                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3052
                                    ___________

Frederick Lee Revels,                  *
                                       *
           Petitioner - Appellant,     *
                                       * Appeal from the United States
     v.                                * District Court for the Western
                                       * District of Missouri.
Mary Sanders,                          *
                                       *
           Respondent - Appellee.      *
                                  ___________

                              Submitted: November 15, 2007
                                 Filed: March 10, 2008
                                  ___________

Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

      Petitioner Frederick Lee Revels, an insanity acquittee, appeals from the district
court’s order denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
In his petition, Revels challenges the Missouri Court of Appeals’s denial of his
application for unconditional release. Because we conclude that the court violated
Revels’s due process rights by imposing on him an evidentiary burden contrary to
Supreme Court precedent, we reverse the judgment of the district court and grant a
conditional writ of habeas corpus.
                                           I.

       Revels is involuntarily committed as a psychiatric patient at the Northwest
Missouri Psychiatric Rehabilitation Center (“NMPRC”) in St. Joseph, Missouri. On
June 22, 1988, Revels killed three members of his family; at that time, Revels was
hearing voices and abusing a controlled substance. On July 22, 1988, a grand jury
indicted Revels on two counts of first-degree murder, one count of second-degree
murder, and three counts of armed criminal action. On August 27, 1992, Revels
entered a plea of not guilty by reason of insanity on all counts in the Circuit Court of
Jackson County, Missouri. The circuit court accepted Revels’s plea, found him not
guilty by reason of mental disease or defect excluding responsibility,1 and committed
him to the care and custody of the Missouri Department of Mental Health.2

       In 1993, Revels applied to the Jackson County Circuit Court for a conditional
release.3 Pursuant to Missouri law, Revels, as the party who sought the conditional


      1
       “A person is not responsible for criminal conduct if, at the time of such
conduct, as a result of mental disease or defect such person was incapable of knowing
and appreciating the nature, quality, or wrongfulness of such person’s conduct.” Mo.
Rev. Stat. § 552.030(1).
      2
       “When an accused is tried and acquitted on the ground of mental disease or
defect excluding responsibility, the court shall order such person committed to the
director of the department of mental health for custody.” Id. § 552.040.2.
      3
       An insanity acquittee or “the head of the facility where the person is committed
may file an application in the court [that committed the person] for a hearing to
determine whether the committed person shall be released conditionally.” Id. §
552.040.10. “The application shall specify the conditions and duration of the
proposed release.” Id. § 552.040.10(3). While on conditional release, one must abide
by the conditions specified in his application, id., and the Missouri Department of
Health is able to monitor compliance with such conditions through “reviews and visits
with the client at least monthly, or more frequently as set out in the release plan” as
well as ensure that the acquittee “is receiving care, treatment, habilitation or

                                          -2-
release, bore the burden of proving, by clear and convincing evidence, that he was
“not likely to be dangerous to others while on conditional release.” Mo. Rev. Stat. §
552.040.12(6). In addition, because Revels’s insanity acquittal was based, in part, on
the crime of first-degree murder, he was ineligible for conditional or unconditional
release absent a finding by the court that:

      (1) [Revels] is not now and is not likely in the reasonable future to
      commit another violent crime against another person because of
      [Revels’s] mental illness; and (2) [Revels] is aware of the nature of the
      violent crime committed against another person and presently possesses
      the capacity to appreciate the criminality of the violent crime against
      another person and the capacity to conform [Revels’s] conduct to the
      requirements of law in the future.

Id. § 552.040.20. Finally, in considering an application for either conditional or
unconditional release, Missouri law requires that the court consider a six-part test for
weighing the impact of the applicant’s release on public safety.4


rehabilitation consistent with his needs, condition and public safety.” Id. §
552.040.16. Further, conditional release may be revoked in the event that the director
of the department of mental health “has reasonable cause to believe that the person has
violated the conditions of such release,” id. § 552.040.17, and, “[a]t any time during
the period of a conditional release or trial release, the court which ordered the release
may issue a notice to the released person to appear to answer a charge of a violation
of the terms of the release and the court may issue a warrant of arrest for the
violation.” Id. § 552.040.18.
      4
       The six-part statutory test addresses the following:

      (1) The nature of the offense for which the committed person was
      committed; (2) The person’s behavior while confined in a mental health
      facility; (3) The elapsed time between the hearing and the last reported
      unlawful or dangerous act; (4) The nature of the person’s proposed
      release plan; (5) The presence or absence in the community of family or
      others willing to take responsibility to help the defendant adhere to the

                                          -3-
       The circuit court granted Revels’s application for conditional release; however,
it was revoked in 1994 when he missed appointments, broke a window, and tested
positive for a prescribed painkiller which he was no longer authorized to use.
Sometime in 1995, Revels received a second conditional release, which was revoked
on March 1, 1997, partly because he failed to attend Alcoholics Anonymous and
Narcotics Anonymous meetings as required by the terms of his conditional release.

       On October 31, 1997, Revels, for the first time, applied to the Jackson County
Circuit Court for an unconditional release. In order to obtain an unconditional release,
Missouri law requires that Revels show, by clear and convincing evidence, that he
“does not have, and in the reasonable future is not likely to have, a mental disease or
defect rendering [him] dangerous to the safety of himself or others.” Mo. Rev. Stat.
§§ 552.040.7(6), .9. In addition, based on the nature of the offense for which Revels
was acquitted, the court had to find that:

      (1) [Revels] is not now and is not likely in the reasonable future to
      commit another violent crime against another person because of
      [Revels’s] mental illness; and (2) [Revels] is aware of the nature of the
      violent crime committed against another person and presently possesses
      the capacity to appreciate the criminality of the violent crime against
      another person and the capacity to conform [Revels’s] conduct to the
      requirements of law in the future.

Id. § 552.040.20. The circuit court denied Revels’s application, and its decision was
affirmed by the Missouri Supreme Court, State v. Revels, 13 S.W.3d 293 (Mo. 2000)
(en banc).




      conditions of the release; and (6) Whether the person has had previous
      conditional releases without incident.

Id. § 552.040.12.

                                          -4-
       On June 19, 2003, Revels again applied to the Jackson County Circuit Court for
unconditional release, which the Missouri Department of Health opposed. Revels also
challenged the constitutionality of Chapter 552 of the Revised Statutes of the State of
Missouri with regard to release. The circuit court conducted a hearing on the matter
on June 20, 2003. The evidence at the hearing consisted of Revels’s medical records
and the testimony of two psychiatrists, Dr. A. E. Daniel and Dr. James Bradley
Reynolds, the Medical Director of NMPRC. Dr. Daniel, who had met with Revels
several times beginning in 2000, testified that Revels had been diagnosed with (1) a
substance-induced psychotic disorder in remission and (2) poly-substance dependence
in full remission. Dr. Reynolds, who was the supervisor of individuals working
directly with Revels and had examined Revels, did not disagree with Dr. Daniel’s
testimony with regard to Revels’s diagnoses; however, Dr. Reynolds stated that a
mental condition in remission is one that still exists and may become a problem again.

       With regard to Revels’s then current mental condition, the February 13, 2003
medical and psychiatric assessment performed by Dr. Arnaldo Berges, provided that:
(1) “there are no reports of [Revels exhibiting] active psychotic symptoms since mid-
1992” and (2) Revels’s “active symptoms of psychosis seem[] to be in full remission
at this time which indicates no acute need for antipsychotic treatment.” Dr. Daniel
stated that Revels showed no present symptoms of any mental disorder. Dr. Reynolds
agreed that Revels displayed no signs of a present mental disorder. While Dr. Daniel
opined that the unconditional release should be granted, Dr. Reynolds observed that
he could not state that Revels was not likely to be dangerous due to: (1) Revels’s
prior unsuccessful conditional releases; (2) Revels’s likely relapse and use of illegal
drugs; and (3) the fact that Revels, who has a history of drug-induced delusions, was
more likely to have such delusions in the event of subsequent drug use than someone
without a history of delusions.

