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Ortiz v. Yates

United States District Court, D. New Jersey

April 13, 2018

MOSES C. ORTIZ, Petitioner,
SHERRY YATES, et al., Respondents.



         Presently before the Court is the petition for a writ of habeas corpus of Moses C. Ortiz ("Petitioner") brought pursuant to 28 U.S.C. § 2254 challenging his involuntary commitment under the New Jersey Sexually Violent Predator Act (ECF No. 1). Respondents filed an answer to the petition (ECF No. 8), to which Petitioner has replied (ECF No. 9). For the following reasons, the Court will deny the petition and no certificate of appealability shall issue.

         I. BACKGROUND

         Petitioner, Moses C. Ortiz, is currently civilly committed as a sexually violent predator ("SVP") pursuant to the New Jersey Sexually Violent Predator Act (SVPA). (See ECF No. 8-11 at 1-2). The Appellate Division summarized the background leading to Petitioner's commitment in its opinion affirming his initial commitment as follows:

Tried to a jury in 1982, [Petitioner] was convicted of first-degree kidnapping[, ] first-degree aggravated sexual assault[, ] and third-degree threat to kill[.] The facts underlying the conviction were that [Petitioner], along with a cohort, forced then-sixteen-year-old M.F. into a van where they raped and sodomized her, compelling her to submit by threatening to kill her. On July 27, 1982, [Petitioner] was sentenced to an aggregate term of forty years with a twenty-year parole ineligibility period; [Petitioner]'s sentence "was scheduled to max out. . . on or about July 11, 2007."
On June 21, 2007, the State filed a petition to civilly commit [Petitioner] under the SVPA. A hearing was held on November 26, 27[, ] and 29, 2007, at the conclusion of which [a state court judge] rendered a decision from the bench committing [Petitioner] to the [Special Treatment Unit, a facility maintained for civilly committed SVPs].
The evidence adduced at the hearing [included evidence that d]uringhis twenty-five years in prison, [Petitioner] incurred twenty-three disciplinary infractions; between 1998 and 2006, [Petitioner] received five disciplinary infractions for exposing his genitals to female corrections officers while masturbating and, on one occasion, deliberately exposing himself in an attempt to "be transferred to a more appropriate prison."

(Id. at 2). Based on this criminal history and the testimony of the State's experts, Petitioner was ordered civilly committed, where he has remained confined since that hearing. (Id.). While committed, Petitioner has received several annual review hearings, all of which resulted in his continued commitment to the Special Treatment Unit. (See, e.g., ECF No. 8-12). On July 25, 2014, Petitioner appeared before the state trial level courts for the annual commitment review hearing that is the subject of his current habeas challenges. (ECF No. 8-17).

         At that hearing, the only two witnesses testified, both of whom provided expert testimony on behalf of the State - Dr. Roger Harris and Dr. Zachary Yeoman. (Id. at 2). Petitioner did not testify, nor did he present any contrary expert testimony. (Id.) At the hearing, Dr. Harris testified that he personally interviewed Petitioner approximately nine days before the hearing and had examined Petitioner's records, including the records of his conviction as well as his disciplinary and treatment records from prison and the Special Treatment Unit. (Id. at 3-7). Specifically, in regards to Petitioner's history of exposing himself as encapsulated in his disciplinary history, Dr. Harris testified that Petitioner told him that his acts were "perverted . . . [and] a nasty thing to do[, ]" but that he continued to act out because he had "an addiction" to exposing himself. (Id. at 8). The doctor also testified that Petitioner was having difficulty in treatment because he often had angry outbursts during therapy and had, to some extent, "stopped going to treatment." (Id. at 15). Based on his acting out and his outbursts during therapy, Dr. Harris opined that Petitioner was "not making many treatment gains, " and was "short-circuiting his own progress." (Id. at 10).

