Petition for Writ of Certiorari — Steven Janakievski, Petitioner v. Phillip Griffin, Executive Director, Rochester Psychiatric Center

No.

IN THE

SUPREME COURT OF THE UNITED STATES

STEVEN JANAKIEVSKI — PETITIONER

VS.

EXECUTIVE DIRECTOR ROCHESTER

PSYCHIATRIC CENTER — RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

SECOND CIRCUIT COURT OF APPEALS

(NAME OF COURT THAT LAST RULED ON THE MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

STEVEN JANAKIEVSKI - Pm Se Petitioner

233 Harpington Drive

Rochester, New York 14624

Phone: 585-478-2433

i:

*

QUESTIONS PRESENTED

1.

Is Petitioner Steven’s Federal Habeas Petition moot, now that he has been

“Unconditionally Discharged” from the custody of the Office of Mental Health (OMH)?

2.

Is it Constitutional for the State to sentence an ‘insanity aqcuitee’ to a

predetermined ’hypothetical prison term’ to be served in a mental institution, for the

crime they were NOT convicted of?

3.

Were any of Stevens Constitutionally guaranteed Rights violated by any of

the parties involved?

i

4.

LIST OF PARTIES

^ All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

**

II

TABLE OF CONTENTS

PAGES

QUESTIONS PRESENTED

.1

LIST OF PARTIES

.11

TABLE OF CONTENTS

,111

INDEX TO APPENDICES

,iv

TABLE OF AUTHORITIES

,v

OPINIONS BELOW

.vi

JURISDICTION

,vii

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

.viii

STATEMENT OF THE CASE

1

REASONS FOR GRANTING THE WRIT

8

I.

A United States Court of Appeals has decided

an important federal question in a way that

conflicts with relevant decisions of this U.S. Supreme Court

8

GROUND 1: Janakievski suffers a redressable injury

caused by “collateral consequences4 as a direct result of his

erroneous Involuntary Commitment to a Mental Hospital

because it now violates his 2nd Amendment Constitutional

Right to Bear Arms..........................................................

9

GROUND 2: Steven has a very substantial ‘personal stake

in the outcome of this case4 defeating any mootness.........

12

GROUND 3: Steven has a ‘legally cognizable interest in the

outcome of this case’ which defeats any mootness...............

14

GROUND 4: Steven has another ‘collateral consequence’ as a result

of all of the retention order’s in his case. The combined 10-year history ,

of all of the erroneous retentions can be used against Steven if he were

to be subject to a future Involuntary Commitment hearing......................

16

CONCLUSION & RELIEF SOUGHT. .

.21

...

m

INDEX TO APPENDICES

APPENDIX - A - Decision of 2nd Circuit Court of Appeals Dismissing Appeal

APPENDIX - B - Decision of Western District of New York

APPENDIX - C - Doctor’s Report confirming that Steven is 100% Not Mentally Ill and

100% Not Dangerous to himself or other’s

APPENDIX - D - Decision of Western District of New York dated October 28,2021

IV

TABLE OF AUTHORITIES

PAGES

SUPREME COURT CASES

Foucha v. Louisiana, 504 US 71 (1992)

3

O'Connor v. Donaldson, 422 U. S. 563 (1975)

3

Jones v. United States, 463 US 354 (1983)

.4

Church of Scientology of Cal. v. United States,

506 U.S. 9,13,113 S.CL 447,121 L.Ed.2d 313 (1992)

8,9

Knox v. Serv. Emps. Int'l Union, Local 1000,

567 U.S. 298,307, 132 S.Ct. 2277,183 L.Ed.2d 281 (2012)

,9

Federal Court of Appeals Cases

Janakievski v. EXE. DIR., ROCE. PSYCHIATRIC CTR,

955 F. 3d 314 - Court of Appeals, 2nd Circuit (2020)......

■7,9

In re Maurice AMEY, Appellant. 40 A.3d 902 (2012),

District of Columbia Court of Appeals......................

.20

United States v. Battle, 510F.2d 776 (D.C.Cir.1975)

.20

STATE CASES

Allen B. v. Sproat, 23 N.Y.3d 364,368-69,14 N.E.3d 970 (2014)

.2

In re Norman D., 3 N.Y.3d 150,152,785 N.Y.S.2d 1, 818 N.E.2d 642 (2004)

.2

State v. Roat, 466 P. 3d 349

14

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, v. DARRYL T., Appellant.

166 A.D.3d 68 (2018), 84 N.Y.S.3d 458,2018 NY Slip Op 06634

16

Alfred HH, 910 NE 2d 74 at 84, Illinois Supreme Court 2009

18

IN RE AB, Md: Court of Special Appeals 2019, No. 1680,

September Term, 2017. Case No. 06-C-l 6-072378...........

19

In the Matter of B.B., Aleged to be Seriously Mentally Impaired,

B.B., Appellant. 826 N.W.2d 425 (2013)...................................

