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Poree v. Collins

United States Court of Appeals, Fifth Circuit

July 28, 2017

CARLOS POREE, Petitioner-Appellant
KANDY COLLINS, Respondent-Appellee

         Appeal from the United States District Court for the Eastern District of Louisiana

          Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge:

         Appellant Carlos Poree is an insanity acquittee who has been in the custody of the Eastern Louisiana Mental Health System (ELMHS) since 1999. After a state court denied Poree conditional release to Harmony House Transitional Center ("Harmony House"), Poree sought federal habeas relief under 28 U.S.C. § 2254. The district court denied his claim. Although we are troubled that the state court seemingly failed to follow Louisiana state law in denying Poree relief, we cannot conclude that the state court decision was contrary to clearly established Supreme Court law. We thus AFFIRM.


         "On November 7, 1977, Carlos Poree shot ten people, killing one."[1] His first trial resulted in a mistrial, and his second trial-limited to whether Poree was not guilty by reason of insanity ("NGBRI")-resulted in a first degree murder conviction.[2] After making his way through the state court appellate system, [3] Poree filed a federal habeas petition in 1997, [4] which the district court granted.[5] Upon a hearing, Poree was committed to ELMHS.


         Since Poree began living at ELMHS, the state court has considered several times whether he could transfer to a less restrictive setting. According to Louisiana law, the process begins when the superintendent of the mental institution recommends discharge or release to a review panel, which then makes a recommendation to the court.[6] "If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a contradictory hearing following notice to the district attorney."[7] If a contradictory hearing is held, "the burden shall be upon the state to seek continuance of the confinement by proving by clear and convincing evidence that the committed person is currently both mentally ill and dangerous."[8]

         Poree has been through this process several times. Between 2002 and 2009, the state held three hearings, denying Poree transfer each time.[9] In 2010, the process began again. On October 11, 2010, the ELMHS Forensic Review Panel, made up of Dr. John W. Thompson, [10] Dr. F.J. Bordenave, [11] and Dr. David Hale, [12] completed a Review of Patient Status ("Review") for Poree and recommended that Poree be conditionally released to Harmony House. The Review indicated that Poree is aware of the nature of his violent offense, has the ability to conform his conduct to the law, and has "sufficient moral cognitive judgment to distinguish between right and wrong." His Axis I diagnosis was listed as Schizophrenia, Residual Type. Noting Poree's psychiatric history and his past homicidal and assaultive behaviors, the Review nevertheless stated that Poree's symptoms are well-maintained with current medication, and that Poree is fully compliant with his treatment. The Review further indicated that Poree is currently mentally ill but in stable remission, is not currently dangerous to self or others if adequately supervised, and "may be granted Conditional Release and placed in appropriate community setting with tracking, monitoring and supervision." The Review Panel's opinion that Poree should be conditionally released to Harmony House included a list of stipulations, including that violations may result in his return to ELMHS.

         On January 18, 2011, a state district court held a hearing to determine whether Poree should be conditionally released to Harmony House upon the hospital's recommendation. At the time of the hearing, Poree was 68- or 69-years old and resided in the least restrictive unit in the forensic division of ELMHS. Four witnesses testified: Dr. Bordenave, Dr. Thompson, and Ralph Griffin testified as defense witnesses, and Dr. Richard Richoux testified as a State witness (with Dr. Raphael Salcedo, another State witness, concurring).

         Dr. Bordenave-an expert forensic psychiatrist, Poree's treating physician since July 2010, and head of Mr. Poree's treatment team-testified that Poree appears to have been in remission for years, is compliant with his medications, and that there is no evidence that Poree currently suffers from delusions. Dr. Bordenave noted that Poree understands that he will have to stay on medication for the rest of his life. Dr. Bordenave agreed that stopping medication would likely result in decompensation into mental illness, but that such relapse would not necessarily result in violence or aggression. He further testified that Poree had achieved the maximum recovery level at ELMHS, and that Harmony House has the structure for Poree to successfully continue treatment. In a letter to the court, Dr. Bordenave stated that Poree has "been best described as a model patient." He further stated, "both psychological actuarial testing and observation and treatment by his treatment team, indicate that he is a relatively low risk for violent re-offense." Dr. Bordenave concluded that "Poree would likely be one of the better, more appropriate clients served at Harmony."

