Grass v. Reitz

• Decision Date: 05 July 2011
• Docket Number: No. 10–1981.,10–1981.
• Citation: 643 F.3d 579
• Parties: Lloyd GRASS, Appellant,v.Robert REITZ, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

643 F.3d 579

Lloyd GRASS, Appellant,

v.Robert REITZ, Appellee.

No. 10–1981.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2011.Filed: July 5, 2011.

Susan Kelsey Eckles, argued, Overland, MO, for appellant.Stephen David Hawke, AAG, argued, Jefferson City, MO, for appellee.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.GRUENDER, Circuit Judge.

Lloyd Grass, a person committed to the custody of the Missouri Department of Mental Health, appeals the district court's dismissal of his 28 U.S.C. § 2254petition for failure to exhaust state remedies.Because we conclude that Grass has exhausted the claim he raises in his petition, we reverse.

I.BACKGROUND

In 1992, Grass stabbed his wife to death.The State of Missouri charged him with first-degree murder.After a mental evaluation, Grass was diagnosed with Psychotic Disorder, Not Otherwise Specified, In Partial Remission.Following this diagnosis, Grass's plea of not guilty by reason of mental disease or defect was accepted, and he was committed to the custody of the Missouri Department of Mental Health, pursuant to Mo.Rev.Stat. section 552.040.2.¹Over the next several years, Grass unsuccessfully petitioned for release.In 1996, he escaped from St. Louis State Hospital and consequently was convicted and imprisoned for escape.After serving 28 months of his 5–year escape sentence, Grass was paroled back into the custody of the Department of Mental Health in 2001.

Under section 552.040, a committed person can petition for either conditional or unconditional release.Conditional release is for a limited duration and is qualified by reasonable conditions.See§ 552.040.10(3).To obtain conditional release a petitioner must prove, by clear and convincing evidence, that he“is not likely to be dangerous to others while on conditional release.”§ 552.040.12(6).“[A] conditional release implies that despite a mental disease or disorder, [the committed person is] eligible for limited freedom from a mental health facility, subject to certain conditions.”Greeno v. State,59 S.W.3d 500, 504(Mo. banc 2001).Unconditional release, by contrast, can be granted only if the petitioner shows “by clear and convincing evidence that [he] ... does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering [him] dangerous to the safety of himself or others.”§ 552.040.7.In the case of an individual, like Grass, who was committed pursuant to an acquittal of first-degree murder, neither conditional nor unconditional release may be granted unless the court also finds that the person “is not now and is not likely in the reasonable future to commit another violent crime” and “is aware of the nature of the violent crime committed ... and presently possesses the capacity to appreciate the criminality of the violent crime ... and ... to conform [his] conduct to the requirements of law in the future.”See§ 552.040.20.The denial of a petition for either conditional or unconditional release is “without prejudice to the filing of another application after the expiration of one year.”§ 552.040.13, 8.

In 2004, Grass filed petitions for both conditional and unconditional release.The Circuit Court of Warren County, Missouri consolidated the petitions and, after a hearing, entered judgment denying Grass's petition for unconditional release but granting his petition for conditional release.The court found that Grass “does not suffer from any mental disease or defect,” that “[h]e is not a danger to himself or others” or “likely to be dangerous to others while on conditional release,” and that “[h]e is not now and is not likely in the foreseeable future to commit another violent crime ... because of his mental illness.”Grass v. State,No. 99–cv–155304, slip op. at 15(Mo.Cir.Ct. Warren Cnty. filed Mar. 10, 2006).Both Grass and the State appealed.On appeal, Grass argued that the circuit court's findings that he“does not suffer from any mental disease or defect” and “is not a danger to himself or others” entitled him to unconditional release both under Mo.Rev.Stat. section 552.040.7 and under the Supreme Court's holding in Foucha v. Louisiana that “keeping [a committed person] against his will in a mental institution ... absent a determination in civil commitment proceedings of current mental illness and dangerousness” violated the Due Process Clause of the Fourteenth Amendment, 504 U.S. 71, 77–78, 112 S.Ct. 1780, 118 L.Ed.2d 437(1992).For its appeal, the State argued, inter alia, that the circuit court's findings in support of conditional release were not supported by the evidence.