19

v

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of cei'tiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

h_to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

]^<1, is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

H_to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

court

The opinion of the_

to the petition and is

appears at Appendix

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

Vi

JURISDICTION

^ For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

03^012.

No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

'________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix______

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

V«»

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

PAGES

CPL § 330.20

1,2,6*

New York Penal - PEN § 400.00 (1)0),

.9

Federal Law 18 U.S.C. 922(g)(4)

9

United States Constitution 2nd Amendment Right to Bear Arms

.9

V1U

\

STATEMENT OF THE CASE

In December of 2007, petitioner Steven Janakievski was trying to capture, arrest,

and subdue a ‘suspected Russian agent’. In the process, he attacked a co-worker (the

Suspect) with a utility knife, causing life-threatening stab wounds to the victim's head and

neck. At the time, Janakievski had been using controlled substances daily and

experienced psychotic delusions, believing that the stabbing victim was a ‘Russian spy‘,

and that he was engaged in a ‘sting operation4 with other Federal agencies to capture and

detain the suspected ‘Russian agent4. At the end of the ‘sting operation’, Janakievski

believed that he was going to be ‘congratulated’ by the Federal Agencies involved in the

‘sting operation’, and that he would be ’commended’ for his ’heroic actions’.

Much to his disappointment, 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 attack, Janakievski was

suffering from a psychotic disorder and did not appreciate the wrongfulness of his

conduct. The court accordingly accepted Janakievski's plea of not responsible by reason

of mental disease or defect pursuant to CPL § 330.20.

CPL § 330.20(2) provides that when a criminal defendant is found not responsible

by reason of a mental disease or defect, he must undergo a psychiatric examination. On

the basis of that examination, the state court is directed to determine in which of three

categories, or "tracks," the defendant belongs.[l] If he is found to have a "dangerous

mental disorder," defined as a mental illness that renders him "a physical danger to

himself or others," CPL § 330.20(l)(c), then he is classified as "track one" and the court

must issue a commitment order confining the defendant in a secure mental health facility

1

for six months. Id. § 330.20(6), (l)(f). If the court finds that the defendant is mentally ill

but not dangerous, he is classified as "track two" and the court must issue an "order of

conditions" [2] and an order committing him to a non-secure facility, which custody is

governed not by the Criminal Procedure Law but by the civil Mental Hygiene Law. Id. §

330.20(7); see also Allen B. v. Sproat, 23 N.Y.3d 364, 368-69,14 N.E.3d 970 (2014). If

the defendant is found to be neither dangerous nor mentally ill, he is classified as "track

three" and must either be discharged unconditionally or released subject to an order of

conditions. CPL § 330.20(7). The status of a "track one" defendant remains subject to

ongoing review, and the state must apply for periodic "retention orders" to keep a

defendant in inpatient custody. Id. § 330.20(8), (9). A defendant's "track status," however,

is permanent and "governs [his] level of supervision in future proceedings." In re Norman

D„ 3 N.Y.3d 150,152,785 N.Y.S.2d 1, 818 N.E.2d 642 (2004).

According to ‘Clearly Established Supreme Court Federal Law’, Steven

Janakievski was supposed to have been classified as a ‘Track 3’ status and was entitled to

immediate release from confinement from the hospital. However, the County Court

Judge, the District Attorney, and the Rochester Psychiatric Center Hospital maliciously

ignored the Federal and State Laws and vehemently refused to release Steven from

confinement. They felt that Steven needed to be held accountable for the crime that he

was acquitted of. So they arbitrarily and capriciously denied Steven’s request for a court

hearing and they refused to release him from confinement. They felt that he needed to

serve a ‘10-year hypothetical prison sentence’ for the crime he was acquitted of, so they

basically ’kidnapped’ Steven and locked him up in the Rochester Psychiatric Center

hospital to begin serving an illegal ’10 year hypothetical prison sentence,’ without any

2

substantive and procedural due process of State and Federal laws.

In April 2009, having undergone the required examination, without any due

process of law, Janakievski was erroneously, arbitrarily, and capriciously declared by the

state court to suffer from a dangerous mental disorder (i.e., to be in "track one") and was

committed to the Rochester Psychiatric Center ("RPC") to begin serving an

‘unprecedented‘ and ‘illegal4 10-year hypothetical prison sentence. Despite the Hospital

medical records and doctor’s report confirming that Steven “Patient is in Stable

Condition. There is no evidence of psychosis.” (100% Not mentally ill)“ and also stating

“There is no concern for his safety or the safety of others (100% Not dangerous).44 see

attached hereto Appendix Exhibit C.

