Poree v. Collins

• Decision Date: 28 July 2017
• Docket Number: No. 14-30129,14-30129
• Citation: 866 F.3d 235
• Parties: Carlos POREE, Petitioner–Appellant v. Kandy COLLINS, Respondent–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

866 F.3d 235

Carlos POREE, Petitioner–Appellant

v.Kandy COLLINS, Respondent–Appellee

No. 14-30129

United States Court of Appeals, Fifth Circuit.

FILED July 28, 2017

Katherine Maris Mattes, Esq., Tulane Law School, Criminal Clinic, New Orleans, LA, for Petitioner–Appellant.

Christopher James Ponoroff, District Attorney's Office for the Parish of Orleans, New Orleans, LA, for Respondent–Appellee.

Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Appellant Carlos Poree is an insanity acquittee who has been in the custody of the Eastern Louisiana Mental Health System (ELMHS) since 1999. After a state court denied Poree conditional release to Harmony House Transitional Center ("Harmony House"), Poree sought federal habeas relief under 28 U.S.C. § 2254. The district court denied his claim. Although we are troubled that the state court seemingly failed to follow Louisiana state law in denying Poree relief, we cannot conclude that the state court decision was contrary to clearly established Supreme Court law. We thus AFFIRM.

I.

"On November 7, 1977, Carlos Poree shot ten people, killing one."¹ His first trial resulted in a mistrial, and his second trial—limited to whether Poree was not guilty by reason of insanity ("NGBRI")—resulted in a first degree murder conviction.² After making his way through the state court appellate system,³ Poree filed a federal habeas petition in 1997,⁴ which the district court granted.⁵ Upon a hearing, Poree was committed to ELMHS.

A.

Since Poree began living at ELMHS, the state court has considered several times whether he could transfer to a less restrictive setting. According to Louisiana law, the process begins when the superintendent of the mental institution recommends discharge or release to a review panel, which then makes a recommendation to the court.⁶ "If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a contradictory hearing following notice to the district attorney."⁷ If a contradictory hearing is held, "the burden shall be upon the state to seek continuance of the confinement by proving by clear and convincing evidence that the committed person is currently both mentally ill and dangerous."⁸

Poree has been through this process several times. Between 2002 and 2009, the state held three hearings, denying Poree transfer each time.⁹ In 2010, the process began again. On October 11, 2010, the ELMHS Forensic Review Panel, made up of Dr. John W. Thompson,¹⁰ Dr. F.J. Bordenave,¹¹ and Dr. David Hale,¹² completed a Review of Patient Status ("Review") for Poree and recommended that Poree be conditionally released to Harmony House. The Review indicated that Poree is aware of the nature of his violent offense, has the ability to conform his conduct to the law, and has "sufficient moral cognitive judgment to distinguish between right and wrong." His Axis I diagnosis

was listed as Schizophrenia, Residual Type. Noting Poree's psychiatric history and his past homicidal and assaultive behaviors, the Review nevertheless stated that Poree's symptoms are well-maintained with current medication, and that Poree is fully compliant with his treatment. The Review further indicated that Poree is currently mentally ill but in stable remission, is not currently dangerous to self or others if adequately supervised, and "may be granted Conditional Release and placed in appropriate community setting with tracking, monitoring and supervision." The Review Panel's opinion that Poree should be conditionally released to Harmony House included a list of stipulations, including that violations may result in his return to ELMHS.

On January 18, 2011, a state district court held a hearing to determine whether Poree should be conditionally released to Harmony House upon the hospital's recommendation. At the time of the hearing, Poree was 68– or 69–years old and resided in the least restrictive unit in the forensic division of ELMHS. Four witnesses testified: Dr. Bordenave, Dr. Thompson, and Ralph Griffin testified as defense witnesses, and Dr. Richard Richoux testified as a State witness (with Dr. Raphael Salcedo, another State witness, concurring).

Dr. Bordenave—an expert forensic psychiatrist, Poree's treating physician since July 2010, and head of Mr. Poree's treatment team—testified that Poree appears to have been in remission for years, is compliant with his medications, and that there is no evidence that Poree currently suffers from delusions. Dr. Bordenave noted that Poree understands that he will have to stay on medication for the rest of his life. Dr. Bordenave agreed that stopping medication would likely result in decompensation into mental illness, but that such relapse would not necessarily result in violence or aggression. He further testified that Poree had achieved the maximum recovery level at ELMHS, and that Harmony House has the structure for Poree to successfully continue treatment. In a letter to the court, Dr. Bordenave stated that Poree has "been best described as a model patient." He further stated, "both psychological actuarial testing and observation and treatment by his treatment team, indicate that he is a relatively low risk for violent re-offense." Dr. Bordenave concluded that "Poree would likely be one of the better, more appropriate clients served at Harmony."

