Francis S. v. StoneFrancis S. v. Stone
- Reporters:
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- Before:
- Jon O. Newman, Sotomayor, Goldberg
This appeal challenges the constitutionality of a state court order recommitting a defendant for mental health treatment nine years after he entered a plea of not responsible by reason of mental disease or defect. It also requires consideration of the new standard applicable to a federal court‘s exercise of habeas corpus jurisdiction under
Background
I. The statutory scheme
New York statutes, like those of other states, distinguish between the procedures to be followed for the involuntary civil commitment of persons suffering from mental illness and the procedures that apply to persons charged with a crime and determined, by a plea or a verdict, to be “not responsible by reason of mental disease or defect” (“NRRMDD defendant“).
With respect to an NRRMDD defendant subject to an order of conditions, whether or not released from a mental health facility, the commissioner of mental hygiene or the district attorney may apply to the court that issued the order for a recommitment order when the applicant believes that the defendant has a dangerous mental disorder. See
II. The Mental Condition and Litigation History of Francis S.
Mental condition. Francis S. (“Francis“) has a long history of drug and alcohol abuse, in-patient and out-patient psychiatric treatment, and arrests and convictions for petty crimes. Although it is undisputed that Francis has some form of mental illness, his specific diagnosis has been disputed; his treating psychiatrists have disagreed as to whether he suffers from bipolar disorder (a serious psychosis) or from attention-deficit disorder.
The episode resulting in the NRRMDD plea. In October 1983, Francis was at the scene of a drug bust in Manhattan. When he refused to leave the scene, an officer attempted to arrest him for disorderly conduct. While the officer was attempting the arrest, Francis thrust a six-inch knife in his direction. Francis was arrested and charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Those charges ultimately resulted in the disposition that underlies the current litigation.
While those charges were pending, Francis was arrested in May 1984 in New Jersey and charged with larceny-related offenses. He was found incompetent to stand trial and was a patient in a psychiatric institution in New Jersey until April 1986 (he escaped briefly during that time). The New Jersey charges were dismissed.
After extradition to New York and release on bail, Francis was arrested twice early in 1987, once for driving while intoxicated and once for criminal possession of a controlled substance; he pled guilty to the latter charge and was sentenced to five days in jail.
The NRRMDD plea and related proceedings. In June 1987, Francis entered a NRRMDD plea to the 1983 New York assault and weapons charges. In connection with that plea, the driving while intoxicated charge was dismissed.
Following the NRRMDD plea, Francis was remanded to Kirby Forensic Psychiatric Center (“Kirby“) for examination by two forensic psychiatrists, as required by
From the NRRMDD plea to the challenged recommitment proceeding. Pursuant to the court order, Francis was transferred from Kirby, a secure psychiatric facility, to an in-patient program at the Coney Island Unit of South Beach Psychiatric Center (“South Beach“). In December 1987, Francis was discharged from South Beach, with plans to receive follow-up care at South Beach‘s out-patient clinic. Francis did not comply with the treatment plan.5 In May 1988, the Commissioner attempted to recommit Francis pursuant to
Pursuant to the Court‘s remand order, Francis was again hospitalized at South Beach from July to November 1990. He protested his continued retention and in November 1990 the New York Supreme Court ordered his release, subject to the same order of conditions.6 Upon his discharge from South Beach in 1990, Francis went to live with family members in LeRoy, New York, and to receive out-patient treatment at a nearby facility. He left LeRoy for New York City in mid-December 1990. In February 1991, the Commissioner referred Francis to South Beach; however, after attending one appointment there and failing to attend another scheduled appointment, Francis sought treatment from Dr. Nels Langsten of the Metropolitan Hospital. Francis was seen by Langsten four or five times over the next year and a half.7
III. The Challenged Recommitment Proceeding
New York Supreme Court. In August 1992, the Commissioner commenced a second recommitment proceeding, the one that is challenged in the pending litigation. This second application was filed on August 4, 1992, three days before the expiration of the five-year order of conditions that had been initially imposed when Francis‘s NRRMDD plea was accepted.8 The New York Supreme Court (Edith Miller, Justice) took extensive testimony concerning Francis‘s mental state, with six psychiatric experts testifying. There was also extensive testimony concerning Francis‘s past criminal conduct.
The Court denied the recommitment application. Justice Miller explained her ruling in an oral decision from the bench:
The Court has reluctantly concluded that the burden of demonstrating by a preponderance of the evidence that Mr. S[.] suffers from a dangerous mental disorder has not been met.