This U.S. Supreme Court in Foucha v. Louisiana, 504 US 71 at 77 - Supreme

Court 1992, has held, however, that "[t]he committed acquittee is entitled to release when

he has recovered his sanity or is no longer dangerous," id., at 368; i. e., the acquittee may

be held as long as he is both mentally ill and dangerous, but no longer. We relied on

O'Connor v. Donaldson, 422 U. S. 563 (1975), which held as a matter of due process that

it was unconstitutional for a State to continue to confine a harmless, mentally ill person.

Even if the initial commitment was permissible, "it could not constitutionally continue

after that basis no longer existed." Id., at 575. In the summary of our holdings in our

opinion we stated that "the Constitution permits the Government, on the basis of the

insanity judgment, 78*78 to confine him to a mental institution until such time as he has

regained his sanity or is no longer a danger to himself or society." Jones, 463 U. S„ at

368, 370.[5] The court below was in error in characterizing the above language from

Jones as merely an interpretation of the pertinent statutory law in the. District of Columbia

3

and as having no constitutional significance. In this case, Louisiana does not contend that

Foucha was mentally ill at the time of the trial court's hearing. Thus, the basis for holding

Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is

no longer entitled to hold him on that basis. O'Connor, supra, at 574-575.

Because the medical records and doctor’s reports of the RPC Hospital confirm

that Steven was 100% Not mentally, and 100% Not dangerous (See Appendix Exhibit C),

the State had NO grounds upon which to commit Steven to the mental institution. Steven

was entitled to IMMEDIATE release from confinement! However, the State was very

well aware of this, and yet they maliciously ignored the laws and imprisoned Steven

anyway, to begin serving an illegal 10-year prison sentence.

In Jones v. United States, 463 US 354 at 369- Supreme Court 1983, this Supreme

Court has ruled “In light of the congressional purposes underlying commitment of

insanity acquittees, we think petitioner clearly errs in contending that an acquittee's

hypothetical maximum sentence provides the constitutional limit for his commitment. A

particular sentence of incarceration is chosen to reflect society's view of the proper

response to commission of a particular criminal offense, based on a variety of

considerations such as retribution, deterrence, and rehabilitation. See, e. g., Gregg v.

Georgia, 428 U. S. 153, 183-186 (1976) (opinion of Stewart, POWELL, and STEVENS,

JJ.); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963); Williams v. New York,

337 U. S. 241,248-249 (1949). The State may punish a person convicted of a crime even

if satisfied that he is unlikely to commit further crimes.

Different considerations underlie commitment of an insanity acquittee. As he was

not convicted, he may not be punished. His confinement rests on his continuing illness

4

and dangerousness. Thus, under the District of Columbia statute, no matter how serious

the act committed by the acquittee, he may be released within 50 days of his acquittal if

he has recovered. In contrast, one who committed a less serious act may be confined for a

longer period if he remains ill and dangerous. There simply is no necessary correlation

between severity of the offense and length of time necessary for recovery. The length of

the acquittee's hypothetical criminal sentence therefore is irrelevant to the purposes of his

commitment.

Thus, committing Steven to the mental institution to serve a 10-year prison

sentence was illegal, outrageous, despicable, malicious, cruel and unusual punishment,

and flagrantly UNCONSTITUTIONAL! However, the State was very well aware of this,

that they couldn‘t do this by law. BUT THEY DID IT ANYWAY! BECAUSE THEY

JUST DON’T CARE! They feel that they are INVINCIBLE and ABOVE THE LAW!

And they feel that they will NEVER be held ACCOUNTABLE for the CRIMES they

have committed! This is beyond PSYCHOTIC what the State has done to Steven! What

the State did to Steven is clearly the “Crime of Kidnapping”, and ‘Kidnapping’ carries a

penalty of a ‘Life in Prison’ sentence for all parties involved!

After the illegal Initial Commitment, the state court issued subsequent retention

orders continuing his involuntary commitment in October 2009, October 2010, December

2010, and August 2012, on the ground that Janakievski continued to suffer from mental

illness and was dangerous. In the last of these orders, the court determined that

I

Janakievski was no longer dangerous but remained mentally ill and in need of inpatient

treatment. The August 2012 retention order expired in July 2013, but Janakievski

continued to be confined in a non-secure wing of the RPC pursuant to a temporary

5

retention order.

In April 2014, Janakievski, proceeding pro se, filed the instant habeas petition in

the United States District Court for the Western District of New York. The petition

asserted a range of statutory and constitutional violations with respect to the original

April 2009 commitment order, the October and December 2010 retention orders, and the

August 2012 retention order. The petition challenged the sufficiency of the evidence

supporting the original finding that he was dangerous and mentally ill, asserting that at

the time of his commitment to the RPC "the hospital records state that Patient is in Stable

Condition. There is NO evidence of psychosis. He has very good Insight. There is NO

concern for his safety or the safety of others," and that he "should have been Discharged

from confinement” (See attached hereto Appendix Exhibit C). He also alleged that the

Initial commitment order violated his right to due process and the Eighth Amendment,

because the ‘unprecedented’ and ‘illegal’ hypothetical 10-year prison sentence amounts to

‘cruel and unusual punishment4, because of the fact that he cannot be ‘punished4 for the

crime of which he was “not convicted of according to Clearly Established Federal and

Supreme Court Laws. With respect to the subsequent retention orders, Janakievski

asserted that they, too, were not supported by sufficient evidence, that they violated due

process (as well as the Federal Rules of Civil Procedure), and that he was deprived of the

effective assistance of counsel. As relief, Janakievski demanded that the commitment and

retention orders be vacated and that he be unconditionally discharged from state custody.

