Levine v. Torvik

• Decision Date: 14 April 1993
• Docket Number: 92-3712,Nos. 92-3625,s. 92-3625
• Citation: 986 F.2d 1506
• Parties: Michael G. LEVINE, Petitioner-Appellee, v. Patricia TORVIK, Respondent-Appellant, Stephanie Tubbs Jones, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1506

986 F.2d 1506

Michael G. LEVINE, Petitioner-Appellee, v. Patricia TORVIK, Respondent-Appellant, Stephanie Tubbs Jones, Intervenor-Appellant.

Nos. 92-3625, 92-3712.

United States Court of Appeals,

Sixth Circuit.

Argued Nov. 30, 1992.

Decided March 1, 1993.

Rehearing Denied April 14, 1993.

Franklin J. Hickman (argued and briefed), Stege, Hickman & Lowder, Cleveland, OH, Dalma C. Grandjean, Grandjean & Goraleski, Dayton, OH, for petitioner-appellee.

Frank C. Gasper (argued), Stephanie J. Jones, Laurence R. Snyder, Louis C. Frey, Office of Pros. Atty., Cleveland, OH, for intervenor-appellant.

John J. Gideon (argued and briefed), Timothy J. Mangan (briefed), Office of the Atty. Gen. of Ohio, Columbus, OH, for respondent-appellant.

Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, for amicus curiae Georgene Kravitz.

Michael Kirkman (briefed), Harry B. Keith (briefed), Ohio Legal Rights Service, Columbus, OH, Kevin F. O'Neill, American Civil Liberties Union of Ohio Foundation, Cleveland, OH, for amici curiae Ohio Legal Rights Service and American Civil Liberties Union of Ohio Foundation, Inc.

Before: GUY and RYAN, Circuit Judges; and CHURCHILL, Senior District Judge. ^*

RYAN, Circuit Judge.

Respondent Patricia Torvik, Superintendent of the Dayton, Ohio, Forensic Center, and intervenor Stephanie Tubbs Jones, the Cuyahoga County, Ohio, Prosecuting Attorney, appeal from the district court's decision to issue a conditional writ of habeas corpus directing that Michael G. Levine be released from the custody of the forensic center. They also appeal from the district court's order staying future state court proceedings in connection with Levine. The two appeals, which have been consolidated, present a number of issues. For the reasons discussed below, however, we conclude that both the conditional writ of habeas corpus and the stay were properly entered, and we shall, therefore, affirm. ¹

I.

On September 26, 1979, Michael Levine was found not guilty by reason of insanity, following an Ohio state court prosecution, on charges of aggravated burglary, extortion, kidnapping, attempted murder, and aggravated murder. He was committed to the custody of the Ohio Department of Mental Health.

Levine has a history of mental illness dating back to 1966. At that time, he was arrested for forging checks and briefly admitted to a psychiatric hospital, where he was diagnosed as "schizophrenic reaction, schizo-affective type, associated with depression, severe, improved." He began seeing a psychiatrist, Dr. Levendula, in 1973, and at one point was rehospitalized. He was diagnosed then as "manic depressive psychosis, explosive personality." During his psychotherapy with Dr. Levendula, Levine threatened to kill the doctor and his family, and told the doctor that he desired to kill an unnamed 25-year-old woman. Nonetheless, in 1979, about a week prior to the crimes for which Levine is now committed, Dr. Levendula was becoming convinced that he had achieved a "therapeutic triumph" because Levine's condition seemed so much improved. Levine was behaving very calmly in therapy, and had agreed to grant his then-wife a separation.

Unfortunately, Dr. Levendula's "therapeutic triumph" was illusory. Levine and an accomplice kidnapped Julius and Georgene Kravitz, a prominent Cleveland couple, with the intention of extorting money for a business venture. During the course of the crime, Levine shot both of the Kravitzes; Julius Kravitz died, while Georgene Kravitz managed to escape.

A bench trial was held before the Cuyahoga County Court of Common Pleas, where Levine was found not guilty by reason of insanity. The expert witness testimony at trial focused on Levine's lack of remorse for his crimes, and emphasized that Levine would function much better in an institutionalized, structured surrounding than in the unstructured "real world." After trial, Levine was hospitalized. During this period, he wrote a series of letters to his now ex-wife containing vicious threats of harm, including thinly disguised threats to kill her. The last of these letters was written in February 1980. During his commitment, Levine received medication only briefly; he has been without medication for almost twelve years. He has also been largely without psychotherapy during this time.