The Court is bound by the authority of People versus Torres, because that case holds that it must be established that Mr. S[.] currently -- and I stress the word currently -- poses a physical danger to himself or others.
The Court finds that the defendant is mentally ill. All the psychiatrists have testified that he is mentally ill. Mr. S[.] suffers from alcohol dependence and polysubstance abuse. He has an antisocial personality disorder, he has a narcissistic personality disorder and he has attention[-]deficit hyperactivity disorder. The only area where there is some disagreement concerns whether he is also manic depressive.
Since the hospital records have not recorded the present incidents, it only documents manic incidents, the diagnosis is not conclusive at this time.
However, with regard to his current behavior in the hospital, they have not had the patient engaging in aggressive ideation or physical fights or suicide attempts. The record reflects that Mr. S[.] is intrusive, is demanding, is argumentative, he threatens to sue the staff whenever he perceives he has been slighted or whenever restrictions are placed on him. We do not have classic psychotic symptoms such as hallucinations, delusions or disorders in communication.
Mr. S[.] is a master of manipulation. He uses the criminal justice system to his benefit, so he has spent relatively little time in jail in spite of his 26 arrests. In the hospital, because he wants to get out, and also because he is in a structured environment, his behavior is more controlled.
....
Based on his history, the Court also finds it is highly likely that whenever Mr. S[.] is released from the hospital, he will get into trouble again, for the following reasons:
He violated the order of conditions this time, as he has violated the order of conditions in the past, because he does not accept them fully. He cannot accept limits.
His outbursts in the courtroom diminished because of the structured hospital setting, and because he is regularly taking Cylert. But when he‘s outside the hospital, the patient does not take medication regularly. Reasonable requests to have him move on have resulted in him defying police officers, bartenders, restaurant employees, etc.
Although the patient states that alcohol and drugs have plagued him for years, he is not consistent in his treatment. Based on his past history, he will not commit himself to the A.A. program totally and with sufficient regularity for success.
The patient is verbally provocative, even with his fiance. He cannot control himself to refrain from escalating incidents. Such behavior has led to his numerous arrests. He never learns from his past experience.
... He has constantly moved from program to program. This is what he has done in the past. He never stays at any one program and complies with it 100 percent, so that progress can be made. He never moves from square one. And if he‘s released from the hospital he probably will continue that same behavior.
However, the law does not permit me to confine Mr. S[.] to a secure hospital, because he is not currently dangerous.
Yet based on his limitations and his past history, it is highly likely that if he is released he will not attend A.A. regularly, he will not continue to take Cylert, even though he‘s benefited by it, he will not stop provoking people, he will not accept lawful authority, he will not respect the rights of others; because he considers that he alone is the ultimate judge of what is proper and reasonable behavior.
Appellate Division. The Appellate Division reversed and granted the Commissioner‘s application for recommitment. See In re Francis S., 206 A.D.2d 4, 618 N.Y.S.2d 660 (1st Dep‘t 1994). The Appellate Division first considered Justice Miller‘s finding that Francis, although mentally ill, was not suffering from a dangerous mental disorder. Her finding was rejected on the ground that the evidence showed (as she herself had found) that Francis would resume use of drugs and alcohol if released, see id. at 19, 618 N.Y.S.2d at 669, and because the three psychiatrists who testified for the State agreed that if he used drugs and alcohol again, he would revert to his prior pattern of dangerous behavior, see id. In an effort to establish the critical link between Francis‘s mental illness and his dangerousness, the Appellate Division said that the three psychiatrists who testified for the State “agreed that until [Francis] acknowledges his mental illness and abstains from drug and alcohol abuse he will continue to have a dangerous mental disorder.” Id. The Appellate Division also stated that Francis‘s likely dangerous behavior “demonstrat[ed,]” in the view of the State‘s psychiatrists, “a dangerous mental disorder.” Id.
The Appellate Division then stated that Justice Miller‘s finding of no current dangerousness had been erroneously grounded on a misunderstanding of In re Torres, 166 A.D.2d 228, 560 N.Y.S.2d 440 (1st Dep‘t 1990), aff‘d for reasons stated, 78 N.Y.2d 1085, 578 N.Y.S.2d 870 (1991). The appellate court understood Justice Miller to have read Torres to mean that a person abstaining from drugs and alcohol in a controlled setting is not dangerous even if that person is highly likely to revert to drug and alcohol abuse, and consequent dangerous conduct, once released. Torres, the Appellate Division explained, merely affirmed a finding of non-dangerousness for a person being transferred from a secure facility to a non-secure facility, “which would still monitor his medication.” Francis S., 206 A.D. 2d at 20, 618 N.Y.S.2d at 669.