In June 2018, while his petition to the federal court was pending, the state court

released Janakievski from the RPC Hospital subject to an "order of conditions." see CPL

§ 330.20(12). The ruling was based on a finding that Janakievski's clinical condition

6

warranted "conditional release from inpatient treatment" because he did not "currently

suffer from a dangerous mental disorder and [was] not mentally ill." The order of

conditions mandated that for three years (until June 2021) Janakievski continue outpatient

mental health treatment, refrain from the use of drugs or alcohol, and seek the state's

approval before changing his address or leaving the state. The conditions may be

extended for an additional three years on a showing of good cause by the state.

In September 2018, the district court dismissed Janakievski’s petition and

reasoned that the petition became moot when Janakievski was conditionally released from

inpatient custody, as he was "no longer subject to any of the orders" that he challenged in

his petition and thus no longer had any redressable injuries. The district court declined to

l

issue a certificate of appealability, but a motions panel of the 2nd Circuit Court of Appeals

granted one on the question "whether the district court erred in dismissing Appellant's 28

U.S.C. § 2254 petition as moot,".

On April 10,2020 the 2nd Circuit Court of Appeals ruled that Janakievski did

indeed have redressable injuries, that his Habeas claims were not moot, and remanded the

case back to the district court for further proceedings. See Janakievski v. EXE. DIR.,

ROCE. PSYCHIATRIC CTR., 955 F. 3d 314 - Court of Appeals, 2nd Circuit (2020)

On October 28,2021 the district court erroneously denied and dismissed

Janakievski’s petition. In November of 2021, Janakievski timely filed a Notice of Appeal

to the 2nd Circuit Court of Appeals, followed by a Motion for a Certificate of

Appealability in January 2022. While awaiting a response from the 2nd Circuit on the

Motion for Certificate of Appealability, Janakievski was ‘Discharged Unconditionally’ on

March 28,2022 from the custody of the NYS Office of Mental Health.

7

On May 25,2022 a different panel of judges of the 2nd Circuit Court of Appeals

issued a motion deferring the motion for certificate of appealability. Stating that “The

record reflects that Appellant’s 2018 order of conditional release was scheduled to expire

in 2021, at which time Appellant would be eligible for unconditional discharge. If

Appellant has been unconditionally discharged, his habeas claims may be moot, The

parties are ORDERED to submit to this Court, within 30 days of the entry of this order, a

response stating whether Appellant has been granted an unconditional discharge. Further,

if he has been unconditionally discharged, the parties should address whether the habeas

claims are moot. Once the parties have responded, the COA motion will be submitted to a

new panel.”

After the parties responded, a different panel of judges of the 2nd Circuit Court of

Appeals declared that Steven’s Habeas petition is ‘moot’ without giving any legal

explanation nor analytical analysis at all, (this is very suspicious activity on the part of

the 2nd Circuit Court of appeals, given their history of providing very eloquent and

in-depth analysis and legal and logical reasoning and explanations in many other

cases on the subject of ‘mootness’.) See attached hereto Appendix Exhibit A.

And now below, we will address all of the reasons as to why the issues in the

Habeas petition are NOT moot. Because Janakievski suffers from injuries “that can be

redressed by a favorable judicial decision."

REASONS FOR GRANTING THE PETITION FOR A WRIT OF CERTIORARI

I.

A United States Court of Appeals has decided an important federal question

in a way that conflicts with relevant decisions of this U.S. Supreme Court.

8

The availability of a "partial remedy," however, is sufficient to render a case not

moot. Church of Scientology of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447,121

L.Ed.2d 313 (1992). A case is "moot only when it is impossible for a court to grant any

effectual relief whatever to the prevailing party." Knox v. Serv. Emps. Int'l Union, Local

1000, 567 U.S. 298, 307,132 S.Ct. 2277,183 L.Ed.2d 281 (2012) (citation and quotation

marks omitted)...Janakievski v. EXE. DIR., ROCE. PSYCHIATRIC CTR., 955 F. 3d

314 at 319 - Court of Appeals, 2nd Circuit Court of Appeals

GROUND 1;

JANAKIEVSKI suffers a redressable injury caused by “collateral consequences4 as

a direct result of his erroneous Involuntary Commitment to a Mental Hospital

because it now violates his 2nd Amendment Constitutional Right to Bear Arms:

As a result of the Initial Commitment Order on April 02, 2009, Janakievski was

designated as a Track 1 meaning that he had a ‘dangerous mental disorder’, and was

Involuntarily Committed to a psychiatric Hospital. This erroneous classification of being

mentally ill and Involuntary Committed to a mental hospital now prohibits and

disqualifies Janakievski from applying for a ‘gun carry permit’ in New York State and

also at the Federal Level.

