187 F.3d 1137 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.VICTOR TODD BUDELL, Defendant-Appellant.
No. 98-30012
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted April 12, 1999Filed August 17, 1999

1
J. Mayo Ashley, Helena, Montana, for the defendant appellant.


2
Bernard F. Hubley, Assistant United States Attorney, Helena,  Montana, for the plaintiff-appellee.


3
Appeal from the United States District Courtfor the District of Montana  Charles C. Lovell, District Judge, Presiding. D.C. No. CR 89-00032-CCL.


4
Before: Harry Pregerson and David R.Thompson, Circuit Judges, and Robert M.  Takasugi,* Senior District Judge.

Opinion by Judge Takasugi
OPINION
TAKASUGI, Senior District Judge:

5
Victor Todd Budell ("Budell"), who has been institutionalized at the United States Medical Center in Springfield, Missouri, since his plea of not guilty only by reason of insanity,  appeals from an order denying his pro se request for a discharge hearing and appointment of counsel. A certificate of  appealability was denied by the district court.


6
We determine that a certificate of appealability was unnecessary because Budell's letter request was not a motion pursuant to 28 U.S.C. S 2255, and that Budell was effectively  denied his statutory right to counsel and, therefore, reverse  and remand this matter for further proceedings.

I.

7
On November 20, 1989, Budell was charged with murder  of a forest service employee, in violation of 18 U.S.C. SS 1111 and 1114 (Count One); and with threatening the life  of the President of the United States, in violation of 18 U.S.C.  S 871 (Count Two).


8
At an evidentiary hearing before the district court on June  28, 1990, Budell was found competent to enter a plea and  pled not guilty only by reason of insanity.1 The district court  found that Budell committed the offenses charged in the  indictment but was unable to appreciate the nature or quality  of his acts at the time of the commission of the acts constituting the offenses. Therefore, the district court committed  Budell to the custody of the Attorney General pursuant to 18  U.S.C. S 4243(a), to be placed in a suitable facility for his  care and treatment until the hearing on whether his release  would pose a substantial risk of bodily injury to others or serious damage to the property of others.


9
Pursuant to 18 U.S.C. S 4243(c), a hearing was conducted  before the district court on October 3, 1990, at which time  Budell was represented by his appointed counsel who had  represented him since his arraignment.2  The court found that  Budell had "failed to prove by clear and convincing evidence  that his release would not create a substantial risk of bodily  injury to another person or serious damage to property of  another" and, therefore, remanded Budell to the custody of  the Attorney General.


10
Upon such hospitalization, the director of the custodial  facility is required to submit annual reports to the committing court concerning the mental condition of the insanity acquittee including recommendations concerning the need for continued hospitalization. 18 U.S.C. S 4247(e). However, it  appears that no annual reports were submitted to the court for  more than three years.


11
On July 28, 1993, Budell filed, pro se, a very articulate  typewritten application for habeas corpus pursuant to, inter  alia, 18 U.S.C. S 4247. By order filed September 1, 1993, the  district court denied the habeas corpus application and  ordered the Director of the Springfield Medical Center to provide the court with annual reports. In so doing, the court  found Budell not qualified to render an opinion as to the risk  he poses to others and "encourage[d] the Director of the Medical Center for Federal Prisoners to provide the court as soon  as possible with the report required by . . . statute," (9/1/93  Order at 3), noting the statutory language requiring that the  director of the facility " `shall prepare annual reports . . .  [and that] [t]he reports shall be submitted to the court that  ordered the person's commitment to the facility . . . .' " Id.  (alteration in original) (quoting, 18 U.S.C. S 4247(e)(1)).


