# Bennett v. Dill

> District Court, E.D. New York · September 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10308525

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308525

## How later opinions describe it (automated extraction)

- observing that where a state court adjudicates a federal constitutional claim on the merits, “we must apply AEDPA deference”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ANTHONY BENNETT,

Plaintiff,
MEMORANDUM & ORDER
- against - 21-CV-1450 (PKC)

DANIELLE DILL, Psy. D. Acting Executive
Director Central New York Psychiatric Center,

Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On March 8, 2021, Petitioner Anthony Bennett, currently civilly committed at the Central
New York Psychiatric Center,1 filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (“Petition”), challenging his confinement. (Dkt. 1.) Petitioner filed an application
to proceed in forma pauperis (“IFP”) (Dkt. 7), which the Court granted on April 23, 2021 (Dkt.
8). On October 7, 2021, Respondent Danielle Dill filed a response. (Dkt. 18.) On October 21,
2021, Petitioner filed a motion to appoint counsel (Dkt. 20), which was denied by this Court on
October 25, 2021 (10/25/2021 Docket Order). For the reasons below, the Petition is denied in its
entirety.

BACKGROUND

1 Central New York Psychiatric Center is located in Marcy, New York. (Dkt. 18, at 2.)
While the facility is not within the Eastern District of New York, the order to commit Petitioner
was issued by the New York State Supreme Court, Queens County, which is located in this district.
28 U.S.C. § 1404(a); see also L. Civ. R. 83.3 (“Unless otherwise provided by statute, applications
for a writ of habeas corpus made by persons under the judgment and sentence of a court of the
State of New York shall be filed, heard and determined in the District Court for the district within
which they were convicted and sentenced.”).
I. Factual and Procedural Background
In 1979, Petitioner was convicted of rape, sodomy, and criminal possession of a weapon
for four separate offenses relating to five girls and women who were between eleven to twenty-
three years old. (SR.,2 109, 110.) While on parole for these convictions in January 1984, Petitioner
raped another woman and was convicted of rape (N.Y. Penal Law § 130.35), sodomy (N.Y. Penal

Law § 130.50), and sexual abuse (N.Y. Penal Law § 135.10). (SR. 19, 109.) Petitioner was
sentenced to an indeterminate term of twelve and one-half to twenty-five years. (SR. 19.) In July
2013, near the expiration of Petitioner’s maximum sentence, the State of New York (“State”)
commenced a sex offender civil management proceeding against Petitioner under Article 10 of the
New York Mental Health Law (“MHL”).3 (SR. 111–14.)
Prior to the first phase of his Article 10 proceeding, i.e., a trial to determine whether he
was suffering from a mental abnormality, Petitioner moved for a hearing pursuant to Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923) (“Frye hearing”), challenging the findings of the State’s

2 Citations to “SR” refer to the consecutively paginated State Court Record (Dkts. 16, 17),
not to the internal pagination of the constituent documents or the pagination generated by the
Court’s CM/ECF docketing system.
3 The Article 10 proceeding was “designed to reduce the risks posed by and to address the
treatment needs of those sex offenders who suffer from mental abnormalities that predispose them
to commit repeated sex crimes.” Matter of State v. Rashid, 16 N.Y.3d 1, 5 (2010); see MHL §
10.01(a)-(b). If the State Office of Mental Health (“OMH”) determines that a sex offender suffers
from a “mental abnormality,” it refers the case to the New York Attorney General who, after a
probable cause hearing, id. §§ 10.06(g), 10.07(a), initiates an Article 10 proceeding, id. §§
10.05(g), 10.06(a). See also id. § 10.05(d)-(e) (outlining sex offender screening by the OMH)).
Article 10 proceedings have two phases: (1) the fact-finder determines whether there is clear and
convincing evidence that the respondent is “a detained sex offender who suffers from a mental
abnormality,” id. § 10.07(d)) and (2) if the fact-finder concludes the respondent suffers from a
mental abnormality, the court will hold a dispositional hearing to determine whether the
respondent should be committed to a secure treatment facility or undergo a “strict and intensive
supervision and treatment” plan in the community, id. §§ 10.07(f), 10.10(a), 10.11(a). In the first
phase, the fact-finder can be either the jury or the court. Id. § 10.07(d).
psychologists, Drs. Frances Charder and Stuart Kirschner, who had examined Petitioner (SR. 147)
and diagnosed him with Narcissistic Personality Disorder (“NPD”),4 Antisocial Personality
Disorder (“ASPD”),5 and Other Specific Paraphilic Disorder (Nonconsent) (“OSPD
(nonconsent)”)6 (SR. 119–47). Petitioner sought the Frye hearing to determine whether OSPD

