Grass v. Reitz

• Decision Date: 29 March 2010
• Docket Number: No. 4:07CV1726-DJS.,4:07CV1726-DJS.
• Citation: 699 F.Supp.2d 1092
• Parties: Lloyd GRASS, Petitioner,v.Robert REITZ, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

699 F.Supp.2d 1092

Lloyd GRASS, Petitioner,v.Robert REITZ, Respondent.

No. 4:07CV1726-DJS.

United States District Court,

E.D. Missouri,

Eastern Division.

March 29, 2010.

Susan K. Eckles, Missouri Protection and Advocacy Services, Overland, MO, for Petitioner.

Stephen D. Hawke, Attorney General of Missouri, Assistant Attorney General, Jefferson City, MO, for Respondent.

ORDER

DONALD J. STOHR, District Judge.

This matter is before the Court on the report and recommendation of the United States Magistrate Judge [Doc. # 22], recommending denial of the instant petition for writ of habeas corpus, and petitionerLloyd Grass' objections thereto [Doc. # 27].Pursuant to 28 U.S.C. § 636, the Court shall conduct a de novo review of those portions of the report and recommendation to which specific objections are made.The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made in the report and recommendation.

I.Background

Petitioner adopts the factual and procedural statements set forth in the report and recommendation.Doc. # 27, p. 2.The history and facts of petitioner's case were stated by the Missouri appellate court as follows:

On October 14, 1992, petitioner, Lloyd E. Grass, stabbed his wife to death.He was immediately evaluated as “markedly psychotic” at Malcolm Bliss Mental Health Center and admitted to the Biggs Forensic Center of Fulton State Hospital that same day.On October 20, 1992he was returned to jail with a discharge diagnosis of Brief Reactive Psychosis, Resolved (Provisional); Cannabis Dependence, In Remission While Hospitalized; and Delirium, Resolved (Provisional).The state charged him with murder in the first degree in Warren County.On November 9, 1993, petitioner was readmitted to the Biggs Forensic Center of Fulton State Hospital for a court-ordered pretrial mental evaluation.

Richard Gowdy, Ph.D., who was then a certified forensic examiner for the Biggs Forensic Center, saw petitioner for a pretrial mental evaluation on November 9, 1993 and again on July 19, 1994.Dr. Gowdy diagnosed him with Psychotic Disorder, Not Otherwise Specified, In Partial Remission.Dr. Gowdy provided the court with his opinion that as a result of a mental disease, petitioner did not fully know and appreciate the nature, quality and wrongfulness of his conduct and was unable to conform his conduct to the requirements of the law at the time of his wife's death.In September 1994, the Warren County circuit court accepted petitioner's plea of not guilty by reason of mental disease or defect and committed him to the custody of the Missouri Department of Mental Health, which placed him in the Biggs Forensic Center of the Fulton State Hospital.

Subsequently, on March 16, 1995, the Department of Mental Health transferred him to the less restrictive St. Louis State Hospital.In October 1995, petitioner filed a petition with the probate division of the Circuit Court of the City of St. Louis to obtain a conditional release.That court granted the conditional release, but this court reversed.

On August 8, 1996, petitioner was granted full unescorted privileges.The next day, petitioner escaped from the St. Louis State Hospital.After being arrested in New York, petitioner was extradited to Missouri.Petitioner was thereafter convicted of escape from commitment and sentenced to a term of five years in the custody of the Missouri Department of Corrections.After serving twenty-eight months in prison, petitioner was paroled back to the custody of the Department of Mental Health in March 2001.

In February 2003, petitioner filed an application for unconditional release, which the trial court denied.After this court affirmed that judgment, the Missouri Supreme Court granted petitioner's application for transfer and reversed and remanded for the trial court to determine the independence of the expert appointed to examine the petitioner and make a recommendation about his suitability for release.

In August 2004, petitioner filed new pro se motions for conditional and unconditional release, and counsel filed amended applications for release.The trial court consolidated the applications and tried the cases in February 2005.On February 1, 2006, the trial court entered findings of fact, conclusions of law, and a judgment.In response to the state's post-opinion motion, the trial court later entered an amended judgment.The court denied petitioner's application for unconditional release but granted petitioner's application for conditional release.Petitioner and the state appeal[ed].

