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Scott v. Talbot

United States District Court, W.D. Washington, Seattle

June 13, 2018

RICHARD ROY SCOTT, Petitioner,
v.
SJAN TALBOT, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA Chief United States Magistrate Judge.

         In this 28 U.S.C. § 2254 habeas petition, petitioner Richard Roy Scott contends that the annual review provisions in RCW 71.09.090, which limit the grant of a release trial to Sexually Violent Predators (“SVPs”) who show a change in their condition resulting only from sex offender specific treatment, violate constitutional due process. Dkts. 1, 15. Mr. Scott refused, however, to avail himself of the procedures he challenges, arguing instead that he should be immediately released because the Washington Supreme Court should not have affirmed the constitutionality of the 2005 revisions to RCW 71.09.090 in State v. McCuistion, 275 P.3d 1092 (Wash. 2012), cert. denied, 568 U.S. 1196 (2013).[1] The Court recommends DENYING Mr. Scott's habeas petition and DISMISSING the case with prejudice because the Washington State Supreme Court Commissioner's decision that declined discretionary review of his challenge to McCuistion and the RCW 71.09.090 process he did not avail himself of was neither contrary to, nor involved an unreasonable application of, clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).[2] The Court also recommends DENYING the issuance of a certificate of appealability.

         PROCEDURAL BACKGROUND

         In November 2007, Mr. Scott stipulated that he was a SVP as defined in RCW 71.09 and was committed to the Special Commitment Center (“SCC”), subject to annual review about whether he continues to meet the statutory commitment criteria. Dkt. 12-1, at 1-9; Dkt. 12-2, at 3-4; see RCW 71.09.070 (annual examinations of persons committed under RCW 71.09). On July 15, 2015, Mr. Scott waived his right to a pending 2014 annual show-cause hearing. Dkt. 12-2, at 4. On July 27, 2015, however, Mr. Scott filed a pro se motion for his unconditional release-not a release hearing-separate and apart from the show-cause process of RCW 71.09.090, attaching documents that included a report by Dr. Christopher Fisher, Psy.D. See Dkt. 17, at 1-16. In the report, Dr. Fisher stated that Mr. Scott had so changed through treatment and other factors that he no longer met the criteria of a SVP as defined in RCW 71.09. Dkt. 17, at 2. The trial court denied Mr. Scott's motion for immediate and unconditional release but reserved judgment on whether the materials submitted could result in a less restrictive alternative placement or other hearing at the next annual review. Dkt. 12-2, at 5. Mr. Scott then filed a notice for discretionary review. Id. Meanwhile, in November 2015, Mr. Scott waived his right to a 2015 annual show-cause hearing. Id.

         The Washington Court of Appeals Commissioner declined to exercise discretionary review over Mr. Scott's appeal and declined to address the constitutionality of RCW 71.09.090. Dkt. 12-2. The Commissioner noted that Mr. Scott raised for the first time on appeal that RCW 71.09.090 was unconstitutional and that the dissenters, not the majority, in McCuistion were correct. The Commissioner further noted that Mr. Scott's position before the Court of Appeals was inconsistent with his position before the trial court in which he sought immediate and unconditional release and waived his right to seek a release trial through a show-cause hearing under RCW 71.09.090. The Washington Court of Appeals Commissioner therefore constrained the ruling to finding that Mr. Scott had not demonstrated probable error in the trial court's decision to deny outright unconditional release. Dkt. 12-2, at 8. Mr. Scott then sought discretionary review from the Washington Supreme Court.

         In June 2017, the Washington Supreme Court Commissioner also denied discretionary review but did so in broader terms. Dkt. 12-3. The Washington Supreme Court Commissioner found that Mr. Scott failed to demonstrate (1) McCuistion should be overruled or that RCW 71.09.090 cannot be constitutionally applied to him; and (2) a right to an unconditional release trial outside of the statutory structure of RCW 71.09.090. In sum, the Commissioner noted that “Mr. Scott does not demonstrate the inadequacy of the statutory scheme by simply presenting his own expert's report on disputed issues and asserting a right to unconditional release.” Dkt. 12-3, at 6. The Washington Supreme Court summarily denied Mr. Scott's motion to modify the Commissioner's ruling. Dkt. 12-4. Mr. Scott then filed the current 28 U.S.C. § 2254 habeas petition.

         This Court appointed the Federal Public Defender as Mr. Scott's counsel and permitted amendment of the petition to substitute the proper respondent. Dkts. 4, 16. The sole issue presented is whether the Washington Supreme Court Commissioner's decision was contrary to clearly established federal law under Foucha v. Louisiana, 504 U.S. 71 (1992). See Dkt. 1, at 2; Dkt. 15, at 5-9.

         DISCUSSION

         Although Mr. Scott presents his action as a facial constitutional challenge to the 2005 revisions to RCW 71.09.090 and to the state supreme court decision in McCuistion, for habeas purposes his claim is limited to the question of whether the Washington Supreme Court violated constitutional due process according to Foucha by declining to review Mr. Scott's attempt to circumvent the review procedures of RCW 71.09.090 so that he could receive either immediate release from custody or extraordinary, ad hoc release procedures. The Court finds that the Washington Supreme Court's decision was neither contrary to, nor an unreasonable application of, Foucha.

         In Foucha, the Supreme Court held that a Louisiana statute that allowed continued confinement of an insanity acquittee on the basis of his antisocial personality, after the hospital review committee had reported no evidence of mental illness and recommended conditional discharge, violated due process. 504 U.S. 71. In doing so, the Court reiterated that constitutional due process requires that “the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” Id. at 77. Because it was undisputed that Mr. Foucha was not mentally ill, the basis for holding him in a psychiatric facility as an insanity acquittee had disappeared and Louisiana was no longer entitled to hold him on that basis. Id. at 78.