(nonconsent) had received general acceptance in the psychiatric and psychological communities
so as to make expert testimony on the diagnosis admissible. (SR. 142.) The motion was denied
on February 11, 2015. (SR. 383–88.)
From June through September 2015, the Supreme Court of the State of New York, Queens
County (“Trial Court”), conducted a bench trial to determine whether Petitioner suffers from a
mental abnormality. (SR. 389–664.) Petitioner was represented by counsel throughout the trial.
(SR. 389.) At the trial, Drs. Charder and Kirschner testified on behalf of the State and Dr. Leonard
Bard testified on behalf of Petitioner. (Id.) Drs. Charder and Kirschner both testified that
Petitioner suffers from NPD, ASPD, and OSPD (nonconsent). (SR. 141, 200.) Dr. Kirschner
testified that “the mixture of the antisocial and narcissistic component combined with his

paraphilia creates . . . a predisposition for sexual offending with having no trepidation or remorse
about it.” (SR. 519.) In describing how OSPD (nonconsent) was diagnosed, Dr. Kirschner

4 NPD is characterized by “a pervasive pattern of grandiosity, need for admiration, and
lack of empathy that begins by early adulthood and is present in a variety of contexts.” (SR. 134.)
5 ASPD is characterized by “a pervasive pattern of disregard for, and violation of, the
rights of others, that begins in childhood or early adolescence and continues into adulthood.” (SR.
131.)
6 “Paraphilia is a persistent and intense fantasy or attraction to or behavior towards any
subject or object other than a normal age, appropriately aged consenting individual and involves a
drive to enact the fantasy connected to that paraphilic disorder.” (SR. 425.) OSPD (nonconsent)
“does not meet the criteria for any specific paraphilic disorder” (SR. 129); however, it is intended
to describe a person whose paraphilia is towards nonconsensual sex (SR. 425–26).
explained that although the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
(“the DSM-5”) only contains eight paraphilic disorders, it is “very clear” that there are many more.
(SR. 516.) If a clinician diagnoses someone with a paraphilia outside the eight listed, the DSM-5
instructs the clinician to use the diagnostic label “other [specified] paraphilic disorders.” (SR.

516.) Dr. Kirschner also testified that Petitioner’s “sexual urges, fantasies and his inability to
control his impulses are existing today in the same way that they existed 30 years ago.” (SR. 544.)
Dr. Kirschner concluded that given Petitioner’s cognitive distortions, emotional issues, and limited
volitional capacity,7 his case is the “definition of a mental abnormality.” (SR. 521.)
Dr. Charder similarly found that the combination of the NPD, ASPD, and OSPD
(nonconsent) disorders affected Petitioner’s ability to control his sexual behavior and that
Petitioner suffers from a mental abnormality. (SR. 477.) Dr. Charder also testified that Petitioner’s
NPD manifests itself with a strong sexual component. (SR. 463.) In the post-psychological
examination report, Dr. Charder, noting Petitioner’s involvement in a consensual sexual
relationship with his girlfriend in 1984, explained that committing rape during this time

“illustrate[d] that his sexual interest in over[-]powering and coercing sex from nonconsenting
women . . . undermined his ability to control himself.” (SR. 141.) Petitioner’s expert, Dr. Bard,
testified that he did not believe that Petitioner suffered from ASPD, that OSPD (nonconsent)
should not be used in a civil confinement proceeding, and that the NPD diagnosis was “far from
anything.” (SR. 611.)

7 Dr. Kirschner found that Petitioner’s cognitive distortions were evidenced by his belief
that his victims “appreciated” the sexual assaults, that his emotional issues related to his inability
to control his anger, and that his limited volitional capacity was evidenced by his own admission
that he could not control his urges. (SR. 521.)
At the conclusion of the trial, the Trial Court credited the testimony of the State’s experts,
finding that Petitioner suffers from a mental abnormality, and set a date for phase two of
Petitioner’s Article 10 proceeding, i.e., the disposition hearing to determine whether Petitioner
should be committed to a secure treatment facility or undergo a strict and intensive supervision

and treatment plan in the community. (SR. 663.) In February 2016, the dispositional hearing was
conducted, with Drs. Charder, Kirschner, and Bard all testifying again. (SR. 665–848.) Petitioner
was again represented by counsel. (SR. 665.) Following the hearing, the Trial Court determined
that the State had met its burden and that Petitioner should be committed to a secure treatment
facility. (SR. 847.)
Petitioner, again represented by counsel, appealed the Trial Court’s decision to the
Supreme Court of the State of New York Appellate Division, Second Department (“Appellate
Division”), asserting four grounds for reversal: (1) the Trial Court erred in denying Petitioner’s
motion to conduct a Frye hearing (SR. 43–50); (2) the expert testimony on Petitioner’s Wiccan
religious beliefs was irrelevant, prejudicial, and a violation of his state and federal constitutional

