Perry v. Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services et al

Filing 18

REPORT AND RECOMMENDATIONS re 6 Petition for Writ of Habeas Corpus filed by Gerald Everett Perry, 16 MOTION to Dismiss filed by James S. Reinhard. Signed by Magistrate Judge James E. Bradberry and filed on 12/8/09. ECF to counsel, copy mailed to petitioner c/o Central State Hospital.(mwin, )

UNITED FOR THE

STATES

DISTRICT

COURT

EASTERN DISTRICT

OF VIRGINIA

Norfolk Division

GERALD

E.

PERRY,

Petitioner,

v.
COMMISSIONER JAMES S. REINHARD, M.D.,

2:09CV130

Respondent.

MAGISTRATE

JUDGE'S

REPORT AND

RECOMMENDATION

This

matter

was

initiated

by

petition

for

writ

of

habeas

corpus

under

28

U.S.C.

§

2254.

The

matter

was

referred

to

the

undersigned United States Magistrate Judge pursuant
28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72 of the

to the provisions of
Rules of the United

States

District

Court

for
I.

the

Eastern

District

of

Virginia.

STATEMENT OF THE CASE A. Background

On

July

14,

2008,

in

the

Circuit

Court

for

the

City

of

Chesapeake, of a

Virginia,

petitioner of

was

found

not

guilty

of

grand

larceny

firearm by reason

insanity.

Petitioner was

admitted to Central

State Hospital
Health
26,

(CSH),

a facility operated by the Department of Behavioral
Services
held

and

Developmental
a hearing was

(DBHDS),
to

for

evaluation.

On

January
of the

2009,

pursuant

section

19.2-182.3,

Virginia inpatient

Code,

to

determine

whether

petitioner

should or

be

committed

to

hospitalization,

conditionally

released,

released

without

conditions.

After the evaluator's reports were considered by the court, found to be committed to mentally the ill and in of a need of hospitalization. Pursuant to

petitioner was Petitioner was

custody

respondent.

section 19.2-182.85 of the Virginia Code,

review hearing was scheduled

for January 25,

2010,

to assess

the need for continued hospitaiization.

After the hearing of January 26,

2009,

petitioner remained at CSH until

he showed signs of improvement, at which time, his treating professionals determined that it was no longer necessary for him to remain 2009, in the

maximum security setting at CSH.
transferred to
by DBHDS. On court. By March of 24, 2009, 9,

Accordingly,

on August 10,
state

he was

Eastern

State

Hospital,

another

facility operated

petitioner 2009, the

a

civil

complaint Court

in

federal advised

order

April

District

Judge

petitioner
and

that

his

complaint
to

should be
a

construed as
on the

a

§ 2241

petition
forms.

ordered to

petitioner the Order,

file

petition

required

Pursuant

petitioner filed the

instant petition on May 14,

2009.

However,

after reviewing the petition,
is in custody in a state pending

this Court determined that
claims

since petitioner challenge the

facility and since his him, the petition

state

charge

against

should be

construed 2009, the

as

a

§

2254

petition

and proceeded

accordingly. to

On

May

27,

Court

issued an

order directing petitioner

show cause why

the petition should not be dismissed for failure to exhaust state court remedies. On June 26, 2009, petitioner filed a response, but did not

state a valid explanation for why the petition On July 27, 2009, the undersigned

should go published

forward. a report and

recommendation, to exhaust

recommending that court remedies.

the petition be dismissed for failure On August of to the the 5, 2009, petitioner filed

state to the the

objections 17, 2009,

report, was

and by Order remanded back

District

Court of August for further

matter

undersigned

consideration.

By Order of August response to the petition,

19,

2009,

respondent was ordered to file a 2009, the respondent filed

and on September 15,

a motion

to

dismiss.

This matter
B.

is

now

ripe

for

consideration.

Grounds Alleged that the trial court erred in

Essentially,

petitioner alleges

not

classifying
thereby

the

charge

against
his

him

as

a

misdemeanor

instead

of

a

felony,

violating

Eighth

and

Fourteenth

Amendment

rights

(Claims

1,

3,

and 4) ,
II.

and

that his

arrest

was

unlawful

(Claim 2).

FINDINGS

OF FACT AND

CONCLUSIONS

OF LAW

A.

Motion to Dismiss to dismiss

Standard for failure to state a claim

In ruling on a motion upon which relief can be granted,

the complaint is construed in the light

most favorable to the plaintiffs and their allegations are taken as true.
See Brower v. County of Invo, 489 U.S. 593, 598 (1989)(citing Scheuer v.

Rhodes,

416

U.S.

232,

236

(1974));

Jenkins

v.

McKeithen.

395

U.S.

411,

421

(1969).

The complaint

should not be dismissed unless

it appears

to

a certainty that the plaintiff can prove no facts in support of his claim which would entitle
45-46 (1957); GE

him

to

relief.

See

Conley v.
Partners II

Gibson.
v.