Grass v. State,220 S.W.3d 335, 337-38(Mo.App.2007)(per curiam)(internal citations omitted).

On February 27, 2007, the Missouri Court of Appeals issued its decision affirming the denial of petitioner's application for unconditional release and remanding in regard to petitioner's application for conditional release.Id. at 337.¹

A.Missouri Court of Appeals Decision Regarding Unconditional Release

The Missouri appellate court's decision with regard to petitioner's appeal of the denial of unconditional release states as follows:

In his sole point on appeal, petitioner contends that the trial court erroneously applied Section 552.040 RSMo (2000) when it denied his petition for unconditional release.Petitioner argues that the law requires his unconditional release because the trial court made findings in its judgment on his application for conditional release that petitioner proved by clear and convincing evidence that: 1) he does not currently suffer from a mental disease or defect; 2) he is not a danger to himself or others and is not likely in the foreseeable future to commit another violent crime because of mental illness; and 3) he is aware of the nature and wrongfulness of the crime underlying his commitment and currently has the capacity to conform his conduct to the requirements of the law.

* * *

In its findings, conclusions, and judgment on the application for conditional release, the trial court found that petitioner“does not suffer from any mental disease or defect as set forth in Chapter 552 RSMo,”“is not likely to be dangerous to others while on conditional release,”“is not now and is not likely in the reasonable future to commit another violent crime against another person because of his mental illness,” and “is aware of the nature of his violent crime committed against another person and presently possesses the capacity to appreciate the criminality of his violent crime against another person and his capacity to conform to the requirement of the law in the future.”However, it 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.The “reasonable future” is a broader time frame than “while on conditional release,” and “dangerous to the safety of himself or others” is a broader condition than “likely to commit another violent crime” against another.Thus, the trial court's findings on conditional release do not mandate petitioner's unconditional release.

* * *

In its findings on petitioner's application for unconditional release, the trial court reported that it relied heavily on the three expert witnesses and that each opined that petitioner should not be considered for unconditional release.The court further found and concluded that petitioner“[did] not meet the statutory factors and considerations of relevant credible evidence meeting the burden of proof of ‘clear and convincing,’ and it is, therefore, the judgment of the court that Petitioner's Petition for Unconditional Release is hereby denied.”

Substantial evidence in the record supports the trial court's decision to deny unconditional release and to not find that clear and convincing evidence supported the criteria in sections 532.040.7(6)and552.040.9 for unconditional release.Dr. [Jeffrey] Kline opined that he could not say within a reasonable degree of medical certainty that petitioner was not likely to have a mental illness in the near future rendering petitioner dangerous to the safety of others.He explained that court-ordered monitoring of petitioner's psychiatric symptoms was necessary to assure the safety of others because petitioner had not demonstrated the ability to monitor his own behavior.Dr. Gowdy testified that petitioner could not meet the higher standard in that he could not say that petitioner was unlikely to commit a violent crime in the reasonable future.He did not believe that petitioner had the insight to monitor himself, nor did he think that community monitoring would be effective due to petitioner's lack of cooperation with inpatient treatment.Although Dr. [Daniel] Cuneo testified that in the reasonable future petitioner was unlikely to have a mental disease or defect that would render him dangerous to himself or others, he qualified his opinion by recommending a conditional release with periodic drug testing because drug use may have triggered petitioner's psychosis.

As explained in [ State v.] Weekly[107 S.W.3d 340(Mo.App.2003) ], unconditional release involves a total loss of the Department of Mental Health's jurisdiction and is not appropriate if illegal drug monitoring is required to prevent a relapse into a drug-induced psychosis....Here, all of the experts agreed that monitoring of drug use or psychiatric symptoms was required to prevent a relapse.

The trial court did not erroneously apply section 552.040 in denying unconditional release, and its decision is supported by substantial evidence.The judgment denying unconditional release is affirmed.

Id. at 339-43(emphasis omitted).

B.Missouri Court of Appeals Decision Regarding Conditional Release

With regard to ...