rights of religious freedom and equal protection (SR. 51–60); (3) the State failed to present
sufficient evidence to support a finding that Petitioner suffers from a mental abnormality (SR. 60–
78); and (4) the Court erred in concluding that Petitioner should be confined to a secure treatment
facility (SR. 78–89).
On March 30, 2018, the Appellate Division remitted the matter to the Trial Court to conduct
a Frye hearing to determine whether OSPD (nonconsent) had received general acceptance in the
psychiatric and psychological communities. (SR. 898–99.) Following the Frye hearing, the Trial
Court determined that the diagnosis of OSPD (nonconsent) was not generally accepted, and,
therefore, the testimony on OSPD (nonconsent) by Drs. Charder and Kirschner at Petitioner’s
bench trial was inadmissible. (SR. 2830.) Petitioner submitted a supplemental brief to the
Appellate Division in light of the Frye hearing outcome. (SR. 2836–2930.) In addition to his
initial grounds for reversal, Petitioner argued that the State, by relying on the inadmissible OSPD
(nonconsent) diagnosis testimony, had failed to present legally sufficient evidence to support a

mental abnormality finding at phase one of Petitioner’s Article 10 proceeding. (SR. 2879–2901.)
By decision dated February 5, 2020, the Appellate Division affirmed the Trial Court’s
finding that Petitioner suffers from a mental abnormality and that he requires civil confinement.
(SR. 3279–81.) The Appellate Division reasoned that while the OSPD (nonconsent) testimony
should not have been admitted, it was harmless error and that “there was no reasonable possibility
that, had this testimony been excluded, the court would have reached a different verdict.” (SR.
3280–81.) The Appellate Division further concluded that the remainder of Petitioner’s contentions
were either unpreserved for appellate review or without merit. (SR. 3281.) Petitioner filed a
motion for leave to appeal (SR. 3167–3236), which was denied by the New York State Court of
Appeals (SR. 3283).

LEGAL STANDARDS
I. State Court Exhaustion Requirement Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) constrains review
of state-court decisions in habeas proceedings. Under AEDPA, a claim must be “adjudicated on
the merits” in state court to serve as a basis for habeas relief 28 U.S.C. § 2254(b)(1);8 see also

8 While the issue of whether an action challenging civil confinement is appropriately
brought under 42 U.S.C. § 2254 or § 2241(c)(3) is “not always straightforward,” the Court finds
that § 2254 is the appropriate vehicle for Petitioner to challenge his civil commitment because
Petitioner challenges the commitment itself, not its conditions. Henry v. Murphy, No. 17-CV-5852
(VSB) (BCM), 2018 WL 7291456, at *6 n.5 (S.D.N.Y. Oct. 31, 2018), report and recommendation
adopted, 2019 WL 289865 (S.D.N.Y. Jan. 23, 2019); see also Janakievski v. Exec. Dir., Rochester
Psychiatric Ctr., 955 F.3d 314 (2d Cir. 2020) (“While in the custody of the New York State Office
of Mental Health, Janakievski filed a pro se petition for a writ of habeas corpus pursuant to 28
Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (“If anything is settled in habeas corpus
jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner unless
it appears that the applicant has exhausted the remedies available in the courts of the State[.]”
(internal quotation marks and citation omitted)). A claim is “adjudicated on the merits” in state

court if the state court “(1) disposes of the claim on the merits, and (2) reduces its disposition to
judgment.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting Sellan v. Kuhlman, 261 F.3d
303, 312 (2d Cir. 2001)).
This exhaustion requirement includes two parts. First, “state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.
2005) (emphasis omitted) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In New
York, a habeas petitioner must first appeal the relevant conviction to the Appellate Division, and
then seek further review by applying to the New York Court of Appeals for a certificate granting
leave to appeal. Id. at 74 (citing, among other things, Morgan v. Bennett, 204 F.3d 360, 369 (2d

Cir. 2000)). Second, habeas petitioners must have “‘fairly presented [their] claims to the state
courts,’ such that the state court had a fair opportunity to act.” Id. at 73 (quoting O’Sullivan, 526
U.S. at 848); see also Aparicio, 269 F.3d at 89–90 (“To satisfy § 2254’s exhaustion requirement,
a petitioner must present the substance of the same federal constitutional claim[s] that he now

