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Fay v. O'Brien

United States District Court, D. Massachusetts

April 19, 2016

HAROLD FAY, Petitioner,
v.
STEVEN J. O’BRIEN, Superintendent, Massachusetts Treatment Center, Respondent.

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge.

I. Introduction

Petitioner Harold Fay (“Fay”) has filed a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254 alleging that the Supreme Judicial Court’s (“SJC”) application of Mass. Gen. L. c. 123A violated his substantive due process rights under the Fourteenth Amendment. D. 2; D. 3. Respondent, the Superintendent of the Massachusetts Treatment Center, opposes the Petition, arguing that Fay is not entitled to relief under the requirements of 28 U.S.C. § 2254(d)(1). D. 11; D. 17. For the reasons set forth below, the Court DENIES Fay’s Petition.

II. Factual Summary

These facts are primarily drawn from the SJC’s decision affirming Fay’s civil commitment. Prior to his civil commitment, Fay was convicted of “sexual offenses” as defined under Mass. Gen. L. c. 123A, § 1. Commonwealth v. Fay, 467 Mass. 574, 575 (2014). These offenses, all against children under the age of fourteen, occurred during four separate incidents between 1995 and 2010. Id.

The first offense occurred in November 1995 when Fay showed a thirteen-year old boy a sexually explicit movie and backed the victim into a corner while begging him to expose his penis. Id. at 576. The boy “kept praying and praying” after the incident. Id. Fay was consequently convicted of one count of open and gross lewdness. Id.

The second offense occurred in June 1999 when Fay entered the bedroom of his eleven and nine-year old granddaughters. Id. He knelt beside their bed and began to touch his penis. Id. Later that day, Fay sat next to his older granddaughter in his truck and engaged in sexually explicit conversation. Id. He then offered to show the victim his penis and asked her to look away as he masturbated to ejaculation. Id. at 577. The victim asked to leave, but Fay instructed her not to do so. Id. The victim later cried hysterically when she disclosed the incident to her mother. Id. Based on these incidents, Fay pled guilty to one count of open and gross lewdness and one count of indecent exposure. Id.

The third offense occurred in September 1999 when Fay exposed his penis to three girls, aged ten to eleven, in a campground and then followed them along the trail. Id. The next day, Fay again exposed his penis to the girls while attempting to engage them in conversation. Id. The girls reported seeing Fay staring at them while touching his penis. Id. The girls were scared by the events and one stated that she was unable to eat for three days. Id. Fay pled guilty to three counts of open and gross lewdness. Id.

The fourth offense occurred in October 2010 when Fay visited an acquaintance at her home. Id. at 578. Fay followed the acquaintance’s eight-year old daughter and her cousin outside the home and stood in the doorway with his penis exposed. Id. The victim ran back to the house in tears. Id. Later that night, Fay sat behind the victim and touched his penis as she used the computer. Id. Fay pled guilty to one count of open and gross lewdness in connection with the incidents. Id.

III. Procedural History

After Fay’s release from prison in 2011, the Commonwealth sought Fay’s civil commitment as a sexually dangerous person (“SDP”) based upon his history of sexual offenses against children. D. 3 at 1. On October 15, 2012, after a jury-waived trial, Fay was found to be an SDP and was civilly committed for one day to life at the Massachusetts Treatment Center pursuant to Mass. Gen. L. c. 123A, § 14(d). Fay, 467 Mass. at 574-75. Fay appealed to the Massachusetts Appeals Court on October 18, 2012 and filed a petition for direct appellate review to the SJC on August 27, 2013. D. 3; D. 17. Fay argued that the trial judge’s ruling was based on insufficient evidence and violated his substantive due process rights. D. 2.

After the hearing on appeal, the SJC affirmed the trial judge’s order. The SJC concluded that the record “fully support[ed]” the trial judge’s conclusion that Fay was sexually dangerous under Mass. Gen. L. c. 123A (“Chapter 123A”) because the evidence showed that Fay was likely to continue to engage in noncontact sexual offenses against children and that such conduct would likely cause a child reasonably to apprehend contact sexual offenses. Id. at 582-83. The SJC noted that Fay’s substantive due process claim was waived by Fay’s failure to raise it before the trial court. Id. at n.9. Nevertheless, the SJC considered the merits of Fay’s substantive due process claim to determine whether there was a substantial risk of a miscarriage of justice. Id. The SJC held that, given the circumstances, Fay’s substantive due process rights were not violated. Because Fay was found likely to engage in noncontact sexual offenses that would cause children reasonably to apprehend a contact sexual offense, Fay was sufficiently “dangerous” to meet the Supreme Court’s requirements for civil commitment, as set forth in Kansas v. Hendricks, 521 U.S. 346 (1997) and Kansas v. Crane, 534 U.S. 407 (2002). Id. at 585-86. The SJC concluded that its interpretation of Chapter 123A protected children from conduct such as Fay’s and “falls well within constitutional boundaries.” Id. at 586.

IV. Discussion

A. Standard of Review


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