The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Respondent Gregory Lambert's Motion to Dismiss (d/e 11) Petitioner Franklin McCoy's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (d/e 4) (Petition). Respondent moves to dismiss the Petition because it is untimely and because it contains unexhausted and defaulted claims. McCoy is currently being held in the custody of the Director of the Big Muddy River Correctional Center for an indeterminate term pursuant to Illinois' Sexually Dangerous Person Act (Act), which authorizes the civil commitment of "sexually dangerous persons," who suffer from a mental disorder that makes them likely to engage in deviate sexual conduct. 725 ILCS § 205/1.01. McCoy is seeking habeas relief from this commitment based on the following grounds: (1) the 1988 civil commitment was unlawful because Dr. Mark S. Carich falsely testified in state and federal courts, violating McCoy's constitutional rights; (2) the Illinois Department of Corrections (DOC) violated his constitutional rights by opening his "special" mail; and (3) Adams County does not have any of his records on file.*fn2 After careful review of the submissions of the parties, this Court allows Respondent's Motion to Dismiss and dismisses McCoy's Petition for the reasons set forth below.
On May 14, 1987, the State of Illinois filed an information alleging that McCoy committed Aggravated Criminal Sexual Assault and Aggravated Criminal Sexual Abuse in that he sexually assaulted and abused two children under thirteen years of age. Thereafter, on September 8, 1987, the State filed a petition to declare McCoy a sexually dangerous person pursuant to the Act, and the petition incorporated the sexual assault and abuse charges and other offenses. On January 8, 1988, McCoy admitted the allegations in the petition, and thus, the Circuit Court of the Eighth Judicial Circuit, Adams County, Illinois, based on McCoy's admission and two psychiatric reports, found McCoy to be a sexually dangerous person within the meaning of the Act.*fn3 Pursuant to the Act, the Eighth Judicial Circuit ordered McCoy to be placed under the guardianship of the Illinois Director of DOC and to be placed in an appropriate facility of the DOC until further order of the Court.
The Act states that a person detained under the Act may independently petition the court for a release by filing an application for recovery any time after being committed. 725 ILCS § 205/9. Upon the filing of the recovery application, the person is entitled to a hearing to determine whether he or she remains a sexually dangerous person. Accordingly, following his commitment, McCoy filed an application for recovery with the state trial court. On August 26, 1988, the state trial court held a hearing to determine whether McCoy remained a sexually dangerous person. On September 1, 1988, the trial court denied McCoy's recovery application.
McCoy subsequently filed numerous recovery applications on the following dates: March 30, 1989; January 30, 1990; April 18, 1990; and March 4, 1991. The state trial court denied all of those applications. McCoy specifically appealed the trial court's March 31, 1991, judgment, denying his recovery application. He appealed this judgment to the Illinois Appellate Court, arguing that there was insufficient evidence showing that he remained a sexually dangerous person under the Act. On January 17, 1992, the Illinois Appellate Court affirmed the trial court's judgment. McCoy did not further appeal this decision. Some time later, McCoy filed an application for writ of habeas corpus in the federal district court for the Southern District of Illinois. On March 16, 1992, the district court dismissed McCoy's application without prejudice, because McCoy had not only failed to use proper habeas forms, but he had also failed to exhaust available state court remedies. Respondent's Motion to Dismiss, Exhibit R, U.S. District Court Order, Case No. 92-157-WDS (So. Dist. Ill).
On August 25, 1992, McCoy filed another recovery application, which was, again, denied. Some time later, McCoy, again, filed a recovery application. On January 5, 1994, a hearing was held on this petition, with McCoy and Dr. Carich testifying in court. At the hearing, McCoy denied ever having a "problem of a sexual nature towards children," and also denied the charges for which he was civilly committed under the Act. Vol. II, Report of Proceedings, Recovery Hearing, Adams County, Illinois, Case No. 87-CF-102 (1/5/94 Report of Proceedings), pp. 10, 18-20.
Dr. Carich testified that he and psychiatrist S.D. Parwatikar, as well as clinical services supervisor John Zielinski, had evaluated McCoy and reported to the Court on his status. At that time, McCoy was refusing to participate in group counseling, which is designed to orient sex offenders toward treatment and dealing with issues on which they needed to work, with an ultimate goal of management of their behavior. Dr. Carich indicated that the first step is for the offender to admit he has a problem. He stated that Dr. Parwatikar had diagnosed McCoy as suffering from paraphilia, not otherwise specified, indicating he had a wide range of victims and problems with sexual behavior. The doctor also diagnosed him as suffering from alcoholism and organic personality disorder. His personality disorder included features of antisocial narcissism, schizoidal and borderline behaviors. Since McCoy did not admit he had a problem and was resistant to attending group sessions, Dr. Carich concluded that McCoy had made no progress and would be a high risk to harm others in society if he were released. Id., pp. 23-29.