The Missouri Court of Appeals affirmed the circuit court's denial of Grass's petition for unconditional release.Although it acknowledged that, as part of its conditional release analysis, the circuit court had found that Grass currently was not mentally ill or a danger to others, the court of appeals concluded that, under the Missouri statute, such a finding was insufficient to entitle a petitioner to unconditional release:

[The circuit court] did not make the finding required by sections 552.040.7(6)and552.040.9 for unconditional release that petitioner was not likely in the reasonable future to have a mental disease or defect rendering him dangerous to the safety of himself or others.This is a different factual finding from those required for conditional release, and it is not encompassed by the findings made on conditional release.

Grass v. State,220 S.W.3d 335, 340(Mo.Ct.App.2007).The court did not address Grass's Foucha due-process challenge.As to the State's appeal, the court of appeals agreed that the circuit court's finding that Grass “is not now and is not likely in the foreseeable future to commit another violent crime”—a finding required for the grant of conditional release—was not supported by the evidence.Although ordinarily, the court noted, it would remand for limited additional findings, “the judge who presided over the trial, heard the evidence, and observed the witnesses, is now deceased.Under these circumstances, we have no alternative but to reverse the judgment and remand for a new trial.”Id. at 344.Accordingly, the court of appeals entered judgment affirming “[t]hat part of the judgment of the trial court denying unconditional release” and reversing and remanding for a new hearing “[t]hat part of the judgment of the trial court granting conditional release.”Id. at 346.Grass filed an application for transfer to the Missouri Supreme Court, which was denied.

While the remand of his petition for conditional release was pending in Warren County Circuit Court, Grass filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, challenging only the denial of his petition for unconditional release.Citing Foucha, Grass argued that the absence of a finding that he currently suffers from a mental disease or defect—and, in fact, the presence of a finding by the circuit court that he currently does not suffer from such a disease or defect—required his unconditional release.A magistrate judge issued a Report and Recommendation concluding that Grass had exhausted his state remedies as to his unconditional release petition but recommending that the habeas petition be denied on the merits, since “the evidence considered by the Missouri appellate court reflected both that Petitioner had a current mental illness and that he was dangerous without monitoring.”

After de novo review of the Report and Recommendation and Grass's objections, the district court issued an order dismissing the habeas petition for failure to exhaust state remedies.The district court noted that the circuit court's finding that Grass currently was not mentally ill, to which Grass had pointed in support of his petition, had been vacated by the court of appeals and remanded back to the circuit court.Because the remand of Grass's petition for conditional release was still pending in Warren County Circuit Court, the district court held that “the instant petition depends on future state court findings regarding the present condition of [Grass's] mental health.Therefore, there remains an undecided material factual issue, and the petition seeking unconditional release is not exhausted.”Grass v. Reitz,699 F.Supp.2d 1092, 1100–01(E.D.Mo.2010)(footnote omitted).However, the district court also concluded that “reasonable jurists might find the Court's assessment ... debatable or wrong” and granted a certificate of appealability “with regard to this Court's finding that the instant petition is not exhausted.”Id. at 1101.

Grass filed this appeal, arguing that the district court erred in concluding that he had not exhausted his state remedies with respect to his petition for unconditional release.On January 10, 2011, after the briefs had been filed in this appeal, the Circuit Court of Warren County entered judgment denying Grass's claim for conditional release.The circuit court found that Grass had not shown that he was “not now and is not likely in the reasonable future to commit another violent crime,”Grass v. State,No. 99–cv–155304, slip op. at 5(Mo.Cir.Ct. Warren Cnty. filed Jan. 10, 2011), or that he was “unlikely to be dangerous to others while on conditional release,”id. at 6.The circuit court found credible the expert testimony and diagnosis of a psychologist who stated that Grass's symptoms were in remission but “could re-emerge,”id. at 4, but the court did not include an explicit finding as to whether Grass currently suffers from a mental disease or defect.²

At oral argument before this court, both Grass and the Respondent, Warden Reitz, indicated that no appeal was taken from the circuit court's decision, and Grass conceded that any such appeal now would be untimely.Because an appeal no longer would be possible, Warden Reitz conceded that Grass's claim now is exhausted, in that no...