       The Jackson County Circuit Court accepted the accuracy of both psychiatrists’
testimony, except that the court found Dr. Reynolds’s testimony more credible than

                                         -5-
Dr. Daniel’s as to Revels’s dangerousness and the likelihood that Revels would
relapse. On June 21, 2004, the circuit court denied Revels’s application for
unconditional release because (1) Revels has a mental disease which is in remission
and (2) Revels had not carried his burden under Missouri law to show, by clear and
convincing evidence, that he was not likely to be dangerous to himself or others if
released because Dr. Reynolds could not state to a reasonable degree of certainty that
Revels would not be dangerous. With regard to the statutory “safety” factors, the
circuit court found the following: (1) Revels committed three murders (factor one);
(2) Revels’s recent behavior in the Department of Mental Health was acceptable
(factor two); (3) Revels’s last dangerous act was during his first conditional release
when he, out of anger, broke a window with his hand (factor 3); and (6) Revels had
failed to complete two conditional releases (factor 6). The court concluded that the
factors did not warrant Revels’s unconditional release. The court also held that
Revels’s constitutional challenge to Chapter 552 of the Revised Statutes of the State
of Missouri failed. The Missouri Court of Appeals summarily upheld the denial of
release on August 16, 2005. State v. Revels, 172 S.W.3d 461 (Mo. Ct. App. 2005)
(per curiam).

       The Missouri Court of Appeals issued a memorandum supplementing order
articulating its reasoning for the denial. State v. Revels, Memorandum Supplementing
Order, Aug. 16, 2005 (Mo. Ct. App. 2005) (unpublished). The court of appeals found
that the record supported the trial court’s finding that Revels had failed to show, by
clear and convincing evidence, that he did not then have a present mental disease or
defect and that he was not then potentially dangerous to himself and others, with the
court noting specifically that the danger was “due to his drug and alcohol dependence
and prior abuse of drugs and alcohol.” Id. at 4. With regard to Revels’s claim that he
was entitled to unconditional release because (1) both psychiatrists agreed that he
currently showed no signs of mental disability and (2) as a result, his future
dangerousness was irrelevant, the court of appeals stated that “it [is] not enough to
prove present absence from mental defect, but the person seeking unconditional

                                         -6-
release must show that he is not likely to suffer from a mental disease or defect in the
reasonable future, and also establish by clear and convincing evidence the mandate
of Section 552.040 that he will not be a danger to himself or others.” Id. at 3 (citing
State v. Gratts, 112 S.W.3d 12, 19 (Mo. Ct. App. 2003).

       The court of appeals also rejected Revels’s contention that he was entitled to
release because he passed the six-part statutory “safety” test, finding specifically that
(1) “the offense for which he was committed was egregious having killed three family
members” (factor one); (2) “Revels also exhibited aggressive behavior while confined
(verbally lashing out at a department case manager and using profanity)” (factor
three); and (3) “he has failed two conditional releases” (factor six). Id. at 4. Thus, the
Missouri Court of Appeals denied all of Revels’s claims. Id. Revels’s application for
transfer to the Missouri Supreme Court was denied on October 4, 2005. Revels, 172
S.W.3d at 461.

      On November 15, 2005, Revels filed a petition for a writ of habeas corpus in
the United States District Court for the Western District of Missouri. In his petition,
Revels asserted that: (1) he should be released from confinement because he no
longer suffered from a mental disorder, had not done so since 1992, and had not
required anti-psychotic medication since 1997; (2) on April 23, 2005, Dr. Reynolds
assessed Revels to be recovered and not likely spontaneously to suffer a psychotic
disorder in the absence of drug use;5 and (3) the dictates of Missouri law as to what
an insanity acquittee must show in order to obtain release violate the due process
standard set forth by the United States Supreme Court in Foucha v. Louisiana, 504
U.S. 71 (1992). The respondent Mary Sanders, the Chief Operating Officer of
NMPRC and Revels’s custodian, contended that Revels’s petition was untimely filed

      5
       We reject Revels’s attempt to rely on a psychiatric assessment which was not
before the circuit court at the time that it denied his application for unconditional
release. Von Kahl v. United States, 242 F.3d 783, 788 (2001) (stating that generally
“the appellate record is limited to the record made below”).

                                           -7-
under 28 U.S.C. § 2244(d)(1) because more than a year passed between the date that
petitioner’s judgment became final, August 27, 1992, and the date he filed his federal
petition, November 15, 2005.

