by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that a habeas petition is not moot where it attacks an earlier order that is inactive but gave rise to a current active order restricting the petitioner’s liberty.

In December 2007, Steven Janakievski attacked a coworker with a knife. He was charged with first-degree assault and tried in the County Court for Monroe County, New York.

At trial, psychiatric experts for the prosecution and the defense agreed that, at the time of the knife attack, Janakievski was suffering from a psychotic disorder and did not appreciate the wrongfulness of his conduct. The trial court accepted Janakievski’s plea of not responsible by reason of mental disease or defect pursuant to CPL § 330.20 based upon the experts’ testimony.

CPL § 330.20(2) required Janakievski to undergo a psychiatric examination. Based upon that examination, the trial court, in April 2009, found that he suffered from a dangerous mental disorder and committed him to the Rochester Psychiatric Center (“RPC”). The trial court issued subsequent retention orders continuing Janakievski’s commitment in October 2009, October and December 2010, and August 2012 on the ground that Janakievski continued to suffer from mental illness. In the August 2012 order, the trial court determined he was no longer dangerous but remained mentally ill and in need of inpatient treatment at RPC.

In April 2014, Janakievski filed a pro se petition for a writ of habeas corpus in the U.S. District Court for the Western District of New York. The petition attacked the initial commitment order of April 2009 and the subsequent retention orders. He alleged, inter alia, that there was insufficient evidence supporting the finding that he suffered from a dangerous mental illness requiring his initial commitment to RPC. He further argued that hospital records showed he was in remission at the time of the April 2009 hearing. He challenged the subsequent retention orders on numerous grounds, including ineffective assistance of counsel.

In June 2018, while the habeas petition was pending, the trial court ordered Janakievski’s release from RPC, subject to the “order of conditions” required by CPL § 330.20(12). The trial court found that Janakievski’s condition warranted release from inpatient treatment because he did not have a mental disorder and was not mentally ill. The order of conditions required that for three years (until June 2021) Janakievski would continue in outpatient treatment, refrain from use of drugs or alcohol, and seek the State’s approval before leaving New York or changing his address.

The order of conditions also permitted the State to make application to have Janakievski recommitted upon a showing by a preponderance of the evidence that he suffered from a dangerous mental disorder. CPL § 330.20(14). If the State made such application, Janakievski must attend a hearing or he could be jailed for failure to appear. Id. If the court found that he suffered from a dangerous mental disorder, it must order him recommitted to a secure facility. CPL § 330.20(1)(f).

In September 2018, the federal district court dismissed the habeas petition as moot because Janakievski’s release from inpatient custody meant he was “no longer subject to any of the orders” that he challenged in the petition. Janakievski appealed, and the Second Circuit issued a certificate of appealability.

The Court observed that “[t]o satisfy the Constitution’s case-or-controversy requirement, a party must, at each stage of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” United States v. Mercurris, 192 F.3d 290 (2d Cir. 1999). If a case ceases to involve such an injury, it ceases to fall within the federal court’s Article III subject matter jurisdiction and must be dismissed for mootness. Id. A habeas petition is generally not moot as long as the petitioner is incarcerated, Dhinsa v. Krueger, 917 F.3d 70 (2d Cir. 2019), or subject to the restraints upon his liberty inherent in parole, Spencer v. Kemna, 523 U.S. 1 (1998).

A habeas petition is not moot when the order it challenges is no longer in effect if (1) the petitioner continues to suffer some concrete, continuing injury from the challenged order, Mercurris, and (2) the injury can be redressed by a favorable judicial decision. Chafin v. Chafin, 568 U.S. 165 (2013). A petition is not moot if the favorable judicial decision provides only partial redress. Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992).

The Court determined that Janakievski suffers restraint on his liberty as a result of the June 2018 “order of conditions.” He is required to participate in outpatient treatment, he is required to seek prior approval before moving or leaving the state, and he is required to refrain from the use of alcohol. He also is subject to recommitment at any time based on the lower “preponderance of evidence” standard. He is subject to the 2018 order of conditions only because, in 2009, the trial court determined he suffered from a dangerous mental health disorder, which required the court to order him committed to RPC pursuant to CPL § 330.20.

Janakievski challenged that order in his habeas petition. Should he prevail on his challenge, the April 2009 commitment order would be vacated, and the trial court’s June 2018 order of conditions would be without statutory authority or effect. Janakievski also challenged the subsequent retention orders of October 2009, October and December 2010, and August 2012. Should he prevail on any of those challenges, he would be eligible for discharge from the order of conditions earlier than June 2021.

The Court concluded the habeas petition wasn’t moot because a favorable judicial decision vacating the April 2009 order would provide Janakievski with redress of his injury, and a judicial decision vacating any of the subsequent retention orders would provide Janakievski partial redress of his injury.

Accordingly, the Court vacated the district court’s order dismissing the habeas petition and remanded for further proceedings. See: Janakievski v. Executive Director, 955 F.3d 314 (2d Cir. 2020).

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