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Butler v. Zenk

United States District Court, D. New Hampshire

September 12, 2018

Andrew Butler
v.
Michael Zenk, Warden, New Hampshire State Prison for Men; and Deborah Robinson

          Sandra F. Bloomenthal, Esq. Robert T. Bloomenthal, Esq. Lynmarie C. Cusack, Esq. Lindsey B. Courtney, Esq. Laurie Smith Young, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Petitioner, Andrew Butler, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking release from the New Hampshire State Prison's Secure Psychiatric Unit (“SPU”). At the time his petition was filed, Butler, who has now been released, had been placed at the SPU pursuant to his civil commitment to the New Hampshire State Hospital (“NHH”).[1]See Pet. (Doc. No. 1). Before the court is the respondents' motion (Doc. No. 4) and memorandum of law (Doc. No. 7) seeking dismissal of the petition. Petitioner has objected (Doc. Nos. 12, 13). Respondents filed a reply (Doc. No. 14), and the petitioner filed a surreply (Doc. No. 15).

         The court held a hearing on the respondents' motion to dismiss on August 29, 2018, at which the petitioner and his guardian appeared with counsel.[2] Counsel for the respondents appeared on the respondents' behalf.

         Background[3]

         Butler was civilly committed to the NHH pursuant to an order of the state probate court on December 29, 2017. See In re Butler, No. 317-2017-IN-00444 (N.H. Cir. Ct., 6th Cir.-Prob. Div.-Concord, Dec. 29, 2017). While Butler was hospitalized at the NHH pursuant to his civil commitment, he was involuntarily transferred to the SPU. At the time this petition was filed, there were no criminal charges pending against Butler, he had not been convicted of any crime, and he had not been found not guilty by reason of insanity in any criminal case. Butler's petition before this court challenges the legality of his custody in a prison facility in the absence of a criminal conviction or detention order related to a criminal case. In his petition, Butler asserts the following grounds for relief[4]:

1. Butler's indefinite placement in a unit in a maximum security prison, in the absence of a criminal charge or conviction, violates his right to due process; and
2. Butler's placement in the SPU violates the Americans with Disabilities Act, in that: a) SPU is not an accredited mental health treatment facility; and b) at SPU Butler is subjected to “harmful and cruel” treatment and housing conditions.

         Discussion

         I. Exhaustion

         To be eligible for relief in a § 2254 petition, a habeas petitioner must show that he has exhausted the remedies available to him in the state courts on his federal habeas claims, or that state corrective processes are unavailable or ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1). Cf. “[A] petitioner's failure to present his federal constitutional claim to the state courts is ordinarily fatal to the prosecution of a federal habeas case.” Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.), cert. denied, 132 S.Ct. 426 (2011).

A claim for habeas corpus relief has been exhausted where the claim has been fairly presented to the state courts. Fair presentation means that the petitioner must show that he tendered his federal claim in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.

Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008) (citations and quotation marks omitted). A petitioner may demonstrate that he should be excepted from the exhaustion if he shows that state corrective processes were unavailable, circumstances rendered the process ineffective to protect petitioner's rights, or he does not have the right under state law to raise the claim at issue. See 28 U.S.C. §§ 2254(b)(1), (c).

         In their motion to dismiss, the respondents assert, among other arguments, that Butler's § 2254 petition should be dismissed because Butler failed to exhaust his claims in the state court prior to bringing his petition here. At the August 29, 2018 hearing, the petitioner acknowledged that he has not exhausted the claims in his § 2254 petition in any state court. Further, Butler does not contest that, at the time he was placed in the SPU, N.H. Rev. Stat. Ann. §§ 622:45(V), 622:52 and N.H. Code Admin. R. He-M 611.07(a) provided him with a right to a due process hearing to review the appropriateness of that transfer, and that he had a right to appeal the ...


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