Russell v. Davis, Director TDCJ-CID

Filing 27

OPINION AND ORDER: For the reasons discussed, Petitioner's petition for a writ of habeas corpus is DENIED. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Terry R Means on 11/30/2015) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
EDWARD LYNN RUSSELL,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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CIVIL ACTION NO. 4:14-CV-792-Y

OPINION AND ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by Petitioner, Edward Lynn Russell, a state
prisoner confined in the Correctional Institutions Division of the
Texas

Department

of

Criminal

Justice

(TDCJ),

against

William

Stephens, director of TDCJ, Respondent.
After having considered the pleadings, state-court records,
and relief sought by Petitioner, the Court has concluded that the
petition should be denied.

I. Factual and Procedural History
Petitioner, was adjudicated a sexually violent predator under
the prior version of Chapter 841 of the Texas Health and Safety
Code and ordered to civil commitment.

He was later charged in

Tarrant County, Texas, with violating various requirements of the
civil-commitment order.

On October 12, 2011, a jury found him

guilty on eleven such counts. (Adm. R., Clerk’s R. 152-95, ECF No.
14-11.)

The Second District Court of Appeals of Texas summarized

the facts of the case as follows:
In February 2008, Russell agreed to a final judgment
identifying him as a sexually violent predator as defined
in health and safety code section 841.003 and ordering
him to be civilly committed for outpatient treatment and
supervision in accordance with chapter 841 of the health
and safety code. In addition to addressing Russell’s
treatment and supervision, the order of civil commitment
required him to “reside in supervised housing at a Texas
residential facility under contract with the Council on
Sex Offender Treatment (Council) or at another location
or facility approved by the Council”; to “submit to
tracking under a global positioning satellite (GPS)
monitor or other monitoring system provided”; to
“exactingly participate in and comply with the specific
course of treatment provided by the Council”; and to
“comply with all written requirements of the Council and
case manager.” The commitment order also contained the
following notice: “EDWARD RUSSELL shall strictly comply
with the commitment requirements of Health & Safety Code
§ 841.082 and this Order of Commitment, or will be
charged with a felony of the third degree, which may be
enhanced to a more severe punishment.”
At the outset of his commitment and treatment,
Russell reviewed and agreed to abide by all of the rules
and requirements contained in the following documents:
“Civil Commitment Requirements: Standard Requirements of
the Treatment Program”; “Council on Sex Offender
Treatment Supervision Requirements”; “Council on Sex
Offender Treatment Additional Supervision Requirements”;
and “Council on Sex Offender Treatment Global Positioning
Tracking Service Requirements for MTD.”
In 2009 and
2010, Russell signed additional documents evidencing his
agreement to abide by various requirements of his commitment.
During the course of his outpatient treatment and
supervision, Russell failed to comply with numerous
written treatment requirements.
Consequently, in May
2010, he was unsuccessfully discharged early from the sex
offender treatment program. Russell was later indicted
on eleven counts of violating a civil commitment
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requirement as a sexually violent predator. At trial,
Russell’s former case managers, Wesley Griffin and
Lawrence Daniels, testified about Russell’s violations of
his treatment requirements. After convicting Russell on
each count, and upon his plea of true to the repeat
offender notice, the jury assessed Russell’s punishment
at twenty years’ confinement and a $10,000 fine for each
count. The trial court sentenced Russell accordingly.
(Id., Op. 2-4, ECF No. 14-4 (emphasis in original).)

In turn, the

Texas Court of Criminal Appeals refused, without written order,
Petitioner’s petition for discretionary review and denied his state
habeas application challenging Chapter 841 of the Texas Health and
Safety Code on constitutional grounds. (Id., Action Taken, ECF No.
14-19.)

This federal habeas petition followed.

In one ground, Petitioner claims Chapter 841, in effect at the
time of his civil commitment, is unconstitutional on its face and
as applied to him because it “allows its designated agents, the
Office on Sex Offender Management to violate their charges’” rights
under the First, Fourth, Fifth, Eighth and Fourteenth Amendments.
(Pet. 6, ECF No. 1.)

More specifically, he asserts:

[S]ection 841 is unconstitutional for allowing private
citizen’s, appointed by section 841, unfettered power to
deny
a
specific
group
of
U.S.
citizens
their
constitutionally protected rights by setting rules and
regulations doing so, that are enforced by section 841 by
threat of punishment, i.e., imprisonment in T.D.C.J.
(Pet’r’s Br. 1, ECF No. 4.)
The state appellate court addressed Petitioner’s claim as
follows:
Russell complains about his case managers “set[ting]
treatment plans,” but the legislature expressly required
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the Council (now known as the “Office [of Violent Sex
Offender Management]”) to “approve . . . a treatment plan
for the committed person to be developed by the treatment
provider.” Thus, while the treatment provider develops
the treatment plan, the Office approves it. Under this
framework, Russell’s case managers did not have unbridled
authority to devise–and require Russell to abide by–any
civil commitment requirement that they could potentially
imagine without the requirement first being approved by
the Office. Indeed, here, each of the documents that
Russell reviewed and approved upon entering the treatment
program contains a notation at the bottom right corner
indicating the date that the “CSOT,” or Council on Sex
Offender Treatment, last revised it.
Further, the case managers did not have the power to
determine or define what did and did not constitute
“criminal
conduct,”
as
Russell
argues.
That
responsibility lies with the legislature.
Exercising
that authority, it has determined that “[a] person
commits an offense if, after having been adjudicated and
civilly committed as a sexually violent predator under
this chapter, the person violates a civil commitment
requirement imposed under Section 841.082.” Subsection
four of section 841.082 requires the sexually violent
predator’s “participation in and compliance with a
specific course of treatment provided by the office and
compliance with all written requirements imposed by the
case manager or otherwise by the office.”
Russell’s
order of civil commitment included this requirement.
Nor could Russell’s case managers have unilaterally
determined whether he “violated” the civil commitment
order for failing to comply with a civil commitment
requirement. Although the case managers were tasked with
reporting
Russell’s
violation
of
a
commitment
requirement, and the indictment accused Russell of
violating a commitment requirement, it was the jury that
had the ultimate responsibility of determining whether
Russell committed a “violation” of his commitment order.
According to the record, including the trial court’s
charge to the jury at the guilt phase, that is precisely
what happened in this case. Russell had both notice of
the charges against him and an opportunity to be heard.
(Adm. R., Op.133-35, ECF No. 14-4 (citations omitted) (emphasis in
original).)
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Respondent asserts the petition should be dismissed because
Petitioner’s claims are meritless and relief is foreclosed by
AEDPA’s relitigation bar.

(Resp’t’s Answer 1, ECF No. 20.)

II. Rule 5 Statement
It appears that Petitioner has sufficiently exhausted his
state remedies and that the petition is neither time-barred nor
successive.
III. Discussion
Under

the

Antiterrorism

and

Effective

Death

Penalty

Act

(AEDPA), a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a state court shall not be granted with
respect to any claim that was adjudicated on the merits in state
court proceedings unless he shows that the prior adjudication: (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court, or (2) resulted in
a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court.
U.S.C. § 2254(d).

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If the Supreme Court has not “broken sufficient

legal ground to establish [a] . . . constitutional principle, the
lower federal courts cannot themselves establish such a principle
with clarity sufficient to satisfy the AEDPA bar” under either
prong.

Harrington v. Richter, 562 U.S. 86, 98-99 (2011)).
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The Supreme Court has not made clear that the version of
chapter 841 in effect at the time Petitioner was civilly committed
under the statute is unconstitutional on its face.

Absent such

squarely established Supreme Court precedent, this constitutional
challenge to the statute does not provide a basis for federal
habeas relief.
Nor

has

Knowles v. Mirzayance, 556 U.S. 111, 121 (2009).
Petitioner

demonstrated

unconstitutional as applied to him.

that

the

statute

is

In this context, due process

requires that the conditions and implementation of the statute
“bear some reasonable relation to the purpose for which” Petitioner
is committed.

Seling v. Young, 531 U.S. 250, 265 (2001) (citing

Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Youngberg v. Romeo,
457 U.S. 307, 324 (1982); Jackson v. Indiana, 406 U.S. 715, 738
(1972).

As noted by this Court in Brown v. Taylor, No. 4:12-CV-

698-A, 2013 WL 1104268 (N.D.Tex. Mar. 14, 2013), the Supreme Court
has repeatedly upheld civil-commitment programs and laws regarding
sexually violent predators that are similar to Texas’s laws and
programs. See United States v. Comstock, — U.S. —, 130 S. Ct. 1949
(2010); Kansas v. Crane, 534 U.S. 407 (2002); Seling, 531 U.S. at
262, 267; Kansas v. Hendricks, 521 U.S. 346 (1997).

Texas courts

have also upheld provisions for civil commitment of sexually
violent predators and implementation of the provisions. See, e.g.,
In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005); Beasley v.
Molett, 95 S.W.3d 590, 607–08 (Tex. App.–Beaumont 2002, pet.
6

ref’d).
schemes

Petitioner attempts to differentiate between statutory
involving

inpatient

confinement

and

treatment

versus

Texas’s outpatient conditions and supervision and also urges that
amendments to the Texas statute show that the state legislature
realized the prior version was unconstitutional. (Pet’r’s Reply 47, ECF No. 25; Pet’r’s Addendum 1-2, ECF No. 26.)

This Court finds

no Supreme Court precedent supporting his first argument, and,
admittedly, the 2015 amendments do not apply to him.1
For the reasons discussed, Petitioner’s petition for a writ of
habeas corpus is DENIED.

Further, for the reasons discussed, a

certificate of appealability is DENIED.
SIGNED November 30, 2015.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

1
Most significantly, the 2015 amendments, effective June 17, 2015, deleted
all references to “outpatient treatment,” eliminated the criminal penalties for
certain violations, including violations of conditions imposed by outpatienttreatment providers, and implemented a tiered treatment program. See Act of May
18, 2015, 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law 845.

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