According to New York Penal - PEN § 400.00 (l)(j), it states that “a person who

has been involuntarily committed to a facility under the jurisdiction of an office of the

mental hygiene pursuant to section 330.20 of the criminal procedure law” is disqualified

from applying for a ‘gun carry permit.’

And, according to Federal Law 18 U.S.C. 922(g)(4) it states that “a person who

has been adjudicated as a mental defective or has been committed to a mental institution”

is disqualified from applying for a ‘gun carry permit.’

Mr. Janakievski has lost out on a lot ofjob opportunities, by not being able to

apply for jobs in Law Enforcement, as a security guard, the U.S. military, a private

detective, and the National Guard. He can’t even carry a gun for protection while in

9

dangerous areas of the city. He can’t even enjoy the sport of hunting. And he can’t even

participate in Olympic games or any other sporting events that involve the ‘carrying of a

gun‘. In order to participate in any of these professions, it is required that a person needs

to be qualified for a “gun carry permit”.

The erroneous classification of Janakievski as a Track 1 acquittee has caused an

erroneous deprivation and violation of his 2nd Amendment Constitutional Right to bear

certain arms. All of which is a direct ‘collateral consequence’ which is traceable to the

erroneous Track 1 designation of his April 2009 ‘Initial Commitment Order.’

This ‘injury’ can be redressed by a favorable decision by this court. This court can

provide ‘effectual relief by ‘vacating’ the Initial Commitment Order of April 2009 on the

grounds that it violated Federal Laws designating Janakievski as a Track 1 in the CPL

330.20 scheme and committing him to a mental hospital for the purpose of serving a

hypothetical 10-year prison sentence. An Evidentiary Hearing was never held, and

Janakievski was entitled to one by law, and he demanded it, but he never got one.

Now, had an Evidentiary Hearing taken place, the evidence of the hospital

medical records strongly supported that Janakievski was neither ‘mentally ill’ nor

‘dangerous’ at that moment in time, during the time the Evidentiary Hearing should have

taken place (See attached hereto Appendix Exhibit C). And that Janakievski should have

been designated as a Track 3 and he could have been either ‘Discharged Unconditionally’

or ‘Discharged Conditionally.’ Thus, Janakievski would never have been Involuntarily

Committed to the mental hospital. And thus, Janakievski would not have had any

impediment or disqualification from being able to apply for a ‘gun carry permit’ at the

Federal and State levels.-

10

All of the hospital medical records, at that moment in time, state that Mr.

Janakievski was in “Full Remission” of any mental illness or any type of insanity. The

doctor’s notes, and other medical staffs notes, indicate and state that for Mr. Janakievski

there is ‘No evidence of psychosis’. And that ‘he is not a danger to himself or others’. All

of the hospital’s staff reports and notes indicate that Mr. Janakievski is 100% NOT

mentally ill, and 100% NOT a danger to himself or others. (See attached hereto Appendix

Exhibit C)

There is no way that the State could have proven by a preponderance of the

evidence that Janakievski was either mentally ill or dangerous, a 2-prong test that must be

satisfied according to Clearly Established Supreme Court Federal Law as described

above. Because the hospital medical records worked 100% in the favor of Mr.

Janakievski.

One of the things this court has to consider when granting a Certificate of

Appealability, is whether Mr. Janakievski has a viable claim that could possibly prevail

on the merits. Well, the hospital medical records clearly support the diagnosis that

Janakievski was 100% ‘NOT mentally ill‘, and 100% ‘NOT a danger to himself or

others.’ So it is obvious, and without a doubt, that Janakievski should have been

designated as a Track 3 and should have been ‘Discharged with Conditions’ at the very

least, if not ‘Discharged Unconditionally.’ (See attached hereto Appendix Exhibit C).

This is a redressable injury and is something that this court can provide ‘effectual

relief for, by reversing and vacating the Initial Commitment Order of April 2009 and/or

reclassifying Janakievski as a Track 3. Or, if there is some other method or remedy that

this court could provide to help to restore Steven back to-a ‘clean slate’. In order to

11

protect Steven’s fundamental Constitutional 2nd Amendment right to bear certain arms.

GROUND 2:

Steven has a very substantial ‘personal stake in the outcome of this case4 defeating

any mootness

This erroneous deprivation of liberty has caused an “injury” to Steven’s medical

records in the Statewide Health Information Network for New York (SHIN-NY).