Finally, the Appellate Division considered Francis‘s constitutional argument that once he had been found not dangerous in the 1987 NRRMDD plea proceeding, recommitment under
Court of Appeals. The Court of Appeals unanimously affirmed. See In re Francis S., 87 N.Y.2d 554, 640 N.Y.S.2d 840 (1995). As to the factual finding of dangerousness, the Court of Appeals stated:
Supreme Court applied an erroneous legal standard in finding that the second element of a dangerous mental disorder--his current dangerousness as a result of his mental illness--had not been established solely because [Francis]‘s condition was stabilized during hospitalization. On the other hand, the Appellate Division majority quite properly based its determination that [Francis] had a dangerous mental disorder on his history of prior relapses into violent behavior and of recurrent substance abuse and noncompliance with treatment programs upon release. Thus, in our view, the Appellate Division‘s finding of [Francis]‘s present dangerousness more nearly comports with the evidence in the record.
Id. at 561, 640 N.Y.S.2d at 842-43 (citations omitted).
On the constitutional claims, the Court of Appeals rejected Francis‘s equal protection challenge to recommitment procedures for NRRMDD defendants that differed from civil commitment:
As we have repeatedly recognized, ... the provisions of CPL 330.20 for imposing orders of conditions through which the criminal court retains supervisory authority over insanity acquittees, and the section authorizing recommitment upon a finding that an acquittee has a dangerous mental disorder, reflect a legislative judgment that, having concededly once engaged in criminal conduct as a result of mental illness, the insanity acquittee continues to present a serious risk of a recurrence of dangerous behavior derived from mental illness.
Id. at 562, 640 N.Y.S.2d at 843. Moreover, the Court added, “equal protection principles do not prevent different treatment of insanity acquittees from other persons subject to civil commitment because acquittees may validly be regarded as a separate class, even when no longer diagnosed as having a dangerous mental disorder.” Id. at 563, 640 N.Y.S.2d at 844.
The Court of Appeals rejected Francis‘s substantive due process challenge, ruling that “recommitment of an insanity acquittee upon a finding of a dangerous mental disorder has a direct and substantial relationship with the State‘s legitimate concern for the potentiality of the deterioration of the acquittee‘s mental condition and relapse into dangerous behavior.” Id. at 564, 640 N.Y.S.2d at 845. The Court of Appeals also rejected Francis‘s procedural due process challenge, relying on Jones v. United States, 463 U.S. 354 (1983), in ruling that the preponderance of the evidence standard was sufficient for demonstrating the dangerousness of an insanity acquittee for purposes of a recommitment hearing. See Francis S., 87 N.Y.2d at 564, 640 N.Y.S.2d at 844-45.
IV. Habeas Corpus Proceedings
District Court. In 1997, Francis brought the pending habeas corpus petition in the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge). The petition included three claims: (1) New York‘s recommitment scheme, as applied to Francis, denies equal protection of the laws and procedural due process because it permits recommitment of a person, initially lawfully committed upon his NRRMDD plea, who has subsequently been found not dangerous, without according him the procedural protections state law requires for civil commitment of the mentally ill; (2) the New York Court of Appeals‘s interpretation of a “dangerous mental disorder,” sufficient to warrant recommitment, violates substantive due process, as applied to Francis, because it permits confinement of a person with no symptoms of mental illness based on a prediction that he will get into trouble when released; (3) even if the standard as applied to Francis is constitutional, the state appellate courts’ finding of present dangerousness was unreasonable in light of the evidence.9
The District Court rejected all three claims. Judge Kaplan rejected the equal protection/procedural due process claim on the ground that rational basis inquiry was sufficient and that the state‘s distinction between NRRMDD defendants and those subject to civil commitment survived that inquiry. See Francis S., 995 F. Supp. at 382-85. He rejected as without merit the claim that the state‘s standard for recommitting a NRRMDD defendant violated substantive due process by impermissibly basing a prediction of dangerousness on the likelihood that Francis would discontinue use of medication outside the hospital and then revert to a pattern of dangerous conduct. See id. at 385-86. As to the third claim, the Court ruled that whether it treated the finding of dangerousness as a purely factual issue or as a mixed issues of law and fact, it was “abundantly clear that more than sufficient evidence was presented on the record to justify petitioner‘s recommitment.” Id. at 387. The Court granted a certificate of appealability (“COA“) on the first and second claims. See id. at 388.