         The circumstances in Foucha differ markedly from those presented here. The Foucha Court held that Mr. Foucha was being held against his will in a mental institution absent a determination in civil commitment proceedings of current mental illness and dangerousness. That is, the superintendent of the facility recommended that Mr. Foucha be discharged or released, a three-member panel was convened that determined there was no evidence of mental illness and recommended conditional discharge, and yet the trial court continued Mr. Foucha's detention although no one testified that he continued to be dangerous and there was no indication of mental illness. Id. at 74-75. In contrast, Mr. Scott stipulated to his confinement as a SVP, i.e., that he was both mentally ill and dangerous, and then refused to participate in a process that could have demonstrated otherwise, instead presenting a favorable expert report and demanding unconditional release without reference to or allowance for contradictory evidence. See RCW 71.09.010 (findings); RCW 71.09.070 (annual examinations); RCW 71.09.090 (petition for conditional release or unconditional discharge).

         In Foucha, Mr. Foucha was denied procedural due process because Louisiana failed to provide constitutionally adequate procedures to establish the grounds for continued confinement and was denied substantive due process because it was constitutionally improper to punish someone who had been acquitted rather than convicted. Id. at 79-80. In contrast, Mr. Scott acknowledges that he is currently committed at the SCC based on his stipulation to being a SVP but refuses to participate in procedures set forth in RCW 71.09.090 that were affirmed as constitutionally adequate by the Washington Supreme Court in McCuistion. In Foucha, the Louisiana statue at-issue did not require the State to prove anything to justify continued detention and placed the burden on the detainee to prove that he was not dangerous. Foucha, 504 U.S. at 81-82. In contrast, as noted in McCuistion, the Washington SVP statutory scheme requires the State to prove beyond a reasonable doubt that the SVP is mentally ill and dangerous at the initial commitment hearing and that the State justify continued incarceration through an annual review. McCuistion, 275 P.3d at 1102; see RCW 71.09.060 (commitment procedures before court or jury); RCW 71.09.070 (requiring annual mental examination to determine whether the committed person currently meets the definition of a SVP with a report of the findings sent to the committing court); see, e.g., Jones v. United States, 463 U.S. 354, 358 (1984) (holding that “[p]eriodic review of the patient's suitability for release” is required to render commitment constitutional). If an individual no longer meets the definition of a SVP, “the secretary shall authorize the person to petition the court for conditional release” or “unconditional discharge” and the court “shall within forty-five days order a hearing.” RCW 71.09.090(1). Alternatively, if the Department of Social and Health Services does not authorize such a petition, the court must set a show-cause hearing unless the individual affirmatively waives the right to petition for unconditional discharge or conditional release to a less restrictive alternative (as Mr. Scott did here). RCW 71.09.09(2)(a). At the show-cause hearing, the State bears the burden to present prima facie evidence that the individual continues to meet the definition of a SVP and that conditional release to a less restrictive alternative would be inappropriate. RCW 71.09.09(2)(b)(i). The Court must order an evidentiary hearing if the State fails to meet its burden or, alternatively, the individual establishes probable cause to believe his “condition has so changed” that he no longer meets the definition of a SVP or that conditional release to a less restrictive alternative would be appropriate. RCW 71.09.09(2)(c). In 2005, the Washington legislature amended RCW 71.09.090 to limit the means by which a committed person may show he has “so changed” to where he has had (1) “[a]n identified physiological change” making him “unable to commit a sexually violent act and this change is permanent, ” or (2) “[a] change in the person's mental condition brought about through positive response to continuing participation in treatment.” RCW 71.09.090(4)(b).

         It is the 2005 amendments to RCW 71.09.090, and McCuistion's subsequent holding that these amendments satisfy due process, that Mr. Scott attempts to attack here. According to Mr. Scott, the 2005 amendments to RCW 71.09.090 are facially invalid because they necessarily preclude him from being released based upon other kinds of evidence, e.g., presentation of Dr. Fisher's report that Mr. Scott's condition has “so changed” based on his advanced age and counseling with a Christian Science practitioner such that he no longer meets the definition of a SVP. Dkt. 17, at 1-16. On an abstract, legal level, Mr. Scott's position was well-articulated by the dissent in McCuistion, which argued that the 2005 amendments violated substantive due process by impermissibly truncating a court's consideration of relevant evidence at a show-cause hearing. 275 P.2d at 1107-1112. On habeas review, however, this Court's duty is not to review de novo the SVP statutory scheme or the state supreme court decision in McCuistion; rather, the federal court considers only whether the Washington Supreme Court Commissioner's decision not to exercise discretionary review over Mr. Scott's motion to circumvent the established review procedures was contrary to, or an unreasonable application of, clearly established federal law embodied in Foucha. Foucha does not support the position that RCW 71.09.090 and McCuistion violate procedural or substantive due process when a civil detainee refuses to seek relief through periodic review procedures and instead seeks immediate release or a self-defined mechanism for review based solely on his own favorable evidence without affording the State an opportunity to present contrary evidence or rebuttal.[3]

         The Washington Supreme Court Commissioner declined discretionary review because Mr. Scott failed to demonstrate (1) McCuistion should be overruled or that RCW 71.09.090 cannot be constitutionally applied to him; and (2) a right to an unconditional release trial outside of the statutory structure of RCW 71.09.090. It was neither contrary to, nor an unreasonable application of, the Supreme Court case Foucha for the Washington Supreme Court to deny discretionary review to an applicant who ...


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