         Dr. Thompson-an expert forensic psychiatrist, chief of staff of ELMHS, and a Vice Chair of the Department of Psychiatry at Tulane-has worked with Poree since Poree arrived at the hospital. Dr. Thompson testified that Poree receives treatment in the forensic unit, with the eventual goal being to safely move him into either a group home or the community. Dr. Thompson agreed that Poree had achieved the treatment goals set for him in the forensic unit, and that Poree did not require continued hospitalization in the forensic unit to prevent him from becoming dangerous. Dr. Thompson explained that in making its recommendation, the Review Panel relied on instruments such as the "COT readiness profile"[13] and the "Hare's psychopathy."[14] Dr. Thompson believed that Poree would comply with the conditions at Harmony House. Dr. Thompson considered Poree to be mentally ill, but opined that "he's not a danger to self or others if placed in the Harmony setting with the restrictions that we have."

         On cross-examination, Dr. Thompson noted Poree's smiling while Dr. Thompson and Poree discussed Poree's offense. Dr. Thompson recounted Poree's statement: "Well, you know, it's been such a long time. It's been thirty years and, you know, knowing how I am now it's hard to believe that I was that kind of person that would do something like that." Dr. Thompson concluded that the smiling could be "[Poree's] explanation of what happened, " as in, "'It's been so long ago it's hard for me to look back and think that I actually did those things, '" or a residual symptom of his schizophrenia.[15] Dr. Thompson acknowledged that medications can stop working, and that even with medication, someone with schizophrenia can decompensate. Dr. Thompson noted that Poree had never decompensated while on medication. As for delusions, Dr. Thompson indicated that Poree is not reporting such symptoms nor are they seeing them behaviorally.

         Mr. Griffin is the facility manager of Harmony Transitional Center, and he had worked for Harmony for twenty-four years at the time he testified. He interviewed Poree as a potential resident and pre-accepted him into Harmony House. Mr. Griffin testified to the qualities he found that would make Poree an appropriate resident:

[W]e recognized that he had an insight into his mental illness. He was very remorseful and understood the crime that he committed. He had been stable, you know, for a period of time. We normally receive a preplacement packet of the client's history. And, through our review of that packet, as well as face to face interview, we recognized, from 2005 at least, that there was any incident . . . . And we recognized that he hadn't displayed any aggression behaviors. And he's been consistently taking his medication to have him stable.

Mr. Griffin stated that he did not have safety concerns regarding Poree.

         Dr. Richoux, an expert forensic psychiatrist, was called as a state witness. Dr. Richoux met with Poree on the day of the hearing to update his impression and give an opinion regarding the transfer recommendation. Dr. Richoux had known of Poree since the late 1970s, and had probably seen Poree ten times between 1999 and the hearing date; his most recent examination of Poree was in June 2010. Dr. Richoux testified that Poree has a long-standing schizophrenia diagnosis, that Poree has shown "excellent stabilization of his symptoms" while on medication, and that he is asymptomatic on a short-term basis. Dr. Richoux identified as a concern Poree's insight into his own illness, but noted development over the years. Richoux indicated, "as of now having had the opportunity to observe him over many years, Mr. Poree is about as well stabilized as a person can be who suffers from a major mental illness." Dr. Richoux stated that Poree now understood that if he stopped his medication, there would be a high likelihood of relapse into psychotic symptoms, "be those accompanied by violent behavior or not, but certainly that he would have a high risk of reemergence of violent behavior in connection with psychotic symptoms were he to stop his treatment." Dr. Richoux concluded that he would recommend, along with Dr. Salcedo, "that Mr. Poree does seem to be an appropriate candidate for transfer . . . He seems to have a very evenhanded, realistic view of things at this point. Sees the need for treatment. To be expected to comply with treatment I believe."

         When asked, "based on [Poree's] history of psychotic symptoms were to reemerge, would he be a danger to himself or others, " Dr. Richoux agreed to a "possibility of that." Dr. Richoux could not say how probable that was, "because of, for one thing, his age at this point." He explained, "generally speaking, as people get older their propensity for violent behavior becomes a little less and a little less as time goes by, " but still noted the possible risk of violence. He also noted the possibility of a "breakthrough of symptoms" for people taking medication. When questioned by the judge about the possibility of relapse when introduced to external stimuli, Dr. Richoux agreed, "[t]here's always going to be a possibility of relapse, " but clarified, "[s]chizophrenia itself is not particularly sensitive to external stresses."

         Dr. Salcedo, stipulated as an expert in forensic psychology, concurred with Dr. Richoux.


         Harmony House is a forensic transitional facility originally established for people found NGBRI. Patients may eventually be released into society. Harmony House has many residents with schizophrenia. Residents begin with few privileges but are allowed more privileges as they progress. The average length of stay at Harmony House is about four years, but it is an individualistic determination and some people do not move beyond Harmony House. Harmony House is a secure facility, and employs tools like magnetic locks controlled by staff and twenty-four-hour staff supervision. The staff completes sixty hours of training every year, "which consists of behavior management, identifying warning signs and possible decompensation changes in behaviors that are required to be reported to the doctor."

