United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA Chief United States Magistrate Judge.
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). 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). The Court also
recommends DENYING the issuance of a
certificate of appealability.
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.
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.
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.
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
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.
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.
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
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).
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.
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 ...