Dr. Thompson—an expert forensic psychiatrist, chief of staff of ELMHS, and a Vice Chair of the Department of Psychiatry at Tulane—has worked with Poree since Poree arrived at the hospital. Dr. Thompson testified that Poree receives treatment in the forensic unit, with the eventual goal being to safely move him into either a group home or the community. Dr. Thompson agreed that Poree had achieved the treatment goals set for him in the forensic unit, and that Poree did not require continued hospitalization in the forensic unit to prevent him from becoming dangerous. Dr. Thompson explained that in making its recommendation, the Review Panel relied on instruments such as the "COT readiness profile"¹³ and the "Hare's psychopathy."¹⁴ Dr. Thompson believed that Poree would comply with the conditions at Harmony House. Dr. Thompson considered Poree to be mentally ill, but opined that "he's not a danger to self or others if placed in the Harmony setting with the restrictions that we have."

On cross-examination, Dr. Thompson noted Poree's smiling while Dr. Thompson and Poree discussed Poree's offense. Dr. Thompson recounted Poree's statement: "Well, you know, it's been such a long time. It's been thirty years and, you know, knowing how I am now it's hard to believe that I was that kind of person that would do something like that." Dr. Thompson concluded that the smiling could be "[Poree's] explanation of what happened," as in, " ‘It's been so long ago it's hard for me to look back and think that I actually did those things,’ " or a residual symptom of his schizophrenia

.¹⁵ Dr. Thompson acknowledged that medications can stop working, and that even with medication, someone with schizophrenia can decompensate. Dr. Thompson noted that Poree had never decompensated while on medication. As for delusions, Dr. Thompson indicated that Poree is not reporting such symptoms nor are they seeing them behaviorally.

Mr. Griffin is the facility manager of Harmony Transitional Center, and he had worked for Harmony for twenty-four years at the time he testified. He interviewed Poree as a potential resident and pre-accepted him into Harmony House. Mr. Griffin testified to the qualities he found that would make Poree an appropriate resident:

[W]e recognized that he had an insight into his mental illness. He was very remorseful and understood the crime that he committed. He had been stable, you know, for a period of time. We normally receive a preplacement packet of the client's history. And, through our review of that packet, as well as face to face interview, we recognized, from 2005 at least, that there was any incident.... And we recognized that he hadn't displayed any aggression behaviors. And he's been consistently taking his medication to have him stable.

Mr. Griffin stated that he did not have safety concerns regarding Poree.

Dr. Richoux, an expert forensic psychiatrist, was called as a state witness. Dr. Richoux met with Poree on the day of the hearing to update his impression and give an opinion regarding the transfer recommendation. Dr. Richoux had known of Poree since the late 1970s, and had probably seen Poree ten times between 1999 and the hearing date; his most recent examination of Poree was in June 2010. Dr. Richoux testified that Poree has a long-standing schizophrenia

diagnosis, that Poree has shown "excellent stabilization of his symptoms" while on medication, and that he is asymptomatic on a short-term basis. Dr. Richoux identified as a concern Poree's insight into his own illness, but noted development over the years. Richoux indicated, "as of now having had the opportunity to observe him over many years, Mr. Poree is about as well stabilized as a person can be who suffers from a major mental illness." Dr. Richoux stated that Poree now understood that if he stopped his medication, there would be a high likelihood of relapse into psychotic symptoms, "be those accompanied by violent behavior or not, but certainly that he would have a high risk of reemergence of violent behavior in connection with psychotic symptoms were he to stop his treatment." Dr. Richoux concluded that he would recommend, along with Dr. Salcedo, "that Mr. Poree does seem to be an appropriate candidate for transfer ... He seems to have a very evenhanded, realistic view of things at this point. Sees the need for treatment. To be expected to comply with treatment I believe."

When asked, "based on [Poree's] history of psychotic symptoms were to reemerge, would he be a danger to himself or others," Dr. Richoux agreed to a "possibility of that."...