        The district court, assuming without deciding that Revels’s petition was timely
as from the Jackson County Circuit Court’s June 21, 2004 denial of Revels’s 2003
application for unconditional release, “conclude[d] that the decisions of the state
courts that petitioner should not be unconditionally released . . . were not unreasonable
applications of federal law . . . or based on an unreasonable determination of the facts
of petitioner’s case.” Revels v. Sanders, No.05-1140-CV-W-NKL-P (W. D. Mo. May
23, 2006) (unpublished). Accordingly, the district court dismissed Revels’s petition
for a writ of habeas corpus with prejudice.

      This court granted a certificate of appealability as to Revels’s

      claim [that] his due process rights [were] violated when his June 2003
      amended application for release from confinement was denied; more
      specifically, whether the Missouri Court of Appeals’ conclusion that
      Revels was required to show he ‘currently does not suffer from mental
      illness and was not likely to have a mental disease or defect in the
      reasonable future and that he . . . no long . . . poses a danger to society,’
      State v. Revels, WD64433, at 3 (MO Ct. App. Aug. 16, 2005), is
      reasonably wrong in light of the Supreme Court’s decision in Foucha v.
      Louisiana, 504 U.S. 71 (1992).

Revels v. Sanders, No. 06-3052 (8th Cir. March 28, 2007) (unpublished) (internal
quotations omitted).




                                          -8-
                                            II.

       “We review for clear error the district court’s factual findings and review de
novo its legal conclusions.” Bell-Bey v. Roper, 499 F.3d 752, 755 (8th Cir. 2007),
pet. for cert. filed (U.S. Jan. 17, 2008) (No. 07-8894). Our review of this appeal is
governed by the provisions of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) which “limits the availability of habeas relief.” Id. Accordingly, we
may not grant Revels habeas relief “unless [the Missouri Court of Appeals’s]
adjudication of [Revels’s] claim resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Id. § 2254(d)(2). Because the certificate of
appealability refers only to section 2254(d)(1), the “unreasonable application” prong,
we limit our review of Revels’s habeas petition to that provision. See 28 U.S.C. §
2253(c)(3) (on habeas review, a federal court of appeals considers only the “specific
issue or issues” listed in the certificate of appealability); see also Scott v. United
States, 473 F.3d 1262, 1263 (8th Cir.), cert. denied, 127 S. Ct. 2443 (2007) (“Our
‘appellate review is limited to the issues specified in the certificate of appealability.’”)
(quoting Carter v. Hopkins, 151 F.3d 872, 874 (8th Cir. 1998)).

       The Supreme Court has identified two ways in which a state court decision may
meet the requirements imposed by the “unreasonable application” prong of section
2254(d)(1). This court may grant the writ if the state court: (1) “applie[d] a rule that
contradicts the governing law set forth in [Supreme Court] cases” or (2) “confront[ed]
a set of facts that are materially indistinguishable from a decision of this Court and
nevertheless arrive[d] at a result different from our precedent.” Penry v. Johnson, 532
U.S. 782, 792 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see
Bell-Bey v. Roper, 499 F.3d at 756. “Avoiding these pitfalls does not require citation
of [Supreme Court] cases-indeed, it does not even require awareness of [the Court’s]

                                            -9-
cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Therefore, we
note that the Missouri Court of Appeals’s failure to identify controlling Supreme
Court precedent with regard to the confinement of insanity acquittees does not, by
itself, render the decision contrary to clearly established federal law. See id.

                                          III.

                                           A.

       We first address the respondent’s contention that Revels’s habeas petition was
untimely because more than a year passed between the date that the judgment in
Revels’s initial criminal case became final, and the date Revels filed his petition.
Revels responds that his habeas petition timely challenges the circuit court’s 2003
judgment that, under Missouri law, he must remain in custody despite his request for
release. Revels acknowledges that, at the time of the 1992 commitment order, he
clearly met the criteria for confinement; however, he points out that the issue here is
continued confinement, which he may challenge under Missouri law,6 and that he no
longer meets the constitutional criteria for commitment.

      In this case, Revels is not challenging his conviction or initial commitment.
Rather, he is challenging his continued commitment through his application for
unconditional release, as Missouri law allows. See Mo. Rev. Stat. § 552.040.5, 13.
Under AEDPA, “Congress established a 1-year statute of limitations for seeking


      6
        “An order denying the application shall be without prejudice to the filing of
another application after the expiration of one year from the denial of the last
application.” Mo. Rev. Stat. § 552.040.13. “[A]ny person who has been denied an
application for a conditional release pursuant to subsection 13 of this section shall not
be eligible to file for an unconditional release until the expiration of one year from
such denial.” Mo. Rev. Stat. § 552.040.5.

