JEROME B. SIMANDLE, District Judge.
Steven Grohs ("Grohs") has submitted an amended petition ("Amended Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF
Grohs has a history of child sex crimes, computer pornography and child exploitation, lewd assault, and related offenses throughout the period 1990 to 2009. (ECF 3-1 at 4; ECF 9-4 at 24-25.)
On February 22, 2011, the State of New Jersey ("State") filed a Petition for Civil Commitment of Grohs ("Commitment Petition"), with a supporting probable cause certification (ECF 9-4 at 21-28 and 33-36), under New Jersey's Sexually Violent Predator Act, N.J. Stat. Ann. § 30:4-27.24 to -.38 ("SVPA"). The Commitment Petition requested "that Grohs be declared a sexually violent predator and that, pursuant to N.J. Stat. Ann. § 30:4-27.28, Grohs be committed to the custody of the State of New Jersey Special Treatment Unit (STU), until such time as his condition has so changed that he is no longer a danger to society and is not likely to engage in acts of sexual violence if released." (ECF 9-4 at 25.)
The Deputy Attorney General's February 23, 2011 cover letter to the trial court clerk enclosing the Commitment Petition stated: "Pursuant to the Appellate Division in In re the Commitments of M.G. and D.C., 331 N.J.Super. 365 (App. Div. 2000), the Office of the Public Defender has been served with a copy of the Petition and supporting Clinical Certificates. Please have the judge reserve decision for seven days in order to provide the Public Advocate an opportunity to contest whether the State has established probable cause." (ECF 10 at 20-21.)
On February 23, 2011, the State served the Commitment Petition on the Office of the Public Defender via overnight mail. (ECF 9-4 at 37-38.)
Judge Richard J. Geiger signed an Order For Temporary Civil Commitment ("the TCO") (ECF 9-4 at 29-32; ECF 9-3 at 5-6) on February 24, 2011 — i.e., two days after the State filed the February 22 Commitment Petition. (Id.) The TCO provided:
(ECF 9-4 at 29-32.)
Grohs was housed in Southwoods State Prison at time of his temporary commitment. (ECF 3-1 at 15.)
In May 2012, Grohs filed a Motion to Dismiss the State's Commitment Petition ("the MTD"), arguing that the TCO was entered prematurely in violation of Due Process. (ECF 9-3 at 2-7; ECF 9-5 at 49-54.) In his May 22, 2012 Certification in support of the MTD, the public defender stated that Grohs had been in custody of the STU — "the secure custodial facility for treatment of persons in need of commitment under the [SVPA]" — since March 3, 2011. Grohs' counsel argued that the Commitment Petition was "null and void because the temporary commitment court failed to afford Grohs an opportunity to be heard within the seven day rule" in violation of Due Process. (ECF 9-5 at 52-54.) Grohs' counsel further argued that he had waived his 20-day commitment hearing "because he currently has pending a postconviction relief petition to withdraw his guilt[y] [plea][,] [and such waiver does not] preclude him from raising this [Due Process] issue at this time." (Id. at 53-54.)
On May 25, 2012, Grohs appeared with counsel before Judge Philip M. Freedman ("Judge Freedman") of the Law Division of the Superior Court of New Jersey (ECF 9-3 at 9-16) because Grohs' counsel had sought
Judge Freedman referred to the court's hesitation to "interfer[e] with the operations of th[e] [STU] institution unless it's, you know, something that really rises to the level of a constitutional issue" (id. at 11), especially since the STU had given Grohs "a reasonable alternative, which is just to go and listen." (Id.) Nevertheless, Grohs persisted in concerns of being "subjected to problems with other residents, which could jeopardize my safety and possibl[y] my release from this facility." (Id. at 12.) Judge Freedman left resolution of that matter open to a future hearing: "I don't intend to do it today. We'll have to have a hearing. Then I'll make a ruling." (Id.)
Judge Freedman then turned to Grohs' MTD argument that his failure to receive seven days' notice from the State was "fatally defective to the [Commitment] [P]etition." (Id. at 12.) The State argued at the May 25 hearing that "any `early' signing of the [TCO] should be absolutely immaterial" because "[a]t no time did Mr. Grohs ask for a probable cause hearing." (Id. at 13.) The court questioned the State's "immateriality" contention because Judge Freedman said "the [SPVA] statute should [still] be complied with." (Id.) According to the court, the "[pertinent] question [instead] is, [does] a violation of it deliberately or inadvertently taint or make commitment improper." (Id. at 13.) Judge Freedman found that taint had not occurred because there was, in fact, probable cause to subject Grohs to civil commitment:
(ECF 9-3 at 10-15; ECF 10 at 18-19.)
