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.
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 ...