12
Thereafter, according to a reference made in a district court  order of January 19, 1994, it appears that the first annual  report, or Risk Assessment Panel report ("RAP"), dated October 15, 1993, was received by the district court. However, the  RAP does not appear anywhere in the record as the court  never filed it or attached it to any order or other paper that has  been filed. The docket sheet reveals that the district court has  not filed any of the annual RAPs. However, an examination of the district court record indicates that the court received  RAPs dated October 17, 1994 (with cover letter from the warden dated December 12, 1994),3 October 2, 1995, August 19,  1996 and May 19, 1997.4 There is no indication in the record  that the district court received an annual report in 1998.


13
In a handwritten letter dated November 21, 1996,5 Budell  requested an annual release hearing "as I have never had a  release hearing in the eight years that I've been committed."  In connection therewith, Budell further requested "that the  court appoint counsel to present my case as I have been run  for release twice and the officials at Springfield can not find  a facility to place me." Budell was referring to the fact that  the annual reports for 1995 and 1996, contained the opinion  from the Risk Assessment Panel that "Mr. Budell's mental illness was well controlled on the present regimen of treatment. . . . It was the unanimous opinion of the panel that Mr.  Budell could be released from psychiatric hospitalization  under certain specific conditions . . . . " However, according to  the warden's cover letters to the RAPs, the structured living  environment and outpatient mental health services necessary  to meet the specific conditions could not be found in the State  of Montana, where Budell's mother lives. Both his request for  annual release hearings and for appointment of counsel were  denied by the district court by order filed December 3, 1996.6


14
By a handwritten letter dated April 8, 1997, which was  filed by the district court more than six months later on October 29, 1997, Budell requested that a hearing be set pursuant to 18 U.S.C. S 4247, as soon as possible after the court's  receipt of his 1997 RAP and that counsel be appointed to represent him.


15
According to the May 19, 1997 RAP, the Risk Assessment  Panel


16
concluded that Mr. Budell would not pose a danger to others or to the property of others due to mental illness if released to the home of his mother and required to follow a set of conditions. This opinion is based on his current psychiatric stability and evidence of improved insight and behavioral self management. The panel recommended a conditional release to include outpatient psychiatric treatment, substance abuse counseling, compliance with medication, abstinence from drugs and alcohol, and no access to firearms or weapons of any kind. The panel agreed that Mr. Budell could reside with his mother as long as he followed all of the conditions of his release.


17
The October 20, 1997 cover letter to this RAP from the  warden, P. W. Keohane, states the following:


18
Since the report was prepared, our efforts to secure appropriate mental health aftercare have met with negative results. A letter dated July 11, 1997, from the Mental Health Center, Billings, Montana, indicated that they were unable to safely manage the patient. Because the community resources necessary to facilitate Mr. Budell's successful adjustment in society are not currently available, we propose he remain at the U.S. Medical Center, Springfield, Missouri. . . ."


19
By order filed October 29, 1997, the court reaffirmed its  October 3, 1990 finding that release of Budell would create  a substantial risk of bodily injury to another person or serious  damage to property of another and denied Budell's motions  for a hearing and appointment of counsel.


20
On December 2, 1997, Budell filed a notice of appeal7 and  a motion to proceed on appeal in forma pauperis  and for  appointment of appellate counsel. By order filed December  23, 1997, the district court stated that "[d]efendant ha[d]  already been granted in forma pauperis status for the pendency of this criminal matter. . . . [and that] Defendant does  have court-appointed counsel, who has apparently declined to  present this motion to the court."8  The court also stated that  "[i]n light of defendant's notice of appeal and to the extent  that the court's October 29, 1997, order constitutes the denial  of a petition for writ of habeas corpus, the court must consider  whether to issue or deny a certificate of appealability. . . ."  The court denied the certificate of appealability and, thereupon, denied Budell's motion for in forma pauperis status and  appointment of counsel as moot, "Defendant already having  been granted both in forma pauperis status and courtappointed counsel."


21
This court has jurisdiction pursuant to 28 U.S.C.S 1291.

II.