355

U.S.
247

41,
F.3d

Inv.

Private

Placement

Parker.

543,

548

(4th Orq..
the

Cir. 991

2001); F.2d

Martin 94, 97

Marietta (4th
in

Corp.

v.

Int'1 The

Telecomms. courts must
if

Satellite
construe
recovery

Cir.
of

1993) .
the

complaint
remote

liberally
and

favor
In

plaintiffs,
a 12(b)(6)

even

appears

unlikely.

ruling

on

motion,

the

court

primarily

considers

the

allegations

in

the

complaint

but

may See Cir.

consider attached exhibits and documents Simons 1985); v. Montgomery County Police 149

incorporated by reference. 762 F.2d 30, 31 (4th 1993).

Officers. 127,

Wolford v.

Budd Co..

F.R.D.
3

129-32

(W.D.

Va.

B.

Standard of Review for State Court Findings

The
provides that:

federal

statute

regarding

review

of

state

court

actions

An application for 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 of claim the that was adjudicated on the

merits

in

State

court

proceedings

unless

the

adjudication

claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

(2)
the

resulted in a decision that was based on an
evidence presented in the State court

unreasonable determination of the facts in light of proceeding.

28

U.S.C.

§

2254(d) (2000) .

This

standard,
1996

adopted
(AEDPA),

by

the

Antiterrorism
104-132,

and

Effective

Death Penalty Act of

Pub.L.No.

is consistent with

the

Fourth Circuit's
of the new

interpretation of
law. In Fields v.

28

U.S.C.

§
49

2254(d)
F.3d

prior

to

the
Cir.

passage

Murray,

1024

(4th

1995),

the
to

court
a

held

that

a
of

review of

a

state

court

finding,
habeas See id.

which
court at

is
to

entitled

presumption

correctness,

compels

the

accord a high measure of deference 33 (citing Rushen v. 591, 598 Spain, As

to the state court. 114, 120 (1983);

1032455 422

464 U.S.

Sumner v.

Mata.

U.S.

(1982)).

stated in Marshall v.

Lonberger.

459 U.S.

(1983),
simply

"[t]his deference requires that a federal habeas court more than
disagree with the state it
[]

court

before

rejecting that the

its

factual court's
432.

determinations.
findings

Instead,
'fair

must

conclude
in the

state
Id. at

lacked even
C.

support'
Claims

record."

Petitioner's

are Not Exhausted and

are Not Subject to Federal Review.

At herein are

the

outset, to

the

Court

finds in a

that state

the

allegations action,

stated which

amenable

resolution

habeas

petitioner has chosen not to pursue.

In order to proceed with his claim

under

§

2254,

petitioner

must

satisfy
that:

the

statutory

exhaustion

requirements.

Section 2254 provides

(b) (1)
on

An application for a writ of habeas corpus
of a person in custody pursuant to the

behalf it

judgment
unless

of

a

State

court

shall

not

be

granted

appears

that--

(A) the applicant has exhausted the available in the courts of the State; or (B)(i) there is an absence of corrective process; or

remedies

available

State

(ii) circumstances exist process ineffective to protect applicant.

that render such the rights of the

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question
presented.

28

U.S.C.

§§ 2254(b)(l)-(c) <2000).

Petitioner

has

not

appealed

the

verdict

of

July

14,

2008,

finding him not guilty by claims to the Supreme

reason of of

insanity, by a

nor has

he presented his for a writ of

Court

Virginia

petition

habeas corpus or any other available means.

Furthermore,

petitioner has

not

appealed

the

commitment
of the

order

of

January
nor

26,
has he

2009,

pursuant
any

to

section

19.2-182.5

Virginia

Code,

raised

claim

relating to the order in the Supreme Court of Virginia by a petition for a writ of habeas corpus or any other available means. has failed to exhaust his state remedies, he in not Since petitioner entitled to habeas

review
F.3d

in

this

Court.
(4th

See

28

U.S.C.
1997).

§

2254(b);

Matthews

v.

Evatt.
has

105
not

907,

910-12

Cir.

Furthermore,

petitioner

provided
the state

the

Court with
or

a valid

reason

for

not pursuing
or

this

natter
that

in

courts from

identified any barriers so. Petitioner's

circumstances are not

would and

prevent

him

doing

claims

exhausted

should be

DISMISSED.

D.

Claims

1.

3,

and 4 are Noncognizable.

"[I]t

is

not

the

province

of

a

federal

habeas

court

to

reexamine

state-court

determinations

on

state-law

questions.

In

conducting habeas review,

a federal court is limited to deciding whether

a conviction violated the Constitution,
States." Estelle v. McGuire. 502

laws,
62,

or

treaties of the United
(1991) (citations

U.S.

67-68

omitted). "intervene

In in

the arena the state

of habeas judicial

corpus, process

federal only Goode, to

courts are allowed to correct U.S. do wrongs 78, not 83 of a

constitutional (citation

dimension."

