KATHERINE P. NELSON, Magistrate Judge.
Petitioner Jesse Cooley, Jr., proceeding without counsel (pro se), initiated this action by filing a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1), challenging his continued commitment to an AltaPointe Health Systems group home by the Circuit Court of Mobile County, Alabama, pursuant to a criminal judgment finding him not guilty by reason of insanity. The assigned District Judge has referred the petition to the undersigned Magistrate Judge for appropriate action. See (Docs. 4 & 15); S.D. Ala. GenLR 72(b); (4/25/2019 electronic reference). Under S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
After preliminary review of the habeas petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned ordered that the Respondent Director of Mental Health for AltaPointe Health Systems ("the Director") and the Alabama Attorney General ("Attorney General") be served with copies of the petition for an answer or other appropriate response. (See Docs. 10, 17). Both the Director and the Attorney General have filed responses, with the Attorney General producing copies of Cooley's relevant state court records. (Docs. 11, 19).
Records from Cooley's state court proceedings indicate that, as a result of being found not guilty by reason of insanity, Cooley was committed to the custody of the Alabama Department of Mental Health (ADMH) on October 29, 2014. (Doc. 19-3, PageID.148). On July 17, 2018, on the proposal of ADMH under Alabama Rule of Criminal Procedure 25.8, the Mobile County Circuit Court ordered that Cooley "be released from the custody of ADMH to a group home operated by Altapointe Mental Health Center, Mobile, Alabama, pursuant to the" terms and conditions specified. (Doc. 19-3). On January 22, 2019, Cooley filed pro se a motion with the Mobile County Circuit Court (Doc. 19-5), which that court construed as a motion "to remove some or all of the conditions of his release to Altapointe" and denied by order entered February 5, 2019. (Doc. 19-6).
On July 12, 2019, the Mobile County Circuit Court ordered the issuance of an arrest warrant for Cooley after being notified he had absconded from AltaPointe custody by jumping from a car on the way to a medical appointment." (Doc. 19-7). Cooley was arrested on September 11, 2019 (see Doc. 19-8); on December 9, 2019, AltaPointe filed an "Emergency Petition for Alternative Placement" requesting a hearing to determine if Cooley should be returned to the custody of ADMH for further treatment. (Doc. 19-9). On December 17, 2019, after holding a hearing and hearing evidence, the Mobile County Circuit Court found that Cooley, "as a direct result of his mental illness and as a consequence thereof, poses a real and present threat of substantial harm to himself or others." (Doc. 19-12). Accordingly, the court granted AltaPointe's petition, ordered Cooley returned to the custody of ADMH, reinstated the conditions originally governing Cooley's placement with ADMH, and ordered Cooley held in Mobile Metro Jail until a bed becomes available for him at ADMH. (Doc. 19-12). According to the Alabama Attorney General's response filed January 23, 2020, "Cooley remains in the Mobile Metro Jail awaiting an opening at Taylor Hardin Secure Facility." (Doc. 19, PageID.140).
In spite of Cooley's revocation of release and recommitment to ADMH custody, the state court judgment relevant to Cooley's present § 2254 habeas petition remains the Mobile County Circuit Court's July 17, 2018 order conditionally releasing Cooley from the custody of ADMH to AltaPointe. Moreover, Cooley is still "in custody" under that order because (1) he filed his petition while still subject to its conditions, and (2) his subsequent court-ordered return to ADMH custody was based on his violation of those conditions.
The Director's response requested that he be dismissed from this case because he is not a proper respondent to the present habeas petition. Previously, the undersigned explained why the Director's argument was unpersuasive and that he was the proper respondent at the time the petition was filed. (See Doc. 17, PageID.132-133). However, in light of the fact that Cooley has been re-committed to the custody of ADMH since he filed his petition, the undersigned agrees that the Director is no longer the proper respondent, and that Lynn T. Beshear, the Commissioner of ADMH,
Moreover, the undersigned disagrees with both the Director and the Alabama Attorney General that Cooley has failed to exhaust his state court remedies challenging the conditional release order. As noted above, Cooley challenged his conditions of release by motion filed January 22, 2019 — raising essentially the same claims as in his present habeas petition — which the Mobile County Circuit Court denied on February 5, 2019. Under Alabama law, such an order is not appealable, see Ala. Dep't of Mental Health & Mental Retardation ex rel. McClothan v. State, 873 So.2d 1176, 1181 (Ala. Crim. App. 2003) (per curiam) ("McClothan II") ("Both the [Criminal Psychopath Release Restriction] Act[, codified in § 15-16-60 et seq., Ala. Code 1975,] and Rule 25, Ala. R. Crim. P., prescribe the procedures for initiating an involuntary commitment proceeding after a verdict of not guilty by reason of mental disease or defect has been returned by a jury. They also address the procedure to petition a circuit court for release. However, neither the Act nor the rule provides for appellate review of a circuit court's ruling denying a motion for release made by the Department, the person involuntarily committed, or by a person on the committee's behalf."); Canidate v. Reddoch, No. 2:04-CV-682-VPM, 2006 WL 2480062, at *1 (M.D. Ala. Aug. 25, 2006) ("[T]here is no provision under [Alabama] law for appellate review of a court's denial of a motion for release..." (citing McClothan II, 873 So. 2d at 1177)), nor can Cooley separately challenge his conditions of release by a separate state writ of habeas corpus, as the Attorney General suggests. See McClothan II, 873 So. 2d at 1180 (Alabama Rule of Criminal Procedure 25 and the Criminal Psychopath Release Restriction Act "effectively amend and replace § 15-21-3, the habeas corpus statute, with respect to persons who are committed after the entry of a verdict of not guilty by reason of mental disease or defect. Both the Act and the rule provide entirely new procedures for, and venues in which to seek, release of a defendant who has been involuntarily committed." (footnote omitted)).
