The opinion of the court was delivered by: G. Patrick Murphy United States District Judge
Petitioner brings this action under 28 U.S.C. § 2254 challenging his civil commitment as a sexually dangerous person. This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 25), recommending that the Petition for a Writ of Habeas Corpus filed by Petitioner be denied. Respondent filed objections to the Report and Recommendation on January 11, 2008 (Doc. 27),*fn1 and Petitioner filed objections on January 18, 2008 (Doc 29).
A. Trial and Direct Appeal
Petitioner Steven Dinwiddie was civilly committed to the guardianship of the Illinois Director of Corrections as a sexually dangerous person on April 29, 1998, following a jury trial (Doc. 15-2). He appealed this judgment to the Illinois Appellate Court, Fifth District, raising the following issues: the trial court's admission of out-of-court statements of a minor concerning alleged sexual abuse; the trial court's exclusion of spectators during the testimony of a minor concerning alleged sexual abuse; ineffective assistance of counsel; and the State's failure to carry its burden of proof (Docs. 15-5 and 15-6). The appellate court affirmed his commitment on July 8, 1999 (Doc. 15-4). He then petitioned for leave to appeal to the Illinois Supreme Court, which denied the petition on October 6, 1999 (Doc. 15-11).
B. First Proceeding After Commitment
Petitioner filed an "Application for Recovery" under 725 ILCS 205/9 requesting that he be released on September 29, 2000 (Doc. 15-2). He withdrew this application on June 19, 2001, and filed another 725 ILCS 205/9 proceeding on July 16, 2002 (Doc. 15-2) (referred to as the "first 725 ILCS 205/9 proceeding"). Following a jury trial on the July 16th application for recovery, the court entered judgment on a jury verdict that Petitioner was still a sexually dangerous person on July 24, 2002 (Doc. 15-3 at 5).
Petitioner appealed this judgment to the Illinois Appellate Court, Fifth District, raising the following issues: the trial court's denial of Petitioner's motion to strike the testimony of a psychologist in violation of Illinois law; the trial court's decision not to order the jury to strike the testimony of a witness who was not properly qualified as an expert; and the unconstitutionality of the Application Showing Recovery provision of the Sexually Dangerous Persons Act under Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002) (Docs. 15-12, 15-13, 15-14). The Appellate Court affirmed on the merits on June 18, 2003 (Doc. 15-17). He petitioned for leave to appeal, but the Illinois Supreme Court denied it on December 2, 2003 (Doc. 15-19).
C. Second Proceeding After Commitment
While Petitioner was appealing the July 24, 2002 judgment (the first proceeding), he filed two pro se applications for release with the Jefferson County Circuit Court. The first application (referred to as the "second 725 ILCS 205/9 proceeding") was dismissed on August 2, 2002, and he did not appeal that dismissal (Doc. 15-3 at 3-4).
D. Third Proceeding After Commitment
The second pro se application (referred to as the "third 725 ILCS 205/9 proceeding") resulted in a bench trial, and the court entered judgment on May 6, 2004, finding that Petitioner remained a sexually dangerous person (Doc. 15-3 at 12). The Appellate Court dismissed the appeal on the grounds of statutory waiver on June 27, 2005 (Doc. 15-24). Respondent alleges that Petitioner did not file a petition for leave to appeal this decision with the Illinois Supreme Court (Doc. 15 at 5). Petitioner indicates that he filed a petition for leave to appeal this decision in April 2004 (Doc. 29 at 3). Since this predates the trial court's entry of judgment, this assertion cannot be correct.*fn2
E. Federal Habeas Corpus Petition
On December 19, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus, challenging his confinement in the Big Muddy River Correctional Center and his classification as a sexually dangerous person pursuant to 725 ILCS 205/0.01, et seq. (Doc. 1). He alleges that he received ineffective assistance of counsel in that his counsel failed to obtain a police report, to investigate the matter, to ensure by subpoena that necessary witnesses were present, and to argue that the State had not proved that he was a sexually dangerous person beyond a reasonable doubt.*fn3
On February 1, 2006, this Court entered a Memorandum and Order dismissing all counts of the petition which purported to challenge the original judgment finding Petitioner to be a sexually dangerous person because those claims are barred by 28 U.S.C. § 2244(d)(1) (Doc. 5 at 2). However, the Court at that time did not determine whether Petitioner was attempting to challenge his continued civil confinement or whether such challenge to his continued confinement was barred by any limitation to relief under 28 U.S.C. § 2244. The Court ordered Respondent to ...