         Mr. Griffin, the facility manager of Harmony House, testified that Poree would begin Harmony House at the "entry secure level." Mr. Griffin confirmed that Poree would have access to counseling services. Dr. Bordenave testified that Harmony House would be aware of Poree's medication regimen, and Mr. Griffin explained: "If they take medicine in the form of injections we bring them to Baton Rouge Mental Health. The staff is actually there with the client as he receive[s] the injection. We receive paperwork signed by the doctor that the injection has been provided."[16] Mr. Griffin further testified to the procedures in case Poree's symptoms returned or he failed to take his medication.


         After testimony and arguments at Poree's hearing, State Judge Camille Buras ruled from the bench. Judge Buras first recounted the facts of Poree's 1977 crime, and then stated her finding that Poree still suffers from a mental illness. As for dangerousness, Judge Buras referred to a standard of potential danger:

The question being whether or not Mr. Poree is a danger to himself and/or to others and whether or not it has been proven that he is a danger to himself and to others by clear and convincing evidence . . . .
[T]his Court is in a position, again, to protect the public from those cases where the Court's opinion being that the hospital is trying to transition Mr. Poree to his eventual release. And this Court is not, and has not in the past, been satisfied that Mr. Poree does not present a potential for both danger to himself and to others.
The Court finds that the danger is inherent in the activity and the conduct that occurred in 1977 and the months, and even years, preceding the manifestation of the illness by the shooting of ten people and the killing of one . . . .
Just because, as Dr. Richoux said, the symptoms are not manifesting and someone is asymptomatic, that does not negate the diagnosis. And, in this Court's opinion, does not negate the potential that Mr. Poree, should he transition into a less restrictive setting, would not manifest or relapse into the delusions and/or the behavior that presented itself through the years. . . .
The law says if the defendant still has a major, mental illness and presents as a potential danger to himself or to others -- and that's been proven by clear and convincing evidence -- the Court may maintain its continued confinement of Mr. Poree.[17]

         Judge Buras denied Poree's transfer to Harmony House and ordered that Poree remain in custody of the ELMHS Forensic Division with an annual review.

         Poree challenged the ruling by filing an original writ in the Louisiana appellate court, which was denied, and denied again by the Louisiana Supreme Court.[18] Thereafter, Poree petitioned the United States District Court for a writ of habeas corpus. The magistrate judge issued a report and recommendation denying an evidentiary hearing and the habeas petition. Over Poree's filed objections, the district court adopted the magistrate's report. The district court dismissed Poree's habeas petition with prejudice and denied a Certificate of Appealability ("COA"). This Court granted a COA, and Poree now appeals.


         Before proceeding to the merits of Poree's claim, we pause to address whether Poree's claim properly sounds in habeas. Typically, habeas is used to challenge the fact or duration of confinement, and 42 U.S.C. § 1983 is used to challenge conditions of confinement. However, "[t]he line between claims which must initially be pressed by writ of habeas corpus and those cognizable under § 1983 is a blurry one."[19] Although Poree's claim defies easy categorization, we find it was properly brought in habeas. In short, Poree challenges the fact of his confinement at the Forensic Division of ELMHS, for which habeas relief may be sought.

         Both 28 U.S.C. § 2254[20] and 42 U.S.C. § 1983[21] offer relief to those improperly confined by the government.[22] Which statutory vehicle to use depends on the nature of the claim and the type of relief requested, [23] the instructive principle being that challenges to the fact or duration of confinement are properly brought under habeas, [24] while challenges to the conditions of confinement are properly brought under § 1983.[25] While "fact or duration" claims must be brought under habeas, the Supreme Court has not foreclosed the use of habeas for other kinds of claims. Some circuit courts, however, have limited habeas corpus to claims that challenge the fact or duration of confinement.[26] Others have not.[27] Our own Circuit has been less clear, [28] but we need not weigh in on that broader question today.[29] Poree's claim is similar to others that we have found appropriate for habeas relief.

         "[R]elease from physical confinement in prison constitutes release from custody for habeas purposes, even though the state retains a level of control over the releasee."[30] A request for relief from an initial civil confinement institution to a transitional home is similar.[31] Residence in a transitional home-a condition of Poree's release from ELMHS-bridges the gap between his total confinement and total freedom.[32] We reiterate that we decline to address whether habeas is available only for fact or duration claims. We find only that Poree's claim properly sounds in habeas and that we have jurisdiction to review the district court's order under 28 U.S.C. § 2253(a).