         Based on his review of the records and his interview with Petitioner, Dr. Harris ultimately diagnosed Petitioner with exhibitionism, based on his history of exposing himself, polysubstance abuse, and antisocial personality disorder. (Id. at 10-11). Dr. Harris opined that the antisocial personality disorder resulted in "a profound inability ... to follow social norms, [leading Petitioner] to us[e] others for personal profit or pleasure [and] engaging in impulsive acts without thinking through . . . their impact." (Id. at 10-11). Combined with his exhibitionism, the doctor also opined that Petitioner's antisocial personality disorder "increases [Petitioner's] risk to sexually reoffend" and were unlikely to spontaneously remit. (Id. at 11-12). As a result of these issues, the doctor found Petitioner "clearly has deficits in his volitional control[, ] . . . clearly has deficits in terms of his cognition and the way he views himself and the way he views the world." (Id. at 12). The doctor thus concluded that Petitioner was "a high risk to sexually reoffend" and that Petitioner would be "highly likely to sexually reoffend if he were in a less restrictive environment" than the Special Treatment Unit. (Id.). When questioned by the judge regarding information in the record suggesting that Petitioner was at one time scored as suffering "severe mental retardation, " Dr. Harris qualified that that information is no longer accurate and that he would estimate Petitioner to "[not] even approach mild mental retardation ... he may be, you know, low average[, b]ut he is not anywhere close to being cognitively impaired." (Id. at 23).

         Dr. Zachary Yeoman, a member of the panel that recommends treatment levels for patients at the Special Treatment Unit, also testified regarding Petitioner's likelihood to reoffend. (Id. at 27). Based on his review of Petitioner's records and history, and a very brief discussion with Petitioner, Dr. Yeoman also scored Petitioner has a high risk to sexually reoffend. (Id. at 31). Dr. Yeoman based this opinion on his conclusion that Petitioner is "a profoundly antisocial individual." (Id. at 41). Although the doctor noted that Petitioner's behavior had improved in the in recent months prior to the hearing, the doctor fond Petitioner to be "fairly unengaged in treatment" and to have had "a variety of behavioral difficulties over time, " especially in the form of exposing himself to staff members. (Id. at 29). Ultimately, however, Dr. Yeoman agreed with Dr. Harris that Petitioner has a mental condition which affects him emotionally, cognitively, or volitionally which makes him highly likely to reoffend if his commitment were not continued. (Id. at 32). Although Petitioner did not formally testify at the hearing, he did submit a letter to the Court claiming that his continued commitment was unfair, and engaged in a lengthy colloquy with the judge at the annual review hearing regarding some treatment issues he had. (Id. at 45-49).

         On July 28, 2014, the hearing judge issued his decision ordering that Petitioner's commitment be continued. (ECF No. 8-18). In reaching his decision, the judge reviewed the testimony of Drs. Harris and Yeoman, finding both to be very credible. (Id. at 4-5). The judge specifically noted that both doctors in their reports found Petitioner to suffer from antisocial personality disorder and exhibitionism, that these issues affect Petitioner cognitively and volitionally, and that both doctors found him highly likely to reoffend if released. (Id.). As the judge found both doctors credible, and because the judge concluded that Petitioner's prior rape offense clearly qualified as a predicate offense, the hearing judge found that the State had "proven by clear and convincing evidence" that Petitioner had been convicted of a sexually violent offense in the form of the rape, and that he had "a mental abnormality [and] personality disorder, " and that Petitioner's disorders "presently" made him "highly likely to engage in further acts of sexual violence if not confined" for farther treatment. (Id. at 5). The judge therefore ordered Petitioner's commitment to continue. (Id.).

         Petitioner appealed that ruling to the Appellate Division. By way of an opinion issued on April 20, 2015, the Appellate Division affirmed the order continuing Petitioner's commitment. (ECF No. 8-22). In so doing, the Appellate Division noted that Petitioner argued on appeal that "his continued commitment is based on . . . [his] exhibitionism" rather than the conduct that initially led to his commitment - a forcible rape, but rejected this as a basis for overturning the hearing judge's findings as those findings were entitled to deference and because Petitioner "did not support this theory with any evidence or expert testimony." (Id. at 4-5). Petitioner thereafter belatedly filed a petition for certification with the New jersey Supreme Court in July 2016, which the New Jersey Supreme Court accepted nunc pro time, but ultimately denied in January 2017. (ECF Nos. 8-22, 33, 40). Petitioner thereafter filed his current habeas petition in July 2017.

         While not directly the subject of his current habeas challenge, Petitioner had an additional annual review hearing in August 2015. (See, e.g., ECF No. 8-28). Following that review hearing, during which Dr. Harris again testified, Petitioner's commitment was once again ordered to continue. (Id.). Petitioner appealed, and the Appellate Division affirmed once again. (Id.). In affirming the appeal from the 2015 hearing, the Appellate Division noted that Petitioner once again attempted to argue that he was ...

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