U.S.C. § 2254. His petition challenged the validity of the original state-court order . . . as well as
three subsequent orders that extended the duration of the confinement.”); Terry P. v. Bosco, No.
14-CV-5907 (DLI), 2019 WL 3388807, at *3 (E.D.N.Y. Jul. 25, 2019) (evaluating Petitioner’s
challenge to involuntary civil commitment pursuant to New York Mental Hygiene Law § 10.01
under 42 U.S.C. § 2254); Best v. Barbarotta, No. 12-CV-6218 (NGG), 2016 WL 1588501, at *1
(E.D.N.Y. Apr. 19, 2016) (§ 2254 “is the proper vehicle for a challenge to involuntary civil
commitment”).
urges upon the federal courts to the highest court in the pertinent state.” (internal quotation marks
and citations omitted)).
A habeas petition, however, “may be denied on the merits, notwithstanding the failure of
the [petitioner] to exhaust the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(2). Additionally, the exhaustion requirement may be excused if “(i) there is an absence
of available State corrective process; or (ii) circumstances exist that render such process ineffective
to protect the rights of the [petitioner].” Id. § 2254(b)(1)(B).
II. Federal Court Adjudication on the Merits Under AEDPA
Habeas relief is improper unless the state court’s adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” clauses of
§ 2254(d)(1) have “independent meaning.” Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court
decision is “contrary to” clearly established federal law if it (1) applies a rule that contradicts

governing Supreme Court cases, or (2) decides a case differently from the Supreme Court given
“materially indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state-
court decision involves an “unreasonable application” of clearly established federal law if it (1)
correctly identifies the governing legal rule but “unreasonably applies it” to the instant case, or (2)
“either unreasonably extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Id. at 407. An unreasonable application “must be ‘objectively unreasonable,’
not merely wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014)
(quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).
Where, however, a federal claim has not been adjudicated on the merits in the state court,
“AEDPA deference is not required, and conclusions of law and mixed findings of fact and
conclusions of law are reviewed de novo.” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)
(quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).

III. Pro Se Petitions
The Court construes the Petition liberally and interprets it “to raise the strongest arguments
that [it] suggest[s]” because Petitioner is proceeding pro se. Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (emphasis and citation omitted). However, “pro se
status ‘does not exempt a party from compliance with relevant rules of procedural and substantive
law.’” Id. at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); accord O’Neal v. New
York, 465 F. Supp. 3d 206, 216 (E.D.N.Y. 2020).
DISCUSSION
Construed liberally, the Petition raises three separate issues. First, the Appellate Division
erred in determining that admission of the OSPD (nonconsent) testimony at Petitioner’s bench
trial, which was later determined to be inadmissible, constituted “harmless error.” (Petition,

(“Pet.”), Dkt. 1, at 8–10.) Second, the Trial Court lacked sufficient evidence under state law to
support its findings that Petitioner suffers from a mental abnormality and is a dangerous sex
offender requiring confinement, and that the lack of sufficient evidence violated his right to Due
Process under the Fourteenth Amendment. (Id. at 4–7, 10–11.) Third, the admission of testimony
on Petitioner’s Wiccan religious beliefs was prejudicial and a violation of his First and Fourteenth
Amendment rights. (Id. at 11–12.)
I. Appellate Division’s Harmless Error Determination
Petitioner contends that the Appellate Division erred in finding that admission of the OSPD
(nonconsent) testimony was harmless. (Id. at 8.) A “harmless error” determination does not
implicate a “freestanding federal constitutional right,” but is purely a question of state law and not
reviewable in a federal habeas proceeding. Freeman v. Kadien, 684 F.3d 30, 34 (2d Cir. 2012)
(“A harmlessness determination regarding an underlying error of state law does not implicate a
freestanding federal constitutional right. Rather, the harmfulness of evidence admitted in violation

of state law is itself a question of state law to which the federal ‘substantial and injurious effect’
standard does not apply.”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions.”).
However, a district court may review an error of state evidentiary law to assess whether the error
deprived Petitioner of his due process right to a “fundamentally fair trial.” Zarvela v. Artuz, 364
F.3d 415, 418 (2d Cir. 2004). An evidentiary error rises to this level if the evidence is “so
extremely unfair that its admission violates fundamental conceptions of justice.” Dunnigan v.
Keane, 137 F.3d 117, 125 (2d Cir. 1998). Thus, in the context of criminal trials, the Second Circuit
has explained that “the erroneously admitted evidence, viewed objectively in light of the entire
record,” must have been “sufficiently material to provide the basis for conviction or to remove a

reasonable doubt that would have existed on the record without it.” Collins v. Scully, 755 F.2d 16,
19 (2d Cir. 1985) (internal quotation marks omitted).
Here, the admission of testimony regarding OSPD (nonconsent), while erroneous, was not
so material as to provide the basis for Petitioner’s confinement. The crux of Petitioner’s argument
is that the OSPD (nonconsent) diagnosis, which the Trial Court found on remand was not generally
accepted by the scientific community, “was crucial to and permeated every aspect of” Petitioner’s
“mental abnormality trial.” (Pet., Dkt. 1, at 8–9.) However, the diagnostic label itself is not
determinative of Petitioner’s due process claim; rather, what is important is how the diagnosis
explains Petitioner’s behavior and manifestations. In other words, “a diagnostic label . . . will
rarely be dispositive in determining whether an impairment is sufficiently substantial to seriously
impair volition;” rather, “it is the manner in which the condition manifests itself in the individual
that will determine whether a particular commitment decision comports with due process.” Terry
P. v. Bosco, No. 14-CV-5907 (DLI), 2019 WL 3388807, at *6 (E.D.N.Y. Jul. 25, 2019) (internal