Motion Practice in the Second Circuit. On a motion by Francis, this Court expanded the COA to include his third claim: whether he was denied substantive due process because “the state court‘s determination that appellant suffers from a ‘dangerous mental disorder’ was unreasonable in light of the evidence adduced at the recommitment hearing.” The Court also instructed the parties to brief the issue of the proper standard of review to be applied to the case under the 1996 amendments to
Discussion
I. The New Section 2254(d) Standard of Review
We consider first the standard of review applicable to federal court consideration of habeas corpus petitions challenging state court judgments. The pertinent provision of the federal habeas corpus statute,
(d) 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 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Francis‘s first two claims contend that the New York courts have ordered his recommitment on the basis of rulings that are either “contrary to” or “involve an unreasonable application of” federal law as established by the Supreme Court, within in the meaning of
Section 2254(d)(1). The Supreme Court recently decided its first case involving a construction of
Part II of Justice O‘Connor‘s opinion offers guidance on the meaning of the three key phrases in
The “contrary to” phrase also presented no serious difficulty. “[T]he state court decision must be substantially different from the relevant precedent of this Court” or must “appl[y] a rule that contradicts the governing law set forth in our cases.” Id. at 1519. She offered as a hypothetical example a state court decision that rejected a claim of constitutionally ineffective assistance of counsel on the ground that the prisoner had not shown by a preponderance of the evidence that the result would have been different in the absence of deficient representation, in disregard of the standard in Strickland v. Washington, 466 U.S. 668, 694 (1984), that requires that the prisoner show only a reasonable probability of a different result. See Terry Williams, 120 S. Ct. at 1519. Thus, state court use of an incorrect legal standard can result in a decision “contrary to” established Supreme Court law.
The “unreasonable application” phrase proved more troublesome. Initially, Justice O‘Connor, citing the Fourth Circuit‘s decision in Green v. French, 143 F.3d 865. 869-70 (4th Cir. 1998), noted two ways that a state court decision might violate the “unreasonable application” phrase:
First, a state court decision involves an unreasonable application of this Court‘s precedent if the state court identifies the correct governing legal rule from this Court‘s cases but unreasonably applies it to the facts of the particular state prisoner‘s case. Second, a state-court decision also involves an unreasonable application of this Court‘s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Terry Williams, 120 S.Ct. at 1520 (emphases added). Justice O‘Connor, however, declined to accept or reject the second part of the Fourth Circuit‘s analysis.
Turning to the key issue of the meaning of “unreasonable” in the context of the “unreasonable application” phrase, Justice O‘Connor acknowledged more difficulty. “The term ‘unreasonable’ is no doubt difficult to define.” Id. at 1522.12 Her construction of the phrase clearly indicates what the phrase does not mean. First, the phrase is not to be interpreted as strictly as the Fourth Circuit read it in Green v. French, 143 F.3d 865 (4th Cir. 1998), when that Court ruled that the standard is met only if the state court has applied federal law “in a manner that reasonable jurists would all agree is unreasonable,” id. at 870. This view was “erroneous,” Justice O‘Connor wrote, because the “‘all reasonable jurists’ standard would tend to mislead federal habeas courts by focusing their attention on a subjective inquiry rather than on an objective one.” Terry Williams, 120 S. Ct. at 1521- 22. Second, the phrase does not mean “that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 1522. “Rather, that application must also be unreasonable.” Id. However, between these two standards (merely erroneous and unreasonable to all reasonable jurists), the only guidance we receive from Justice O‘Connor‘s opinion is that we are to ask “whether the state court‘s application of clearly established federal law was objectively unreasonable.” Id. at 1521.
