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February 24, 1998

FRANCIS S., Petitioner, against JAMES STONE, etc., et al., Respondent.

The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 Petitioner Francis S. assaulted a police officer with a knife and then pleaded not responsible by reason of mental disease or defect. As a result, he was committed to the custody of the Commissioner of Mental Health (the "Commissioner"), eventually released on an order of conditions, but then recommitted after a determination by the state courts, affirmed by the New York Court of Appeals, that he suffered from a "dangerous mental defect."

 Petitioner now challenges the constitutionality of the New York statutory scheme on the theory that it improperly permitted his recommitment on a showing less demanding than would have been required to commit one not previously acquitted of criminal charges by reason of a mental condition. He contends also that the standard applied by the New York Court of Appeals in affirming the recommitment order was unconstitutional because it permits the perpetual confinement of persons like himself. Additionally, he asserts that the manner in which the state proceedings were commenced "shocks the conscience" and therefore violated the substantive component of the Due Process Clause. Finally, he argues that the evidence supporting his recommitment was so insufficient as to make the recommitment order inconsistent with the Due Process Clause.

 This Court holds that the challenge to the New York recommitment scheme as applied to petitioner is without merit. Those acquitted of crimes by reason of insanity are distinguishable from persons subject to civil commitment proceedings, and the Constitution does not require that the two groups be treated identically in all circumstances. Petitioner's suggestion that his release on an order of conditions terminated the state's ability to recommit him under the provisions applicable to insanity acquittees also does not withstand analysis. His attacks on the standard applied by the New York Court of Appeals and the sufficiency of the evidence are similarly unavailing, and his contention that he was deprived of due process of law by the manner in which the state commenced the recommitment proceeding was procedurally defaulted by his failure to raise that contention in the state courts.


 New York's Recommitment Scheme

 A New York criminal defendant has the burden of establishing by a preponderance of the evidence lack of criminal responsibility by reason of mental disease or defect. *fn1" A defendant may avail himself of this defense only after the state has proven every element of the crime, including defendant's mental state, beyond a reasonable doubt. *fn2"

 Initial Examination of Acquittee

 Following a determination of not guilty by reason of mental disease or defect, Section 330.20 of the Criminal Procedure Law requires that two qualified psychiatrists examine the acquittee for the existence of a dangerous mental disorder or mental illness. *fn3" The psychiatric examiners then submit reports to the Commissioner who forwards them to the court which accepted the plea or verdict. *fn4" Within ten days of the court's receipt of the reports, the court must hold an initial hearing to determine the acquittee's present mental condition. At the hearing, the district attorney has the burden of establishing by a preponderance of the evidence that the acquittee currently has a dangerous mental disorder or, alternatively, is mentally ill. *fn5" The acquittee has a dangerous mental disorder if he suffers from a mental illness *fn6" and, because of that condition, constitutes a physical danger to himself or others. *fn7"

 If the court is persuaded that the acquittee has a dangerous mental disorder, it must issue a commitment order pursuant to which the acquittee is placed in a secure psychiatric facility for six months. *fn8" If it determines that the acquittee does not suffer from a dangerous mental disorder but is mentally ill, *fn9" it must issue an order of conditions and an order committing the acquittee to the care of the Commissioner. *fn10" Finally, if the court finds that the acquittee suffers from neither a dangerous mental disorder nor a mental illness, the court must discharge the acquittee, either unconditionally or under an order of conditions as described above. *fn11"

 Retention Applications

 Once an acquittee has been committed to a secure facility, the Commissioner must timely apply for subsequent orders of retention. *fn12" The court must hold a hearing on a recommitment application if requested by the district attorney, the acquittee or his counsel, or the mental hygiene legal service and may do so on its own motion in the absence of any request. In order to retain the acquittee, the Commissioner must establish "by a fair preponderance of the evidence" that the acquittee remains dangerously mentally ill. If the Commissioner meets this burden, the court then orders the acquittee's retention in the secure facility. If not, but the Commissioner establishes that the acquittee is mentally ill, the court must order the acquittee transferred to a non-secure facility. *fn13" Finally, if the Commissioner establishes neither, then the court must sign a release order and enter an order of conditions. *fn14"


 Recommitment of an acquittee who is released, at any point in the process, on an order of conditions is accomplished through CPL § 330.20(14). CPL § 330.20(14) provides that at "any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney . . . for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder. . . . If the court finds [after a hearing] that the defendant has a dangerous mental disorder, it must issue a recommitment order."

 Petitioner's Recommitment

 Background -- The Initial Commitment

 Petitioner's journey through the maze of the criminal and mental health systems has been long and arduous. *fn15" Petitioner has been arrested at least twenty-six times, primarily for violent and threatening behavior. He has pleaded guilty to conduct such as assault in the third degree, for brandishing a ten-inch metal pipe at a restaurant bartender and patrons and then biting the officer who asked him to leave, and criminal mischief, for kicking in the glass panel door at another restaurant and beating a metal pipe on the bar while threatening to kill the bartender.