22
Whether the denial of a certificate of appealability precludes this court from reaching the merits of this appeal is an issue of law, as is the issue whether the district court erred in  denying Budell's motion for discharge hearing and for  appointment of counsel. Review is, therefore, de novo. United  States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc),  cert. denied, 469 U.S. 824 (1984).

III.
A. Certificate of Appealability

23
A certificate of appealability is a prerequisite to an appeal  from "(A) the final order in a habeas corpus proceeding in  which the detention complained of arises out of process  issued by a State court; or (B) the final order in a proceeding  under section 2255." 28 U.S.C. S 2253(c)(1).


24
Pursuant to 28 U.S.C. S 2255,


25
"[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was  imposed in violation of the Constitution or laws of the United States, or that the court was without juris diction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."


26
Because Budell was acquitted, he is not a "prisoner in  custody under sentence," nor is he challenging a sentence.  Therefore, Budell's motion for a discharge hearing and  appointment of counsel under 18 U.S.C. S 4247 cannot be  construed as a S 2255 motion. As such, a certificate of  appealability is not a prerequisite to Budell's appeal.9

B. Denial of Appointment of Counsel

27
The issue here is whether an insanity acquittee is entitled  to appointment of counsel. "[F]or the ordinary citizen, commitment to a mental hospital produces `a massive curtailment  of liberty,' Humphrey v. Cady, 405 U.S. 504, 509 (1972), and  in consequence `requires due process protection.' Addington  v. Texas, 441 U.S. 418, 425 (1979) . . . ." Vitek v. Jones, 445  U.S. 480, 491-92 (1980).


28
A commitment hearing is a civil matter. Addington v. Texas, 441 U.S. 418, 428 . . . (1979) ("[i]n a civil commitment state power is not exercised in a puni tive sense"); United States v. Copley, 925 F.2d 669,  672 (4th Cir. 1991). Thus, the constitutional rights to which a defendant in a criminal trial is entitled do not adhere to a respondent in a commitment hearing. Nonetheless, because an adverse result in a commit ment hearing results in a substantial curtailing of the respondent's liberty . . . , the Supreme Court has held that procedural due process does guarantee certain protections to civil commitment respondents.


29
U.S. v. Baker, 45 F.3d 837, 842-43 (4th Cir.), cert. denied,  516 U.S. 872 (1995).


30
It is clear that at a civil commitment hearing an insanity  acquittee is constitutionally entitled to counsel. But, what due  process rights does an insanity acquittee have after he is hospitalized? "At the least, due process requires that the nature  and duration of commitment bear some reasonable relation to  the purpose for which the individual is committed. " Jackson  v. Indiana, 406 U.S. 715, 738 (1972). "In short, a State cannot  constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family  members or friends." O'Connor v. Donaldson , 422 U.S. 563,  576 (1975). As such, the focus of due process protection turns  to the insanity acquittee's interest in regular review of his  continued confinement. Unlike a prisoner who serves a determinate sentence, an insanity acquittee, once institutionalized,  will remain hospitalized until ordered discharged by the court  that ordered the commitment. Because the status quo of hospitalization will remain in effect if nothing is done to trigger a discharge, an insanity acquittee is entitled to due process protection to the extent he may no longer be a danger to society.


31
According to Hickey v. Morris, 722 F.2d 543 (9th Cir.  1984), due process does not require automatic periodic adversary hearings when the acquittee is provided with regular  examinations by health professionals " `so long as he or she  is free to evaluate independently [the patient's ] mental or  emotional condition and need for treatment.'  " Id. at 548  (alteration in original) (quoting, Parham v. J. R., 442 U.S.  584, 607 (1979)). In Hickey, due process protection for an  insanity acquittee's interest in regular review of his continued  confinement was recognized. However, Washington's  requirement of independent health examinations was held to  be adequate protection of that interest.


32
In United States v. LaFromboise, 836 F.2d 1149, (8th Cir.  1988), the court viewed the constitutional right to counsel in  the same light as the right to periodic adversary hearings was  viewed in Hickey, and held that due process did not require  continuous representation by counsel after the initial commitment hearing "if the hospital administration acts  independently" in preparing periodic reports.10 Id. at 1152.


