Ivey v. Sacriste

DAVID IVEY, Petitioner, v. ASHLEY SACRISTE, Respondent.

8:19CV153

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

October 21, 2020

MEMORANDUM AND ORDER

This matter is before the court on Petitioner David Ivey's ("Petitioner" or "Ivey") Petition for Writ of Habeas Corpus. (Filing 1.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed without prejudice.

I. CLAIMS

Summarized and condensed,¹ and as set forth in the court's prior progression order (filing 3), Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied a fair hearing, due process of law, and equal protection at his July 13, 2017 review hearing conducted pursuant to the Sex Offender Commitment Act ("SOCA"), Neb. Rev. Stat. §§ 71-1201 to 71-1226, because (1) he was not permitted to challenge the sufficiency of evidence supporting his commitment as a dangerous sex offender and (2) the State of Nebraska didnot present sufficient evidence to support an order of commitment.

Claim Two: The Norfolk Regional Center's discharge criteria requiring Petitioner to make a direct or indirect admission of guilt to unproven and acquitted allegations before he is allowed his liberty violates Petitioner's rights under the Fifth Amendment and fall outside the scope of SOCA.

Claim Three: SOCA is unconstitutional as applied to Petitioner.

Claim Four: Petitioner was denied due process of law because the 2017 order of commitment issued by the Mental Health Board of the Fourth Judicial District relied upon the unlawful 2006 order of commitment and is, therefore, void.

II. BACKGROUND

Much of the background information has been derived from this court's orders in Ivey's two prior federal habeas cases, Ivey v. Gibson, 4:07CV3242, 2008 WL 5392136 (D. Neb. Dec. 19, 2008) (4:07CV3242, filing 69), and Ivey v. Gibson, No. 8:12CV61, 2012 WL 4370669 (D. Neb. Sept. 21, 2012) (8:12CV61, filing 12); the Nebraska Court of Appeals' opinion in In re Interest of D.I., No. A-18-237, 2018 WL 6839726 (Neb. Ct. App. Dec. 31, 2018) (filing 9-1), review denied (Mar. 19, 2019); and the Nebraska Supreme Court's opinion in In re Interest of D.I., 799 N.W.2d 664, 667 (Neb. 2011).²

A. 2006 Commitment and Appeal

Ivey is currently confined at the Lincoln Regional Center ("LRC") in Lincoln, Nebraska.³ (Filing 1 at CM/ECF p. 1; Filing 14.) He was convicted of sexually assaulting a child in 2003 in the District Court of Douglas County, Nebraska. For this crime, the court sentenced Ivey to imprisonment for a period of five years to five years, with credit for three days of time served.

On May 31, 2006, an employee of the Nebraska Department of Correctional Services sent a letter to the Douglas County Attorney notifying that office that Ivey was scheduled to be discharged on November 11, 2006. The letter recommended that Ivey be referred to a Mental Health Board for possible commitment. On October 12, 2006, a Deputy Douglas County Attorney filed a petition with the Douglas County Board of Mental Health ("mental health board"), requesting that Ivey be adjudged a dangerous sex offender under SOCA. On October 23, 2006, Dr. Steven Skulsky evaluated Ivey; diagnosed him, within a reasonable degree of medical certainty, with paraphilia and a personality disorder; and recommended that he receive treatment in an in-patient locked environment. On November 16, 2006, Ivey was scheduled to be released from his prison term. On December 21, 2006, the mental health board heard the petition regarding Ivey's potential confinement under SOCA. At the hearing, Dr. Skulsky testified that Ivey was dangerous to others and needed to be incarcerated for inpatient treatment because of his "dangerousness and the likelihood of acting out." Ivey, 2008 WL 5392136, at *1. The mental health board adjudged Ivey to be a dangerous sex offender, "by clear and convincing evidence," within the meaning of SOCA, Neb. Rev. Stat. §§ 71-1201 to 71-1226, and ordered him to be placed in the custody of the Nebraska Department of Health and HumanServices ("DHHS") for inpatient sexual offender treatment with no set release date. Id.

On January 16, 2007, Ivey filed a Petition in Error in the Douglas County District Court, challenging the action of the mental health board on several grounds, including the constitutionality of SOCA. Ivey alleged that SOCA was an ex post facto law, placed him in double jeopardy, and violated his right to equal protection. He also alleged that the decision of the mental health board was not supported by clear and convincing evidence. On May 16, 2007, the Douglas County District Court heard Ivey's Petition in Error, received into evidence the bill of exceptions from the mental health board hearing, and allowed the parties to file briefs in support of their positions. On August 30, 2007, the Douglas County District Court denied the Petition in Error and affirmed the commitment order of the mental health board.