The Statewide Health Information Network for New York (SHIN-NY),

pronounced “shiny”, facilitates the secure electronic exchange of patient health

information and connects healthcare professionals statewide. In partnership with the New

York State Department of Health, NYeC developed and manages the technology platform

that connects New York’s Qualified Entities (QEs) and enables the sharing of data

statewide, ensuring that the SHIN-NY provides access to a patient’s electronic medical

records wherever and whenever they need it.

What does the SHIN-NY do? The SHIN-NY connects New York's Qualified

Entities (QEs), regional health information networks that store and share patient health

information. The QEs allow participating healthcare professionals, with patient consent,

to quickly access electronic health information and securely exchange data statewide. By

utilizing the SHIN-NY, healthcare professionals make informed decisions faster, enabling

collaboration and coordination of care to improve patient outcomes, reduce unnecessary

.and avoidable tests and procedures, and lower costs.

Today, the SHIN-NY connects 100% of the hospitals in New York State, over

100,000 healthcare professionals, and represents millions of people living in or receiving

care in New York.

12

This SHIN-NY system contains all of Steven’s medical history records, including

all of the medical records from the erroneous 10-year imprisonment that Steven spent at

the Rochester Psychiatric Center Hospital. Those medical records contain false,

fraudulent, and flawed reports of many varying diagnosis of a mental illness for Steven.

These false allegations of different diagnosis’ reports have all been debunked in

subsequent county court proceedings.

- Throughout Steven’s erroneous 10-year imprisonment, he was falsely

misdiagnosed as having many different mental illnesses, which even the different State

doctor’s couldn’t agree upon amongst themselves. One doctor misdiagnosed Steven as

having Bi-Polar-1. A different doctor misdiagnosed Steven as having Schizophrenia. A

different doctor misdiagnosed Steven as having Schizoaffective Disorder. A different

Doctor misdiagnosed Steven as having Bi-Polar-2. And the list goes on and on

The evidence at two separate County Court Evidentiary Hearings found and

declared that Steven’s diagnosis was a ‘temporary drug-induced psychosis’ and NOT any

of the aforementioned misdiagnosis’ above. Now, even though the County Court clarified

and declared what Steven’s diagnosis truly is, those other flawed misdiagnosed records

still remain a part of the SHIN-NY database system.

When Steven’s current treating medical doctor’s pull up his medical records from

the SHIN-NY system, it shows them the false misdiagnosed records from the erroneous

10-year imprisonment from the Rochester Psychiatric Center Hospital. Steven’s current

doctor’s have to take those other false misdiagnosed records into consideration, because

they are officially a part of the SHIN-NY medical records system, when developing a

course of treatment for Steven for other physical medical conditions that he has. And that

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causes confusion for Steven’s current treatment medical doctor’s because they are not

sure what courses of treatments to provide to him. They’re not sure what courses of

treatment to rule out, and are unable to provide Steven with the best treatment options

possible. All because those misdiagnosed reports remain a part of the SHIN-NY system’s

records.

This United States Supreme Court can provide ‘effectual relief for this

redressable injury that Steven is suffering, by ‘reversing’ and ‘vacating’ all of the

retentions challenged in the Federal Habeas Petition, and by ‘expunging’ those flawed

misdiagnosed medical records. And then in turn, Steven could have the misdiagnosed

medical records in the SHIN-NY system be legally expunged as well. And that “cleaning

of the records” will give Steven’s current medical providers a much clearer picture of

what course of treatments would be best suited for some of Steven’s other physical

medical conditions.

This is a very substantial ‘personal stake in the outcome of this case’ that Steven

has which defeats any mootness.

GROUND 3:

Steven has a ‘legally cognizable interest in the outcome of this case’ which defeats

any mootness:

Steven will be pursuing a ‘malpractice’ claim for the ‘ineffective assistance of

counsel’ against all of his attorney’s that refused and neglected Steven’s requests for

Evidentiary Hearings, Appeals, Jury Trials, and trial errors. But, before Steven can initiate

civil lawsuit proceedings against his former attorneys for their deficient performance in

the Initial Commitment Order and Subsequent Retention Order’s, Steven must first obtain

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‘post-conviction relief by this United States Supreme Court. See the case State v. Roat,

466 P. 3d 349 (post-conviction relief must be granted by the Appellate courts first, before

a litigant can start legal proceedings for a malpractice lawsuit against an attorney; This is

a vital and substantial interest and/or right that defeats any mootness.)