quotation marks and citations omitted).
In diagnosing Petitioner with OSPD (nonconsent), Dr. Charder explained that the events
that resulted in Petitioner’s 1984 criminal convictions “illustrate[] that his sexual interest in over[-
]powering and coercing sex from nonconsenting women, fueled by his grandiosity and disregard
for the rights of others quickly undermined his ability to control himself and will more likely than
not do so again.” (SR. 141.) Challenging the “diagnostic label” assigned to this behavior does not
discredit the underlying analysis. As the Trial Court noted, while OSPD (nonconsent) may not be
generally accepted in the psychological and psychiatric community, there is nonetheless “merit”
in the distinctions it draws between sex offenders whose actions are driven by different paraphilias.
(SR. 2828.) This is consistent with Dr. Kirschner’s testimony that the actual diagnosis of OSPD

(nonconsent) was what the DSM-5 instructed clinicians to do if a paraphilia does not match one
of the eight listed. (SR. 516.) And as the Appellate Division determined as a matter of state law,
Petitioner’s other diagnoses, ASPD and NPD, together were sufficient to support a finding of
mental abnormality, where the State showed Petitioner’s NPD “manifests with a strong sexual
component . . . [creating a] predisposition to commit sex offenses.” (SR. 3279–81.) As the Trial
Court and Appellate Division both effectively found, it is the behavior, not the “diagnostic labels”
that seek to explain the behavior, that is dispositive. Therefore, the admission of testimony on
OSPD (nonconsent) at the bench trial was not a “sufficiently material” error in Petitioner’s Article
10 proceeding and did not deprive Petitioner of due process with respect to his civil commitment.
Collins, 755 F.2d at 19.
As outlined above, diagnostic labels such as OSPD (nonconsent) are “rarely dispositive,”
rather, the focus of the inquiry is on the behavior and manifestations those labels seek to explain.

This difference is critical in the cases cited by Petitioner. Petitioner relies on Zappulla v. New
York, 391 F.3d 462 (2d Cir. 2004)9 to argue that a prosecutor’s reliance on erroneously admitted
evidence is an important factor in determining the significance of the error. (Pet., Dkt.1, at 8.)
While Petitioner is correct that Zappulla identifies this as a factor, there are several factors
identified by the court including: (1) “the overall strength of the prosecution’s case;” (2) “the
prosecutor’s conduct with respect to the improperly admitted evidence;” (3) “the importance of
the wrongly admitted testimony;” and (4) “whether such evidence was cumulative of other
properly admitted evidence.” 391 F.3d at 468. In analyzing these factors, the Zappulla panel
determined that (1) the prosecutor’s case was relatively weak, as evidenced by an initial mistrial
where the jury was unable to reach a verdict, (2) the prosecutor viewed the improperly admitted

evidence as central to the case, given that it was the first piece of evidence referenced during the
re-trial, and (3) the evidence was extremely important because “a signed confession cannot be
underestimated.” Id. at 468–73. Petitioner’s case is distinguishable on all accounts. First, as
discussed below, see infra Discussion Part II, there was significant evidence in the record even
without the OSPD (nonconsent) testimony that suggested that Petitioner suffers from a mental
abnormality. Second, while OSPD (nonconsent) was frequently referenced throughout
Petitioner’s Article 10 proceedings, its use was more descriptive, i.e., describing a particular

9 Zappulla was a criminal prosecution, in which the habeas petitioner was convicted of
second-degree murder after the trial court erroneously admitted petitioner’s defective confession,
given without Miranda warnings, that he committed the murder. 391 F.3d at 468.
paraphilia, than dispositive, i.e., that Petitioner suffers from a mental abnormality because of the
OSPD (nonconsent) diagnosis. This contrasts with the written confession in Zappulla where the
evidence was presented as dispositive of the petitioner’s guilt. Third, and most importantly, the
OSPD (nonconsent) testimony introduced at Petitioner’s Article 10 proceedings does not rise to

the same level of importance as a signed confession of a criminal defendant. As the Second Circuit
explained in Zappulla, “[t]he fact that the evidence at issue is a signed detailed confession should
weigh heavily against finding that its erroneous admission was harmless.” Id. at 473. Zappulla is
therefore materially distinguishable from the present case and does not support the conclusion that
admission of the OSPD (nonconsent) testimony harmed Petitioner.
Petitioner also cites Fuentes v. T. Griffin, 829 F.3d 233 (2d Cir. 2016) as an example of an
evidentiary error that can warrant habeas relief. (Pet., Dkt. 1, at 9.) In Fuentes, the petitioner was
convicted of first degree rape and first degree sodomy after the prosecution failed to disclose a
psychiatric evaluation of the alleged rape victim. Fuentes, 829 F.3d at 236. The Second Circuit
granted habeas relief, holding that the evidence suppression violated the petitioner’s due process

rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963) due to the “uniquely important nature
of the [psychiatric record] . . . , where [the alleged victim] provided the only evidence that
Fuentes’s conduct was a crime and where the [psychiatric record] was the only evidence by which
the defense could have impeached [the alleged victim’s] credibility as to her mental state.” Id. at
253. Similar to Zappulla, the evidentiary error was “uniquely important” and central to the
defendant’s criminal conviction. As discussed above, the inadmissible testimony in this case does
not rise to that level and, therefore, renders the Second Circuit’s harmless-error determination in
Zappulla and Fuentes inapplicable here.
II. Sufficiency of the Evidence and Due Process
Petitioner contends that absent testimony on OSPD (nonconsent), the State lacked legally
sufficient evidence to show that Petitioner (1) suffers from a mental abnormality and (2) is a
dangerous sex offender requiring confinement. (Pet., Dkt. 1, at 4–7.) Petitioner challenges the
legal determinations made by the Trial Court during both phases of his Article 10 proceeding. (Id.)

As discussed, under AEDPA, federal habeas relief “pursuant to the judgment of a State
court” is only appropriate if the state court’s “adjudication of the claim” either: “(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence. . . .” 28
U.S.C. § 2254(d). “Clearly established federal law refers to the holdings, as opposed to the dicta,
of the Supreme Court’s decisions as of the time of the relevant state-court decision.” Howard v.
Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quotation omitted). A decision is “contrary to”
established federal law if it either “applies a rule that contradicts the governing law set forth in
[Supreme Court cases],” or it “confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.”
Penry v. Johnson, 532 U.S. 782, 792 (2001) (quotations omitted). A decision is an “unreasonable
application of” clearly established Supreme Court precedent if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id.
(quotation omitted).
AEDPA establishes a deferential standard of review—“‘a federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.’” Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001)
(quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)); see also Eze v. Senkowski, 321 F.3d 110,
121 (2d Cir. 2003) (observing that where a state court adjudicates a federal constitutional claim on
the merits, “we must apply AEDPA deference”). Under this standard, the Court must “assess
whether the state court’s decision was ‘so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Garner v. Lee, 908 F.3d 845, 861 n.14 (2d Cir. 2018) (quoting Harrington v.
Richter, 562 U.S. 86, 103 (2011)). Finally, “if the federal claim was not adjudicated on the merits,
‘AEDPA deference is not required, and conclusions of law and mixed findings of fact and
conclusions of law are reviewed de novo.’” Dolphy, 552 F.3d at 238 (quoting Spears, 459 F.3d at
203).
Here, the Trial Court’s findings in both phases of the Article 10 proceeding and the
Appellate Division’s review were neither “contrary to” nor an “unreasonable application of”
“clearly established federal law.” 28 U.S.C. § 2254(d). The Trial Court’s determination that
Petitioner suffers from a mental abnormality that makes him a dangerous sex offender requiring

confinement was based on the testimony of Drs. Kirschner and Charder, who both testified that
Petitioner had an “inability to control his impulses.” (SR. 434, 544.) The determination was
reached not because of a particular diagnosis, but rather a plethora of evidence discussed below.
This is significant.
In Kansas v. Crane, the United State Supreme Court stated:
[W]e did not give to the phrase “lack of control” a particularly narrow or technical
meaning. And we recognize that in cases where lack of control is at issue, “inability
to control behavior” will not be demonstrable with mathematical precision. It is
enough to say that there must be proof of serious difficulty in controlling behavior.
And this, when viewed in light of such features of the case as the nature of the
psychiatric diagnosis, and the severity of the mental abnormality itself, must be
sufficient to distinguish the dangerous sexual offender whose serious mental
illness, abnormality, or disorder subjects him to civil commitment from the
dangerous but typical recidivist convicted in an ordinary criminal case.
534 U.S. 407, 413 (2002) (emphasis added) (internal citations omitted). The Supreme Court’s rule
emphasizes that it is not a particular diagnosis that forms the basis for confinement; rather, the
question is whether “the condition . . . is serious enough to cause an inability to control sexually
violent behavior.” Brown v. Watters, 599 F.3d 602, 614–15 (7th Cir. 2010); Terry P., 2019 WL
3388807, at *6 (“Moreover, it is not the diagnosis alone, in the abstract, that is the focus in
assessing the constitutionality of a civil commitment but how the mental disorder manifests itself
in the individual, particularly as regards its effect on his ability to control his behavior.”) (internal
citations omitted).
Relying on the testimony that Petitioner has an “inability to control his impulses” and