 The incidents giving rise to this petition began in 1983, when petitioner happened onto the scene of drug raid and was arrested after refusing police requests to the leave the scene. As he was placed under arrest, petitioner pulled out a six-inch knife and thrust it at an officer. Consequently, he was charged with attempted assault in the first degree *fn16" and criminal possession of a weapon in the third degree. *fn17" However, petitioner was released from custody and engaged in criminal conduct in New Jersey which resulted in his arrest and confinement at a psychiatric center there from May 1984 until April 1986. Following his release from that psychiatric facility, petitioner was charged with drunk driving after he drove his vehicle into a parked car in New York, causing a multi-vehicle accident. Shortly thereafter, he was arrested also for possession of heroin, to which he pleaded guilty, and served a short sentence.

 On August 7, 1987, petitioner pleaded not responsible by reason of mental disease or defect pursuant to CPL § 220.15 in full satisfaction of the indictment pending against him for the 1983 incident and in return for dropping the drunk driving charge against him. In compliance with CPL § 330.20, New York State Supreme Court Justice Alfred Kleiman immediately held a hearing in which he determined that petitioner was mentally ill but not suffering from a dangerous mental disorder. He ordered petitioner committed to the custody of the Commissioner for 120 days in a non-secure facility, and consequently petitioner was sent to the South Beach Psychiatric Center ("South Beach"). Justice Kleiman issued also a five year order of conditions which required petitioner to comply with the terms and conditions of the treatment plan prescribed by the Office of Mental Health. On December 7, 1987, Justice Kleiman's commitment order expired. Petitioner was then discharged to out-patient care on an order of conditions.

 The First Recommitment Application

 In May 1988, due to petitioner's alleged violation of the order of conditions, the Commissioner sought to recommit petitioner to a secure facility. On January 23, 1990, the Office of Mental Health located petitioner, whose whereabouts had been unknown to it for some time, and he was committed to Kirby Forensic Psychiatric Center for examination. Two psychiatrists, after examining petitioner, agreed that he suffered from a dangerous mental disorder. Supreme Court Justice Kenneth Shorter then held a hearing and concluded that petitioner remained mentally ill but did not suffer from a dangerous mental illness as defined in CPL § 330.20(1)(c). Justice Shorter therefore denied the recommitment application but ordered petitioner held in a non-secure facility and amended his order of conditions to specifically forbid the use of alcohol, non-prescribed controlled substances and illegal drugs. Petitioner was discharged from the non-secure facility to an outpatient clinic on November 4, 1990.

 The Second Recommitment Application

 After petitioner was discharged, he was arrested on three separate occasions from June 1991 to July 1992 and charged with violently kicking and pushing a police officer, kicking the doors and windows of a police car, head-butting a police officer and kicking him in the groin, and physically breaking the windshield and door window of his girlfriend's car during the course of an argument, among other things.

 On August 4, 1992, the Commissioner filed a second recommitment application, this time in the Ex Parte Part of New York Supreme Court, New York County. The Commissioner appended the affidavit of Dr. Aristeo Castillo, a staff psychiatrist at South Beach who had examined and treated petitioner in 1990, which alleged that petitioner suffered from a dangerous mental disorder and needed care and treatment in a secure psychiatric facility. Copies of the recommitment application were mailed to petitioner in care of South Beach. On August 7, 1992, the day the order of conditions issued in 1987 by Justice Kleiman expired, the recommitment application came before Justice Stanley Parness, who issued an order directing petitioner to appear before him on August 26, 1992, for a hearing on the application. Notice of that order also was sent to petitioner in care of South Beach.

 In view of the fact that petitioner had left South Beach in 1987, it is not surprising that he failed to appear on August 26, 1992. The Commissioner then applied for an arrest warrant pursuant to CPL § 330.20(14). Counsel for petitioner objected, contending that the recommitment application and the order to appear had not been served properly upon petitioner and that the application should be dismissed outright. The court adjourned the case until September 9, 1992. to allow for proper service. On August 28, 1992, the Commissioner filed and served an identical recommitment application and a new notice to appear. This time, notice of both the recommitment application and the notice to appear were sent to petitioner at 510 Harvard Avenue, Baldwin, New York, by certified mail. Nevertheless, on September 9, 1992, petitioner again failed to appear before the court and an arrest warrant was issued. On September 10, 1992, petitioner was brought into the custody of the Commissioner.

 Supreme Court Justice Edith Miller held a hearing on the recommitment application from November 18, 1992 until January 25, 1993. She concluded that petitioner was mentally ill and had violated his order of conditions, as he repeatedly had done in the past. She concluded also that petitioner, if released, would continue his uncontrollable behavior and that he would not comply with any treatment plan or abstain from drug and alcohol abuse. Justice Miller attributed any good behavior that petitioner had exhibited during the hospital stay to his desire to be discharged from the hospital and his medication regime. She found also that petitioner was intrusive, demanding, argumentative, manipulative, and verbally provocative while in the hospital, although he did not demonstrate any "classic" psychotic symptoms such as hallucinations, delusions or communication disorders.

