Rick v. Harpstead
| Citation | 564 F.Supp.3d 771 |
| Decision Date | 30 September 2021 |
| Docket Number | Case No. 19-CV-2827 (NEB/DTS) |
| Parties | Darrin Scott RICK, Petitioner, v. Jodi HARPSTEAD, Respondent. |
| Court | U.S. District Court — District of Minnesota |
Lance R. Heisler, Lampe Law Group, LLP, Northfield, MN, for Petitioner.
Elizabeth Beltaos, Theresa M. Couri, Hennepin County Attorney's Office, Matthew Hough, Hennepin County Attorney's Office, Adult Services Division, Minneapolis, MN, Emily Beth Anderson, Matthew Frank, Office of the Minnesota Attorney General, Ali Patrick Afsharjavan, Minnesota Department of Labor and Industry, Saint Paul, MN, for Defendant Jodi Harpstead.
ORDER ON REPORT AND RECOMMENDATION
A Minnesota court committed Petitioner Darrin Scott Rick as a sexually dangerous person in 2004. He has been a patient of the Minnesota Sex Offender Program ("MSOP") ever since. In 2019, Rick petitioned for writ of habeas corpus under 28 U.S.C. Section 2254, seeking his release from custody based on newly discovered evidence. Hennepin County1 moved to dismiss his petition. In a Report and Recommendation, United States Magistrate Judge David T. Schultz recommended that Hennepin County's motion to dismiss be denied. (ECF No. 53 ("R&R").) Hennepin County objects to the R&R. (ECF No. 56 ("Obj.").) For the reasons below, the Court sustains in part and overrules in part Hennepin County's objection, accepts the R&R as modified below, and denies the motion to dismiss.
The R&R details the facts and procedural history of the case, (R&R at 2–7), which are undisputed. The Court briefly lays out the facts necessary to understand the petition's context.2
Criminal conviction. Rick pled guilty to four counts of criminal sexual conduct involving minors in 1993 and served a 180-month prison sentence. (Id. at 2.) While in prison, Rick participated in and eventually withdrew from sex offender treatment. (Id. ) After the Minnesota Department of Corrections ("DOC") declined to recommend Rick for commitment, Hennepin County began civil commitment proceedings separately. (Id. at 3.)
2004 commitment hearing. During Rick's civil commitment hearing, court-appointed expert psychologists Thomas L. Alberg, Ph.D. and Roger C. Sweet, Ph.D. testified that Rick met Minnesota's statutory definition for a sexually dangerous person ("SDP").3 (R&R at 3.) But they also concluded that the MSOP program was not necessary to Rick's treatment; in their opinions, less restrictive alternatives would suffice. (Id. ) Hennepin County's retained expert, psychologist Dr. James Alsdurf, Ph.D. disagreed, concluding that the only appropriate treatment for Rick was at the MSOP. (Id. at 3–4.) Based on this and other evidence, the trial court found that Rick's "moderate risk of recidivism combined with not completing sex offender treatment ... proved by clear and convincing evidence that there is a likelihood of [Rick] reoffending." (ECF No. 5 ("Heisler Aff.") Ex. 1 ("2004 Order") at 6–7, 11, 17.) The trial court then determined that Rick met the criteria for commitment to the MSOP. (Id. at 14.) But the court stayed Rick's commitment so long as Rick complied with certain conditions, including completing an outpatient sex offender treatment program. (Id. ) Hennepin County appealed, and the Minnesota Court of Appeals reversed the stay, both because Hennepin County had not agreed to the stay as required by law, and because the outpatient treatment program had not accepted Rick. (R&R at 4–5.)
2006 commitment hearing. On remand, the trial court held a hearing at which it considered less restrictive treatment alternatives for Rick. (R&R at 5.) The evidence showed that an outpatient treatment program had accepted Rick, but Dakota County (the county in which he planned to live) required Rick to live in a halfway house for 90 days. (Id. ) The DOC had approved Rick for only a 60-day stay in a halfway house, and the halfway house refused to accept Rick as a "private pay" client for the other 30 days. (Id. ) Because the DOC had not approved funding for the full 90 days, the court found that Rick had not shown that the less restrictive plan was "presently available" and committed him to the MSOP indefinitely. (Id. ) Rick sought post-commitment relief, but did not succeed. (Id. at 5–6.) As aptly noted by Rick's counsel and the R&R, Rick "came within an eyelash of being treated in the community" rather than committed to the MSOP, only because of the 30-day gap in funding. (Id. at 5; ECF No. 6 at 22.)
