Roache v. McCulloch, 9:16-cv-1069-JKS

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtJAMES K. SINGLETON, JR. Senior United States District Judge
PartiesWALTER J. ROACHE, Petitioner, v. DEBORAH MCCULLOCH, Executive Director, Central New York Psychiatric Center, Respondent.
Docket NumberNo. 9:17-cv-574-JKS,No. 9:16-cv-1069-JKS,9:16-cv-1069-JKS,9:17-cv-574-JKS
Decision Date12 September 2019

WALTER J. ROACHE, Petitioner,
DEBORAH MCCULLOCH, Executive Director, Central New York Psychiatric Center,1 Respondent.

No. 9:16-cv-1069-JKS
No. 9:17-cv-574-JKS


September 12, 2019


Walter J. Roache, a civil detainee proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Roache is in New York state custody and involuntarily confined at the Central New York Psychiatric Center ("CNYPC") as a "sex offender requiring civil management" pursuant to Article 10 of the New York State Mental Health Law ("MHL"). Respondent has answered the Petition, and Roache has replied.


In 1977, Roache pled guilty to public lewdness with respect to two incidents that occurred within two months of each other. Following a jury trial, Roache was also convicted in 1978 of two counts of first-degree rape and two counts of third-degree rape for offenses that occurred while Roache was serving a 1-year probation term on the public lewdness conviction.

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Roache was sentenced to 100 months to 25 years' imprisonment on the four rape counts. Docket No. 24-1 at 9-10.2

Roache subsequently pled guilty in 1992 to first-degree sexual abuse after molesting two young girls who were picking berries. For those offenses, Roache was sentenced to 3 to 6 years' imprisonment, to run consecutively with the 11 years of undischarged time remaining on Roache's 1978 rape conviction. Docket No. 24-1 at 11-12.

Prior to the 2010 expiration of Roache's aggregate prison sentence, the State petitioned under MHL § 10 for Roache to remain civilly confined in the State's custody, and Roached was assigned counsel from the Mental Hygiene Legal Service. On April 23, 2010, the Supreme Court found probable cause pursuant to MHL § 10.06 to believe that Roache would require civil management. A jury subsequently rendered a unanimous verdict that Roache suffered from a "mental abnormality" that predisposes him to commit sex offenses. On June 4, 2014, however, the Appellate Division of the Supreme Court of New York set aside that verdict and ordered a new trial, holding that the State's experts improperly provided considerable hearsay that formed the basis of their opinions, and the State failed to establish that the hearsay was reliable in violation of State v. Floyd Y., 22 N.Y.3d 95 (N.Y. 2013). State v. Walter R., 987 N.Y.S.3d 104 (N.Y. App. Div. 2014).

Following a second trial, a jury rendered a unanimous verdict finding that Roache is a detained sex offender who suffers from a "mental abnormality" as defined in MHL § 10.03(i). Following the jury verdict, the county court held a dispositional hearing on September 16, 2016,

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and found that Roache is a "dangerous sex offender requiring confinement" as defined by MHL § 10.03(e). Thus, on September 21, 2016, the county court granted the State's petition and directed that Roache remain commitment to a secure treatment facility for care and treatment. Docket No. 24 at 50-51.

Through counsel, Roache directly appealed the order for commitment, arguing that: 1) the evidence was legally insufficient to sustain the commitment order; 2) the county court erred by failing to instruct the jury on the definition of "sex offense" under MHL § 10.03(p); and 3) the county court erred in admitting double hearsay through the State's expert witnesses. Docket No. 72-1 at 75-96. Roache filed a supplemental pro se appellate brief raising the following arguments for relief: 1) the county court erred because the experts' evaluations were based on inadmissible hearsay, including pre-sentencing investigative reports, police reports, and victim statements; 2) the county court erred in admitting evidence of a prior bad act -namely Roache's public masturbation at CNYPC; 3) violation of confrontation clause, malicious prosecution and ineffective assistance of counsel when the State presented hearsay from a witness who never appeared to testify; 4) the trial judge unlawfully prejudiced the jury by referring to Roache as a dangerous sex offender during most of the trial; 5) the trial judge had a conflict of interest during the September 16, 2016, dispositional hearing because he had notice of Roache's 41 U.S.C. § 1983 case against him;3 6) ineffective assistance of counsel against Randy Siper because the second trial was delayed beyond 60-day deadline, he failed to defend by providing evidence of Roache's completion of educational programs while in custody of the State, he failed to

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adequately prepare, and the jury was prejudiced by seeing Roache in shackles and hand cuffs throughout trial; and 7) ineffective assistance against Richard Lentino for preventing Roache from getting a psychological evaluation and transferring from CNYPC to Manhattan Psychiatric Center and failing to prepare defense for dangerous hearing. Docket No. 72-1 at 44-66.