 Despite all this, Justice Miller "reluctantly" denied the recommitment application. Relying on People v. Torres,18 Justice Miller held that the Commissioner was required to establish by a preponderance of the evidence that petitioner "currently" posed a physical danger to himself or others. That burden, she concluded, had not been met, because petitioner was not dangerous at the time of the hearing in light of the fact that he had been on medication following his arrest.

 The State Appellate Proceedings

 The District Attorney of New York County and the Commissioner appealed Justice Miller's order to the New York Supreme Court, Appellate Division, First Department. *fn19" They argued that petitioner was suffering from a dangerous mental disorder and should have been recommitted. Petitioner contended inter alia that the recommitment provisions of CPL § 330.20 are unconstitutional and that the hearing court was without jurisdiction to consider the recommitment application because it had not been timely served and filed and because the psychiatrist's affidavit in support of the application was legally insufficient. *fn20"

 The Appellate Division reversed and granted the recommitment application. *fn21" The court agreed that petitioner was mentally ill and that he would revert to "his prior pattern of behavior" once released from a psychiatric facility. *fn22" Thus, the majority concluded, the state had proven by a preponderance of the evidence that petitioner did indeed suffer from a dangerous mental disorder. The majority rejected petitioner's claim that CPL § 330.20 was unconstitutional but held that the state in any event had met the more stringent test for civil commitment by clear and convincing evidence. *fn23"

 Petitioner then obtained leave to appeal to the New York State Court of Appeals *fn24" where he renewed his constitutional and jurisdictional claims. Petitioner again argued that he had not been proven to be mentally ill or "currently dangerous" within the meaning of CPL § 330.20(1)(c). *fn25" The Court of Appeals rejected petitioner's arguments and affirmed the Appellate Division's recommitment order. *fn26" It upheld the finding that petitioner suffered from a dangerous mental disorder, noting that both the hearing court and Appellate Division had found petitioner suffered from a mental illness, the first element of a dangerous mental disorder. Further, it affirmed the Appellate Division's holding that the hearing court had applied an erroneous legal standard in finding petitioner not to be currently dangerous. It reiterated the proper legal standard it had announced earlier that year in Matter of George L.,27 viz. that an insanity acquittee presents a danger if, outside of the controlled hospital setting, he would be non-compliant with medication, prone to substance abuse and, as a result, relapse into illness-driven violent behavior. It therefore upheld the determination that petitioner suffered from a dangerous mental condition. *fn28"

 The Court of Appeals next rejected petitioner's jurisdictional challenges. It held that the recommitment proceeding had been commenced by the filing of the application during the pendency of the order of conditions, not its service upon the insanity acquittee. *fn29" It held also that the affidavit in support of the application was legally sufficient. *fn30"

 Finally, the Court of Appeals rejected petitioner's due process and equal protection claims. Relying on Jones v. United States,31 the Court of Appeals found that the insanity acquittee's past dangerous criminal conduct permitted differential treatment of insanity acquittees and those subject to civil commitment and that the distinction between the two groups was rationally based on the Legislature's determination that insanity acquittees posed a risk of relapse into dangerousness. The Court of Appeals distinguished Foucha v. Louisiana,32 in which the Supreme Court had invalidated a Louisiana statute that permitted the retention of non-mentally ill acquittees merely on a showing of dangerousness. The Court of Appeals concluded that, unlike the Louisiana scheme, CPL § 330.20 permits recommitment only upon a showing of both mental illness and dangerousness. *fn33"

 The Habeas Petition

 On March 27, 1997, petitioner sought a writ of habeas corpus from this Court, contending that his recommitment pursuant to the CPL violated his federal constitutional rights. The petition asserts four grounds for relief.

 First, petitioner argues that the CPL recommitment scheme, as applied to petitioner, violated the Due Process and Equal Protection Clauses because the state courts had determined that petitioner was no longer dangerous and, in consequence, he could not be recommitted without satisfaction of the same requirements applicable to any other candidate for civil commitment.

 Second, petitioner argues even if the recommitment scheme is constitutional as applied to him, the manner in which it was applied "shocks the conscience" and therefore violated the substantive component of the Due Process Clause, principally because (a) the initial recommitment application was sent to the wrong address, (b) the psychiatrist whose affidavit supported that application had not examined petitioner in almost two years and stated only that the petitioner "may" be suffering from a dangerous mental disorder, and (c) the additional affirmation that accompanied the second recommitment application was insufficient.

 Third, the petition asserts that the standard adopted by the New York Court of Appeals in affirming the recommitment order violated petitioner's right to substantive due process because in substance it permits the state to hold indefinitely any insanity acquittee shown to have a personality disorder that may lead to criminal conduct.

