The opinion of the court was delivered by: Linares, District Judge
Petitioner Michael Hasher, a civilly-committed mental patient currently confined at the Special Treatment Unit in Kearny, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Bernard Goodwin and Gregg Conway.
For the reasons stated herein, the Petition must be denied.
The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division.*fn1
On April 7, 1997, M.E.H., who is presently forty-six years old, pled guilty to second-degree sexual assault resulting from the rape of A.P. He was sentenced to ten years in prison. Pursuant to the plea agreement, unrelated first-degree charges as to the rape of a second victim, T.M., were dismissed. Initially, both sets of charges were for first-degree aggravated sexual assaults. M.E.H. disputes the charge as to T.M. and claims she was a prostitute with whom he had a disagreement as to price, although T.M. had no criminal history. The assault on A.P. occurred May 1, 1996, when she experienced car trouble on the Garden State Parkway. M.E.H. drove by her disabled vehicle and offered her a ride as they were headed in the same direction. The disputed attack on T.M. occurred bout two months later on June 27, 1996. M.E.H. would have completed the sentence imposed on the sexual assault on A.P. on January 15, 2004, and been released, but for the State's petition for his civil commitment. The hearing was delayed for some time at the request of his attorney.
Previously, on September 25, 1990, M.E.H. entered a guilty plea to a charge of criminal sexual contact and established as the factual basis that he forcibly touched the victim's breasts, vagina and buttocks. He was sentenced to three years probation and ordered to pay restitution. In that case, the victim, a former girlfriend, claimed that approximately one year after the parties' relationship ended, M.E.H. offered to work on her car. When she went to his home for that purpose, on October 14, 1988, M.E.H. physically restrained and raped her.
On October 24, 1985, M.E.H. was arrested and charged in Massachusetts on two counts of rape of a child, and five counts of indecent assault and battery on a child. The alleged victims were a nine-year-old and a twelve-year-old. During the police investigation, M.E.H. admitted having sex with the twelve-year-old and admitted to police that the child screamed when he penetrated her. All charges involving the children were ultimately dismissed. Earlier, on June 11, 1982, M.E.H. was arrested for attempted sexual assault; on August 26, 1982, he pled guilty to a downgraded plea of simple assault. (Opinion of Appellate Division at 3-5 (Feb. 27, 2008).)
Following a trial, Petitioner was civilly committed as a sexually violent predator under New Jersey's Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 et seq.
Petitioner timely appealed his commitment to the Appellate Division of the New Jersey Superior Court, which affirmed on February 27, 2008. The Supreme Court of New Jersey denied certification on September 3, 2008.
This Petition followed. In the Amended Petition, Petitioner asserts the following grounds for relief:
Ground One. (a) The state courts committed reversible error by basing its decision to civil commit on unreliable expert testimony and unproven hearsay evidence.
(b) Due process and fundamental fairness prohibits civil commitment based on unproven sexual misconduct.
(c) The trial court erroneously held civil commitment could be based upon unproven allegations of misconduct.
Ground Two. The transfer of Petitioner from state prison to the Special Treatment Unit without an evidentiary hearing violated his due process rights as set forth in Vitek v. Jones.*fn2 Ground Three. Petitioner argues that the state court erred when it failed to establish a procedure whereby committees can establish that he was denied effective assistance of counsel in the SVPA commitment proceedings.
Ground Four. The New Jersey SVPA violates the Fourteenth Amendment of the United States Constitution because it fails to provide for trial by jury.
Ground Five. Petitioner's right to due process was violated by the statutory procedures utilized by Respondent to civilly commit him under the SVPA. Ground Six. New Jersey does not provide counsel to potential SVP, until a temporary order was been made to temporary civilly commit, and be transported to a mental facility (STU).
Ground Seven. The doctrine of fundamental fairness requires that Petitioner should be permitted to withdraw his guilty plea and civil commitment due to being told at the time of his plea that civil commitment could only happen if he were found to be compulsive and repetitive.
Ground Eight. The trial court and the Appellate Division virtually absolved the Attorney General of any obligation to introduce competent evidence [to] establish a foundation for her expert's opinions. Certification should be granted so that this court may confirm that, like any other litigant, the Attorney General is obliged to present competent evidence to provide a foundation for her expert opinion.
Ground Nine. The appellate court erred when it failed to establish a procedure whereby committees can establish that [they] were denied effective representation in SVPA commitment proceedings. Briefing is complete and this matter is now ready for decision.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now ...