Butler v. NH State Prison for Men, Warden, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Andrew Butler
v. 	Civil No. 18-cv-336-JL
Michael Zenk, Warden, New
Hampshire State Prison for Men;
and Deborah Robinson
REPORT AND RECOMMENDATION
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).
1For purposes of this Report and Recommendation, the court
assumes, without deciding, that a challenge to a state court
civil commitment resulting in hospitalization or other
involuntary placement may be challenged in this court in a
petition brought pursuant to 28 U.S.C. § 2254.
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 1 of 9

2
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.
Background3
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
2Because the matters discussed at the August 29, 2018
hearing disclosed information contained in records that were
sealed in the guardianship proceeding and in this case, the
courtroom was sealed during the hearing. 	The petitioner’s
guardian consented to the presence of the petitioner’s father
during the hearing.
3The facts contained in this Report and Recommendation are
in the public docket in this case, or are otherwise matters of
public record.
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 2 of 9

3
conviction or detention order related to a criminal case. 	In
his petition, Butler asserts the following grounds for relief4:
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).
4In a memorandum filed in opposition to the respondent’s
motion to dismiss, the petitioner has argued that his placement
at SPU violated the Emergency Medical Treatment and Active Labor
Act, 42 U.S.C. § 1395. 	That claim was not asserted in Butler’s
petition, and Butler has not moved to add that claim to his
petition.
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 3 of 9

4
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 administrative transfer
decision to the New Hampshire Supreme Court. 	Butler has failed
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 4 of 9

5
to demonstrate that there were no state corrective processes
available to appeal his placement in SPU.
During the sealed hearing before this court, Butler argued,
for the first time, that the state corrective processes in place
were either unavailable to him, or ineffective to protect his
rights, because when Butler waived his right to appeal his
transfer to SPU, was not mentally competent to do so. 	The
petitioner concedes, however, that at the time the pertinent
waiver was entered, Butler was represented by counsel, and had
been appointed a guardian. 	See Nov. 14, 2017 Order, In re
Guardianship of Andrew M. Butler, No. 316-2017-GI-02040 (N.H.
Cir. Ct., 9th Cir.-Probate Div.-Nashua). 	Butler’s guardian was
charged with exercising, on Butler’s behalf, those rights Butler
was incapable of exercising for himself. 	See id. 	Accordingly,
to the extent Butler was unable to waive his right to an appeal,
his guardian was in the position of protecting his rights.
Nothing before the court suggests that Butler’s guardian was
unable to properly execute a waiver of appeal on Butler’s
behalf. 	Butler has not demonstrated, therefore, that state
corrective processes were unavailable to him, or ineffective to
protect his rights, and is thus not excused from the exhaustion
requirement of § 2254(b).
The claims in Butler’s petition are not exhausted, and
Butler has failed to demonstrate that he should be excepted from
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 5 of 9

6
the exhaustion requirement due to the unavailability or
ineffectiveness of the state’s corrective processes. 	See 28
U.S.C. § 2254(b). 	Accordingly, Butler’s petition is subject to
dismissal, without prejudice, for failure to demonstrate
exhaustion of available and effective state remedies. 	Because
Butler’s failure to exhaust is dispositive, the court need not
address the other arguments in respondents’ motion to dismiss.
II. 	Stay
“District courts . . . ordinarily have authority to issue
stays, where such a stay would be a proper exercise of
discretion.” 	Rhines v. Weber, 544 U.S. 269, 276 (2005)
(citations omitted). 	The district court may grant a stay and
hold a federal habeas petition in abeyance to allow a petitioner
to return to the state courts to exhaust available state
remedies. 	See id. at 277. 	“Because granting a stay effectively
excuses a petitioner’s failure to present his claims first to
the state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state
court.” 	Id.
Butler did not file any written motion in this case seeking
a stay so that he could return to the state courts to exhaust
available remedies on the claims at issue here. 	He requested a
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 6 of 9

7
stay only after the court asked, at the August 29, 2018 hearing,
if the court found that he had failed to exhaust his state court
remedies, if it was appropriate for the court to stay this
action rather than dismiss it. 	Once Butler asked the court to
stay this case in the event it found that his claims were
unexhausted, the court repeatedly asked Butler to explain how
staying this case would advance the claims asserted in this
action.
Butler offered only one explanation: 	Butler’s counsel
stated she filed his petition here before repairing to the state
court because Butler was seeking immediate release from custody
under federal law, rather than state law. 	Of course, “‘state
courts are fully competent to . . . correctly apply relevant
federal law . . . to the cases in their courts.’” 	United
States v. Town of Lincoln Zoning Bd. of Appeals, 928 F. Supp. 2d
272, 279 (D. Mass. 2013) (citation omitted). 	Butler’s reliance
on federal claims in his petition, and his apparent preference
for obtaining a federal court’s decision on those claims, does
not provide good cause for failing to comply with the law
requiring that he exhaust his claims in state court before
proceeding here. 	Employing the stay and abeyance procedure here
would simply delay this proceeding without good cause,
frustrating Congress’s goal of streamlining federal habeas
proceedings.
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 7 of 9

8
Certificate of Appealability
The Rules Governing Section 2254 Proceedings require the
court to “issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” 	§ 2254 Rule
11(a). 	The court will issue the certificate “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 	28 U.S.C. § 2253(c)(2). 	Butler has not
made the requisite showing. 	Accordingly, the district judge
should not issue a certificate of appealability in this case.
Conclusion
For the foregoing reasons, the district judge should: grant
the respondents’ motion to dismiss (Doc. No. 4) Butler’s
petition, without prejudice; deny petitioner’s oral request to
stay this matter; and decline to issue a certificate of
appealability. 	Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file specific written
objections to the Report and Recommendation within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 8 of 9

9
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 12, 2018
cc: 	Sandra F. Bloomenthal, Esq.
Robert T. Bloomenthal, Esq.
Lynmarie C. Cusack, Esq.
Lindsey B. Courtney, Esq.
Laurie Smith Young, Esq.
Case 1:18-cv-00336-SM Document 17 Filed 09/12/18 Page 9 of 9