Jones v. Tope

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DANIEL JONES, Petitioner, v. DANIELLE TOPE, Psy. D., Respondent.

No. 9:21-CV-1007 (AMN/ML)

United States District Court, N.D. New York

June 27, 2024

DANIEL JONES Pro se Petitioner CNY Psychiatric Center.

LETITIA A. JAMES PAUL B. LYONS, ESQ. New York State Attorney General Assistant Attorney General Counsel for Respondent.

REPORT AND RECOMMENDATION

Miroslav Lovric U.S. Magistrate Judge.

Currently before the Court in this habeas corpus proceeding filed by the petitioner, Daniel Jones (“Petitioner”) pursuant to 28 U.S.C. § 2254, is a referral to the undersigned for a report and recommendation from United States District Court Judge Anne M. Nardacci regarding the Petition. (Dkt. No. 1.) Petitioner is currently involuntarily civilly confined at the Central New York Psychiatric Center (“CNYPC”) in the Sex Offender Treatment Program (“SOTP”) under the custody of the New York State Office of Mental Health (“OMH”) pursuant to Article 10 of the New York State Mental Hygiene Law. On September 13, 2021, Petitioner filed a pro se Petition seeking a writ of habeas corpus challenging his confinement at CNYPC. (Dkt. No. 1.) Respondent opposed that motion and Petitioner filed a traverse. (Dkt. Nos. 16, 17, 18, 20, 29.) For the following reasons, the undersigned recommends that the Petition be denied.

I. BACKGROUND

In 1985, Petitioner pleaded guilty to one count of sexual abuse in the first degree with respect to multiple incidents of sexual acts by Petitioner against his two stepdaughters and one stepson that occurred between 1979 and 1982. (Dkt. No. 20, Attach. 2 at 93; Dkt. No. 20, Attach. 2 at 102-104.) He was sentenced to a term of five years probation. (Dkt. No. 20, Attach. 2 at 93; Dkt. No. 20, Attach. 2 at 102-104.)

Underlying the relevant civil commitment in this habeas petition, a jury found Petitioner guilty of attempted rape in the first degree, two counts of sexual abuse in the first degree, and other related offenses. (Dkt. No. 20, Attach. 2 at 92.) On May 13, 1992, Petitioner was sentenced on those convictions to an aggregate indeterminate term of imprisonment from ten to twenty years. (Id.)

Before the expiration of Petitioner's prison sentence, the State petitioned under N.Y. Mental Hyg. Law § 10 for Petitioner to remain civilly confined in the State's custody, and Petitioner was assigned counsel. (Dkt. No. 20, Attach. 2 at 89-100, 127-28.)

On June 27, 2012, the Erie County Supreme Court found probable cause to believe that Petitioner would require civil management pursuant to N.Y. Mental Hyg. Law § 10.06. (Dkt. No. 20, Attach. 2 at 135-36; Dkt. No. 20, Attach. 2 at 395-448.)

On August 8, 2016, Petitioner waived a jury trial and consented to a finding of mental abnormality as defined by Article 10 of the N.Y. Mental Hyg. Law. (Dkt. No. 20, Attach. 2 at 230-231; Dkt. No. 20, Attach. 2 at 524-529.) Petitioner later moved to vacate his waiver and consent, but the court denied his motion. (Dkt. No. 20, Attach. 2 at 250-203, 580-599.)

On July 13, 2017, Petitioner filed a state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 1-7.) On September 14, 2017, the Erie County Supreme Court denied Petitioner's state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 19-20.) On September 26, 2017, Petitioner appealed this order (“Appeal 3”). (Dkt. No. 17, Attach. 1 at 51.)

Following a dispositional hearing, on November 21, 2017, the Erie County Supreme Court concluded that Petitioner is a dangerous sex offender requiring confinement and ordered him committed to a secure treatment facility to receive further sex offender treatment. (Dkt. No. 20, Attach. 2 at 601-683; Dkt. No. 20, Attach. 2 at 685-688.) On December 6, 2017, Petitioner appealed this order (“Appeal 1”). (Dkt. No. 17, Attach. 1 at 36.)

On November 29, 2017, Petitioner filed a motion pursuant to N.Y. C.P.L.R. §§ 4404(b), 5015 seeking reconsideration and to vacate the order of commitment. (Dkt. No. 20, Attach. 2 at 794-844.) On April 17, 2018, the Erie County Supreme Court denied Petitioner's motion. (Dkt. No. 20, Attach. 2 at 792.) On April 30, 2018, Petitioner appealed the denial of his reconsideration motion (“Appeal 2”). (Dkt. No. 20, Attach. 2 at 788.)