On June 14, 2012, Grohs filed a Notice of Appeal. (ECF 9-5 at 56-59.) On September 25, 2012, the Appellate Division dismissed for failure to prosecute the appeal. (ECF 9-5 at 61.)
On January 14, 2013, Grohs filed a Motion for Interlocutory Appeal of Judge Freedman's May 25, 2012 decisions not to consider Grohs' pro se motion challenging the factual accuracy of various statements in the Commitment Petition
In July 2013, Grohs petitioned the New Jersey Supreme Court for certification of an interlocutory appeal. (ECF 9-6 at 29-31.) Later that same month, Grohs moved before New Jersey's Supreme Court for Leave to File Notice of Petition and Petition for Certification as Within Time. (ECF 9-6 at 21-28.)
On September 3, 2013, the State filed a letter brief opposing Grohs' Motion Seeking Review of the Appellate Division's May 12, 2013 Order Denying Motion for Leave to Appeal Interlocutory Order of Trial Court. (ECF 9-6 at 33-38.)
On July 25, 2014, the New Jersey Supreme Court granted Grohs' petition for certification and summarily remanded to the trial court for reconsideration in light of IMO the Civil Commitment of D.Y., 95 A.3d 157 (N.J. 2014). (ECF 9-6 at 56.)
On August 22, 2014, Grohs filed with this Court his Petition for habeas review under 28 U.S.C. § 2254. (ECF 1.) He thereafter filed an Amended Petition on November 24, 2014 (ECF 3), which this Court on February 2, 2015 ordered Respondents to answer. (ECF 6.) Respondents did so on May 19, 2015. (ECF 9.)
This Court now reviews the submissions of the parties and denies the Amended Petition, for the reasons explained below.
The Antiterrorism and Effective Death Penalty Act of 1996 permits a federal court to entertain a petition for writ of habeas corpus on behalf of a person in state 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 United States." 28 U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a state court, the writ shall not issue unless the adjudication of the claim:
28 U.S.C. § 2254(d). A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "[A] state-court decision is an unreasonable application of clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, 134 S.Ct. 1697, 1706, reh'g denied, 134 S.Ct. 2835 (2014). Habeas courts must presume that state court factual findings are correct unless petitioners rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Grohs raises the following points in Grounds One and Two of the Amended Petition for this Court's review:
The Court now addresses these points in turn:
Citing N.J. Stat. Ann. § 30:4-27.28(c)
In his Pro Se Brief, Grohs contends that In the Matter of Commitments of M.G. and D.C., 751 A.2d 1101 (N.J. Super. App. Div. 2000) ("M.G.") and In the Matter of Civil Commitment of T.J.T., No. A-5003-06, 2008 WL 313902 (N.J. Super. Ct. App. Div. Feb. 6, 2008) ("T.J.T.") support his Due Process deprivation claim. He states that the February 24, 2011 TCO directed the State to provide him with "notice . . . of the final hearing . . . at least 10 days prior" (ECF 9-4 at 31), but "[n]one of it was done." (ECF 3-1 at 16-18.) M.G. ruled that the committee therein should have been given seven days' notice within which to contest probable cause (751 A.2d at 1108-09), but T.J.T. ruled that no such notice was required under its particular facts. Grohs also claims that "[f]ollowing the decision reached by the Supreme Court in Vitek [v. Jones, 445 U.S. 480 (1980)], it is clear that, absent some emergency justifying a post-deprivation hearing, due process requires notice prior to even a temporary involuntary commitment." (ECF 3-1 at 16.)
Grohs' reasoning is fatally flawed because denial of the MTD was not contrary to, nor an unreasonable application of, clearly established federal law. Vitek does not say that the SVPA gave Grohs any Due Process liberty interest expectation of seven days' notice, hearing and opportunity to challenge commitment before the TCO hearing, and Grohs has not cited any Supreme Court precedent that does so. Thus, there was no Supreme Court authority as to which denial of the MTD could have been contrary or an unreasonable application.