New evidence. An actuarial risk assessment tool used for Rick's commitment in 2004 predicted that low-risk offenders had a six-year recidivism rate of 12% and moderate-risk offenders had a six-year recidivism rate of 25%. (Heisler Aff. Ex. 7 at 4.) In 2012, research on Minnesota sex offenders released from the DOC between 2003 and 2006 concluded that the recidivism rate for low-risk offenders was 3% (rather than 12%), and that the recidivism rate for moderate-risk offenders was 6% (rather than 25%). (Id. at 4 n.2) (citing G. Duwe & P.J. Freske, Using Logistic Regression Modeling to Predict Sexual Recidivism: The Minnesota Sex Offender Screening Tool-3 (MnSOST-3) , Sexual Abuse: Journal of Research and Treatment, 24(4), 350–377 (2012) ("2012 Study").) Other new research showed that the failure to complete sex offender treatment did not increase the risk of recidivism. (Id. at 7–8) (citing G. Duwe & R. A. Goldman, The Impact of Prison-Based Treatment on Sex Offender Recidivism: Evidence from Minnesota , Sexual Abuse: Journal of Research and Treatment, 21(3), 279–307 (2009) ("2009 Study").)
In April 2019, Rick's counsel consulted forensic psychologist Amy Phenix, Ph.D. who evaluated Rick, reviewed his commitment case, and determined that the actuarial data used to commit Rick was no longer scientifically reliable. (R&R at 6–7; Heisler Aff. Ex. 7.) Dr. Phenix concluded that although the actuarial risk assessment tools used at the time of Rick's commitment "were appropriate for that period in time," the subsequent research showed that the tools overestimated the general probability of sex offender recidivism and thus overestimated Rick's risk of recidivism as well. (Heisler Aff. Ex. 7 at 6–7.) Applying this new research, Dr. Phenix concluded that Rick's current risk of recidivism was between 5.6% and 6.8%. (Id. at 22, 26.)
Drs. Alberg and Sweet, who had testified in support of Rick's commitment, reviewed Dr. Phenix's report and concluded that, contrary to their testimony at Rick's hearing, Rick did not meet the statutory criteria for commitment in 2004.4 (Heisler Aff. Exs. 4, 6.) Dr. Alberg stated that Rick's commitment as an SDP "was inappropriate in 2004." (Heisler Aff. Ex. 4 at 2.) Similarly, Dr. Sweet stated that "Rick did not meet the statutory criteria necessary for commitment" as an SDP in 2004. (Heisler Aff. Ex. 6 at 4.)
Habeas petition. Rick petitioned for habeas relief under Section 2254 in October 2019. (ECF No. 1); see generally Duncan v. Walker , 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (). His current petition alleges that his initial commitment is a fundamental miscarriage of justice because the Minnesota court relied on now-discredited risk assessment evidence and expert opinions, thus violating his right to due process under the Fourteenth Amendment. (ECF No. 45 ("2d Am. Pet.") at 3–4.)
The R&R. Upon Hennepin County's motion to dismiss the petition, Judge Schultz found that Rick's petition was timely under 28 U.S.C. Section 2244(d)(1)(D), and that even if it were untimely, the petition falls within the actual-innocence gateway exception. (R&R at 9–22.) Judge Schultz also determined that the petition states a sufficiently plausible due process claim to survive the motion to dismiss. (Id. at 24–28.) The R&R recommends denying Hennepin County's motion to dismiss the petition.
Hennepin County objects to the R&R on several grounds. First, it argues that Rick's petition was untimely because Rick failed to act with due diligence to discover the new evidence. Second, it contends that the R&R erred in finding that the actual-innocence exception applies to Rick's petition. Third, it maintains that Rick's claim fails on the merits anyway because he has not stated a cognizable due process claim. Finally, Hennepin County contends that the R&R failed to apply the In re Linehan line of Minnesota Supreme Court cases.
The Court reviews the portions of the R&R to which Hennepin County objects de novo. 28 U.S.C. § 636(b)(1) ; D. Minn. LR 72.2(b)(3). In reviewing a habeas petition, federal courts are to presume any state court factual determinations are correct, although the petitioner can rebut that presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). If the state court did not adjudicate a claim on the merits, federal courts review the claim de novo because there is no state court factual finding to which a presumption of correctness may attach. See, e.g. , Porter v. McCollum , 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (). The state court did not adjudicate the new recidivism evidence because it did not exist at the time of Rick's commitment. Thus, because this is a motion to dismiss, this Court considers that evidence under Rule 12(b)(6) of the Federal Rules of Civil Procedure, construing the unadjudicated facts in the light most favorable to Rick and drawing all reasonable inferences in his favor. Juniper v. Zook , 876 F.3d 551, 564 (4th Cir. 2017).
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...Rick satisfied the actual-innocence exception, Judge Schultz was to conduct an evidentiary hearing on the merits of Rick's due-process claim. Id. The parties agreed to present both actual-innocence issue and the merits of the petition at the same hearing. (R&R at 14.) Habeas hearing. In Dec......
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...Rick satisfied the actual-innocence exception, Judge Schultz was to conduct an evidentiary hearing on the merits of Rick's due-process claim. Id. The parties agreed to present both actual-innocence issue and the merits of the petition at the same hearing. (R&R at 14.) Habeas hearing. In Dec......