The one case that we will focus on here is Steven’s first trial attorney Christopher

Schiano for the ‘Initial Commitment Order’ of April 2009. Steven’s trial attorney

consented to the two examining psychiatrist’s reports that Steven had a ‘dangerous

mental illness’ and that he should be designated as a Track 1. He refused Steven’s request

for an ‘Evidentiary Hearing’ to challenge the two psychiatrist’s reports and cross examine

them. His attorney also rejected Steven’s request for his attorney to consult with an

independent psychiatrist. He refused to submit the hospital medical records by his then

current treating psychiatrist and treatment team. And he refused to subpoena his then

current treating psychiatrist Dr. Rajendra Singh from the Rochester Psychiatric Center to

testify on Steven4 s behalf. All of those hospital reports define Steven as being fully

recovered and 100% ‘NOT mentally ill’ and 100% ‘NOT a danger to himself or others.’

(See attached hereto Appendix Exhibit C).

Had Steven’s attorney conducted an ‘Evidentiary Hearing’ a reasonable juror

and/or trier of fact would have found Steven to NOT have had a ‘mental illness’ and that

he was NOT ‘a danger to himself or others’. And should have been designated as a Track

3 and Discharged from custody either ‘conditionally4 or ‘unconditionally.’

Furthermore, they could have at the least found Steven to be a Track 2 candidate,

which is still far better than a Track 1 designation. Because with a Track 2 designation,

Steven would have been kept in a regular civil hospital with much more liberties than

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those strict rules of a Maximum Security Hospital Forensic unit where Track 1 patients

are placed. As a Track 2 candidate, Steven would have had much more due process

protections and rights under the Mental Hygiene Law 9.35 where he would have been

subject to a “clear and convincing” burden of proof standard of law rather than the mere

‘preponderance of evidence’ burden of proof standard under a Track 1 designation. See

case THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARRYL T„

Appellant. 166 A.D.3d 68 (2018), 84 N.Y.S.3d 458,2018 NY Slip Op 06634 (“For the

Initial Commitment Order, counsel’s failure to conduct an Evidentiary Hearing,

failure to cross examine the two psychiatrists reports, and failure to consult an

independent psychiatrist, amounts to Ineffective Assistance of Counsel.”)

Steven’s attorney’s actions of‘ineffective assistance of counsel’ caused Steven to

a experience a massive depravation and curtailment of liberty of nearly 10 years. Had it

not been for his attorney’s deficiency, Steven might not have been confined for as long as

10 years, had he been found to eligible for either a Track 3 or even a Track 2 to say the

least.

Steven has detailed his substantive arguments for a malpractice and ineffective

assistance of counsel claims with supporting case laws. Steven has demonstrated that he

has a viable ‘legally cognizable interest in the outcome of this case’. Steven must obtain

post-conviction relief by this court on the matters stated above, before he can pursue his

right to sue and file civil lawsuit malpractice claims against his former attorneys. This is a

‘substantial interest’ in the outcome of this case that defeats any mootness.

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GROUND 4:

Steven has another ‘collateral consequence’ as a result of all of the retention order’s

in his case. The combined 10-vear history of all of the erroneous retentions can be

used against Steven if he were to be subject to a future Involuntary Commitment

hearing;

In New York State, when a person is subjected to Involuntary Commitment

judicial proceedings, one of the biggest factor’s of evidence that is considered by courts,

in determining whether a judge should grant a petitioner’s request for an Involuntary

Commitment, is a person’s ‘prior history of psychiatric hospitalizations.’

If Steven were to be subject to Involuntary Commitment judicial proceedings in

the future, the court could use Steven’s entire erroneous 10-year history at the Rochester

Psychiatric Center Hospital, as evidence against Steven, to have him Involuntarily

Committed to a psychiatric hospital with ease. The courts can also use this “prior history”

to ‘enhance’ Steven’s retention periods and keep Steven locked up and confined for

‘longer periods of time’ in the hospital.

The lower courts have shown in Steven’s case to be very futile when it comes to

adhering to Federal and State laws concerning Involuntary Commitments and the

erroneous continuing confinement of individuals in psychiatric hospitals. Without any

_ protections, Steven could possibly be erroneously Involuntarily Committed again, and

could spend the rest of his entire life in a mental hospital. The chances of Steven being

subjected to Involuntary Commitment is very highly ‘likely’ to happen again, because the

Office of Mental Health (OMH) has threatened Steven numerous times, that any time

Steven takes any judicial action against them, they will respond and retaliate against

Steven by initiating Involuntary Commitment proceedings against him. Once Steven files

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a civil suit against (OMH), they are likely to keep true to their word of their threats, as

evidenced with the multiple retention orders they have initiated in retaliation already. So

there is a very high probability of “repetition and recurring”, which also defeats

‘mootness’ in and of itself.

This court could prevent a tragedy from happening a second time in Steven’s case.

It can provide ‘effectual relief by ‘reversing’ and ‘vacating’ all of the retention orders,

and by ‘expunging’ all of the hospital medical records. Then, if Steven were ever

subjected to Involuntary Commitment judicial proceedings again, he could file a ‘motion

in limine’ in that court to prevent any mention or use of his ‘prior history of medical

records of his erroneous 10-year confinement’.

