.J. Stat.
Ann.
§ 30:4-27.28(d); see also In re Civil Commitment ofM.L. V, 909 A.2d
286, 292 (N.J. App. Div.
2006) (in “the SVPA, the Legislature impo
sed no limitation on the State’s parens patr
iae power
to protect the public from the potential dang
ers posed by sexually violent predators.
To the
contrary, the Legislature clearly intended
[the act] to re-affirm the Attorney General’s
broad power
to seek the commitment of ‘any person’ in
order to protect the public.”), certif denied,
919 A.2d
848 (N.J. 2007).
12
That the Attorney General could have sought the continue
d incarceration of an individual
through an appeal of a parole board determination in no
way limits the Attorney General’s ability
to alternatively seek commitment under the SVPA.
ML. V, 909 A.2d at 292-93. The civil
commitment of an individual as an SVPA is an entir
ely separate civil proceeding from the parole
board’s determination, and there is no requirement
under New Jersey Law that the Attorney
General appeal a parole decision before he may
initiate an SVP proceeding. Id. As such, it
appears that even were Petitioner’s claim cognizabl
e in a federal habeas proceeding, the state
courts did not err in their determination of state law.
As Petitioner has provided no Supreme
Court case law with which such a ruling conflicts, this
claim provides no basis for habeas relief.
2.
Petitioner’s claim that the state failed to prove
by clear and convincing evidence that he
was subject to commitment as an SVP
in his remaining points, Petitioner argues, for vary
ing reasons, that the state courts erred in
concluding that he was a sexually violent predator
in need of the commitment under the SVPA.
Essentially, these arguments are attempts by Petit
ioner to argue that the state courts’ rulings were
based on an unreasonable application ofthe facts in
light of the evidence presented. See 28 U.S.C.
§ 2254(d)(2), As Petitioner is attacking the factual determinations of the trial
court, he can only
succeed if he can present clear and convincing evid
ence which would rebut the presumption that
the state court’s factual conclusions were correct.
28 U.S.C. § 2254(e)(l).
Petitioner first argues that, because he was mos
t recently convicted of carjacking, and not
a sexual offense, the record does not support his
commitment as a sexually violent predator.
As
previously discussed, the SVPA permits the
Attorney General to seek the commitment of
any
13
individual who qualifies as a sexually violent predator. To meet
that requirement, the Attorney
General must show that the person to be committed “has com
mitted a sexually violent offense,
without regard to when the offense was committed or whether
the person is currently incarcerated
for that offense.” See In re Commitment of P.Z.H., 873 A.2d
595, 598 (N.J. App. Div. 2005).
Nothing in the SVPA requires that a person be imprison
ed for a sexual offense at the time
commitment is sought.
Id. at 599.
Indeed, a person need not be imprisoned at all.
Id.
“Regardless of the date of the last predicate act, the constituti
onally-mandated touchstone of the
Act is proof by clear and convincing evidence that the perso
n currently suffers from a mental
condition that makes him or her a sexually violent predator and curre
ntly presents a high likelihood
of committing sexually violent acts if not committed.” Id.
at 600; see also In re Commitment of
WZ., 801 A.2d 205, 2 18-19 (N.J. 2002). Under the Act,
the remoteness of the last sex offense
“may be relevant to that inquiry, [but] it may also be insig
nificant. Where, for example, a sex
offender has been incarcerated for most of the time between
the predicate act and the commitment
proceeding, the absence of recent offenses may simply
be due to lack of opportunity.” P.Z.H.,
873 A.2d at 600.
Petitioner’s history presents just such a case.
Although Petitioner was most recently
incarcerated for carjacking, he has a history including two
sexually violent offenses for which he
was convicted: sexual assault in 1979 and aggravate
d sexual assault in 1984. R.S., 2013 WL
3367641, at * 1-2. During the brief period between the
two offenses during which Petitioner was
not in prison, Petitioner was arrested and held on
other charges of which he was acquitted.