correctly applying the rule from Crane, the Appellate Division’s analysis focused not on a
particular diagnosis but rather how the diagnosis related to Petitioner’s “serious difficulty in
controlling behavior.” Crane, 534 U.S. at 413. The Appellate Division explained that evidence
that Petitioner’s NPD “manifests with a strong sexual component . . . [creating a] predisposition
to commit sex offenses” supported both the mental abnormality finding and was “clear and
convincing evidence” that Petitioner has “serious difficulty controlling his sexual conduct.” (SR.
3281.)
Additional testimony from the Trial Court’s bench trial supports this conclusion. Citing
Petitioner’s psychological evaluation and sex offender treatment, Dr. Kirschner observed that
Petitioner has cognitive distortions, difficulties regulating emotions, and issues with volitional

capacity that make his case the “definition of a mental abnormality.” (SR. 521.) Dr. Charder,
noting the circumstances surrounding Petitioner’s second conviction, explained that Petitioner’s
sexual urges in “over-powering” women “undermined his ability to control himself and will more
likely than not do so again.” (SR. 141.) In sum, the record provides ample support for the
Appellate Division’s determination that Petitioner suffers from a mental abnormality requiring
civil confinement, and that ruling, therefore, is not contrary to, or an unreasonable application of,
clearly established federal law; nor is it an unreasonable determination of the facts in light of the

evidence presented.
Petitioner’s Due Process claim essentially rests on the same basis as his sufficiency-of-the-
evidence claim. (Pet., Dkt. 1, at 6.) He argues that because there was insufficient evidence of
mental abnormality without the OSPD (nonconsent) testimony, his due process rights were
violated. This claim fails for the several reasons.
As an initial matter, this federal constitutional claim does not appear to have been “fairly
presented” to the Appellate Division, given that Petitioner’s evidence-sufficiency arguments were
framed in the context of state evidentiary law. (SR. 1–92, 970–1064, 3060–3131.) While this
means Petitioner’s claim is unexhausted, Galdamez, 394 F.3d at 73, it still may be reviewable
under one of the narrow exceptions provided for “procedurally defaulted” claims, Murray v.

Carrier, 477 U.S. 478, 485 (1986). Petitioner’s claim is procedurally defaulted as he has already
had one appeal and one application for leave to appeal to the New York Court of Appeals, and
therefore can no longer raise the claim in any state forum.10 Ramirez v. Attorney Gen., 280 F.3d
87, 94–95 (2d Cir. 2001).
When a claim is procedurally defaulted, the District Court can review it only if Petitioner
shows either: (1) “cause” for the default and actual prejudice from barring the claim; or (2) that

10 “New York procedural rules bar its state courts from hearing either claims that could
have been raised on direct appeal but were not, or claims that were initially raised on appeal but
were not presented to the Court of Appeals.” Parrish v. Lee, No. 10-CV-8708 (KMK), 2015 WL
7302762, at *7 (S.D.N.Y. Nov. 18, 2015) (internal quotation marks omitted).
the failure to consider the claim will result in a “fundamental miscarriage of justice.” Murray, 477
U.S. at 485. Here, with respect to the first exception, Petitioner fails to provide any reason why
this claim was not presented to the Appellate Division on appeal, thereby failing to meet the criteria
of the first exception. Stepney v. Lopez, 760 F.2d 40, 45 (2d Cir. 1985). The “fundamental

miscarriage of justice” exception, however, is more difficult to apply here given that Petitioner is
challenging a bench trial that led to his civil confinement. The Supreme Court has stated that this
exception is reserved for “petitions that advance a substantial claim of actual innocence.” Schlup
v. Delo, 513 U.S. 298, 321–22, 325, 327 (1995) (emphasis added). This criminal standard does
not map neatly onto a case involving civil confinement. There does not appear to be Second Circuit
case law interpreting the “actual innocence” standard in the context of civil confinement, nor have
other circuits enunciated a clear rule.11 Brown v. Watters, 599 F.3d 602, 609–10 (7th Cir. 2010)
(“The correct application of the actual innocence exception to civil commitment cases is a difficult
one. We have no explicit guidance from the Supreme Court or from our sister circuits . . . .
[Therefore, we shall] proceed to adjudicate the merits.”).