Ohio statutes provide that a person found not guilty by reason of insanity is entitled to periodic hearings:

The court shall hold a full hearing on applications for continued commitment at the expiration of the first ninety-day period and at least every two years after the expiration of the first ninety-day period.... If the court, after a hearing for continued commitment finds clear and convincing evidence that the respondent is a mentally ill person subject to hospitalization by court order, the court may order continued commitment....

Ohio Rev.Code Ann. § 5122.15(H) (emphasis added). Ohio statutes define "mental illness" and "mentally ill person subject to hospitalization" as follows:

"Mental illness" means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.

Ohio Rev.Code Ann. § 5122.01(A).

"Mentally ill person subject to hospitalization by court order" means a mentally ill person who, because of his illness ... [r]epresents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness....

Ohio Rev.Code Ann. § 5122.01(B) (emphasis added). In other words, a person must be both mentally ill and presently dangerous in order to be hospitalized.

Levine underwent commitment hearings to assess his condition in November 1979; April 1980; November 1980; and January and February 1982. Each time, his request for release was denied, but Levine did not appeal. In September 1983, the Dayton Mental Health Center (DMHC) notified the state trial court that Levine no longer required hospitalization. A hearing was held in December 1983. The presiding judge concluded that Levine was still mentally ill, although in remission, and subject to hospitalization under Ohio law. Levine appealed the trial court's decision. The Ohio Court of Appeals affirmed in October 1984. Levine then appealed to the Ohio Supreme Court, which, in December 1984, dismissed the appeal for lack of a substantial constitutional question.

Levine filed a petition for writ of habeas corpus in federal court in June 1985. While the petition was pending, Levine waived the periodic state hearings to which he was entitled. A magistrate judge concluded in 1988 that there had been sufficient evidence presented for the state trial court to conclude that Levine was a mentally ill person subject to hospitalization by court order, but that there had not been enough evidence to order him confined to a maximum security facility. The magistrate judge's decision was appealed to this court and we vacated his decision on the grounds that the magistrate judge had been without jurisdiction because consent was improperly urged upon the parties under 28 U.S.C. § 636(c). On remand in July 1988, the magistrate judge recommended that the district court adopt the magistrate's earlier decision as the district court's findings of fact and conclusions of law.

A week after that recommendation, Levine's counsel informed the district court that the state trial court had conducted a new commitment hearing at the beginning of July 1988, and had again recommitted Levine to the forensic center. The magistrate judge therefore withdrew his earlier recommendation, and eventually concluded that the constitutional issues presented by the 1983 commitment had been mooted by the 1988 recommitment.

Levine began again with the process of exhausting his state court remedies, now as to the 1988 recommitment. The trial court's decision was affirmed in the state court of appeals, and the Ohio Supreme Court again denied Levine's motion to appeal. In June 1990, following Levine's new petition in the district court for a writ of habeas corpus, the magistrate judge recommended that the district court issue a writ ordering a conditional discharge, this time finding that there was insufficient evidence in 1988 to conclude that Levine was mentally ill. He reasoned as follows:

[In 1988,] all of the mental health professionals, including the treating professionals, concluded Mr. Levine was not presently mentally ill. For this Court to conclude, in the face of that testimony, that there is evidence from which a reasonable trier of fact could conclude to a clear and convincing degree that Mr. Levine is mentally ill and subject to hospitalization by court order would be to deny any impact to the Due Process Clause in this case.

The district court "concur[red] with the Magistrate Judge's conclusion that Levine is being confined in violation of the Constitution of the United States, and that he should be granted an immediate release subject to [certain] conditions...." ² In an order dated June 25, 1992, the district court issued its final decision: that Levine be released within 96 hours. Upon motion by the state of Ohio, this court granted a stay of the writ.

The district court then learned that the state trial court had again directed, without giving notice to Levine or his attorney, that a new confinement hearing be held. In order that the issues surrounding the 1988 confinement hearing not be mooted (as had happened with the 1983 issues), the district court stayed the state court proceedings, pending resolution of this appeal.

The issues raised in this appeal can be divided into two categories. The first assignments of error we discuss challenge the district court's grant of habeas relief based...