Based on Dr. Carich's testimony, the case file, as well as McCoy's own testimony, the trial court found that McCoy's condition had not changed, and it denied McCoy's recovery application. The trial court stated as follows:
THE COURT: First of all, pursuant to applicable statute and case law the burden is on the Defendant to prove by a preponderance that he has sufficiently recovered so as to grant the relief that he has prayed for. The Court may do that either by releasing him completely or giving him a conditional release to allow aftercare on an out-patient basis.
In this instance there is absolutely no basis to conclude that the Defendant's petition has been proven by a preponderance of the evidence. In fact, the overwhelming evidence is quite to the contrary. It would be virtually impossible for the Court to consider that he has recovered when he hasn't even been to a point yet when he can acknowledge that he has a problem from which he should recover.
The clear implication from the record in this case is that this Defendant is a serious danger to children, both male and female, as well as perhaps other persons who might be upon the streets and be coming in contact with this Defendant were he free. He is remaining a serious sexually dangerous person and a danger to the community wherever he might find himself. So, the petition is denied and the Defendant will be remanded to the guardianship of the Director of Corrections indefinitely pending regular reporting and evaluation to determine any recovery. 1/5/94 Report of Proceedings, pp. 35-36. McCoy subsequently appealed the trial court's January 5, 1994, judgment. After reviewing the record of the case, which included a confidential psychological report by Dr. Carich dated October 7, 1993, as well as McCoy's own testimony at the recovery hearing, the appellate court found as follows: McCoy's "diagnosis is that of 'paraphilia, NOS' with emphasis on pedophilia. He has not cooperated with institutional programs and treatments and has failed to achieve progress in any of the 15 elements of recovery. His testimony indicates improper activities with other inmates." Respondent's Motion to Dismiss, Exhibit K, The Appellate Court of Illinois' Summary Order. The Illinois Appellate Court issued a Rule 23 order, affirming the trial court's judgment, on June 20, 1995. On September 14, 1995, McCoy filed a handwritten petition for leave to appeal (PLA) with the Illinois Supreme Court. On November 13, 1995, the Illinois Supreme Court denied McCoy's PLA. On June 24, 1996, McCoy filed a petition for state post-conviction relief, which Respondent argues is not a relief available to individuals committed under the Act because the Act is a non-criminal statue.*fn4 The petition was denied on July 8, 1996. Respondent's Motion to Dismiss, Exhibit A, Record Sheet, p. 14.
McCoy filed another recovery application and applied for a recovery hearing on October 2, 1996. In response, the State moved for summary judgment, which was granted on February 13, 1997. On May 21, 1998, the trial court held another recovery hearing and subsequently denied McCoy's recovery application. McCoy then filed a petition for writ of habeas corpus in federal court. "The petition included claims that a state court judge subjected him to double jeopardy, that he was held in violation of the Tenth and Eleventh Amendments, and included a 42 U.S.C. § 1983 claim against the state court judge. The petition also alleged ineffective assistance of counsel because he was tried without a jury and that the Act was unconstitutional." Respondent's Motion to Dismiss, p. 7. A federal district court summarily dismissed McCoy's petition without prejudice, noting that the petition was not only "incomprehensible," but "illegible" in many instances. Respondent's Motion to Dismiss, Exhibit T, U.S. District Court Order, Case No. 98-013-PER (So. Dist. Ill).
On July 15, 2002, a jury trial was held in Adams County to determine whether McCoy remained a sexually dangerous person. Dr. Carich testified as an expert witness in this trial. He indicated that fifteen criteria are used to evaluate an offender's progress, and a report is prepared by a team of professionals, including a psychiatrist (Dr. Jatala), a psychologist (Dr. Carich) and a sociologist (Mrs. Spilman, M.S.W.) in this instance. The criteria included motivation, commitment (to recover and hurt no one else), personal responsibility, social interest (empathy and remorse for victims), development of appropriate social relationships, insight into his offending cycle, intervention skills, life-style behaviors, ...