                                          -10-
federal habeas corpus relief from a state-court judgment, 28 U.S.C. § 2244(d), and
further provided that the limitations period is tolled while ‘an application for State
post-conviction or other collateral review’ ‘is pending.’” Lawrence v. Florida, 127
S. Ct. 1079, 1081 (2007) (quoting 28 U.S.C. § 2244(d)(2)). The circuit court denied
Revels’s application for unconditional release on June 21, 2004. Revels filed his
notice of appeal with the Missouri Court of Appeals on September 1, 2004, and the
court affirmed the denial of release on August 16, 2005. On October 4, 2005, the
court of appeals denied Revels’s application for transfer to the Missouri Supreme
Court. Revels filed his habeas petition on November 15, 2005. Thus, 512 days passed
from the circuit court’s denial of Revels’s application for release and his habeas
petition. However, pursuant to 28 U.S.C. § 2244(d)(2), the habeas statute of
limitations was tolled while Revels’s claim was pending before the Missouri Court of
Appeals. Thus, from September 1, 2004 to October 4, 2005, the statute of limitations
was tolled. This means that 399 days are excluded from the 512-day period such that
only 113 countable days passed from the circuit court’s judgment to the filing of
Revels’s petition. Revels was allowed one year, see 28 U.S.C. § 2244(d)(1), and,
therefore, the petition was timely filed.

                                          B.

       “[C]ommitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” Jones v. United States, 463 U.S. 354, 361
(1983) (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)). The Supreme Court
outlined the substantive protections of the Due Process Clause for the continued
confinement of insanity acquittees in Foucha v. Louisiana, 504 U.S. 71 (1992). The
petitioner in Foucha challenged Louisiana’s statutory release provision which
provided that the state could continue to confine indefinitely an acquittee in a mental
facility who, although not mentally ill, might be dangerous to himself or to others if
released. Id. at 73. The Foucha Court held that the statute violated due process
because such an “acquittee may be held as long as he is both mentally ill and

                                         -11-
dangerous, but no longer.” Id. at 77. Thus, an application for release of an insanity
acquittee has two components: (a) a present mental illness and (b) dangerousness
stemming from that illness. Id.; see United States v. Bilyk, 29 F.3d 459, 462 & 462
n.3 (8th Cir. 1994) (per curiam) (recognizing that future dangerousness alone is not
a proper basis for the continued confinement of an insanity acquittee) (citing Foucha,
504 U.S. at 77-79); see also United States v. Wattleton, 296 F.3d 1184, 1202 n.35
(11th Cir. 2002) (“[T]he holding of Foucha provides that a defendant’s dangerous
propensities alone may not serve as a continued basis for confinement following an
insanity verdict . . . .”); Parrish v. Colorado, 78 F.3d 1473, 1477 (10th Cir. 1996)
(“[T]he real significance of the [Foucha] holding is that unless an acquittee has an
identifiable mental condition, he cannot be held by the state merely because he is
dangerous.”).

       Both the Missouri Supreme Court and the Missouri Court of Appeals have
recognized Foucha’s effect. See Greeno v. State, 59 S.W.3d 500, 503 (Mo. 2001) (en
banc) (“A state may only confine someone found not guilty by reason of insanity if
the confined person is both suffering from a mental disease or disorder and might be
dangerous to himself or others if released.”) (citing Foucha, 504 U.S. at 86); State v.
Nash, 972 S.W.2d 479, 482 (Mo. Ct. App. 1998) (“The due process rights of a person
are violated if the state holds a person in a psychiatric facility when the person is no
longer suffering from a mental disease or defect.”) (citing Foucha, 504 U.S. at 79-80).
In Nash, the court of appeals found that the trial court erred where, after determining
that Nash, an insanity acquittee, proved that he did not presently suffer from a mental
illness, it then required him to also prove that he would not be dangerous in the
reasonable future. 972 S.W.2d at 482-83 (citing Foucha, 504 U.S. at 77-79). The
Nash Court went onto hold that “[o]nce the trial court found that [Nash] [did] not




                                         -12-
presently have a mental disease or defect, the trial court was bound to release [Nash].”
Id. at 482.7

       However, in affirming the denial of Revels’s application for unconditional
release, the Missouri Court of Appeals stated:

      [I]t [is] not enough to prove present absence from mental defect, . . . the
      person seeking unconditional release must show that he is not likely to
      suffer from a mental disease or defect in the reasonable future, and also
      establish by clear and convincing evidence . . . that he will not be a
      danger to himself or others.