Without that ‘prior history’, the future courts would not be able to so easily and

erroneously Involuntarily Commit Steven to a mental hospital, and would not be able to

subjugate Steven to unnecessary and erroneous ‘longer periods of retention’ in a mental

hospital.

See In re Alfred HH, 910 NE 2d 74 at 84, Illinois Supreme Court 2009 - “Though

the appellate court is correct that the mere reversal of an adjudication will not, in itself,

purge a respondent's mental health records of any mention of the admission or treatment,

that is not the same as saying that there is no effect whatsoever. In fact, there are a host of

potential legal benefits to such a reversal. For instance, a reversal could provide a basis

for a motion in limine that would prohibit any mention of the hospitalization during the

course of another proceeding.”

The court in Alfred HH in the case above also stated that “When the facts of this

specific case are considered, there are no collateral consequences that warrant an

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exception to the mootness doctrine. In this case, respondent has had multiple involuntary

commitments prior to the present case. In addition, respondent is a felon who has served a

sentence for murder. Simply stated, there is no collateral consequence that can be

identified that could stem solely from the present adjudication. Every collateral

consequence that can be identified already existed as a result of respondent's previous

adjudications and felony conviction.”

In contrast to the Alfred HH case above, Steven does NOT have any history of

prior Involuntary Commitments to a mental hospital! And Steven does NOT have any

felony convictions! Steven has NO prior criminal history record at all! He has a 100%

perfectly clean criminal history record! This erroneous Involuntary Commitment Order in

April of 2009, that’s being challenged before this United States Supreme Court, is the one

and only Involuntary Commitment that Steven has ever experienced in his whole entire

life! So when we look at Steven’s case on a case-by-case basis, this erroneous Involuntary

Commitment in April of 2009 will have definitive ‘Collateral Consequences’ in any

future Involuntary Commitment judicial proceedings.

This is a very substantial ‘Collateral Consequences’ exception that defeats the

mootness doctrine. And this court can provide ‘effectual relief as described above.

See IN RE AB, Md: Court of Special Appeals 2019, No. 1680, September Term,

2017. Case No. 06-C-16-072378

(Patient that was discharged after completing Involuntary Commitment in mental

hospital, case is NOT moot because of ‘collateral consequences‘)

See also In the Matter of B.B., Alleged to be Seriously Mentally Impaired, B.B.,

Appellant. 826 N.W.2d 425 (2013)

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(Patient that was discharged after completing Involuntary Commitment in mental

hospital, case is NOT moot because of ‘collateral consequences4, it can be used against

him in future court proceedings.)

See also In re Maurice AMEY, Appellant. 40 A.3d 902 (2012), District of

Columbia Court of Appeals.

(Patient that was discharged after completing Involuntary Commitment in mental

hospital, case is NOT moot because of ‘collateral consequences4.)(at 909 “Ballay is not

binding on us, but the analysis on which it rests remains sound several decades

later“)

See, e.g., United States v. Battle, 510 F.2d 776 (D.C.Cir.1975) (appeal of

defendant found not guilty for possession of stolen mail by reason of insanity and was

ordered unconditionally released not moot because the adjudication of insanity remained

on defendant's record);(collateral consequences of being adjudged mentally ill remain to

plague defendant)

For all of the foregoing reasons, Steven’s Federal Habeas petition claims are NOT

moot. And this court can provide ‘effectual relief to redress the injuries demonstrated

above, by reversing and vacating the Initial Commitment Order and Subsequent Retention

Order’s. And by expunging all of the hospital medical records.

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CONCLUSION & RELIEF SOUGHT

The issues in Steven’s Federal Habeas Petition are NOT moot. Because it is

possible for a court to grant any effectual relief whatever to the prevailing party. Steven

has made a substantial showing of the denial of many constitutional rights for all of the

issues presented. Therefore, Steven requests that his Petition for ‘Writ of Certiorari’ be

granted.

Furthermore, Steven strongly advises this U.S. Supreme Court, as Steven has

advised this Court in the past (but this Court ignored Steven4 s warnings), that the lower

state and federal courts have been proven to be ‘incompetent and incapable’ of fairly

adjudicating the federal claims in this case. Any remands back to these courts for further

proceedings will obviously be futile. and the same issues will end up cycling back up to

this U.S. Supreme Court again. Therefore, it is strongly advised that this U.S. Supreme

Court should adjudicate these issue right now so that we can conserve on the courts

judicial scarce resources, and so that ‘justice, law, and order’ can be restored upon and

within the lower state and federal courts.

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Dated: December 04,2022

Respectfully submitted by,

Steven Janakievski

Pro Se Petitioner

233 Harpington Drive

Rochester, N.Y. 14624

Home Phone: 585-478-2433

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