We gain some insight into how we should interpret the phrase “objectively reasonable” in the context of state court applications of Supreme Court precedents by examining how the majority applied the phrase in the Terry Williams case. The issue on the merits concerned the performance of counsel at the death penalty phase of a state court criminal trial. The Virginia Supreme Court had assumed that counsel‘s performance was constitutionally deficient, see Williams v. Warden, 254 Va. 16, 23-26, 487 S.E.2d 194, 198 (1997), thus satisfying the first prong of Strickland. The principally disputed issue was whether the habeas petitioner had demonstrated “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. On this issue, the Supreme Court ruled by a 6-3 vote that the Virginia Court‘s application of the prejudice prong of Strickland to the facts of the Terry Williams case was objectively unreasonable. On this critical issue, Part IV of Justice Stevens‘s opinion is the opinion of the Court. See Terry Williams, 120 S. Ct. at 1499. However, nothing in Part IV of Justice Stevens‘s opinion, see id. at 1512-16, indicates whether he is applying his interpretation of the “unreasonable application” phrase of
The principal flaw in the Virginia court‘s analysis of prejudice appears to have been its failure to consider how significant would have been the mitigating evidence that trial counsel did not develop at the death penalty phase. See Terry Williams, 120 S. Ct. at 1513-14. What elevates this omission from “merely erroneous” to “objectively unreasonable” is difficult to learn.
Since the Supreme Court‘s decision in Terry Williams, several circuits have adjudicated habeas corpus cases involving the “unreasonable application” phrase of
The Fourth Circuit deemed the state court decision not an unreasonable application because the issue was “close.” Tucker, 2000 WL 763597, at *15. The Ninth Circuit used the “clear error” standard appropriate for review of factual findings, concluding that it was not clearly convinced that the state court had erred. Van Tran, 212 F.3d at 1153-54, 1159. That approach, however, focuses on how sure the habeas court is that the state court has committed error, not whether the state court decision reveals an increment of wrongness beyond error. Of course, a habeas court will likely be firmly convinced of its conclusion whenever a state court has committed a mistake more egregious than error, but it might also be firmly convinced that just an ordinary error has occurred.
Before Terry Williams, two circuits had used an “objectively unreasonable” standard in applying
As an abstract proposition, we can only echo Justice O‘Connor‘s virtually tautological statement that to permit habeas relief under the “unreasonable application” phrase, a state court decision must be not only erroneous but also unreasonable. Some increment of incorrectness beyond error is required. We caution, however, that the increment need not be great; otherwise, habeas relief would be limited to state court decisions “so far off the mark as to suggest judicial incompetence.” Matteo, 171 F.3d at 889. We do not believe AEDPA restricted federal habeas corpus to that extent.
II. Equal Protection/Procedural Due Process Claim
Francis‘s combined equal protection and procedural due process claim is premised on the two explicit state court findings, preceding the challenged recommitment order, that he does not suffer from a dangerous mental disorder. The first finding was made in 1987, after the examination that was triggered by his NRRMDD plea. The second finding was made in 1990 when the State Supreme Court rejected the Commissioner‘s first recommitment application. Francis contends that as a person who, even if mentally ill, has been judicially found not to be dangerous, he may not be confined under procedures different from those used for civil commitment of the mentally ill because the distinction New York has made does not survive the “heightened” level of constitutional scrutiny, see Brief for Appellant at 25, that the Supreme Court requires for review of procedures for commitment of persons acquitted by reason of insanity, or, in Francis‘s case, convicted on a plea of not responsible by reason of mental disease or defect.
We agree with Francis that an intermediate level of scrutiny is appropriate for his equal protection claim. The Supreme Court has ruled that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979). Although a person previously adjudicated to be mentally ill might not be entitled, when challenging recommitment while subject to an order of conditions, to all of the same protections available to a person initially committed as mentally ill, the Court has made it clear that substantial protection is due a person notwithstanding a diagnosis of mental illness. Thus, in Baxstrom v. Herold, 383 U.S. 107 (1966), a prisoner administratively determined to be mentally ill and confined to a prison hospital, whose sentence was about to expire, was held to be denied equal protection of the laws when he was subjected to civil commitment under a special procedure applicable to prisoners, rather than the procedures used for civil commitment of all other persons. See id. at 110. Similarly, in Humphrey v. Cady, 405 U.S. 504 (1972), the Court found a substantial equal protection claim where a state applied a commitment renewal, extending beyond the period of an allowable sentence, to a defendant initially sentenced to a “sex deviate facility“, rather than the procedures normally used for civil commitment. See id. at 510-11. Moreover, in Jones v. United States, 463 U.S. 354 (1983), the Court, in upholding the brief, 50-day commitment following a verdict of not guilty by reason of insanity (“NGRI“), emphasized the Government‘s “important interest” in automatic commitment, id. at 366, and the reasonableness of the inference of mental illness, at least for 50 days, continuing from the NGRI verdict, see id. Although Jones surely did not subject the statutory scheme to strict scrutiny, there is no indication that only a rational relationship test was applied. Some form of intermediate level scrutiny appears to have been used. Cf. Buthy v. Commissioner, 818 F.2d 1046, 1049-50 (2d Cir. 1987) (applying test of “rational means to serve a legitimate end” to reject equal protection challenge to more onerous restrictions on hospitalized insanity acquittees than on civilly committed patients, where fact of confinement was not challenged) (quoting City of Cleburne v. Cleveland Living Center, Inc., 473 U.S. 432, 442 (1985)); see also Charles W. v. Maul, No. 98-9290 (2000 WL 713905, at *9-*10 (2d Cir. June 5, 2000) (upholding qualified immunity defense to similar claim).
