471 F.2d 794 (1st Cir. 1973), 72-1270, Gomes v. Gaughan

Docket Nº:72-1270.
Citation:471 F.2d 794
Party Name:Anivel J. GOMES, Petitioner-Appellant, v. Charles W. GAUGHAN, Superintendent, etc., Respondent-Appellee.
Case Date:January 04, 1973
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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471 F.2d 794 (1st Cir. 1973)

Anivel J. GOMES, Petitioner-Appellant,


Charles W. GAUGHAN, Superintendent, etc., Respondent-Appellee.

No. 72-1270.

United States Court of Appeals, First Circuit.

January 4, 1973

         Heard Nov. 7, 1972.

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         Michael S. Field, Boston, Mass., by appointment of the Court, with whom Field, Rudnitsky, Mullane & Schultz, Boston, Mass., was on brief, for appellant.

         Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division were on brief, for appellee.

         Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

         CAMPBELL, Circuit Judge.

         Anivel J. Gomes sought release from the Massachusetts Correctional Institution (M.C.I.) Bridgewater Treatment Center by petition for habeas corpus in the district court. 1 The district court dismissed on the ground, as we understand it, that petitioner had failed to state a claim. Gomes appeals raising questions under the double jeopardy clause of the Fifth Amendment, the Sixth Amendment right-to-counsel guarantee, and the Fourteenth Amendment due process and equal protection clauses. We affirm.

         Substantially the same points raised here were determined against Gomes by the Massachusetts Supreme Judicial Court in Commonwealth v. Gomes, 355 Mass. 479, 245 N.E.2d 429 (1969). The parties have agreed that the issues raised here may be resolved on a record consisting of the facts set forth in that opinion and of the pleadings.

         Gomes was committed to the Treatment Center pursuant to provisions of M.G.L. c. 123A, entitled "[The] Care, Treatment and Rehabilitation of Sexually Dangerous Persons." 2 Of concern in the present case are §§ 4, 5 and 6. Under § 4, a person convicted of enumerated sex-related crimes may be committed, upon motion of the court or the district attorney, to the Treatment Center or branch thereof for at most, sixty

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days, for examination and diagnosis by at least two psychiatrists, who are to submit a written report to the court containing their diagnosis and recommendations for disposition. Should that report clearly indicate that the person is sexually dangerous, the court pursuant to § 5 must, on notice to the person, hold a hearing, at which the person is entitled to compulsory process and the appointment of counsel See Petition of Peterson, 354 Mass. 110, 236 N.E.2d 82, 84 (1968). The psychiatric reports, and evidence of the person's past criminal and psychiatric record, are admissible. 3

         If the court finds the person not sexually dangerous, it proceeds with disposition of the original case. If it finds the person sexually dangerous, the court may, in lieu of sentencing him for the original offense, commit him to the Treatment Center for an indeterminate period of one day to life, or may grant probation or suspend the commitment conditionally.

         Section 6 prescribes other circumstances under which sexually dangerous commitment proceedings may be initated. If a prisoner under sentence in any institution appears to his warden, or to the district attorney for the district in which he was sentenced, to be sexually dangerous, the warden or district attorney may have the prisoner examined by a psychiatrist from the department of mental health. If that psychiatrist's report indicates that the person may be sexually dangerous, the warden or district attorney must transmit the report to the superior court for the district in which the prisoner was sentenced together with a motion that the prisoner be committed to the Treatment Center for, at most, 60 days, for diagnosis. If the prisoner is committed to the Treatment Center, and the psychiatric report clearly indicates that he is sexually dangerous, a petition for commitment must be filed by the district attorney, after which a § 5 hearing is held. Upon a finding of sexual dangerousness, the court may commit the person to the Treatment Center or return him to the institution where he is serving his sentence. 4

         In 1962, Gomes was convicted in the state court of assault with intent to rape. Before sentence, a § 5 hearing was held, at which the psychiatrists' report diagnosing him sexually dangerous was introduced. The parties stipulate that the evidence before the state court warranted a finding of sexual dangerousness (although no specific finding one way or the other was made). The court, however, declined to commit the petitioner to the Treatment Center. Instead, it sentenced him to imprisonment for three to ten years at M.C.I., Walpole, a sentence authorized for conviction of assault with intent to rape. The sentence expired on November 15, 1967.

         On March 15, 1967, the superintendent of M.C.I. at Norfolk, to which petitioner had been transferred, initiated § 6 proceedings. Petitioner was committed for 60 days to the Treatment Center for diagnosis. The two psychiatrists who had examined him in 1962 once again examined him, and again diagnosed him sexually dangerous. A petition for commitment was filed on May 16, 1967, and counsel was appointed on May 22 to represent Gomes. Hearings were held in the state court on November 30, and December 15 and 20, 1967, the two diagnosing psychiatrists appearing and testifying that Gomes was sexually dangerous. The evidence the court had before it was characterized by stipulation as substantially the same evidence as was presented in 1962. There was no evidence

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of sexual misconduct by Gomes during his prison term. 5 The state court found him sexually dangerous, and committed him to the Treatment Center.


         Citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the petitioner argues that the state put him in double jeopardy by subjecting him to multiple punishments for the same offense and by subjecting him to two judicial hearings on the question of his sexual dangerousness. The argument presupposes two premises that we do not accept.

         One is that his prison sentence and his commitment to the Treatment Center were both "punishments" for his sexual dangerousness. This is incorrect. His 1962 prison sentence was for the crime of assault with intent to rape, of which he had been convicted; his 1967 commitment to the Treatment Center resulted from the finding, in a separate proceeding, of sexual dangerousness.

         The second questionable premise is that the hearings in 1962 and 1967 adjudicated the identical issue, i. e. the petitioner's sexual dangerousness in 1962. The petitioner attempts to establish that premise by asserting that the "same set of facts" presented to the court in 1962 was the basis for the 1967 commitment. While a stipulation states that the 1967 evidence was "substantially the same" as in the 1962 proceeding, we take this to refer to petitioner's pre-1962 record and the absence of misconduct since 1962. But the petitioner underwent a sixty-day commitment for examination in 1967. He was then reexamined by the psychiatrists. They filed a report with the court at the time of his hearing, appeared and testified at the hearing, and gave their opinion as to his current condition. It appears, moreover, that petitioner had not been free from observation while in prison, having been given tranquilizing treatment which had created a state of remission. There was thus a fresh and independent diagnosis of petitioner's propensities in 1967, notwithstanding inclusion of the same historical facts in the later report and notwithstanding that the diagnosis came to the same conclusion.

          We, therefore, reject the petitioner's assertion of double jeopardy, whether conceived in terms of res judicata or collateral estoppel. The issue before the court in 1967 (his then propensities) was not the same as that in 1962; nor was the "evidence" (given the fresh reexamination and psychiatric diagnosis) the same.

          Even though not double jeopardy under the Fifth Amendment, the oppressive misuse of multiple commitment proceedings would doubtless be a violation of due process. For example, had the petitioner been found not sexually dangerous in the 1962 proceeding, a question might arise whether another c. 123A hearing in the absence of intervening misbehavior was so unfair as to violate due process. See Rochin v. California, 342 U.S. 165, 12 S.Ct. 205, 96 L.Ed. 183 (1952). However, petitioner's assertion before the Supreme Judicial Court that the sentencing of him to prison in 1962 implies that he was found not sexually dangerous was rejected by that court, which said:

A criminal sentence given subsequent to a § 5 hearing is not an adjudication

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that a person is not sexually dangerous. Such a determination establishes only that a criminal sentence was the better alternative at that time. It does not establish the requirements of the public interest...

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