United States District Court, D. New Jersey
MOSES C. ORTIZ, Petitioner,
SHERRY YATES, et al., Respondents.
L. LINARES, CHIEF JUDGE
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.
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
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
(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).
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).
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).
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).
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.).
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
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 ...