11 There are three potential rules emerging from the sparse case law, each approaching the
analysis of “actual innocence” in civil confinement petitions differently. First, Petitioner must
present new evidence that supports a miscarriage of justice claim. Schlup, 513 U.S. at 299
(“Without any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred claim.”) Petitioner’s claim would fail under
this test because the Petition does not provide any new evidence. Second, the “actual innocence”
standard can be satisfied if Petitioner can show he does not have a mental abnormality as defined
by state law to warrant civil confinement. Levine v. Torvik, 986 F.2d 1506, 1517 n.9 (6th Cir.
1993). This rule would present a high bar and would likely not be satisfied here, where there exists
significant evidence that Petitioner suffers from a mental abnormality. Third, the Court can decide
to “pretermit a discussion” of the “actual innocence” exception and “proceed to adjudicate the
merits.” Brown, 599 F.3d at 617 n.10. Under this rule, the Court would proceed to address
Petitioner’s due process claim on the merits.
However, the Court need not decide whether and how the “actual innocence” exception
applies to civil commitments because, having already discussed the sufficiency of the evidence
under Crane, 534 U.S. 407, the Court finds that Petitioner was not deprived of due process under
the Fourteenth Amendment and therefore Petitioner’s due process claim does not provide a basis

for habeas relief.
III. Testimony About Petitioner’s Wiccan Religious Beliefs
Petitioner contends that the admission of testimony on his Wiccan religious beliefs was
prejudicial and violated his First and Fourteenth Amendments rights. (Pet., Dkt. 1, at 11–12.)
Testimony about a person’s religious beliefs is proper only if it has “relevance to the issue being
decided in the proceeding.” Dawson v. Delaware, 503 U.S. 159, 160 (1992). Here, a substantial
portion of the Wiccan testimony was related to Petitioner’s own invocation of his religious beliefs
in his 2005 sex offender treatment program. (SR. 431–32, 469–70.) Dr. Charder, in describing
the treatment, testified that Petitioner identified similarities in the ritualistic aspects of the Wiccan
religion and Petitioner’s “cruising,” or search, for future victims. (SR. 431–32.) Dr. Charder also
explained that Petitioner “conflates the notion about the natural life, being important in the

[W]iccan religion” with “his anger.” (SR. 472.) During the dispositional hearing, Dr. Charder
testified that Petitioner spoke about his Wiccan beliefs during his psychological evaluation. (SR.
740.) The relevance of the testimony was therefore a result of Petitioner himself identifying it as
relevant to his sexual misconduct, psychological state, and motivations. See United States v.
Stewart, 686 F.3d 156, 167 (2d Cir. 2012) (“The sentencing judge was determining the
characteristics of the defendant, which were legally relevant to a determination of the appropriate
sentence to impose on [the defendant], through the contents of statements she voluntarily and
publicly made.”). Additionally, the testimony was not merely a discussion of Petitioner’s “abstract
beliefs;” rather, it was directly related to the ways in which his behavior manifests his beliefs.
Dawson, 503 U.S. at 162. Therefore, the Court finds that the testimony was “relevan[t] to the issue
being decided in the proceeding,” id. at 160,12 and properly admitted and considered by the Trial
Court and Appellate Division.
IV. Other Considerations
In several of Petitioner’s filings, he notes that he does not have access to legal materials

nor a law library. (Pet., Dkt.1, at 2; Dkt. 23, at 2.) The Court construes this as a denial-of-access-
to-the-courts claim. To state a such a claim, a Petitioner must show an “actual injury” was suffered.
Kaminski v. Semple, 796 F. App’x 36, 39 (summary order) (2d Cir. 2019) (holding that access to
a law library is not a cognizable injury absent dismissal of habeas petition for technical reasons
that could have been cured through access to legal materials.) Here, the Court observes that
Petitioner has “adequately and competently set forth his claims” (10/25/2021 Docket Order), and
the Court is not dismissing his petition “for a technical deficiency that would have been cured with
appropriate legal facilities,” Kaminski, 796 F. App’x at 39. Therefore, the Court finds that
Petitioner has not alleged an “actual injury” sufficient to state a denial-of-access-to-the-courts
claim.

CONCLUSION
For the reasons set forth herein, the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is denied in its entirety. No certificate of appealability is granted with respect to
Petitioner’s claims, as there is no substantial showing of the denial of a constitutional right.

12 Petitioner notes that Dr. Charder referred to his religious beliefs as “disturbing.” (Pet.,
Dkt. 1, at 12; SR. 3100.) The Court does not interpret the relevant section of the transcript in this
way. (See SR. 740.) Dr. Charder notes that certain Wiccan tenets can be “looked at in a positive
way,” but goes on to say that “under the history and the facts of all [of Petitioner’s] crimes,” his
use of the religion is “disturbing” and potentially a vehicle to “charm and talk to women.” (SR.
740.)
28 U.S.C. § 2253(c)(2); see Middleton v. Att’ys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (petitioner
has not shown that “reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve encouragement
to proceed further”). The Clerk of Court is respectfully directed to enter judgment and close this

case accordingly.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 23, 2022
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308525. Public record. Not legal advice.