Wainwricrht v. if

464

(1983) a

omitted).

Therefore, his

petitioner's will

claims

allege they

constitutional

violation,

claims

fail

because

are 530

noncognizable in a federal habeas petition.

See Ramdass v. Anaelone.

U.S.

156,

120 S.Ct.

2113,

2119
176

(2000);

Engle v.
262

Isaac,

456 U.S.
1999);

107,

119

(1982);

Weeks v.

Anaelone,

F.3d 249,

(4th Cir.

Fisher v.

Anaelone,

163 F.3d 835,

854

(4th Cir.

1998);

Huffinqton v. Nuth,

140 F.3d

572,
(E.D.

584
Va.

(4th

Cir.

1998);

Robinson

v.

Cross.
944 F.

121
Supp. 946

F.

Supp.2d
1250 Va.

882,
(E.D.

884
Va.

2000);

Satcher v. Virginia.

Netherland. 606 F.

1222, (E.D.

1996);

Griffin

v.

Supp. the

941,

1985). in not

Petitioner

alleges

that

trial

court

erred

classifying
felony.

the

charge
to

of

grand

larceny

as

a

misdemeanor
of the

instead

of

a
a

Pursuant

section

19.2-182.5(D),
6

Virginia

Code,

defendant

found

not

guilty

by

reason

of

insanity

of

a

misdemeanor

nay

remain At

in

respondent's

custody for

a period

of be

not

more

than

one

year.

the end of or

that year, civilly

the defendant must See of of Va.

released, §

conditionally et seq. been his

released, Petitioner considered

committed. the crime

Code Ann.

37.2-800 should

argues a

that

grand a

larceny

have

misdemeanor

instead

felony,

thereby

limiting

commitment

to

one

year. is
38

The

classification

of

an

offense

as

a

misdemeanor or a
v. Hamlin.

felony
25,

a matter of
(1972).

state prerogative.
Claims 1, 3,

Arqersinaer
and 4 are not

407 U.S.

Therefore,

cognizable

in

federal habeas proceedings and should be

DISMISSED.

Petitioner also alleges that his arrest was unlawful due to a
racial slur made by one of the responding officers (Claim 2) . An

unlawful arrest is not cognizable in federal habeas proceedings, importantly, petitioner has not alleged a violation of any

and more federal

constitutional rights.

Claim 2 is noncognizable and should be DISMISSED.
III. RECOMMENDATION

For petitioner's
respondent's demonstrate

the

foregoing for writ

reasons, of
be

the

Court corpus

recommends be DISMISSED
has

that and
to

petition
motion "a to

habeas

dismiss

GRANTED. of the

Petitioner denial of a

failed

substantial

showing

constitutional

right."

Therefore,

it is recommended that the Court decline to issue any of the Federal Rules
123 S.Ct. 1029, 1039

certificate of appealability pursuant to Rule 22(b)
of Appellate Procedure.
(2003) .
IV. REVIEW PROCEDURE

See Miller-El v.

Cockrell,

By

copy

of

this

Report

and

Recommendation,

the

parties

are

notified that pursuant

to 28

U.S.C.
7

§ 636(b)(1)(C):

1. Clerk written

Any party may serve upon the other party and file with the objections to the foregoing findings and recommendations

within

fourteen

days

from

the

date

of

mailing 6{a)

of

this

report

to

the

objecting party, Civil
See 28

computed pursuant to Rule plus

of the Federal Rules of 6<d)
72 (b) . days

Procedure,
U.S.C. to §

three days permitted by Rule
Fed. R. Civ. P.

of

said rules.
A party may

636 (b) (1) (C) (2000) ;

respond

another party's

objections within

fourteen

after being

served with a copy thereof.

2.

A

district this
is

judge

shall

make

a

de

novo

determination

of

those portions of
to which objection

report or

specified

findings

or

recommendations

made.

The parties are

further notified that

failure

to

file

timely

objections

to

the

findings

and

recommendations

set

forth

above

will

result in waiver of
on such findings

right to appeal

from a judgment of
See Thomas v.

this court based
474 U.S. 140

and

recommendations.

Arn,

(1985);

Carr
727

v.

Hutto.
91

737

F.2d

433

(4th

Cir.

1984);

United

States

v.

Schronce.

F.2d

<4th cir.

1984).

/s/
James E. Bradberry

United States Magistrate Judge

Norfolk,
December

Virginia
8. 2009

Clerk's

Mailing Certificate

A copy of the foregoing Report was mailed this date to each of
the following:

Gerald Everett

Perry,

pro

se

Central
P.O. Box

State
4030

Hospital 23803

Petersburg,

VA

Allyson K. Tysinger, Esq. Senior Assistant Attorney General 900 E. Main Street Richmond, VA 23219

Fernando Galindo,

Clerk

By

^/Deputy

Clerk

j pi- ^

, 2009

10