Kanteles v. Wheelock

• Citation: 439 F. Supp. 505
• Decision Date: 18 October 1977
• Docket Number: Civ. A. No. 77-174.
• Parties: Allan A. KANTELES v. Major WHEELOCK, Superintendent, New Hampshire State Hospital, et al.
• Court: U.S. District Court — District of New Hampshire

439 F. Supp. 505

Allan A. KANTELES v. Major WHEELOCK, Superintendent, New Hampshire State Hospital, et al.

Civ. A. No. 77-174.

United States District Court, D. New Hampshire.

October 18, 1977.

James E. Duggan, Hillsborough County Public Defender, New Hampshire Legal Assistance, Manchester, N.H., for petitioner.

Robert V. Johnson, II, Asst. Atty. Gen., Concord, N.H., for the State of New Hampshire.

OPINION AND ORDER

BOWNES, District Judge.

Petitioner was committed to the New Hampshire Hospital by order of the Hillsborough County Superior Court on May 23, 1977, pursuant to procedures authorized under NH RSA 651:8 and 9. He has come before this court seeking a writ of habeas corpus, 28 U.S.C. § 2254, claiming that the procedures which resulted in his detention violate his rights to due process, equal protection of the laws, and to a jury trial as guaranteed by the Sixth and Fourteenth Amendments. The State, in response, has moved for a dismissal and/or for summary judgment on the grounds that the petitioner has failed to state a cause of action, that he has not exhausted his state remedies, and/or that the doctrine of abstention applies.

THE FACTS

Petitioner Kanteles was indicted by the New Hampshire Hillsborough County Grand Jury in September, 1976, for aggravated felonious sexual assault, formerly "rape," NH RSA 632-A:2 (Supp.1975). The complainant was a woman with whom he had lived for over two years. He gave notice that he intended to raise the defense of consent. He never gave any indication of intent to rely on an insanity defense. Trial was set for May 23, 1977. On May 20, 1977, the State reconvened the grand jury and suggested that it omit to return an indictment because of petitioner's alleged insanity at the time the alleged assault was committed. This procedure is authorized by statute:

NH RSA 651:8 Certificate of Jury. Whenever the grand jury shall omit to find an indictment against a person, for the reason of insanity or mental derangement, or a person prosecuted for an offense shall be acquitted by the petit jury for the same reason, such jury shall certify the same to the court.

The grand jury "omitted to find" the indictment and certified to the Superior Court judge its finding of Kanteles' alleged insanity or mental derangement.

There is no provision, nor any requirement, that the grand jury have before it any expert medical testimony relating to the accused's insanity. Nor is there any requirement or any provision for a period of observation of the accused, to assist the grand jury in its determination of his sanity.

On May 23, 1977, the Hillsborough County Court, sitting without a jury, conducted a hearing pursuant to NH RSA 651:9.

NH RSA 651:9 Committal. In either of the cases aforesaid the court, if it is of opinion that it will be dangerous that such person should go at large, may commit him to the prison or to state hospital for life until or unless earlier discharged, released, or transferred by due course of law.

Petitioner was afforded the procedural safeguards required by statute at this committal hearing, i. e., notice, counsel and the right to present independent testimony.

NH RSA 135:30-a (Supp.1975) Conduct of Hearings for Commitment, Detention or Parole. Whenever provisions of this chapter relative to the commitment, detention or parole of the mentally ill by criminal proceedings require that a hearing be conducted by the superior court then such hearing will be ordered in accordance with the following requirements:

I. Such person shall have the right to be represented by counsel and shall have the right to present independent testimony. The court shall appoint counsel for such person whom it finds to be indigent and who is not represented by counsel, unless such person refuses the appointment of counsel.

II. The court may provide an independent medical examination for such indigent person upon the request of his counsel or upon his own request if he is not represented by counsel.

III. The person shall be allowed no less than two days after the appearance of his counsel in which to prepare his case and a hearing shall be conducted forthwith after such period unless counsel requests a delay.

IV. Notice of the time and place of hearing shall be furnished by the court to the superintendent, the person, his counsel, and his nearest relative or guardian.

V. The person or the superintendent may request either an open or a closed hearing and the court in its discretion may grant such a request.

The court considered only the question of petitioner's dangerousness. The State acknowledges the limited nature of the Superior Court inquiry in its brief to this court:

The only issue which was before the Superior Court at the committal hearing was whether it would be dangerous for this Petitioner to go at large. Amended Memorandum at 6. Emphasis added.