33
With this constitutional backdrop, the question becomes  what protection is provided by the statutory scheme at 18  U.S.C. SS 4241, et seq. for the insanity acquittee's due process right to regular review of his continued confinement. In  addition to requiring the director of the facility to prepare and submit annual reports to the court concerning the mental condition of the hospitalized person and containing recommendations concerning the need for continued hospitalization, it  requires that such acquittees be represented by counsel at any  discharge hearing, 18 U.S.C. S 4247(d), and allows counsel  for the insanity acquittee to file a motion for a discharge hearing. 18 U.S.C. S 4247(h).


34
It is apparent from the record below that the mere statutory requirement for annual reports, without some mechanism  to insure compliance, will not necessarily be met. When the  director of the facility fails to provide the court with the  required annual reports (which was the case here for more  than three years), due process requires the statutory scheme to  provide assurance that the insanity acquittee's right to regular  review of his continued confinement will be adequately  protected.11


35
Section 4247(h) provides that "counsel for the [hospitalized] person or his legal guardian may, at any time during  such person's hospitalization, file with the court that ordered  the commitment a motion for a hearing to determine whether  the person should be discharged from such facility . . . ."


36
This statutory language clearly contemplates that hospitalized persons will be represented by counsel for the purpose  of filing a motion for a discharge hearing because it affirmatively refers to "counsel for the person," rather than just "the  person." Moreover, while it expressly provides for counsel to file a motion, it does not expressly provide for the hospitalized person to file a motion on his own behalf. In fact, it is  the government's position that S 4247(h) does not permit a  hospitalized person to file a motion pro se.12


37
The importance of the right to counsel at the hearings is  easily understood. However, the right to counsel to file a  motion for a discharge hearing may be even more important.  The insanity acquittee's motion for a discharge hearing may  be the only way to trigger the release of one who no longer  poses a danger to society, especially in the case where there  is a failure by the institution to properly prepare and submit  the required annual reports, as was the case here. To effectively insure that an insanity acquittee is afforded his due process right to regular review of his continued confinement and  to effectuate a reasonable interpretation of the language of 18  U.S.C. S 4247(h) such acquittee should be afforded counsel  for the purpose of filing a motion for a discharge hearing.  That can only be accomplished by appointing counsel "to represent the acquittee in all matters connected with the commitment, including the monitoring of the acquittee's mental  health, the reading of all reports on the acquittee, and the initiation of any necessary action to protect the acquittee's  interests." LaFromboise, 836 F.2d at 1152.


38
It is the government's position that Budell has, in fact, been  represented by counsel at all times during his commitment.  However, it is clear from the brief filed by Budell's attorney  that said attorney believed his role as counsel terminated with the conclusion of the October 3, 1990 civil commitment hearing. That is supported by the fact that the record of the district  court shows no activity by counsel after that date, even when  the director of the medical center failed to submit the required  annual reports.


39
The district court seems to have assumed the same. Several  handwritten letters from Budell were received by the court  over the years; some were accepted for filing pro se without  referral to Budell's attorney for his consideration and/or  action. Furthermore, there is no indication in the record that  the court ever forwarded any of Budell's correspondence to  his attorney although the letters clearly exhibited Budell's  belief that he was not represented by counsel and his desire  to be so represented. Moreover, in the October 29, 1997 order  -- the order that is the subject of this appeal -- as well as in  response to previous pro se requests by Budell for appointment of counsel, the district court denied appointment never  mentioning that Budell already had appointed counsel. After  Budell filed his notice of appeal, the district court seems to  have assumed differently. In denying the certificate of  appealability and in finding excusable neglect in Budell's late  filing of the appeal the district court has expressly referred to  the fact that Budell already had appointed counsel.