 Finally, petitioner contends that the Court of Appeals' decision to affirm the recommitment was unreasonable in light of the evidence presented at the hearing.

 The Court dismissed the petition on June 9, 1997, on the alternative grounds that it was untimely in light of Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") *fn34" and that it contained a ground for relief -- the substantive due process claim to the manner of recommitment -- on which petitioner had not exhausted his state remedies. As the Court has been persuaded by an argument first advanced in support of an application for a certificate of appealability ("COA") that the petition is timely, although by the narrowest of margins, the Court, with the parties' consent, construes the application as one for reconsideration and grants that application. This therefore is the Court's decision on reconsideration of the petition.



 "All state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus." *fn35" This requirement applies with equal force to insanity acquittees held pursuant to CPL § 330.20. *fn36" It "is satisfied if the claim has been 'fairly presented' to the state courts." *fn37" "Specifically, [petitioner] must have set forth in state court all of the essential factual allegations asserted in his federal petition . . . [and] have placed before the state court essentially the same legal doctrine he asserts in his federal petition." *fn38" Respondents *fn39" contend that petitioner failed to exhaust his state court remedies because he did not raise in the state courts any of the first three grounds upon which he relies here.

 Due Process and Equal Protection Challenges to the Recommitment Scheme

 Petitioner plainly has exhausted his state remedies with respect to his as applied challenge to the recommitment scheme, the first ground for relief here. The very first point in petitioner's brief to the New York Court of Appeals was entitled "It Is Constitutionally Impermissible To Apply The Recommitment Procedures Prescribed In CPL 330.20 Subdivision 14, To Insanity Acquittees Adjudged Not To Have A Dangerous Mental Disorder At Their Initial Hearing And Subsequently Released Into The Community." *fn40" He there relied on Jones v. United States41 and Addington v. Texas42 to argue that an insanity acquittee, once found no longer to be dangerous to society, must be treated in commitment proceedings in the same manner as individuals subject to civil commitment. *fn43" That is the argument he makes here. *fn44" The issue therefore was presented fairly to the state court.

 Substantive Due Process Challenge to Recommitment Standard

 Similarly, petitioner's Court of Appeals brief squarely argued that the recommitment application should have been denied as a matter of substantive due process, *fn45" the very argument he makes here as his third ground for relief. Indeed, he argued to the New York court -- as he does here -- that Foucha forbids continued institutional confinement of an insanity acquittee based on a finding that the petitioner possibly or even probably might get into trouble in the future as a result of a personality disorder. *fn46" Consequently, the Court holds that the substantive due process challenge to the standard for recommitment was presented fairly to the Court of Appeals.

 Substantive Due Process Challenge to the Manner of Recommitment

 The same cannot be said of petitioner's other substantive due process claim, the contention that the manner in which the CPL recommitment scheme was applied to him "shocks the conscience" and therefore violated his substantive due process rights.

 In this Court, petitioner contends that his substantive due process rights were violated through (1) the state's alleged failure properly to serve and file the application before the court order of conditions expired, (2) the alleged defectiveness of the application, and (3) the alleged legal insufficiency of the affidavit and affirmation in support of the application. *fn47" He cites numerous Supreme Court precedents and meticulously recounts the relevant facts in support of his claim. There is simply no doubt that the gravamen of his complaint before this Court rests squarely on the United States Constitution.

 Petitioner's brief in the New York Court of Appeals relied on most of the same facts that underlie his substantive due process argument here. Point II argued that the recommitment order should have been reversed because the state failed to serve petitioner prior to the expiration of the order of conditions and that the application was not supported by a legally sufficient affidavit, *fn48" facts to which he now points in support of the substantive due process argument. But the argument before the Court of Appeals was framed solely as a contention that the state had failed to comply with CPL § 330.20. Indeed, the concluding sentence of that section of the brief asserted that the Office of Mental Health "failed to timely commence a legally sufficient application pursuant to CPL 330.20(14) and thus appellant was entitled to have the application dismissed as a matter of law." *fn49" The argument did not refer to the federal or state constitutions. No federal cases were cited. The handful of state cases relied upon made no reference to constitutional arguments. Nor was there any reliance on constitutional sources or arguments in the relevant portion of the reply brief save for a citation to Foucha -- for the uncontroversial proposition that liberty is protected by the federal constitution -- in support of the argument that strict adherence to CPL § 330.20(14) is an important matter. *fn50"

 It is not essential that a federal constitutional argument be precisely labeled as such in a state court in order for its proponent to be deemed to have exhausted his or her state remedies on the point. Nevertheless, the federal constitutional claim is not fairly presented unless the state court is fairly apprised of the nature of the argument. In this Circuit, there are four ways of "fairly presenting" a federal constitutional argument to a state tribunal short of explicitly invoking the Constitution: "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." *fn51"

 None of these requirements was satisfied by petitioner's briefs in the New York Court of Appeals. There was quite simply nothing about the manner in which petitioner argued the state's alleged failure to comply with CPL § 330.20(14) that, even with the benefit of hindsight, should have alerted that court "to the claim's federal nature." *fn52"

 Petitioner nevertheless argues that he exhausted his state remedies on this ground because he cited United States v. Salerno53 in his opening brief in the Court of Appeals and because, he asserts, the point was made adequately in his reply brief. Neither contention is meritorious.

