United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Jonathan Dovin's
(“Petitioner's”) pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1) (Doc. 10). For the following reasons,
the petition will be dismissed without prejudice.
Factual and Procedural Background
October 2005, Petitioner was charged with attempted murder in
the first degree, domestic assault in the first degree, and
felonious restraint. Resp't Ex. B, at 1. He pled not
guilty by reason of mental disease or defect, and he was
acquitted on the ground of mental disease or defect excluding
responsibility, pursuant to Mo. Rev. Stat. § 552.030.2.
Resp't Ex. C. On May 24, 2007, the trial court committed
him to the care of the Missouri Department of Mental Health.
Id. On November 26, 2008, Petitioner filed motions
for conditional and unconditional release. Resp't Ex. B,
at 6. On May 23, 2011, after a hearing, the motion for
conditional release was granted. Resp't Ex. B, at 2-3;
Resp't Ex. D. The conditional release was revoked on June
11, 2012. Resp't Ex. B, at 2. On June 18, 2012, Plaintiff
filed a motion for conditional release, and on March 5, 2013,
Petitioner filed a motion for unconditional release.
Id. at 1-2. There is no indication in the record of
any further rulings or appeals. Id.
instant petition, Petitioner asserts four claims: (1)
ineffective assistance of counsel based on his counsel's
failure to advise him of the consequences of an insanity plea
and the failure to pursue defenses other than an insanity
plea; (2) violation of his right to equal protection under
the Fourteenth Amendment in that he should never have been
acquitted because at the time of the offense he was suffering
from the effects of drugs, not schizophrenia; (3) violation
of his rights under the Fourteenth Amendment because his
misdiagnosis “means the state enforced a law that
abridged [his] right to be liable for a criminal act”;
and (4) violation of his Eighth Amendment rights because in
2011 he was given a diagnosis of drug-induced psychosis, he
does not suffer from a mental disease or defect, and it is
cruel and unusual punishment to detain him in a system that
is designed for the rehabilitation of individuals with mental
diseases or defects. Petitioner asks the Court to vacate his
not guilty by reason of insanity plea and discharge him from
his commitment to the Department of Mental Health. In his
petition, Petitioner states that he has not presented any of
his grounds for relief to any court. See Pet'n,
argues that the petition should be dismissed because
Petitioner has failed to exhaust his available state court
remedies. The Court agrees.
28 U.S.C. § 2254(b)(1) prohibits a grant of habeas
relief on behalf of a person in state custody unless that
person has “exhausted the remedies available in the
courts of the State, ” “there is an absence of
available State corrective process, ” or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.”
“The exhaustion requirement of ' 2254(b) ensures
that the state courts have the opportunity fully to consider
federal-law challenges to a state custodial judgment before
the lower federal courts may entertain a collateral attack
upon that judgment.” Duncan v. Walker, 533
U.S. 167, 178-79 (2001). “The exhaustion rule promotes
comity in that ‘it would be unseemly in our dual system
of government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation.'”
Id. at 179 (quoting Rose v. Lundy, 455 U.S.
509, 518 (1982)). The requirement prevents a federal court
from granting a habeas petition based on a constitutional
violation that could be redressed adequately by pursuing an
avenue of state relief “still open to the habeas
applicant at the time he files his application in federal
court.” Humphrey v. Cady, 405 U.S. 504, 516
most of the cases defining the contours of the exhaustion
requirement arise from challenges to state custody following
criminal conviction, the Supreme Court's holding that to
satisfy the exhaustion requirement, “state prisoners
must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State's established appellate review process, ”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), applies with equal force when a habeas petitioner
seeks to challenge state custody pursuant to a civil
commitment, see Beaulieu v. Minnesota, 583 F.3d 570,
575 (8th Cir. 2009).
Grounds One through Three, Petitioner appears to be asserting
that his original commitment violated his constitutional
rights. To the extent that Petitioner is asserting that his
original commitment to the custody of the Missouri Department
of Mental Health violated his constitutional rights, the
proper procedure under Missouri law is for him to file a
state habeas petition pursuant to Missouri Supreme Court Rule
91. See State v. Oxenhandler, 491 S.W.3d 576, 592-93
(Mo.Ct.App. 2016) (“Where an accused complains that his
commitment pursuant to section 552.040 violates due process,
a writ of habeas corpus [under Rule 91] is the appropriate
remedy, as habeas corpus affords redress for unlawful
restraints of liberty.); State v. McKee, 39 S.W.3d
565, 569 n.6 (Mo.Ct.App. 2001) (“[H]abeas corpus [under
Rule 91] is available as a remedy for a person confined
pursuant to Chapter 552 procedures if an application therefor
is properly pleaded, filed in a court having jurisdiction,
and facts are proven showing entitlement to relief.”).
Petitioner acknowledges in his petition that he has not
presented his claims to any court, and he has not filed any
reply brief or supplementary memorandum indicating that he
has filed a state habeas petition. In addition, this Court
has reviewed the docket on Missouri Case.net, and it does not
appear that Petitioner has filed a state habeas petition.
Petitioner also offers no reason why he cannot now present
these claims through a state habeas petition. Thus,
Petitioner has not exhausted his available state remedies as
to Grounds One through Three.
Ground Four, it appears that Petitioner is not challenging
the validity of his confinement, but rather is asserting that
because of the 2011 change in his diagnosis, his continued
confinement violates his constitutional rights. Under
Missouri law, a committed person who claims that he is no
longer suffering from a mental disease or defect that renders
him dangerous to himself or others may file an application
for conditional or unconditional release pursuant to Mo. Rev.
Stat. § 552.040. See Mo. Rev. Stat.
§§ 552.040.5, 552.040.10; State v. Weekly,
107 S.W.3d 340, 345-46 (Mo.Ct.App. 2003). If the application
is denied, the committed person may apply for release again a
year later. Mo. Rev. Stat §§ 552.040.8, 552.040.13.
“To satisfy the exhaustion requirement [for purposes of
federal habeas], a person confined in the Missouri State
Hospital must apply for release under section 552.040 before
filing a petition for a writ of habeas corpus.”
Kolocotronis v. Holcomb, 925 F.2d 278, 279 (8th Cir.
1991). If the application is denied, “the confined
person must appeal to the Missouri Court of Appeals.”
Id.  “This process must be completely
followed once to exhaust state remedies.” Id.
has not followed this process. Although it appears that
Petitioner has filed an application for release, it is
unclear what grounds that application was based on, and
neither the petition nor the exhibits submitted by Respondent
indicate whether that application has been denied. Petitioner
does not assert that any application has been denied or that
he has appealed any such denial. In addition, a review of the
docket on Missouri Case.Net shows that Petitioner has not
appealed the denial of any application for release.
Additionally, Petitioner offers no reason why he cannot
continue to pursue an application for release (and, if
necessary, an appeal) through the state procedure. Thus,
Petitioner has failed to exhaust his available state remedies
as to Ground Four.
of the above reasons, Petitioner has not exhausted his
available state remedies, and the Court may not grant relief
on the petition. Accordingly, IT IS HEREBY
ORDERED that Petitioner's petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is