         "We review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court."[33] "When examining mixed questions of law and fact, we adhere to a de novo standard under which we independently apply the law to the facts found by the district court, as long as the district court's factual findings are not clearly erroneous."[34] Moreover, "[f]ederal habeas proceedings are subject to the rules prescribed by the Antiterrorism and Effective Death Penalty Act (AEDPA)."[35] 28 U.S.C. § 2254(d) directs that a writ of habeas corpus shall not be granted unless the state court[36] adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         Because "§ 2254(d)(1)'s 'contrary to' and 'unreasonable application' clauses have independent meaning, "[37] there are three ways a federal court can grant habeas relief: (1) if the state court decision was contrary to clearly established Supreme Court law; (2) if the state court decision involved an unreasonable application of clearly established Supreme Court law; or (3) if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented. "AEDPA's standard is intentionally difficult to meet."[38]


         Civil commitment is not criminal commitment; unlike a criminal sentence, civil commitment is not a sentence of punishment.[39] The Supreme Court "repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection."[40] Although Poree's 1977 crime looms over these proceedings, he was adjudicated not guilty by reason of insanity.[41] The task of this Court is to analyze the state court's decision with respect to his ongoing civil confinement under 28 U.S.C. § 2254(d).


         We first analyze whether the state court decision was "contrary to" "clearly established" Supreme Court law. The "'clearly established' phrase [in 28 U.S.C. § 2254(d)(1)] 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"[42] "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision."[43] "[T]he lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since 'a general standard' from [the Supreme] Court's cases can supply such law."[44] "A federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts."[45]


         "The starting point for cases subject to § 2254(d)(1) is to identify the 'clearly established Federal law, as determined by the Supreme Court of the United States' that governs the habeas petitioner's claims."[46] The parties dispute what law the Supreme Court has clearly established, though both correctly focus their attention on Jones v. United States[47] and Foucha v. Louisiana.[48] In Jones, the Supreme Court considered whether an NGBRI acquittee must be released from a mental hospital because his hospitalization was longer than his would-be prison sentence.[49] The Court described the purpose of civil commitment generally and the District of Columbia's challenged NGBRI commitment scheme:

The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual's mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. And because it is impossible to predict how long it will take for any given individual to recover - or indeed whether he ever will recover - Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review of the patient's suitability for release.[50]

         The Court then held that an NGBRI acquittee may be confined to a mental institution "until such time as he has regained his sanity or is no longer a danger to himself or society."[51] The length of his would-be prison sentence was irrelevant.[52]

         Nine years later in Foucha, the Supreme Court analyzed whether a state could continue its civil confinement of an insanity acquittee who was dangerous but no longer mentally ill.[53] The Court held that because Foucha was not mentally ill, "the basis for holding [him] in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis."[54] Notably, the Foucha Court characterized the Jones holding as: "'(t)he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous, ' i.e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer."[55] And in response to a dissenting justice, [56] the majority reiterated that Jones provided the standards for release of insanity acquittees.[57]

         Poree argues that "clearly established . . . Supreme Court law . . . permits the continued detention of an insanity acquittee so long as he remains both mentally ill and dangerous." He contends that there is a "temporal component" to the preconditions of mental illness and dangerousness. Specifically, he asserts that the Court's holdings require continuing illness and dangerousness, meaning confinement must end when either condition is resolved. In support, Poree points to language from Foucha stating that continued confinement "is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness."[58] He argues that the word "current" demonstrates a temporal component to the preconditions. Poree concedes that the Court has not identified the precise scope of the term dangerousness, but argues that the Court "certainly intends that the precondition have meaning." "Specifically, " Poree contends, "the Supreme Court intended by the dangerousness precondition to limit the class of mentally ill committees that the state may continue to confine."

         The State counters that whether "current[]" dangerousness must be shown "is an issue that has never been clearly established by the Supreme Court." It asserts that Foucha's holding is narrow: NGBRI acquittees may not be confined on the basis of dangerousness alone. The State contends that Foucha's references to dangerousness "represent mere dicta rather than 'clearly established' federal law, " and that the word "current" modifies only "mental illness" and not "dangerousness." Citing Justice O'Connor's concurring opinion in Foucha, the State further argues that Foucha was limited to its facts, and that Jones, Foucha, and O'Connor v. Donaldson[59] do not address, let alone clearly establish, any temporal aspect of dangerousness.[60]

         Heeding Lockyer v. Andrade's explication that clearly established law under § 2254(d)(1) refers to Supreme Court holdings and governing principles, [61] the governing legal principle derived from Foucha and Jones is that a state may continue to confine an insanity acquittee only as long as the acquittee is both mentally ill and dangerous.[62] We agree with the State and the district court that the Supreme Court has not explicitly addressed how a state may make its dangerousness determination; indeed, in Jones the Court indicated that the dangerousness finding is predictive in nature and that the government is permitted to protect against the ...

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