Petitioner, between 1979 and 1984, therefore had little
opportunity to commit further offenses.
Id. Petitioner likewise committed the carjackin
g offense within weeks of being released for
14
aggravated sexual assault. Id.
Thus, that Petitioner has not reoffended sexually since
1984
appears, as the state courts concluded, to be the resul
t of a lack of opportunity rather than any
reduction in the danger which Petitioner presents
to the public were he released. Thus,
Petitioner’s argument that his having been incarcerat
ed for carjacking renders him unable to be
“currently likel[y]” to reoffend is insufficient in and
of itself to rebut the presumption that the state
courts’ factual findings were correct.
Petitioner next argues that the trial court erred in its
determination by failing to give
deference to the decision of the parole board paro
ling him for his carjacking offense and to the
experts who testified on his behalf during the final
commitment hearing. As to the former, this
Court notes that the parole board’s decision did not cons
ider directly the same issues in so much
as it related to Petitioner’s carjacking offense and
was not directed to the questions central to an
SVP determination: that Petitioner had a requisite
mental abnormality and a high likelihood of
sexual re-offense without treatment. Likewise,
as previously stated, as the SVP commitment
proceeding is wholly separate from any parole boar
d determination, there is no requirement that
the committing court be bound by a parole board
decision. M.L. V., 909 A.2d at 292-93.
As to the latter argument, the trial court, and the
affirming appellate court, considered the
testimony of all three experts who testified at Petit
ioner’s commitment hearing. All three experts
testified that Petitioner suffered from some form
of substance abuse or dependence disorder and
from antisocial personality disorder. R.S., 2013
WL 3367641, at *2..3. All three experts likewise
testified to or acknowledged that Petitioner score
d highly on the Static-99R actuarial test and was
therefore deemed likely to reoffend under that test.
Id. Although Petitioner’s expert, Dr. Foley,
downplayed Petitioner’s likelihood to reoffend,
both Drs. Gilman and Stewart testified that,
15
without some form of supervision or treatment in place
, Petitioner was at a high risk to reoffend.
Id. Of those two witnesses, the trial court conclude
d that Dr. Gilman, who testified that Petitioner
was highly likely to reoffend without treatmen
t in a secured facility, was most credible. Id.
Given the extreme nature of the sexual offen
ses for which Petitioner was convicted, the
testimony of all three experts regarding Petit
ioner’s substance abuse and antisocial person
ality
disorders, and the testimony of Dr. Gilm
an that Petitioner was highly likely to reoff
end if not
committed which the trial court found credible,
Petitioner has failed to provide sufficient evid
ence
to overcome the presumption that the trial cour
t’s findings of fact, that Petitioner had the req
uisite
personality disorders and was highly likely
to reoffend, were correct. As the evidence
presented
during the final commitment hearing fully supp
orts the conclusion that Petitioner has a requ
isite
mental abnormality, has committed two sexu
al offenses qualifying him as an SVP, and
is highly
likely to reoffend in the future; Petitioner has
likewise failed to show that the state courts’
decisions
were based on an unreasonable determi
nation of the facts presented. Petitioner has
therefore
failed to show that he is entitled to habeas
relief on those bases.
Petitioner’s final argument is essentially that,
given the facts of his case, his commitment
runs afoul of the Supreme Court’s holdin
g in Kansas v. Crane, 534 U.S. 407, 412-13
(2002). In
Crane, the Supreme Court determined
that, in order to civilly commit an individua
l as a sexually
violent predator under the Kansas SVP
A, the state courts were required to
make some
determination that a committee’s mental
abnormalities left the committee with at
least a partial
lack-of-control over his actions. Id. The
Court’s determination was based on the requ
irement in
the Kansas Act, upheld in Kansas v. Hend
ricks, 521 U.S. 346 (1997), that a pote
ntial SVP’s
“mental abnormality” or “personality diso
rder” make it “difficult, if not impossibl
e, [for] the.
