UNITED STATES OF AMERICA v. TODD MICHAEL GIFFEN (2024)

ORDER

This matter is before the court on respondent's motions to appoint new counsel (DE 41, 47, 48), and for discharge hearing (DE 47). Petitioner did not respond to the motions.

BACKGROUND

On December 20, 2022, the court civilly committed respondent to the custody of the Attorney General pursuant to 18 U.S.C. § 4246, upon finding that he suffers from a mental illness as a result of which his release would create a substantial risk of bodily injury to another person. Respondent, proceeding pro se even though he is represented by counsel, has filed numerous motions challenging the commitment order and seeking discharge hearing pursuant to 18 U.S.C. § 4247(h). Respondent also filed untimely appeal of the commitment order. The court denied the motions filed in this court seeking to set aside the commitment order, where pending appeal divested the court of jurisdiction, and because the court generally does not entertain such motions filed without endorsement of appointed counsel. (See DE 37, 40). Subsequently, the United States Court of Appeals for the Fourth Circuit dismissed respondent's direct appeal. By the instant motions, respondent seeks appointment of new counsel based on various disagreements with counsel's strategic decisions and alleged breakdown in communications, and he again requests that the court schedule a discharge hearing.

COURT'S DISCUSSION

The court begins with respondent's motion for discharge hearing. Only appointed counsel or respondent's legal guardian can file motion for discharge hearing. See 18 U.S.C. § 4247(h) (providing that “counsel for the [committed] person or his legal guardian may ․ file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility”).¹ In the absence of endorsement of the instant motion or separate motion by appointed counsel or legal guardian, the motion for hearing must be denied. See id.

Turning to respondent's requests for new counsel, and contrary to his assertions, he is not entitled to counsel of his choice in these proceedings. See Miller v. Smith, 115 F.3d 1136, 1143 (4th Cir. 1997) (“[A]n indigent criminal defendant has no constitutional right to have a particular lawyer represent him.”). In addition, most trial strategy decisions, including scheduling issues, what motions to file, what evidence to be introduced, and what objections should be raised, may be made by counsel without respondent's input. Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998); see also New York v. Hill, 528 U.S. 110, 115 (2000). Thus, counsel is not required to file meritless motions challenging the initial commitment order.

Respondent also alleges counsel has not returned his numerous phone calls or emails since the commitment hearing. As set forth below, the court will direct counsel to meet with respondent, either through videoconference means or in person, within 45 days of entry of this order. Counsel, however, is appointed solely for purposes of the instant civil commitment action, and not to litigate respondent's complaints about his conditions of confinement or other issues unrelated to civil commitment. Nor is frequent communication necessary regarding respondent's legal challenges to the civil commitment order, particularly where the commitment order is now final. Accordingly, appointment of new counsel is not warranted on the present record.

The court provides the following additional comments and recommendations to assist respondent with developing a more productive relationship with his counsel. In the current procedural posture, where appellate review is no longer available and there is no legal basis for vacating the judgment, the commitment order is legally valid and binding upon respondent. See United States v. Brantley, 87 F.4th 262, 266 (4th Cir. 2023). Respondent needs to accept his attorney's advice that his various legal challenges to the commitment order are meritless.

In order to be discharged, respondent first must request discharge hearing under § 4247(h) by motion filed by his appointed counsel.² Contrary to respondent's assertions in the instant motions (see DE 41 at 1), he does not have statutory right to discharge hearing every six months. Instead, 18 U.S.C. § 4247(h) provides that “counsel for the [committed] person or his legal guardian, may ․ file with the court that ordered the commitment a motion for hearing to determine whether the person should be discharged ․ but no such motion may be filed within one hundred and eighty days of a court determination that the person should continue to be committed.” (emphasis added). The statute therefore does not mandate hearings every six months, but instead permits respondent's counsel, in his or her discretion, to file motion for discharge if six months have passed since the most recent court determination regarding commitment. See id.