In rejecting Francis‘s equal protection claim, the New York Court of Appeals did not make entirely clear what level of scrutiny it was applying. In its discussion of Francis‘s equal protection claim, the Court said only that the statutory provisions for an order of conditions and for subsequent recommitment on a finding that a NRRMDD defendant has a dangerous mental disorder, “reflect a legislative judgment that, having concededly once engaged in criminal conduct as a result of mental illness, the insanity acquittee continues to present a serious risk of a recurrence of dangerous behavior derived from mental illness.” Francis S., 87 N.Y.2d at 562, 640 N.Y.S.2d at 843. The fact that the recommitment procedures “reflect a legislative judgment” that the NRRMDD defendant poses a risk of dangerous behavior does not indicate what level of scrutiny is being applied to determine whether that judgment comports with equal protection requirements.
The Court of Appeals adverted to the appropriate level of scrutiny in two ways in rejecting Francis‘s procedural due process argument. First, the Court said that “[t]he Legislature‘s rationally based apprehension of significant risk that a person, whose mental illness resulted in the commission of a crime, may relapse into dangerousness, also surmounts due process concerns.” Id. at 563, 640 N.Y.S.2d at 844 (emphasis added). This sounds like minimal scrutiny under a rational relationship test. Then the Court said:
The recommitment procedures of CPL 330.20 also comport with principles of substantive due process. As we have already demonstrated, recommitment of an insanity acquittee upon a finding of a dangerous mental disorder has a direct and substantial relationship with the State‘s legitimate concern for the potentiality of the deterioration of the acquittee‘s mental condition and relapse into dangerous behavior.
Id. at 564, 640 N.Y.S.2d at 845 (emphasis added). Despite the one use of the phrase “rationally based,” we think the totality of the Court‘s opinion reflects the use of a level of scrutiny more rigorous than rational relationship, one that captures the essence of the intermediate level of scrutiny that the Supreme Court has applied in similar contexts.
The Court of Appeals‘s use of the correct standard eliminates any concern that its decision is “contrary to” established federal law, but the question remains whether the decision is an “unreasonable application” of such law. More precisely, the issue is whether, under intermediate scrutiny, New York‘s recommitment procedures, rather than the normal civil commitment procedures, may be applied to an NRRMDD defendant under an order of conditions after judicial determinations that the defendant, although mentally ill, is not suffering from a dangerous mental disorder.
Francis contends that the adjudications that he was not dangerous ended whatever inference of likely dangerousness flowed from his 1987 NRRMDD plea and made it unreasonable for the state to commit him without using the normal civil commitment procedures. There is considerable force to Francis‘s argument. If it was a denial of equal protection not to use normal civil commitment procedures for Baxstrom, a mentally ill prisoner whose dangerousness was indicated by his conviction of a crime, it would seem equally necessary to use the normal procedures for Francis, a mentally ill NRRMDD defendant who has at least twice been judicially determined not to be suffering from a dangerous mental illness. Baxstrom is not decisive, however, since, unlike Francis, he had never been adjudicated mentally ill based on his own plea; he was a prisoner whom prison authorities had administratively determined should be confined in a prison hospital. Also helpful to Francis‘s claim is the Supreme Court‘s statement in Jones that “the committed [insanity] acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” 463 U.S. at 368. That statement, however, is not decisive, since the Court‘s holding was limited to the initial commitment procedures, and the Court explicitly declined to adjudicate the applicable release procedures. See id. at 363 n.11.