Revels, No. WD64433 at 3. Thus, the Missouri Court of Appeals expressly based its
affirmance of the circuit court’s denial of unconditional release on its finding that,
under Missouri law, an insanity acquittee seeking release must show, by clear and
convincing evidence, that (1) he is not presently mentally ill; (2) he is not dangerous;
(3) he is not likely to suffer a mental disease; and (4) he is not likely to become
dangerous in the reasonable future. Requiring an insanity acquittee to prove both a
lack of present mental illness and dangerousness, is clearly contrary to Foucha, and
violates the substantive protections of the Due Process Clause as defined by the

      7
        We note that other Missouri Court of Appeals cases have reached contrary
results. See State v. Gratts, 112 S.W.3d 12, 19-20 (Mo. Ct. App. 2003) (reversing
circuit court judgment granting insanity acquittee an unconditional release because he
demonstrated that he no longer suffered from a mental illness and remanding to the
circuit court for it to determine whether he met his burden of establishing, by clear and
convincing evidence, “that [he was] not in the reasonable future likely to have a
mental disease or defect rendering him dangerous to the safety of himself or others”);
State v. Weekly, 107 S.W.3d 340, 346-47 (Mo. Ct. App. 2003) (reversing circuit court
judgment granting insanity acquittee an unconditional release because he
demonstrated that he no longer suffered from a mental illness in light of the governing
statute which required an additional “find[ing] that in the reasonable future [he] was
not likely to have a mental disease or defect rendering him dangerous to the safety of
himself or others”).

                                          -13-
Supreme Court. See 504 U.S. at 77. Here, the Missouri Court of Appeals went even
further, requiring Revels to also show the absence of a probability of a future mental
illness and future dangerousness, stepping even further over the line drawn by the
Supreme Court in Foucha.

      The respondent contends that Foucha is inapplicable in two ways: (1) Foucha
involved a conditional release such that the state of Louisiana continued to have some
control over the acquittee in contrast to this case whereas here, if Revels is
unconditionally released, the Missouri Department of Health would have no control
over him and (2) in terms of procedure, in Foucha, only the state health department
could initiate applications for release but, under the Missouri system, both the
confined individual and the Missouri Department of Health can do so.

        First, the State’s attempt to distinguish this unconditional release case from
Foucha, a conditional release case, is precluded by the Foucha Court’s reasoning.8
The Foucha Court stated that “according to the testimony given at the hearing in the
trial court, Foucha is not suffering from a mental disease or illness. If he is to be held,
he should not be held as a mentally ill person.” 504 U.S. at 79. The Foucha Court
went on to explain that


      8
        However, Missouri courts have accepted the State’s rationale. See Weekly,
107 S.W.3d at 348-50 (distinguishing Foucha based on the differences between
conditional and unconditional release such that the State could require an insanity
acquittee seeking unconditional release to show both that he “(1) has no mental
disease, and (2) in the reasonable future is not likely to have a mental disease
rendering the applicant dangerous” without violating Foucha) (citing Foucha, 504
U.S. at 74, 82); see also State v. Revels, 13 S.W.3d 293, 296 (Mo. 2000) (en banc)
(requiring an insanity acquittee seeking unconditional release to demonstrate that he
lacks a present mental illness and that “in the reasonable future [he] is [not] likely to
have, a mental disease or defect rendering the person dangerous to self or others . . .
meets the holding of Foucha”) (citing Foucha, 504 U.S. at 86-90); Gratts, 112 S.W.3d
at 18 (noting the distinction between Foucha and unconditional release cases).

                                           -14-
      A State, pursuant to its police power, may of course imprison convicted
      criminals for the purposes of deterrence and retribution . . . . Here, the
      State has no such punitive interest. As Foucha was not convicted, he
      may not be punished. Here, Louisiana has by reason of his acquittal
      exempted Foucha from criminal responsibility . . . .