On October 25, 2018, Petitioner filed a motion to consolidate his appeals. (Dkt. No. 17, Attach. 1 at 21-56.) On November 13, 2018, the New York Appellate Division Fourth Department, granted Petitioner's motion to consolidate to the extent that it sought to consolidate Appeal 1 and Appeal 2, and denied Petitioner's motion to the extent that it sought to consolidate Appeal 3 with Appeals 1 and 2. (Dkt. No. 17, Attach. 1 at 57-60.)

On November 19, 2018, Petitioner filed a stipulation to withdraw Appeal 3. (Dkt. No. 17, Attach. 1 at 61-62.) On November 30, 2018, the New York Appellate Division Fourth Department dismissed Appeal 3. (Dkt. No. 17, Attach. 1 at 63.)

Through counsel, Petitioner asserted the following six arguments related to Appeals 1 and 2: (1) the State failed to show probable cause to continue to detain Petitioner and his due process rights were violated by the delay in the probable cause hearing; (2) Petitioner's due process rights were violated by the delay in holding the mental abnormality hearing; (3) Petitioner's admission to a mental abnormality should be vacated; (4) the trial court should have excluded all testimony concerning the unsubstantiated hearsay allegations of Petitioner's stepchildren at the disposition hearing; (5) the Appellate Court should exercise its independent power of review and find that the State did not meet its burden of proving by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement; and (6) the trial court should have granted Petitioner's Pro se N.Y. C.P.L.R. § 4404 motion. (Dkt. No. 20, Attach. 2 at 861-926.)

On February 7, 2020, the Appellate Division unanimously affirmed the commitment order, and on June 23, 2020, the New York Court of Appeals denied leave to appeal. State v. Daniel J., 180 A.D.3d 1347 (N.Y.App.Div. 4th Dep't 2020), lv. denied, 35 N.Y.3d 908 (2020); (Dkt. No. 20, Attach. 2 at 1008-10, 1067.)

II. GROUNDS RAISED

A. Petition

On September 13, 2021, Petitioner commenced this proceeding by the filing of a verified Petition for writ of habeas corpus. (Dkt. No. 1.) The Petition asserts the following ten grounds for habeas relief: (1) Petitioner's due process rights were violated by the untimely probable cause hearing (“Ground 1”); (2) Petitioner's due process rights were violated by the court's finding of probable cause based on legally insufficient evidence (“Ground 2”); (3) Petitioner's due process rights were violated by the untimely mental abnormality hearing (“Ground 3”); (4) Petitioner's due process rights were violated because his admission of mental abnormality was not made knowingly, voluntarily, and intelligently (“Ground 4”); (5) Petitioner's due process rights were violated because the court failed to conduct a proper allocution during his trial waiver (“Ground 5”); (6) Petitioner's due process right to present evidence was violated by the court's refusal to grant an adjournment (“Ground 6”); (7) Petitioner was deprived of effective assistance of counsel (“Ground 7”); (8) Petitioner's due process rights were violated because the court considered unsubstantiated hearsay allegations at the dispositional hearing (“Ground 8”); (9) Petitioner's due process rights were violated because the State did not meet its burden of proving by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement (“Ground 9”); and (10) Petitioner was deprived of due process because his procedural rights pursuant to N.Y. Mental Hyg. Law § 10.01, et seq. were violated (“Ground 10”). (See generally Dkt. No. 1.)

B. Respondent's Answer and Memorandum of Law

Generally, Respondent makes the following six arguments in support of her answer: (1) Petitioner's claim regarding the delay in conducting the probable cause hearing is meritless; (2) Petitioner's challenge to the court's probable cause finding is unexhausted, procedurally barred, and meritless; (3) Petitioner's speedy trial claim is unexhausted, procedurally barred, and meritless; (4) there is no merit to Petitioner's unexhausted claims challenging his mental abnormality trial waiver, the effectiveness of his counsel, and the denial of his adjournment request; (5) Petitioner's hearsay claim is meritless; and (6) Petitioner's legal sufficiency claim as to the court's dispositional finding is unexhausted and meritless. (See generally Dkt. No. 18.)

More specifically, with respect to her first argument (addressing Grounds 1 and 10), Respondent asserts that the delay in holding the probable cause hearing was attributable to Petitioner, who requested that the proceeding be removed to Erie County. (Dkt. No. 18 at 2730.) Respondent argues that the base of Petitioner's claim is not a due process claim, but a violation of N.Y. Mental Hyg. Law § 10.06(h), and federal habeas corpus relief does not lie for errors of state law. (Id. at 28-29.) Moreover Respondent argues that-even if the claim were cognizable-the Supreme Court has never addressed whether due process could be violated by a delay in holding a civil commitment probable cause hearing and thus, it cannot be said that the state court unreasonably applied clearly established federal law within the meaning of the AEDPA. (Id. at 29.) Further, Respondent argues that Petitioner has not established a violation of state law so egregious as to amount to constitutional error because N.Y. Mental Hyg. Law § 10.06(h) states that failure to commence the probable cause hearing within the time periods specified shall not result in the dismissal of the petition and shall not...