.
16
person to control his dangerous behavior.” Crane, 534
U.S. at 411. The Court in O-ane rejected
the argument that an SVP determination required
a finding of a total or complete lack of control,
but held that an SVP finding could not be mad
e “without any lack-of-control determination.”
Id.
at 412. The Court, in so ruling, however,
noted that lack of control could not be demonst
rated
“with mathematical precision” and that it wou
ld be constitutionally sufficient where there
was
proof of a “serious difficulty in controlling beha
vior.” Id. at 413. Such a finding would likew
ise
he required to distinguish a dangerous sexual
offender whose serious mental issues subject
him to
commitment from “the dangerous but typical
recidivist convicted in an ordinary criminal
case.”
Id.
Petitioner’s argument rests on the observation
in Crane that “40%-60% of the male prison
population is diagnosable with antisocial per
sonality disorder.” Id. at 412 (citing Mor
an, The
Epidemiology of Antisocial Personalit
y Disorder, 34 Social Psychiatry & Psyc
hiatric
Epidemiology 231, 234 (1999)). Petitioner
takes that observation, as did his expert witness
in the
trial court, to mean that antisocial personalit
y disorder alone is not enough to warrant com
mitment
as an SVP. Petitioner’s argument ignores
the fact that the New Jersey SVPA requires,
and the
state courts found, more than the mere pre
sence of antisocial personality disorder.
Indeed, the
SVPA is directly in line with the lack of
control requirement of Crane in so muc
h as it requires
not only a mental abnormality, but one whic
h causes the committee to be currently
highly likely
to reoffend absent treatment of that abnormal
ity. See W.Z., 801 A.2d at 218-19; R.S.
, 2013 WL
3367641, at *2.3. Thus, under the New
Jersey SVPA, a finding of lack of control
is required for
commitment as an SVP, and the state cour
ts here made such a determination, findi
ng by clear and
convincing evidence that Petitioner’s
substance abuse/dependence and antisocial
personality
17
disorder specifically rendered him highly likely to
sexually reoffend in the near future absent
commitment and treatment. R.S., 2013 WL 3367
641, at *2..3. The SVPA also requires, and the
state courts here found, additional facts whic
h would differentiate Petitioner and those like
him
from the ordinary convict: that he has previous
ly been convicted of sexual offenses, and that
he
suffers a sufficient mental abnormality whic
h specifically renders him likely to reoffend
by
committing further sexual offenses. Id.; see
also WZ., 801 A.2d at 218-19. The state cour
ts’
rulings therefore do not present an unreason
able application of Crane. As Petitioner has
shown
neither that the state courts’ ruling presented
an unreasonable application of federal law, nor
that
the state courts’ rulings were based on an unre
asonable application of the facts presented durin
g
the final commitment hearing, Petitioner has
failed to show that he is entitled to habeas relie
f, and
this Court will deny his petition.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner
may not appeal from a final order in a habe
as
proceeding where that petitioner’s detention
arises out of a state court proceeding unle
ss he has
“made a substantial showing of the denial
of a constitutional right.” “A petitioner satis
fies this
standard by demonstrating that jurists of reaso
n could disagree with the district court’s resol
ution
ofhis constitutional claims or that jurists coul
d conclude that the issues presented here are
adequate
to deserve encouragement to proceed furth
er.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003).
For the expressed above, Petitioner has
failed to make a substantial showing that
he was denied a
constitutional right as jurists of reason coul
d not disagree with this Court’s resolution
of his claims
and he has not shown that the issues prese
nted are adequate to deserve encouragemen
t to proceed
18
further. No certificate of appealability shall there
fore issue.
IV. CONCLUSION
For the reasons stated above, Petitioner’s petit
ion for a writ of habeas corpus is DENIED,
and no certificate of appealability shall issue.
An appropriate order follows.
Hon. Jose L. Linares,
Uited States District Judge
19
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