Ground One turns upon whether there is any clearly established Supreme Court precedent that New Jersey's SVPA gave Grohs a constitutional Due Process liberty interest expectation of seven-day notice of the preliminary hearing on temporary civil commitment, of right to a hearing, and of opportunity to challenge his commitment prior to entry of the TCO. Grohs offers Vitek v. Jones, 445 U.S. 480 (1980) (ECF 3-1 at 15-16), but his reliance is misplaced.
In Vitek, "the threshold question [wa]s whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicate[d] a liberty interest that is protected by the Due Process Clause." Vitek, 445 U.S. at 487 (finding such interest existed, in the particular circumstances of that case). Grohs suggests Vitek directs that "due process requires notice prior to even a temporary involuntary commitment, absent some emergency justifying a post-deprivation hearing." (ECF 3-1 at 16.) However, Grohs overlooks the initial step of Vitek's analysis: examining whether "the State grant[ed] a prisoner a right or expectation [in the first place] that adverse action will not be taken against him except upon the occurrence of specified behavior." Vitek, 445 U.S. at 490-91 ("requirements of procedural due process appropriate for the circumstances must be observed . . . if the State grants a prisoner a right or expectation . . .") (emphasis added) (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). Vitek sets forth no precedent for determining whether New Jersey law gave Grohs an expectation of seven days' notice of the TCO hearing, expectation of the right to a hearing, and expectation of opportunity to challenge his commitment before the TCO hearing, thereby creating a protected liberty interest for him. Grohs has not cited any Supreme Court case that does. The trial court's denial of Grohs' MTD cannot be contrary to, or an unreasonable application of, Supreme Court precedent that is not established in the first instance. 28 U.S.C. § 2254(d)(1).
Ground One of the Amended Petition at best seeks relief purportedly arising from violation of the SVPA, but this Court cannot grant habeas relief for state law infractions.
Grohs argues that the Commitment Petition should have been dismissed because the TCO — finding probable cause that he was a sexually violent predator — was signed two days after it was filed. Grohs bases this argument on M.G., in which individuals subject to the SVPA and incarcerated in a state psychiatric facility were placed on Conditional Extension Pending Placement ("CEPP")
M.G. involved individuals committed to a state psychiatric facility and on CEPP status. Such persons are entitled to leave the non-SVP facility. T.J.T., 2008 WL 313902 at *3 (discussing M.G.). Here, though, Grohs was not on CEPP status and was confined to South Woods State Prison at time of his temporary commitment; "[h]e was not free to leave." (ECF No. 3-1 at 14) (emphasis added). Under the logic of M.G., this distinction is material to the issue of whether there is a liberty interest to trigger Due Process notice requirements because (as the T.J.T. panel stated): "[T]he notice requirement triggered under the facts of M.G. [i]s inapplicable to others committed under SVPA." T.J.T., 2008 WL 313902, at *3. M.G. did not decide whether confinees not on CEPP status are entitled under SVPA to seven-days' notice of the preliminary temporary commitment hearing.
Subsequent to M.G., the T.J.T. panel addressed appeal of a judgment continuing an STU commitment under SVPA. The court found that the notice requirement triggered under the facts of M.G. was inapplicable to others being committed under SVPA:
T.J.T., 2008 WL 313902, at *3.
Similar to the T.J.T. complainant, Grohs "was not confined on CEPP status at the time of the preliminary temporary commitment." 2009 WL 313902, at *3. And like the commitment at issue in T.J.T., the February 24th TCO here was the preliminary temporary commitment order, not the final one. (ECF 9-4 at 30, 32) ("FURTHER ORDERED that Grohs shall not be permitted to appear at the final hearing without counsel . . . [A] final hearing shall be conducted on March 18, 2011"). In such non-CEPP circumstances, the Appellate Division found that SVPA requires "only notice of the final hearing[,]" and "notice of the preliminary hearing was not required." Id. (emphasis added).
Thus, M.G. stands exclusively for the principle that an individual in a state psychiatric facility "and on CEPP status . . . is entitled to notice prior to temporary commitment." M.G., 751 A.2d at 1103, 1108-09 (emphasis added). T.J.T. stands exclusively for the principle that SVPA "requires notice only for the final commitment hearing[,] not the preliminary temporary commitment hearing." T.J.T. 2008 WL 313902 at *3 (emphasis in original).
Contrary to Grohs' contention, then, neither M.G. nor T.J.T. conclusively suggest that there was an SVPA violation in this case.