Turning to the showing necessary to obtain discharge hearing, a district court “should grant a § 4247(h) motion for ․ discharge hearing if the motion contains sufficient factual matter, accepted as true, to state a claim for discharge that is plausible on its face.” United States v. MacLaren, 866 F.3d 212, 218 (4th Cir. 2017). And in order to make that showing, respondent must allege facts showing that his mental health symptoms have improved to such an extent that he would not be dangerous to others or their property if released to the community. See 18 U.S.C. § 4246(e); see also MacLaren, 866 F.3d at 218–19.

Thus, before the court will grant a discharge hearing, respondent needs to take the following actions: 1) accept that he suffers from a serious mental illness and begin following the recommendations of his treatment team, including by taking prescribed medications; and 2) show behavioral control in his housing unit, including at minimum ceasing his threatening behavior towards correctional officials, medical staff, or other detainees. (See Commitment Hr'g Tr. (DE 42) at 12–14 (discussing the fact that respondent's symptoms improved significantly when he previously accepted antipsychotic medications, and explaining the treatment team's recommendation that he resume medication); Stelmach Report (DE 17) at 7 (“It is undeniable that [respondent's] best chance for health, remission, and eventual release is through antipsychotic medication.”); see also Annual Forensic Update (DE 49) (recounting incident where respondent became extremely aggressive and threatening to nursing staff member who declined his request for sensitive medical examination, necessitating involuntary medication)). Following these two recommendations is the most direct route to obtaining discharge from civil commitment. (See Commitment Hr'g Tr. (DE 42) at 12–14; Stelmach Report (DE 17) at 7).

Finally, in this procedural posture, it is normal for counsel to assume a more limited role while respondent works with FCC-Butner treatment staff to address his mental health issues. If respondent can show measurable progress towards addressing his mental health issues, the court is confident counsel will request a discharge hearing or otherwise advocate that the facility warden file a discharge certificate. At the commitment hearing, counsel explained as follows:

I really applaud Dr. Grover and others here at Butner for consistently trying to get [respondent] to take medication and to get well and to participate in treatment. There's no reason he has to stay here at Butner indefinitely. So I am hopeful that something good will happen in the future. Again, I really want to help him. It's just not easy, in all candor, at this point in time. But I hope in the future in his annual reports that he's making progress. And I would certainly continue to offer whatever help I can to [respondent], and the staff here at Butner for that matter, to confirm and reiterate everyone's desire that he at least try some of these opportunities and avenues to getting well and to getting better.

My guess is that he has a lot of good in him. And unfortunately we just can't see that from the mental illness. But I know he's smart. He does a lot of legal research. And I really hope at some point in the future he can thrive and flourish and sort of live happily ever after, if you will.

(Commitment Hr'g Tr. (DE 42) at 40–41).

The court is in complete agreement. Respondent is strongly encouraged to accept his treatment team's recommendations for addressing his mental health symptoms, so that he can make progress towards release from civil commitment. If he can do so, then counsel will assume a more active role in terms of advocating for release. Conversely, if respondent continues to refuse these interventions and otherwise cannot show changed circumstances warranting discharge hearing, it is not necessary for counsel to communicate with respondent at his desired frequency.

CONCLUSION

Based on the foregoing, respondent's motions to appoint new counsel (DE 41, 47, 48) and for discharge hearing (DE 47) are DENIED without prejudice. Respondent's counsel is DIRECTED to arrange for in-person or videoconference meeting with respondent within 45 days of entry of this order. The clerk shall serve a copy of this order on respondent.

SO ORDERED, this the 5th day of February, 2024.

FOOTNOTES

1.   The court also may hold discharge hearing if the director of the facility where respondent is committed files discharge certificate pursuant to the provisions of 18 U.S.C. § 4246(e).

2.   As noted above, respondent also can be discharged if the facility warden files a discharge certificate under 18 U.S.C. § 4246(e). But in order to obtain a discharge certificate from the warden, respondent must comply with treatment recommendations and show behavioral stability, as discussed herein.

LOUISE W. FLANAGAN United States District Judge