United States District Court, Northern District of California
July 29, 2003
ROGER E. GRONDORF, PETITIONER,
DAVE GRAZIANI, EXECUTIVE DIRECTOR &MDASH; NAPA STATE HOSPITAL, RESPONDENT.
The opinion of the court was delivered by: Susan Illston, District Judge.
The petition is dismissed without prejudice to petitioner filing a new habeas petition after he exhausts his state court remedies.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Roger E. Grondorf, currently in custody in the Napa State Hospital, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is now before the court for consideration of respondent's motion to dismiss the petition because state judicial remedies have not been exhausted for the claim in it. For the reasons discussed below, the court will grant respondent's motion and dismiss the petition.
Roger Grondorf is currently in custody at the Napa State Hospital, following a negotiated plea in a criminal case in Mendocino County Superior Court in 1999. It appears from the order for commitment that Grondorf was found not guilty by reason of insanity to a charge of assault with a deadly weapon likely to produce great bodily injury and was committed to a state m( hospital for a term not to exceed four years under California Penal Code § 1026. See Resp. Exh. A. Section 1026 provides that when a criminal defendant is found "insane at the time the offense was committed," the court generally directs "that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility . . ., or the court may order the defendant placed on outpatient status." Cal. Penal Code § 1026(a).
A defendant committed to a state mental hospital will not be released from confinement, parole or outpatient status until the expiration of the maximum term of the commitment or when the committing court determine that the person's sanity has been restored. Cal. Penal Code §§ 1026.1, 1026.2. Apparently no court has determined that Grondorf's sanity has been restored and Grondorf reports that his scheduled release date is not until December 2003.
The most recent judicial decision that keeps Grondorf in custody was the Mendocino County Superior Court's decision denying his petition pursuant to California Penal Code § 1026.2 to be released from custody. See Resp. Exhs. H and J. Under § 1026.2, a hospitalized defendant can apply for release from custody "upon the ground that sanity has been restored." Cal. Penal Code § 1026.2(a). After notice and an investigation described in the statute,
[t]he court shall hold a hearing to determine whether
the person applying for restoration of sanity would be
a danger to the health and safety of others, due to
mental defect, disease, or disorder, if under
supervision and treatment in the community. If the
court at the hearing determines the applicant will not
be a danger to the health and safety of others, due to
mental defect, disease, or disorder, while under
supervision and treatment in the community, the court
shall order the applicant placed with an appropriate
forensic conditional release program for one year.
Cal. Penal Code § 1026.2(e).
As noted, Grondorf's petition under § 1026.2 was denied by the Mendocino County Superior Court several months ago with the trial court ordering Grondorf returned to Napa State Hospital for treatment. Resp. Exh. J. (Respondent reports that the decision was made in November 2002, but this court cannot be sure of the date because the reporter's transcript of the proceedings attached to Respondent's Exhibit H includes a reporter's certificate dated September 6, 2002, two months earlier.)
Since his commitment in 1999, Grondorf was for a while on outpatient status in a conditional release program ("CONREP") and was out of the hospital. He was put back in the hospital after he refused to return to CONREP in July or August 2002. It does not appear that the release to CONREP or the return to the hospital are particularly important to the question presented by Grondorf's federal habeas petition.
Grondorf's federal petition for writ of habeas corpus was filed on December 27, 2002. Before filing his federal petition, Grondorf had not filed any petition in the California Supreme Court seeking review of the ruling denying his petition for release upon restoration of sanity, although he had filed a habeas petition in the California Court of Appeals before the trial court denied his petition for release upon restoration of sanity.
In his federal petition for writ of habeas corpus, Grondorf contends that his right to due process is being violated because he is being kept in custody in the state mental hospital although it has been determined that he is no longer suffering from a mental illness. It appears that the petition is challenging the Mendocino County Superior Court's decision to deny his petition for release under California Penal Code § 1026.2.
The exhaustion requirement requires that prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement first exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworthy v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "`the initial "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted).
The exhaustion requirement may be excused where it would be futile. See 28 U.S.C. § 2254 (b)(1)(A); Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990) (extraordinary delay in state courts can render state corrective processes ineffective within meaning of § 2254(b) and excuse exhaustion); Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981) (exhaustion requirement may be avoided by showing that it would be futile in light of prevailing decisions of highest state court). The statute provides two ways around the exhaustion requirement: "an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254 (b)(1)(A).
Respondent asserts and Grondorf does not dispute that the petition is filed under 28 U.S.C. § 2254, for which there is an exhaustion requirement. Respondent also asserts at Grondorf does not dispute that Grondorf did not present his claim to the California Supreme Court for its review before filing his federal action.
Grondorf argues solely that exhaustion should be excused as futile. He explains the futility argument thusly: "In 1997 California Penal Code § 1026.2(e) was revised to comply with Foucha v. Louisiana. There is no reason to believe the California Supreme Court would find the revised statues [sic], that the California Supreme Court ordered, unconstitutional." Traverse To Respondent's Motion To Dismiss, p. 2. The argument is unpersuasive.
Foucha v. Louisiana, 504 U.S. 71 (1992), held that a Louisiana statute violated the Due Process Clause because it allowed a defendant earlier found not guilty by reason of insanity be committed to and retained in a mental institution until he was able to demonstrate that he was not dangerous, even if he did not continue to suffer from any mental illness. Foucha does not help Grondorf. First, Grondorf's petition does not even challenge the constitutionality California's release upon restoration of sanity statute, Cal. Penal Code § 1026.2. His argument that he should not have to go to the California Supreme Court to assert such a challenge is irrelevant because he is not making such a challenge here, either. Second, even if he was challenging the constitutionality of the statute, he has not shown that the California Supreme Court has ruled in any way that suggests challenging the constitutionality of § 1026.2 in that court would be a hollow exercise. Third, Grondorf has not shown that § 1026.2 conflicts with Foucha: on its face, California's statute permits the release of a petitioner who has been restored to sanity and, unlike the situation in Foucha, does not permit the continued detention of one who is not mentally ill.
The fact that Grondorf is apparently nearing the end of his custodial term does not alter the result. When he filed his federal petition, he still had a year of his term ahead of him and could have obtained review by the California Supreme Court of his claims. He cannot bypass that opportunity, unilaterally declare it a worthless exercise and ask the federal court to review his petition. To do so would be to disregard the comity interest in allowing the state court to have the first opportunity to correct any errors in its process. See Picard v. Connor, 404 U.S. at 275.
Grondorf has not shown that requiring him to present his claims to the California Supreme Court before presenting them in federal court would be futile. A petition for writ of habeas corpus could have been filed in the California Supreme Court at the time he filed his federal petition for writ of habeas corpus. He has not shown an absence of available State corrective process or and he has not shown that circumstances exist that render that process ineffective to protect his rights. See 28 U.S.C. § 2254 (b)(1)(A). His petition must be dismissed for failure to exhaust state court remedies.
For the foregoing reasons, respondent's motion to dismiss is GRANTED. (Docket #7.) The petition is dismissed without prejudice to Grondorf filing a new habeas petition after he exhausts his state court remedies. In light of the dismissal of the petition, petitioner's motion for discovery and "petition for reasonable access to the court and/or law-library" are DENIED. (Docket #8 and #9.) The clerk shall close the file.
IT IS SO ORDERED.
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