Finally, Francis seeks support from the Supreme Court‘s decision in Foucha v. Louisiana, 504 U.S. 71 (1992), which invalidated use of special commitment procedures for an insanity acquittee who no longer suffered from a mental illness. Francis relies on the Court‘s observation that Foucha could not be retained in a mental institution “absent a determination in civil commitment proceedings of current mental illness and dangerousness.” Id. at 78. Francis draws from Foucha the rule that civil commitment must be used for an insanity acquittee who is either no longer mentally ill or no longer dangerous. It is arguable that the Supreme Court would have ruled in favor of Foucha if he had been mentally ill but no longer dangerous, but the holding is only that civil commitment procedures are required for an insanity acquittee who is no longer mentally ill.
We consider it a close question whether the adjudications that Francis did not suffer from a dangerous mental disorder in 1987 and 1990 obliged New York to use the normal civil commitment procedures to recommit him thereafter. As an initial question of federal constitutional law, unconstrained by
III. Substantive Due Process Claim
Francis contends that the state court decision recommitting him used a standard that violates the requirements of substantive due process because it permits recommitment of a person who once was, but is no longer, mentally ill, upon a prediction of future dangerousness unconnected to mental condition. Preventive detention of that sort, he argues, is contrary to the Supreme Court‘s decision in Foucha. As we have noted, Foucha concerned an insanity acquittee who had been determined not to be suffering from a mental illness.13 Francis‘s invocation of Foucha rests on his premise that he is not currently suffering from a mental illness, although he also argues at various points that what is lacking is a finding of “an active mental illness,” Brief for Appellant at 48, or “current symptomatology that rendered [Francis] dangerous,”
The seriously disputed issue at the recommitment hearing was whether Francis suffered from a dangerous mental illness, that is, whether his future dangerousness was attributable to his mental illness. Francis is simply incorrect in arguing that the recommitment order is not based on a finding that his dangerousness is attributable to his mental illness. Whether the Appellate Division was entitled to disagree with Justice Miller on this finding is the issue we next consider.
IV. Claim That the State Court Finding of Dangerousness Was Unreasonable
Francis challenges the finding of the Appellate Division, affirmed by the Court of Appeals, that he is dangerous by reason of his mental illness. He contends that this finding is unreasonable in light of the evidence presented.
In considering this claim, we encounter an initial issue as to the appropriate scope of our review and the standard to be applied. As to scope of review, Francis acknowledges the deference that
A finding of dangerous mental illness would seem to have at least the same degree of factual content as a finding that mental illness so impaired a person‘s judgment that the person is mentally incompetent to stand trial, and that issue has generally been held to be an issue of fact, entitled to deference by a federal habeas corpus court. See Maggio v. Fulford, 462 U.S. 111, 117 (1983); Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999); Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir. 1998); O‘Rourke v. Endell, 153 F.3d 560, 567 (8th Cir. 1998); Oats v. Singletary, 141 F.3d 1018, 1025 (11th Cir. 1998); Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998); Estock v. Lane, 842 F.2d 184, 186 (7th Cir. 1988). Moreover, the Supreme Court has treated as a fact question entitled to deference a state court‘s finding of a defendant‘s mental competency to waive his right to pursue post-conviction remedies. See Demosthenes v. Baal, 495 U.S. 731, 735 (1990). We think a state court finding of dangerous mental illness is as entitled to deference on habeas corpus review as a finding of competency to stand trial.14
Even if the finding of dangerous mental illness were not entitled to deference as a finding of fact, a further preliminary issue arises as to the appropriate standard of review. Francis assumes that he is entitled to habeas corpus relief if the state court finding is “unreasonable.” Brief for Appellant at 52. He apparently relies on the second clause of
In any event, even if we were to assume that habeas corpus relief would be warranted upon our determination that the state court‘s finding of dangerous mental illness was not reasonable in light of the evidence, we would decline to reach such a conclusion. We readily acknowledge that the evidence of dangerous mental illness was in sharp dispute among the six psychiatrists who testified, and that the evidence from the state‘s doctors is subject to many of the criticisms persuasively catalogued by the dissenting Justice in the Appellate Division. See Francis S., 206 A.D. at 31-44, 618 N.Y.S.2d at 676-83 (Murphy, then-P.J., dissenting). However, the main dispute between the psychiatrists was not about whether Francis was dangerous; all agreed, at least to some extent, that he was likely to revert to the dangerous behavior that had characterized his conduct while an out-patient under an order of conditions. The real dispute was whether his future dangerousness could be attributed to his mental illness, as the State‘s psychiatrists believed, or only to the likelihood that he would fail to take needed medicines outside the controlled environment of a psychiatric hospital, a likelihood enhanced by the exacerbating effects of his alcohol and drug dependence, as Francis‘s psychiatric witnesses believed. On such a subtle issue, involving the uncertain relationship between predicted future conduct and the causative role of mental illness, each themselves subject to understandable dispute among experts, only a starkly deficient record would permit a federal habeas court to rule that a state court‘s finding of dangerous mental illness was not reasonably supportable. As Judge Kaplan noted, see Francis S., 995 F. Supp. at 387, the state court record was extensive. The hearing spanned three months, generated more than 1,500 pages of testimony, mostly from the six psychiatrists, and included 1,800 pages of Francis‘s psychiatric records.