40
This confusion, together with the district court's denial  of Budell's request for appointment of counsel, has effectively denied Budell his statutory right to be represented by  counsel for the purpose of filing a motion for a discharge  hearing.


41
Accordingly, the district court's denial of Budell's motion  for appointment of counsel is reversed and this matter is  remanded for further proceedings consistent with this opinion.


42
REVERSED and REMANDED.



Notes:


1
 At the hearing, according to the testimony of Donald R. Butts, M.D.,  staff psychiatrist at the Springfield Federal Medical Center, Budell was  competent on June 28, 1990 to stand trial or enter a plea because of the  medication he was taking at that time.


2
 Although his counsel was never relieved and never asked to be  relieved, it appears that the October 3, 1990 hearing was the last time  Budell's counsel appeared or otherwise acted as legal counsel for him  until after Budell filed his notice of appeal.


3
 Although this RAP was not filed by the district court, a copy was  attached to the district court's order of December 21, 1994.


4
 Although the RAPs dated October 2, 1995, August 19, 1996 and May  19, 1997 also were not filed by the district court, copies thereof were  attached to Budell's pro se habeas corpus petition filed September 26,  1997 seeking a discharge hearing pursuant to 18 U.S.C. SS 4243-4247.


5
 Although this letter has been clipped to the district court case file, it  has not been filed by the court nor made a part of the record.


6
 Although Budell requested appointment of counsel "to present my  case," the district court, in its December 3, 1996 order, interpreted this as  a request "to help him locate a residential facility, . . . [which was] not an  appropriate task for counsel . . . ."


7
 Because the notice of appeal was filed more than ten days, but within  forty days, after entry of the order from which appeal was taken, this case  was remanded to the district court pursuant to circuit court policy for the  limited purpose of determining whether excusable neglect existed for the  late filing of the notice of appeal. By order filed August 5, 1998, the district court found excusable neglect noting, inter alia, that Budell is certified to be mentally ill and incarcerated and that "Budell's attorney  apparently refused to file the motion for a hearing, which Defendant filed  pro se."


8
 "Although the district court had previously denied requests for appointment of counsel, this is the first time it mentioned that Budell already had  counsel representing him.


9
 Even if it could be argued that for purposes of S 2255 a civil commitment order should be viewed as a sentencing order, Budell is not challenging the commitment order. Instead, he is seeking a discharge hearing  based on a challenge to his continued hospitalization. As such, even under  such a statutory construction, his motion would be akin to a habeas petition, not a motion under S 2255 and, therefore, a certificate of appealablity  would still not be a prerequisite to appeal.


10
 The LaFromboise court, however, went on to state as follows:
Notwithstanding our holding in this case, we commend to dis trict courts in this circuit the practice approved in Government of the Virgin Islands v. Wallace, 679 F.2d 1066 (3rd Cir. 1982). In Wallace, the district court required an appointed lawyer to represent the acquittee in all matters connected with the commitment, including the monitoring of the acquittee's mental health, the reading of all reports on the acquittee, and the initiation of any necessary action to protect the acquittee's interests; and required the hospital superintendent to forward his reports to the counsel of the acquittee for review. Id. at 1071.
836 F.2d at 1152.


11
 There is another issue as to the sufficiency of the annual reports:  Although the RAP is prepared by medical professionals (a team of psychiatrists and psychologists), the cover letter is from a Bureau of Prisons warden. The recommendation from the warden in his cover letter is separate  and apart from the recommendation contained in the RAP. The only recommendation by independent health professionals is in the RAP; however,  it is the recommendation of the warden in his cover letter that is considered by the court as the recommendation of the annual report. The issue  is whether such a recommendation by a Bureau of Prisons warden is sufficient to meet the due process requirements of (1) independent evaluations  by (2) health care professionals as required under Hickey v. Morris and  United States v. LaFromboise.


12
 We do not reach whether S 4247(h) prohibits a hospitalized person  from filing a motion on his own behalf or whether such a prohibition would be constitutional.