Id. at 80. Thus, the rule urged by the respondent, that a state may continue to hold an
insanity acquittee who seeks unconditional release even if he is not presently mentally
ill, must be rejected. Rather, once an insanity acquittee has shown the absence of a
present mental illness, his continued confinement constitutes “punishment,” which
Foucha expressly rejected as a proper basis for the confinement of one who is not
criminally responsible for his criminal actions. Id. Moreover, the Supreme Court has
recognized that “a federal court [may] grant habeas relief based on the application of
a governing legal principle to a set of facts different from those of the case in which
the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (citing
Williams, 529 U.S. at 407). Here, the distinction between conditional and
unconditional release is not material in light of Foucha’s “governing legal principle,”
constricting a state’s ability to continue to confine an insanity acquittee.

       Second, we see no reason for Foucha to be inapplicable simply because,
pursuant to Missouri law, Revels can challenge his continued confinement whereas
Foucha could not under the Louisiana procedure; Foucha sets forth the standard that
must be satisfied regardless of who makes the application for release. In sum, this
case is “materially indistinguishable” from Foucha. See Brown v. Payton, 544 U.S.
133, 141 (2005) (“A state-court decision is contrary to this Court’s clearly established
precedents . . . if it confronts a set of facts that is materially indistinguishable from a
decision of this Court but reaches a different result.”) (emphasis added).

      The respondent next contends that, even if Foucha applies, the Missouri Court
of Appeals did not violate Foucha because: (1) both the Jackson County Circuit Court
and the Missouri Court of Appeals found that Revels had a present mental defect

                                           -15-
whereas in Foucha the lower courts did not find a present mental disease or defect and
(2) even assuming there was no finding of a present mental disease, a finding of a
reasonable probability that a mental disease would reappear in the future combined
with a finding of future dangerousness warrants continued confinement under Foucha
because the potential for a future mental disease was not present or discussed in
Foucha.

       Whatever we think about the evidence concerning Revels’s present mental state,
the circuit court found that he suffered from a mental disorder. Were this the opinion
we were reviewing, we would assume the correctness of the finding and only reverse
if Revels presented clear and convincing evidence that this was not the case. See 28
U.S.C. § 2254(e)(1) (providing that, under AEDPA, federal habeas courts presume the
correctness of state courts’ factual findings unless applicants rebut this presumption
with clear and convincing evidence). However, the circuit court’s factual findings are
not before us. Rather, under the certificate of appealability, our review is confined to
the issue of whether the Missouri Court of Appeals unreasonably applied Foucha in
determining that the state could continue to hold Revels based on future
dangerousness alone. See 28 U.S.C. § 2253(c)(3); see also Scott, 473 F.3d at 1263;
Carter, 151 F.3d at 874. We see no way to construe the court of appeals’s assertion
other than in direct contradiction of Foucha. Furthermore, the respondent’s second
contention, that the Missouri Court of Appeals did not violate Foucha due to the
likelihood that Revels’s mental illness would return, is plainly incorrect because
Foucha required the finding of a present mental illness for the continued confinement
of an insanity acquittee. 504 U.S. at 77; see Wattleton, 296 F.3d at 1199; Parrish, 78
F.3d at 1477; Greeno, 59 S.W.3d at 503; Nash, 972 S.W.2d at 482-83.

                                          IV.

      Because the Missouri Court of Appeals violated Revels’s due process rights by
applying a standard for unconditional release contrary to Supreme Court precedent,

                                         -16-
we reverse the judgment of the district court and remand the case with instructions
that the district court order that Revels be released from state custody unless the State
of Missouri affords Revels a new hearing within a reasonable time as set by the
district court.9
                          ______________________________




       9
        Below and before this court, Revels challenges the constitutionality of Chapter
552 of the Revised Statutes of the State of Missouri governing release; however, we,
constrained by the certificate of appealability, cannot reach this issue. See Carter v.
Hopkins, 151 F.3d 872, 874 (8th Cir. 1998) (rejecting petitioner’s contention that this
court’s “review is not limited to those issues identified in the district court’s certificate
of appealability and that [it] [is] free to consider any and all issues so long as a
certificate has been issued”).

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