 Salerno upheld against facial constitutional attack the pretrial detention provisions of the Bail Reform Act of 1984. *fn54" Petitioner referred to it in his Court of Appeals brief only to suggest that the 145 day period during which he had been incarcerated pending determination of the recommitment application arguably had been unconstitutional. *fn55" The reference appeared in a section of the brief that argued that CPL § 330.20 violates the Due Process and Equal Protection Clause, not in support of the argument that the manner in which the recommitment proceeding was commenced violated substantive due process. Hence, there was nothing about the reference to Salerno that even arguably suggested that petitioner challenged the manner of the institution of the recommitment proceeding on federal constitutional grounds.

 Nor did petitioner's reply brief remedy his failure to present this issue to the state court. To begin with, New York courts steadfastly refuse to consider arguments raised for the first time in reply briefs. *fn56" Hence, even had the argument been raised in the reply brief, that would not have sufficed. In any case, however, this Court does not regard the passing reference to Foucha as adequately presenting the argument now advanced.

 For all of these reasons, petitioner failed to exhaust his state court remedies with respect to his substantive due process challenge to the manner in which the recommitment application was instituted against him.

 Undaunted, petitioner urges the Court to excuse his failure to exhaust on the grounds that no adequate state corrective process exists by which he now could pursue this claim and, in any case, that the Court of Appeals' rejection of his statutory argument concerning the initiation of the proceeding would make resort to any existing state avenue futile. *fn57"

 Previously unexhausted claims may be heard by a federal district court "if the [state] corrective process is so clearly deficient as to render futile any effort to obtain relief." *fn58" This exception traditionally has been employed where no corrective procedure at all exists to redress a particular constitutional violation or where a corrective procedure exists but "the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process." *fn59" "The basic inquiry is whether the state [detainee] was given the opportunity for full and fair litigation of his . . . claim." *fn60"

 In this case "the state court[s] provided every opportunity for [petitioner] to have raised the issue." *fn61" Petitioner has shown neither a complete absence of a mechanism for correction of his alleged constitutional violation *fn62" nor that he was precluded by an unconscionable breakdown from using the process that exists. Nor will this Court infer from the fact that the Court of Appeals rejected petitioner's other claims that it would have been unwilling to give due consideration to this substantive due process claim if it had been submitted properly for its consideration. Consequently, the Court declines to excuse petitioner's failure to exhaust with respect to this ground.

 Procedural Default

 This does not end the inquiry. The exhaustion requirement of 28 U.S.C. § 2254(b) "refers only to remedies still available at the time of the federal petition." *fn63" The requirement "is satisfied 'if it is clear that [the petitioner's] claims are now procedurally barred under [state] law.' * * * The procedural bar which gives rise to exhaustion provides an independent and adequate state-law ground . . . and thus prevents federal habeas corpus review of the defaulted claim unless the petitioner can demonstrate cause and prejudice for the default." *fn64" Therefore, if petitioner's substantive due process challenge to the manner of recommitment no longer could be heard in the New York courts, then it is deemed constructively exhausted. *fn65" Absent a showing of cause and prejudice, the Court must dismiss the procedurally defaulted claim and proceed to the merits on petitioner's exhausted claims. *fn66" If, on the other hand, petitioner still may be heard in state court on his unexhausted substantive due process claim, then his is a "mixed petition" and must be dismissed in toto.67

 Respondents argue that petitioner still has at least two avenues within the New York state courts to raise his substantive due process claim and therefore that this is a mixed petition. First, according to respondents, People ex rel. Leonard HH68 provides for a mental health detainee to challenge his commitment during successive retention applications, even on grounds that were available, but not raised, in previous commitment hearings. *fn69" Additionally, respondent contends that petitioner could raise his substantive due process claim through a petition for a state writ of habeas corpus. *fn70"

 Petitioner disputes the further availability of any state court forum for his substantive due process claim. He contends that his previous challenge to the recommitment in the New York Court of Appeals forecloses any subsequent litigation of his detention on direct appeal. Moreover, petitioner denies that he could raise the substantive due process challenge in subsequent retention proceedings under CPL § 330.20 because such a challenge would be barred by the doctrine of res judicata. Because he believes he has no further recourse in state courts, petitioner argues that his claim must be deemed constructively exhausted. He further argues that the state failed to press a procedural default argument and that the Court therefore should proceed to the merits on all of petitioner's claims.