Francis‘s assault on the state court evidence does not suffice. He identifies flaws but not fatal deficiencies. For example, he challenges the testimony of Dr. Delfin Ibanez on the ground that he examined Francis on only three or four occasions for a total of only two hours. See Brief for Appellant at 53. This might weaken the force of Dr. Ibanez‘s testimony but does not demonstrate the unreasonableness of relying upon it, in conjunction with all of the evidence. Francis scores points by noting that Dr. Ibanez was caught in an evident misstatement in claiming that he based his diagnosis on incidents disclosed in some of Francis‘s court records, when in fact they had been under seal until just before his testimony. Nevertheless, he was entitled to base his opinion of future dangerousness related to mental illness on undisputed incidents of dangerous behavior put to him during direct examination.
Francis challenges the conclusions of Dr. Erasmo Cruz because this psychiatrist failed to consult the psychiatrists who had previously treated Francis. See Brief for Appellant at 57-58. But Dr. Cruz, the Director of Structured Treatment at South Beach had had some, although limited, clinical contact with Francis and had a sufficient basis to offer an opinion that supports a reasonable finding of a dangerous mental illness. Francis also understandably faults the testimony of Dr. Robert Poundstone, who treated Francis at Kirby, to the extent that this psychiatrist expressed the view that Francis‘s lack of physically dangerous actions while hospitalized was a symptom of mental illness “[i]n the sense of being calculating, ... that is, putting the best face forward, to conceal what might be behind.”16
Although the absence of dangerous behavior while hospitalized is dubious evidence that Francis suffers from a dangerous mental illness, his dangerous conduct while an out-patient was reasonably linked to his mental illness by the three psychiatrists who testified for the Commissioner. Francis challenges their opinions by pointing out that he refrained from dangerous conduct while hospitalized during periods when, according to the State‘s doctors, he was either declining to take anti-psychotic medicine or such medicine was not being prescribed for him.17 This demonstrates, he contends, that he would refrain from dangerous conduct outside the hospital even if he failed to take prescribed medication. The argument has some force, but does not so undermine the force of the contrary opinions as to render the state court‘s ultimate finding unreasonable. The State‘s psychiatrists evidently believed, and persuaded the state courts, that even though Francis could exercise sufficient control, without antipsychotic medication, to refrain from dangerous conduct within the structured setting of a psychiatric hospital, his mental disorder was likely to result in dangerous conduct outside such a setting. Then-Presiding Justice Murphy did not agree with this conclusion in the Appellate Division, and some members of this panel might not agree with it if the decision were ours to make as an initial matter. But even if we could regard the issue as a mixed question of law and fact not entitled to a presumption of correctness appropriate for determination of a factual issue, see
Conclusion
Francis‘s petition is troubling in two respects. The 1987 and 1990 state court findings that he was not then dangerous provide a substantial basis for his claim that his CPL recommitment upon a finding of dangerousness in 1994 denies him equal protection of the laws because the more protective civil commitment procedures of the Mental Hygiene Law were not used. In addition, the State‘s invocation of the CPL recommitment procedures just three days before the five-year order of conditions was to expire in 1992 has created Francis‘s understandable apprehension that his 1987 NRRMDD plea will subject him to a lifetime of successive CPL confinements without ever receiving the procedural safeguards that the Mental Hygiene Law requires for commitment and guarantees for release. On the first concern, we conclude, for the reasons stated, that federal habeas corpus relief is not available under the restricted scope of review now imposed on federal courts. On the second concern, we express no views as to what claims Francis might have in the future. The judgment of the District Court is affirmed. No costs.