Even if there was such violation, however, Grohs' right to habeas relief does not turn on such state law violation itself. Rather, Grohs' entitlement to a writ of habeas corpus depends on whether Vitek or other Supreme Court precedent have found that non-CEPP committees have an SVPA-based Due Process liberty interest in seven days' notice, hearing, and opportunity to challenge prior to the preliminary temporary commitment hearing.
Vitek does not stand for that principle. Grohs has not pointed to any federal precedent that does. Even if
For these reasons, Grohs' request for habeas relief on Ground One is denied.
In Ground Two, Grohs contends that the trial court erred when it "refused to consider Grohs' verbal motion to not attend sex offender specific therapy while Grohs' post conviction relief petition is pending." (ECF 3-1 at 18.) Grohs' motion had sought "review of the internal management procedures" of the STU (id. at 19, 20), under which Dr. Merrill Main, as the STU's Clinical Director, formulated the treatment refusal policy. Grohs argued that the policy placed him in the "untenable position to either discuss his criminal offense in a process group or be considered a treatment refuser." (Id.)
Judge Freedman declined to rule on Grohs' verbal motion at the May 25, 2012 hearing, with the court indicating that it does "not like interfering with the operations of th[e STU] unless it's . . . something that really rises to the level of a constitutional issue. And [Dr. Main] is giv[ing Grohs] a reasonable alternative, which is just to go [to the sex offender specific process group] and [only] listen." (ECF 9-3 at 11; ECF 10 at 18-19.) This Court notes that, contrary to Grohs' contention that Judge Freedman "refused" to hear Grohs' argument on this point (ECF 3-1 at 18, 20), the record instead reflects that the trial court expressed its intent to do so at a later date: "I don't intend to do it today. We'll have to have a hearing. Then I'll make a ruling . . . [The court will] find some time and we'll have a hearing on the issue." (ECF 9-3 at 29.)
Grohs' factual recitation aside, Grohs' complaint about the STU's institutional policies does not suggest a violation of the Constitution or any law or treaty of the United States. (ECF 3 at 8-9; ECF 3-1 at 18-21.) Ground Two does not identify any particular federal constitutional violation in connection with Judge Freedman's decision not to hear Grohs' STU policy-based motion on May 25. This point is dispositive of Amended Petition Ground Two. The contention that STU personnel did not observe proper procedures to put Grohs in treatment (ECF 3-1 at 18-20) is not a federal claim.
A habeas petition is the proper mechanism only if the inmate seeks to challenge the "fact or duration" of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 494, 498-99 (1973) (stating that if a plaintiff is "attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release. . . habeas corpus is not an appropriate or available federal remedy," and the attack should "be brought under the Civil Rights Act in federal court").
Even if Dr. Merrill's classification of Grohs under STU policy could affect the length of his confinement in the future (and this Court makes no finding in this Opinion as to whether it could or would), Grohs has not shown that it will in fact affect his order of confinement. Consequently, habeas relief is unavailable because "granting [the habeas] petition would [not] `necessarily imply' a change to the fact . . . of [his civil commitment]." See Conover v. Main, 601 F. App'x 112, 114-15 (3d Cir. 2015).
Furthermore, Ground Two also ignores the fact that Grohs had another avenue available to him: i.e., the STU had given Grohs "a reasonable alternative, which is just to go and listen." (ECF 9-3 at 11.)
All of Grohs' other arguments contesting internal STU policies are speculative, have no supporting facts in the record, and must be rejected for this additional reason. (ECF 3-1 at 18-21) (STU's "therapeutic strategy is an `all-or-nothing' approach which places residents in the untenable position of either potentially jeopardizing his criminal defense or being labeled a treatment refuser"). See Doe v. Rodriguez, No. 17-1709, 2018 WL 620898, at *9 (D.N.J. Jan. 1, 2018) ("this Court may dismiss summarily any habeas claim which fails to allege sufficient facts `to raise a right to relief above the speculative level'") (citing Fed. R. Civ. P. 12(b)(6) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Pursuant to 28 U.S.C. § 2253(c), Grohs may not appeal from a final order in this habeas proceeding where Grohs' detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "A [habeas petitioner] satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Grohs has failed to make a substantial showing that he was denied a constitutional right. As jurists of reason could not disagree with this Court's resolution of the claims, the Court shall deny Grohs a certificate of appealability.
For the reasons stated above, the Amended Petition is denied. A certificate of appealability shall not issue.
An accompanying Order will be entered.