On October 31, 2018, the Appellate Division affirmed the county court's finding that Roache is a dangerous sex offender requiring civil confinement. State v. Walter J.R., 84 N.Y.S. 3d 804 (N.Y. App. Div. 2018). The appellate court found that "the jury verdict was supported by legally sufficient evidence, since there was a valid line of reasoning by which the jury could conclude that [Roache] suffered from a mental abnormality as defined in [MHL], and the verdict was not contrary to the weight of the evidence, as it was supported by a fair interpretation of the evidence." Id. at 805. The Appellate Division also rejected Roache's contention that his due process and confrontation rights were violated by the State's expert testimony regarding a statement made by Roache in connection with his prior public lewdness conviction. See id. Finally, the Appellate Division rejected Roache's "remaining contentions, including those raised in his pro se supplemental brief, [as] either unpreserved for appellate review or without merit." Id. Roache petitioned for leave to appeal to the New York Court of Appeals, which was summarily denied on January 10, 2019. State v. Walter J.R., 117 N.E. 3d 818, 818 (N.Y. 2019).

While his case was pending in state court, Roache challenged his civil confinement and sought immediate release through an initial pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 filed in this Court on August 18, 2016. Case No. 9:16-cv-01069 ("Lead Case"), Docket No. 1. Around the same time, Roache sought the same relief in another pro se petition for habeas relief filed in the Southern District of New York, which was transferred to this Court.

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Case No. 9:17-cv-0574 ("Member Case"). This Court, through a previously-assigned district judge, consolidated the two cases.4 Docket No. 32. The cases are now before the undersigned judge for adjudication.


In his pro se Petition before this Court, Roache challenges the validity of his civil commitment, arguing that: 1) his confinement is unconstitutional because it is pursuant to an "unsigned" restraining order, he was unconstitutionally held while awaiting second trial, and he has been denied periodic reviews for release; 2) there was an unconstitutional delay of his probable cause hearing and both trials; and 3) counsel rendered ineffective assistance in a variety of ways. Docket No. 1 at 1-10. After Roache's two petitions were consolidated, the following additional grounds for relief, which were already raised before the Southern District of New York, were raised in a supplemental petition: 4) additional grounds for ineffective assistance of counsel; 5) erroneous admission of hearsay through expert witnesses' testimony and diagnoses; and 6) inadmissible hearsay evidence from witnesses who failed to appear in court. Docket No. 33 at 4-6.

In his Reply, Roache raises additional grounds for relief by attacking the validity of the State's expert's psychological evaluation and asserting the trial court committed an evidentiary error by permitting evidence of a prior bad act which was unreliable hearsay. Docket No. 28. The Court does not ordinarily consider grounds raised in a Reply. "The petition must 1) specify all the grounds for relief available to the petitioner; 2) state the facts supporting each ground; [and] 3) state the relief requested . . . ." Rules Governing Section 2254 Cases in the U.S. District

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Courts, Rule 2(c) (2012) (emphasis added). Because Roache did not raise these additional arguments in either of his petitions, he denied Respondent an opportunity to respond to the claims. Accordingly, they need not be considered by this Court. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (declining to consider the plaintiff's argument because it was raised for the first time in his reply brief ); United States ex rel. Morgan v. McElroy, 981 F. Supp. 873, 876 n.3 (S.D.N.Y. 1997) (declining to consider a number of "eleventh hour" claims raised for the first time in the petitioner's reply brief).


A person in custody pursuant to the judgment of a state court may file a petition for a writ of habeas corpus in the United States District Courts if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). The fact that Roache is challenging his civil commitment for mental illness rather than his underlying criminal conviction does not change the outcome as civil commitments are typically challenged in habeas proceedings. See Duncan v. Walker, 533 U.S. 167, 176 (2001) (stating that a state court order of civil commitment satisfies § 2254's "in custody" requirement). A person in state custody may challenge his confinement under 28 U.S.C. § 2241 or 28 U.S.C. § 2254. However, a § 2241 petition generally challenges the execution of a sentence such as "the administration of parole, computation of a prisoner's sentence by...

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