 Certainly it is true that petitioner is not entitled to further direct review of his unexhausted claim in the New York courts. CPL § 330.20(21)(b) permits an insanity acquittee to seek leave to appeal to the Court of Appeals, and petitioner already has done so. *fn71" But petitioner is not entitled to another appeal to the Court of Appeals to raise issues he could have raised previously.

 Likewise, petitioner would be foreclosed from raising his unexhausted claim at any subsequent retention hearings. Although Leonard HH leaves open the possibility that petitioner could challenge his continued detention at subsequent retention hearings on the ground that his mental condition had changed, it would not allow petitioner to raise constitutional challenges to the manner in which a prior recommitment proceeding had been initiated. In fact, the Leonard HH court held that res judicata, even in the mental health context, would bar petitioner from raising a ground for relief in a subsequent hearing that was "omitted from earlier applications deliberately or as a result of inexcusable neglect." *fn72" In this case, petitioner's counsel has represented that he had no cause for failing to have brought this claim in the earlier state court proceedings. *fn73" Consequently, it seems all but certain that petitioner would be unable to raise this substantive due process claim at any subsequent retention hearings. Any collateral attack *fn74" similarly would be denied because petitioner had ample opportunity to raise this issue on direct review.

 In sum, this Court finds as to the substantive due process challenge to the manner of his recommitment that "petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." *fn75" Therefore, the claim is deemed constructively exhausted. *fn76"

  Claims constructively exhausted through procedural default are considered waived "absent a showing of cause for the procedural default and prejudice resulting therefrom." *fn77" As petitioner has no cause for his failure to bring the claim earlier, the claim is dismissed and the Court will consider the remaining, exhausted claims on their merits.

 The Merits

 The Challenge to CPL § 330.20

 In Addington v. Texas,78 the Supreme Court held that the Due Process Clause precludes civil commitment of those alleged to be mentally ill unless the proponent proves, by clear and convincing evidence, that the subject is both mentally ill and dangerous. *fn79" Petitioner contends that his release on an order of conditions was a determination that he no longer was dangerous and that his subsequent recommitment was unconstitutional because it did not satisfy the Addington standard. Petitioner's arguments variously rely on due process and equal protection analyses. *fn80" Consequently, the Court considers each ground separately.

 Due Process

 The starting point for a due process challenge to the treatment of insanity acquittees is the Supreme Court's decision in Jones v. United States.81 The Court there held that "when a person charged with having committed a crime is found not guilty by reason of insanity . . . a State may commit that person without satisfying the Addington [clear and convincing evidence] burden with respect to mental illness and dangerousness." *fn82" The Court found that a not guilty by reason of insanity verdict "'establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness,' an illness the defendant adequately proved . . . by a preponderance of the evidence." *fn83" Thus, the legislative determination that an insanity acquittee is dangerous was reasonable *fn84" and the acquittal itself "supported an inference of continuing mental illness." *fn85" The Court held that insanity acquittees, unlike civil committees. may be institutionalized only where "the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness," thereby "diminishing concern as to the risk of error" *fn86" or "risk that he is being committed for mere 'idiosyncratic behavior.'" *fn87" "Accordingly, there is no reason for adopting the same standard of proof in both insanity acquittee and civil commitment cases." *fn88"

 Petitioner does not quarrel with the standard for an initial commitment as outlined in Jones. Rather, petitioner argues that the lower standard of proof no longer may be applied once an acquittee is found not dangerous to himself or others. Petitioner contends that the Supreme Court's decision in Foucha requires that insanity acquittees, once released as not dangerous, may be recommitted only under the higher clear and convincing standard applicable to civil committees. A careful reading of Foucha does not support petitioner's position.

 The Court in Foucha struck down a Louisiana statute which required the commitment of an insanity acquittee until the acquittee proves that he or she is not dangerous, thus requiring the continued commitment of such persons even after they regain their sanity. The majority opinion made clear that the commitment of an insanity acquittee without adherence to the requirements of Addington depends upon the dual conclusions, which flow from acquittal on this ground, that the acquittee is both mentally ill and dangerous. *fn89" Once the acquittee regains sanity, the basis for the commitment provided by the insanity acquittal ends and any further confinement is permissible only if the state prevails in a proceeding subject to the Addington rule. *fn90"

 Petitioner argues that his case follows from Foucha. He contends that the various determinations that he was not currently dangerous eliminated the basis for subjecting him to recommitment under provisions dealing with insanity acquittees just as Foucha's recovery of his sanity eliminated one of the essential bases for his continued confinement pursuant to the insanity acquittal. But he reads Foucha more broadly than is appropriate.