However, Cooley is due no relief on the merits of his petition.
Woods, 135 S. Ct. at 1376.
Hittson, 759 F.3d at 1230.
In his January 22, 2019 pro se motion to the Mobile County Circuit Court (Doc. 19-5), Cooley simply presented various reasons, with some supporting evidence, why he believed he was entitled to unconditional release from AltaPointe under Alabama Rule 25.8, and also requested that he be appointed counsel to argue his position. Cooley's motion did not raise any federal issues justifying such relief. In its order denying that motion, the circuit court explained that Cooley "provide[d] no facts, evidence or medical opinions supporting such an unconditional release[,]" and was "not accompanied by a certification from Altapointe (or any other mental health expert) that such a release is appropriate..." (Doc. 19-6). The court further noted that "[i]n fact, Cooley's history demonstrates just the opposite — that he needs to be subject to conditions if he is not in the custody of the Department." (Doc. 19-6).
In his present petition, Cooley merely quarrels with the Mobile County Circuit Court's decision that he had not presented sufficient facts or evidence justifying unconditional release, and falls far short of showing by clear and convincing evidence that the Mobile County Circuit Court's decision was "based on an unreasonable determination of the facts in light of the evidence presented" to it. 28 U.S.C. § 2254(d)(2). Cf. Jones v. United States, 463 U.S. 354, 370 (1983) ("[W]hen a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society. This holding accords with the widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment."). While he also claims the Mobile County Circuit Court should have appointed him an attorney to argue his motion, the circuit court violated no clearly established federal law in not doing so, as there is no constitutional right to counsel in such proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals."). Otherwise, Cooley's petition does not assert any violation of federal law, and the United States Supreme Court has "stated many times that federal habeas corpus relief does not lie for errors of state law." Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam) (quotations omitted). Accordingly, Cooley's present petition is due to be denied on the merits and therefore dismissed with prejudice.
In actions such as this one brought under § 2254, a "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts. "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C.A. § 2253(c)(1)(A).
Where the district court "has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." (citations omitted and punctuation modified)). While "a COA does not require a showing that the appeal will succeed[,]" a prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 337-38 (quotations omitted). Rather, "[a] certificate of appealability may issue `only if the applicant has made a substantial showing of the denial of a constitutional right.'" Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)).
Upon consideration, the undersigned finds that Cooley should be
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). A district court's finding "that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). In other words,
Ghee v. Retailers Nat. Bank, 271 F. App'x 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished).
Considering the foregoing analysis, the undersigned
In accordance with the foregoing analysis, it is
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts; S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
In McClothan II, where both ADMH and McClothan were appellants, the Court of Criminal Appeals expressly addressed the effect of Alabama Rule 25.8 and the Criminal Psychopath Release Restriction Act on Alabama's general habeas corpus statute, holding that they "effectively amend and replace ... the ... statute with respect to persons who are committed after the entry of a verdict of not guilty by reason of mental disease or defect." McClothan I, 873 So. 2d at 1180. The court further noted that "those statutory provisions that conferred jurisdiction on the Court of Civil Appeals were effectively repealed, in part, by the adoption of the Act[, as t]he Act and Rule 25 both provide that the action to commit a defendant acquitted on the basis of a mental disease or defect is initiated by the trial court and not the Department and that an action to release the acquittee is commenced in the trial court of the county where the criminal act occurred, not in the probate court of the county where the mental-health facility at which the acquittee has been committed is located." Id. at 1179.
Should this Court deny a certificate of appealability, the petitioner "may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts.
