The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Petitioner John Tittelbach ("Tittelbach")*fn1 was civilly committed following a bench trial in the Circuit Court of DuPage County as being a sexually violent person under the Sexually Violent Persons Commitment Act ("SVPCA"). Tittelbach is currently committed to the Joliet Treatment and Detention Facility of the Department of Human Services. Before this court is Tittelbach's petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition is denied.
Tittelbach was convicted in 1997 of criminal sexual assault stemming from his alleged sexual abuse of the daughter of the woman with whom he was living. Tittelbach was sentenced to four years' imprisonment. He became eligible for release in May 1999, but prior to his release, the state filed a petition alleging that Tittelbach is a sexually violent person under the SVPCA and sought to have him civilly committed. After a hearing in which the court heard testimony from the victim, two state experts, and one defense expert, the court found that Tittelbach was a sexually violent person and ordered him committed to a secure facility.
On August 17, 2001, the Illinois appellate court affirmed Tittelbach's commitment under the SVPCA, and on February 6, 2002, the Illinois Supreme Court denied Tittelbach's petition for leave to appeal. Subsequently, Tittelbach filed a petition for post-conviction relief and a state habeas petition. On March 31, 2004, the appellate court denied both petitions, and on September 13, 2004, the Illinois Supreme Court denied Tittelbach's petition for leave to appeal.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),*fn2 a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "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); see also Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S. at 404. To show that the state court decision involved an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. Further, the state court's application of Supreme Court precedent must be more than incorrect or erroneous; it must be "objectively" unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion"); see also Rice v. McCann, 339 F.3d 546, 548 (7th Cir. 2003) (state court application of federal law is reasonable if state decision is at least minimally consistent with facts and circumstances of case).
Further, to avoid a holding of procedural default for habeas claims, a petitioner must have "fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005) (citing Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003)). For a constitutional claim to be fairly presented, "the petitioner must present both the operative facts and legal principles that control each of his claims." Id. (citing Rittenhouse v. Battles, 263 F.3d 689, 695-96 (7th Cir. 2001)). To determine whether a claim has been fairly presented, courts look to the following factors: "(1) whether the petitioner relied on federal cases that engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation." Perruquet v. Briley, 390 F.3d 505, 519-20 (7th Cir. 2004) (quoting Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004)). The presence of any of these factors is not determinative. Id. at 520. Instead the court must determine "in concrete, practical terms, whether the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis." Rittenhouse, 263 F.3d at 696 (quoting Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)).
Even if the petitioner has raised all of his habeas claims in state court, this court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine bars "federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30.
Where a petitioner has procedurally defaulted, this court may review the underlying claims only if the habeas petition "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure." Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999) (citing Wainwright v. Sykes, 433 U.S. 72, 91 (1977)). Absent this showing, "a defaulted claim is reviewable only if refusal to consider it would result in a 'fundamental miscarriage of justice,' that is, where 'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). This would require a petitioner "to show that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Buelow v. Dickey, 847 F.2d 420, 427 (7th Cir. 1988) (holding that court "may set aside the cause-and-prejudice test and permit a habeas petition if, due to a fundamentally unjust trial, an innocent defendant was convicted").
III. Tittelbach's Grounds for Relief
Tittelbach was civilly committed under the SVPCA. Under that Act, a "sexually violent person" is: a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.
725 ILCS 207/5(f). A "mental disorder" is "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." 725 ILCS 207/5(b). To institute proceedings under the SVPCA, the Attorney General or State's Attorney can file a petition alleging that the person was convicted of, or found not guilty by reason of insanity of, a sexually violent offense, the person has a mental disorder, and the mental disorder "creates a substantial probability that he or she will engage in acts of sexual violence." 725 ILCS 207/15. Proceedings under the SVPCA are civil, not criminal, and the person subject to the petition is afforded procedural due process rights, such as the right to be represented by counsel, the right to remain silent, and the right to present and cross-examine witnesses. 725 ...