Ivey appealed the Douglas County District Court's decision to the Nebraska Court of Appeals. But before the court could consider the appeal, Ivey moved to dismiss it. The Nebraska Court of Appeals sustained Ivey's motion and dismissed the appeal on January 11, 2008.

B. 2007 Federal Habeas Case

On October 1, 2007, Ivey filed his third⁴ habeas corpus petition in this court. On May 28, 2008, Ivey's court-appointed counsel filed a Second Amended Petitionfor Writ of Habeas Corpus on his behalf. The court dismissed Ivey's habeas petition without prejudice because Ivey had not exhausted his claims in state court. The court acknowledged that Ivey could bring his claims before the court at a later time if he exhausted his state remedies following a mental health board's new or modified treatment order under SOCA.

C. 2009 Mental Health Board Review Hearing

On June 12, 2009, Ivey asked the mental health board to reconsider its decision regarding his commitment. The mental health board denied relief. Ivey appealed the mental health board's decision to the Douglas County District Court, which also denied relief. Ivey then appealed the Douglas County District Court's decision to the Nebraska Supreme Court, which found the State had presented clear and convincing evidence that Ivey remained a dangerous sex offender and that secure inpatient treatment was the least restrictive treatment alternative.

D. 2012 Federal Habeas Case

On February 10, 2012, Ivey filed his fourth habeas petition in this court and an amended petition on May 31, 2012. These petitions generally challenged the mental health board's 2006 and 2009 determinations that Ivey was a dangerous sex offender and secure inpatient treatment was the least restrictive treatment alternative.

The court dismissed Ivey's claims challenging the mental health board's 2006 commitment order because Ivey did not prosecute an appeal to the Nebraska Court of Appeals or a petition for further review to the Nebraska Supreme Court and thus did not exhaust the remedies available to him in the Nebraska state courts. The court further found that Ivey had not demonstrated that circumstances existed that rendered Nebraska's appellate review process ineffective to protect his rights andhad not argued cause and prejudice to excuse the procedural default of these claims. The court also dismissed Ivey's claims challenging the mental health board's 2009 commitment order because Ivey failed to raise the federal constitutional claims he raised in his petition and amended petition in the Nebraska state courts and thus did not give the state court a full and fair opportunity to resolve the federal constitutional claims before raising them in federal court. In addition, the court found that Ivey had not argued cause and prejudice to excuse the procedural default of these claims.

The court granted the respondents' motion for summary judgment and dismissed the petition without prejudice "to reassertion because Ivey may challenge his confinement at a later time if he exhausts his state remedies following a mental health board's new or modified treatment order under Nebraska's [SOCA]." Ivey, 2012 WL 4370669, at *3.

E. 2017 Mental Health Board Review Hearing⁵

On June 21, 2017, Ivey filed a motion for a review hearing before the mental health board; he sought an order of discharge or, alternatively, a change in treatment. He also filed a motion in limine that same day seeking to exclude certain evidence relied upon at his initial commitment hearing and the review hearing in November 2009. He claimed certain evidence, including inadmissible hearsay, prejudiced him and denied him his right to confront and cross-examine witnesses against him.

At the review hearing on July 13, 2017, exhibit 4 (bill of exceptions for review hearing held in November 2009) and exhibit 5 (bill of exceptions for original commitment hearing held in December 2006) were received into evidence for thelimited purpose of determining the motion in limine. The mental health board initially overruled Ivey's motion in limine, but later sustained his renewed motion in limine as to one paragraph⁶ located in exhibits 1 and 2 (Ivey's treatment plans of April and July 2017); otherwise those exhibits were received. The State asked the mental health board to take judicial notice of the mental health board's original 2006 commitment order. (Filing 18-4 at CM/ECF p. 15.) Ivey's counsel had no objection, and the mental health board took judicial notice of that order. (Id. at CM/ECF p. 15; see also Filing 11-3.)

Dr. Jean Laing testified that as a psychologist on staff at NRC, she was responsible for conducting individual and group therapies and psychological evaluations involving setting up an initial treatment plan and directing treatment of patients. She served on a treatment team that reviewed patient progress, updated patient treatment plans, and dealt with "day-to-day" treatment issues. (Filing 9-1 at CM/ECF p. 2; Filing 18-4 at CM/ECF p. 13.) Her curriculum vitae...