The Superior Court, restricting itself solely to the question of dangerousness, found, beyond a reasonable doubt, that petitioner was dangerous to go at large. The court remanded Kanteles to the New Hampshire Hospital for life, unless earlier discharged.¹ On the same day, the State entered a nolle prosequi as to the original charge of aggravated felonious sexual assault and other unrelated charges.

THE EXHAUSTION QUESTION

A person in custody seeking a writ of habeas corpus must, under 28 U.S.C. § 2254(b), exhaust remedies presently available to him in the state courts. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). A limited exception to the exhaustion requirement has been recognized when the question raised by petitioner has recently been decided by the state court. Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.1973); Belbin v. Picard, 454 F.2d 202, 204 (1st Cir.1972); Walsh v. Picard, 446 F.2d 1209, 1210 n.2 (1st Cir.1971), cert. denied, 407 U.S. 921, 92 S.Ct. 2465, 32 L.Ed.2d 807 (1972).

Petitioner was committed to the New Hampshire Hospital as the result of the interplay of two sections of a statute, NH RSA 651:8 and 9. Section 8 permits the grand jury to omit to find an indictment against a person because of insanity and to so certify to the trial court. The court, upon receipt of the certification as provided by section 8, can then commit the person to the state hospital, section 9, after a hearing held in accord with NH RSA 135:30-a (Supp.1975). In June, 1975, the New Hampshire Supreme Court held NH RSA 651:8 and 9 constitutional because of the due process requirements at the committal hearing. State v. Novosel, 115 N.H. 302, 339 A.2d 16 (1975).

The case which the New Hampshire Supreme Court decided in Novosel raised challenges to the statutory scheme of NH RSA 651:8 and 9 based on denial of equal protection and due process. The petitioner in Novosel, as petitioner Kanteles here, had been indicted by the grand jury and indicated his intention to rely on a defense other than insanity. One week before the trial was to begin, the State moved to reconvene the grand jury to suggest that it omit to return an indictment because of Novosel's alleged insanity. The grand jury found Novosel to be insane and so certified to the Superior Court. A hearing was conducted, pursuant to the due process requirements of NH RSA 135:30-a (Supp.1973), whereupon the court adjudged him to be dangerous and committed him to the New Hampshire Hospital for life unless earlier discharged.

The one point of departure between Novosel and petitioner here is that apparently Novosel's attorney attempted to suggest an insanity defense at one point. This was objected to by Novosel himself and thereupon withdrawn. Novosel's situation, therefore, paralleled petitioner Kanteles' at the point where the grand jury was reconvened to pass on his sanity: neither he nor his attorney was raising the defense of insanity; he was prepared to proceed to trial and litigate the issue of his purported crime; he intended to rely on a legally recognized defense, namely self-defense; he was never allowed to present his arguments to a jury.

Petitioner Kanteles filed his habeas petition on June 6, 1977, two years after the court ruled NH RSA 651:8 and 9 to be constitutional in Novosel. A two year interval has been found to fall within the "recently decided" exception, Sarzen, supra, at 1082; Evans v. Cunningham, 335 F.2d 491, 493 (4th Cir.1964).²

As the First Circuit noted:

When a state, or for that matter, federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered. Even in as rapidly changing a field as constitutional law, two years is too brief a period to presume change. A federal court cannot require a petitioner to go to another court merely because it speculates that new judicial personnel may be persuaded to reach different results. Sarzen, supra, at 1082.

I, therefore, find unpersuasive the State's suggestion that: (1) Kanteles cannot invoke the "recently decided" exception because two years is too long a period to qualify; and (2) Kanteles should be required to await further pronouncements from the New Hampshire Supreme Court regarding the nature of the committal hearing required under NH RSA 651:9. Amended Memorandum at 3.

I rule that Novosel does satisfy the "recently decided" exception rule and that petitioner need not await further pronouncements from the New Hampshire Supreme Court on the speculation that further refinement concerning NH RSA 651:8 and 9 will be forthcoming. Sarzen, supra, at 1082.

THE ABSTENTION QUESTION

Because the challenged statute has been held to be constitutional by the New Hampshire Supreme Court, State v. Novosel, supra, the judicially created doctrine of abstention, Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), is inapposite. Wisconsin v. Constantineau, 400 U.S. 433, 438-39, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Reetz v. Bozanich, 397 U.S. 82, 86, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970)...