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Russell v. Davis

United States District Court, N.D. Texas, Fort Worth Division

November 8, 2017

EDWARD LYNN RUSSELL, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Division, Respondent.

          OPINION AND ORDER ON REMAND

          TERRY R. MEANS UNITED STATES DISTRICT JUDGE.

         In 2008, petitioner Edward Lynn Russell was adjudicated a sexually violent predator in Tarrant County, Texas, under prior provisions of Chapter 841 of the Texas Health and Safety Code and ordered to civil commitment. (Reporter's R., vol. 6, State's Ex. 1, doc. 14-10.) Petitioner was later charged with violating multiple requirements of his civil commitment, a third-degree felony, and was found guilty by a jury on eleven such counts. (Clerk's R. 152-95, doc. 14-11.) The jury also found the enhancement paragraph in the indictment true and assessed Petitioner's punishment at 20 years' confinement on each count, the sentences to run concurrently.

         This Court previously denied Petitioner's petition, but the United States Court of Appeals for the Fifth Circuit remanded the case for consideration of whether the versions of Texas Health & Safety Code § 841.085(a) and § 841.082 applicable to Petitioner violate the Due Process Clause of the United States Constitution for vagueness. The Court is to make this determination under the “clearly established federal law” set forth in the Supreme Court decisions in Hill v. Colorado, 530 U.S. 703, 732 (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); and Kolender v. Lawson, 461 U.S. 352, 358 (1983). (5th Cir. J. 3, doc. 41.)

         I. Factual and Procedural History

         To assist the reader, the Court reiterates the factual history of the case as summarized by the Second District Court of Appeals of Texas.

In February 2008, Russell agreed to a final judgment identifying him as a sexually violent predator as defined in health and safety code section 841.003 and ordering him to be civilly committed for outpatient treatment and supervision in accordance with chapter 841 of the health and safety code. In addition to addressing Russell's treatment and supervision, the order of civil commitment required him to “reside in supervised housing at a Texas residential facility under contract with the Council on Sex Offender Treatment (Council)[1] or at another location or facility approved by the Council”; to “submit to tracking under a global positioning satellite (GPS) monitor or other monitoring system provided”; to “exactingly participate in and comply with the specific course of treatment provided by the Council”; and to “comply with all written requirements of the Council and case manager.” The commitment order also contained the following notice: “EDWARD RUSSELL shall strictly comply with the commitment requirements of Health & Safety Code § 841.082 and this Order of Commitment, or will be charged with a felony of the third degree, which may be enhanced to a more severe punishment.
At the outset of his commitment and treatment, Russell reviewed and agreed to abide by all of the rules and requirements contained in the following documents: “Civil Commitment Requirements: Standard Requirements of the Treatment Program”; “Council on Sex Offender Treatment Supervision Requirements”; “Council on Sex Offender Treatment Additional Supervision Requirements”; and “Council on Sex Offender Treatment Global Positioning Tracking Service Requirements for MTD.” In 2009 and 2010, Russell signed additional documents evidencing his agreement to abide by various requirements of his commitment.
During the course of his outpatient treatment and supervision, Russell failed to comply with numerous written treatment requirements. Consequently, in May 2010, he was unsuccessfully discharged early from the sex offender treatment program. Russell was later indicted on eleven counts of violating a civil commitment requirement as a sexually violent predator.[2] At trial, Russell's former case managers, Wesley Griffin and Lawrence Daniels, testified about Russell's violations of his treatment requirements. After convicting Russell on each count, and upon his plea of true to the repeat offender notice, the jury assessed Russell's punishment at twenty years' confinement and a $10, 000 fine for each count. The trial court sentenced Russell accordingly.

(Mem. Op. 2-4, doc. 14-4 (emphasis in original).)

         Petitioner asserts that the version of chapter 841 under which he was convicted is unconstitutional on its face and as applied “for allowing private citizens, appointed by § 841, unfetterd power to deny a specific group of U.S. citizens their constitutionally protected rights by setting rules and regulations doing so, that are enforced by § 841 by threat of punishment.” (Pet'r's Mem. 1, doc. 4.) According to Petitioner,

“section 841 of the Texas Health and Safty [sic] Code gives the Office, their case workers, and their treatment providers, all of whom are private citizens without any formal education in constitutional law, the authority to decide what is appropriate and necessary treatment, supervision, and standards of care (.007 and .141(b)), without providing them with written guidelines or providing safeguards to prevent arbitrary, discriminate [sic], and oppressive rules that, upon violation of these rules, constitute a criminal offense (841.085).

(Id. at 4.) Petitioner raised a vagueness and overbreadth claim in his state habeas application, but the Texas Court of Criminal Appeals denied the application without written order. (State Habeas R. 7-8 & Action Taken, docs. 14-18 & 14-19.)

         II. Discussion

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court will not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the petitioner shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, 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. See 28 U.S.C. ยง 2254(d). Therefore, under the first prong, applicable to this case, this Court may grant habeas relief only ...


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