 Justice White's opinion, upon which petitioner relies, was joined by Justice O'Connor and three other justices. But Justice O'Connor's concurring opinion made clear that the decision does not establish that a state "may never confine dangerous insanity acquittees after they regain mental health," *fn91" much less that insanity acquittees who regain their mental health are entitled to the same due process protections as someone never found not guilty of a crime by reason of insanity. She emphasized instead that states may well confine sane insanity acquittees as long as "the nature and duration of the continued confinement [is] tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness." *fn92" Thus the broad reading that petitioner ascribed to Foucha -- that once an acquittee regains mental health, he forever after must receive the same due process rights as one subject to civil commitment -- simply was not the holding of a majority of the Court.

 More fundamentally, even if petitioner's expansive interpretation of the Foucha holding were accurate, it would apply only to insanity acquittees who have regained their mental health. The Louisiana statute at issue permitted the indefinite detention of insanity acquittees who no longer are mentally ill but who remain dangerous. The case says nothing about the treatment of an acquittee who remains mentally ill throughout but ceases for a period of time to be dangerous. *fn93" Petitioner, unlike the acquittee in Foucha, has remained mentally ill from the time of his acquittal through today. *fn94" Indeed, to whatever extent he has not been dangerous, that has been so only when he was medicated in an institutional setting. Foucha therefore has no bearing on petitioner's recommitment.

 Nor can petitioner find support in the Due Process Clause itself. "The function of the legal process is to minimize the risk of erroneous decisions." *fn95" CPL § 330.20, as described above, affords insanity acquittees the opportunity at regular intervals to obtain release by demonstrating by a preponderance of the evidence that they no longer pose a threat to society. *fn96" Once released, the acquittee cannot be recommitted under the CPL absent the presence of an order of conditions, which is limited in duration to five years unless good cause for an extension is demonstrated. *fn97" The release determinations are subject to judicial review, *fn98" and insanity acquittees are represented by counsel at these proceedings. *fn99" In short, petitioner does not point to any portion of the release or recommitment proceedings that denied him an adequate opportunity to contest his recommitment. *fn100"

 Equal Protection

 The initial consideration on an equal protection challenge is the appropriate standard of review. "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for classification." *fn101" Because insanity acquittees do not constitute a suspect classification, and recommitment of such acquittees does not implicate a fundamental right, *fn102" the statutory scheme for recommitment must be upheld if the New York Legislature has any rational basis for distinguishing between insanity acquittees and persons subject to civil commitment.

 That rational basis is found in the obvious danger posed by the release of insanity acquittees into the community at large. Unlike persons subject to civil commitment, insanity acquittees have been proven beyond a reasonable doubt to be dangerous based on their past criminal activity. *fn103" Predictions of dangerousness are far from determinations of objectively knowable, measurable facts. Once released, insanity acquittees still pose a risk, as demonstrated by petitioner himself, of returning to dangerous behavior. "The lesson . . . is not that government may not act in the face of this uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments." *fn104" In adopting the statute challenged here, including the provisions concerning recommitment of acquittees released as not dangerous, the Legislature was particularly concerned with the protection of the society at large and with the safety of the insanity acquittees themselves. *fn105"

 Given the obviously legitimate state interest in public safety and the fact that an insanity acquittee, unlike a person subject to civil commitment, has engaged in dangerous behavior in the past, the Legislature quite rationally could conclude that insanity acquittees who have been released as not dangerous at a particular moment in time ought to be subject to recommitment during the order of conditions period upon a showing, by a preponderance of the evidence, that they again are dangerous. *fn106"

 Substantive Due Process Challenge to "Dangerous Mental Disorder"

 In addition to his challenge to CPL § 330.20, petitioner contends that the New York Court of Appeals' interpretation of the standard of dangerous mental disorder violates substantive due process because it would permit perpetual confinement of persons like himself. In particular, petitioner relies on Foucha to argue that he cannot be confined on the basis of a mere antisocial personality disorder for which he has displayed dangerous behavior in the past. Nor, petitioner contends, may he be deemed dangerous based entirely on the fact that he "invariably deteriorates" when not in a psychiatric institution. Instead, petitioner reiterates that the state must adequately demonstrate that the insanity acquittee is "currently mentally ill and dangerous" in order to recommit him.

 Petitioner's argument is without merit. In the first place, petitioner engages in a highly selective reading of the record to conclude that petitioner was committed on the basis of past dangerousness alone. Five of the six psychiatrists who testified at the hearing on the recommitment application concluded that petitioner suffers from manic bipolar disorder, in addition to an antisocial personality disorder, attention deficit disorder and substance abuse. *fn107"

 More fundamentally, there is no constitutional infirmity in assessing petitioner's dangerousness based on predictions of his behavior once he leaves the care of the hospital, including his proclivity to discontinue his prescribed course of medication and treatment. In United States v. Murdoch,108 the Ninth Circuit held it permissible to confine an insanity acquittee because of the individual's likely behavior upon leaving the confines of the mental institution. "Because [petitioner] is in confinement, he is in a controlled environment. He also is receiving treatment. Simply because [he] is not in a situation in which he will react dangerously does not mean that he no longer suffers from a mental disease which causes his dangerous propensities." *fn109" Similarly, the Fifth Circuit upheld the confinement of an insanity acquittee where the district court concluded that there was "no assurance in the record that he would continue to take his medication [that would lessen his symptoms] once released." *fn110" Because the New York Court of Appeals concluded that petitioner suffered from a mental illness and that he would revert to assaultive and dangerous behavior once discharged from a controlled environment, there was no substantive due process violation in the dangerousness standard applied to the petitioner.

