United States District Court, D. Nebraska
MEMORANDUM AND ORDER
a habeas corpus matter brought under 28 U.S.C. § 2254.
After I progressed the case, I appointed the Federal Public
Defender to represent Petitioner. He in turn delegated the
matter to one of his assistants. Respondents have filed a
motion for summary judgment, Filing no. 10, supported by the
relevant state court records, Filing no. 12 and Filing no.
16. The matter has been briefed. I now grant the motion.
Findings and Conclusions and Statement of Claim
independently found and concluded at initial review, Filing
no. 5 at CM/ECF p.1 n.1, after a plea of nolo contendere,
Petitioner was convicted of attempted first degree sexual
assault of a child and third degree sexual assault of a child
and he was sentenced to prison on January 7, 2011, in a case
styled State of Nebraska v. Nehls, No. CR 10-206, in
the District Court of Buffalo County, Nebraska. He did not
appeal. These finding and conclusions are not challenged.
extremely difficult to discern why Petitioner thought his
federal rights had been and were being violated. That said,
liberally construing the petition, I decided that Petitioner
might have one potentially cognizable claim.
and summarized for clarity, I found the sole claim to be
resolved in this matter was the following: “Claim One:
The Petitioner was and is being denied due process of law by
his confinement at the Norfolk Regional Center because he did
not and does not pose a risk to offend again.”
the material undisputed facts to be these:
8, 2017 Commitment
1. On July 31, 2017, prior to Nehls' discharge of his
criminal sentence, the Deputy County Attorney of Buffalo
County filed a Petition requesting a hearing before the
Mental Health Board to determine whether Nehls was a mentally
ill person and/or dangerous sex offender, and what treatment
alternative would suffice to prevent the harm described in
Neb. Rev. Stat. §§ 71-908 or 83-174.01. Filing no.
12-2. The petition specifically alleged, among other things,
that Nehls' was seen by Dr. Alan Levinson, Psy.D., a
licensed psychologist, and the doctor's evaluation dated
July 25, 2017, concluded in summary that:
(A) His failure to successfully complete recommended sex
offender treatment being presented commensurate with his
intellectual abilities, was a significant treatment
(B) His risk to reoffend was considered very high, relative
to other sexual offenders.
(C) Mr. Nehls had been assessed as having (.69) probability
of violent recidivism within 10 years.
(D) Mr. Nehls had been diagnosed with:
-Pedophilic Disorder, sexually attracted to both,
-Alcohol Use Disorder, moderate, in a controlled environment
-Cannabis Use Disorder, moderate, in a controlled environment
-Stimulant Use Disorder-Amphetamine, severe, in a controlled
-Antisocial Personality Disorder
-Mild Intellectual Disability
(E) That Mr. Nehls would be best served in a comprehensive
inpatient setting with intensive supervision and intervention
to address the issues outlined in the evaluation. A copy of
which was attached and marked as Exhibit B.
(F) That neither voluntary hospitalization nor other
treatment alternatives less restrictive of the subject's
liberty than a mental-health-board ordered treatment
disposition are available or would suffice to prevent the
harm described in § 71-908 or § 83-174.01.
2. On or about August 8, 2017, the Mental Health Board held a
hearing regarding In The Interest of Richard L. Nehls,
Alleged to be a Mentally Ill. and Dangerous Person, No.
4100. Filing no. 12-3.
3. At the hearing, a Deputy Buffalo County Attorney was
present, along with Nehls and Nehls' court-appointed
attorney. Nehls acknowledged he had received of a copy of the
Petition, Notice of the Hearing, and List of Rights.
4. The matter was submitted to the Mental Health Board upon
the information filed, the testimony elicited, and the
evidence adduced. Upon consideration of the evidence, the
Mental Health Board found “there was clear and
convincing evidence that the allegations in the information
are true and relies on the exhibit #1 of Dr. Alvin
5. The Mental Health Board further found by clear and
convincing evidence that (a) Nehls is mentally ill and a
dangerous person and that neither voluntary hospitalization
nor other treatment alternatives less restrictive of
Nehls' liberty than a Mental Health Board ordered
treatment disposition would suffice to prevent a substantial
risk of harm; and (b) Nehls is likely to engage in acts, or
repeated acts of sexual violence and has a propensity to
commit sex offenses that would result in serious harm to
others and therefore poses a menace to the health and safety
of the public.
6. Having considered all treatment alternatives, the Mental
Health Board ordered Nehls be placed in custody of the
Nebraska Health and Human Services (“DHHS”) for
appropriate treatment. The Board further ordered Nehls to
commence treatment at the ...