 Review of the State Court Findings

 Petitioner's final argument is that his recommitment was unreasonable in light of the evidence presented at the commitment hearing. *fn111" It is necessary first to address the appropriate scope of review.

 Under 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." Typically, the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." *fn112" However, "mixed question[s] of law and fact" are not entitled to the presumption of correctness. *fn113" While the issues raised by petitioner relating to the veracity and credibility of the expert psychiatric witnesses who testified at petitioner's commitment hearing are presumed correct, *fn114" at least one court has held that the determination of an insanity acquittee's mental illness and dangerousness for purposes of recommitment is a mixed question of law and fact and therefore is not entitled to the strong presumption of correctness under Section 2254(e)(1). *fn115" Even without the presumption in favor of the state courts' determinations, however, it is abundantly clear that more than sufficient evidence was presented on the record to justify petitioner's recommitment.

  The hearing to determine whether petitioner currently suffered from a dangerous mental disorder -- the prerequisite for statutory recommitment under CPL § 330.20(14) -- lasted more than three months, generated more than 1,500 pages of mostly psychiatric testimony and included as evidence 1,800 pages of petitioner's psychiatric records. *fn116" Six psychiatrists testified at the proceeding, three for the state and three for petitioner. All testified that the petitioner was then mentally ill. The three doctors who treated petitioner during his confinement and outpatient care testified that he suffered from bipolar disorder, psychotic misperceptions, attention deficit disorder and antisocial personality disorder. *fn117" Most tellingly, the psychiatrists testifying on behalf of petitioner concurred that he was then mentally ill. *fn118" All of the psychiatrists noted petitioner's extensive history of drug and alcohol abuse and found that petitioner's symptoms were exacerbated by his use of these substances. Among the other symptoms to which some or all of the psychiatrists testified were petitioner's delusions of persecution and grandeur, irritable and moody conduct, periods of psychotic episodes and paranoia. *fn119" In sum, petitioner's mental illness was not seriously in dispute. *fn120"

  As to the dangerousness prong, the psychiatrists' testimony was likewise almost unanimous. Dr. Ibanez's report indicated that petitioner suffered from impaired judgment, had "maladaptive patterns of behaviors and could be harmful to self and others," and manifested "repeated criminal offenses and [a] lack of understanding of this behavior that is not socially acceptable." *fn121" Dr. Ibanez concluded that petitioner's "judgment represents manifestations that are harmful to the patient in view of his unwillingness to take medication and continue follow-up treatment," a conclusion echoed by Drs. Cruz *fn122" and Poundstone. *fn123" Similarly, several of the doctors concluded that petitioner most likely would be incapable of complying with the drug and alcohol treatment program that was necessary to control many of his dangerous impulses outside of the confined setting of a hospital. *fn124"

  Most importantly, the record before the hearing court included petitioner's twenty-six arrests and numerous previous criminal charges and convictions, almost all for violent and threatening behavior and many of which occurred while petitioner was released on an order of conditions. *fn125" That petitioner committed these acts is entitled to the strong presumption of correctness, and petitioner has not raised clear and convincing evidence to the contrary. *fn126"

  Applying the legal standards to these facts, the Appellate Division, and the Court of Appeals to the extent it engaged in fact finding, concluded that petitioner suffered from a dangerous mental disorder within the meaning of CPL § 330.20. This Court agrees. As there is no constitutional barrier to the definition of "current dangerousness" as interpreted by the Appellate Division and Court of Appeals, petitioner quite clearly meets the standard of dangerous mental disorder. As for the issue of mental illness, there is essentially no dispute that petitioner suffers from bipolar disorder, antisocial disorder, and attention deficit disorder.

  Because the Appellate Division's determination that petitioner was mentally ill and dangerous and the Court of Appeal's affirmance of that determination were well supported by the overwhelming weight of the evidence presented at the recommitment hearing, the decision to recommit petitioner was not "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." *fn127" Therefore petitioner is not entitled to habeas relief on that basis.


  For the foregoing reason, the Court treats the application for a COA as a motion for reconsideration and grants that motion. On reconsideration, the contention that the manner in which the recommitment proceeding was commenced violated petitioner's constitutional rights is dismissed. The petition is denied on the merits in all other respects. The Court hereby grants a COA as to petitioner's firs t and third grounds for relief as described at pages 13-14 and denies a COA with respect to the other grounds raised by petitioner.


  Dated: February 24, 1998

  Lewis A. Kaplan

  United States District Judge

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