IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
April 21, 2008
STEVE DINWIDDIE, PETITIONER,
JOHN EVANS, RESPONDENT.
The opinion of the court was delivered by: G. Patrick Murphy United States District Judge
MEMORANDUM AND ORDER
MURPHY, 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 "answer and show cause why the writ should not issue. Respondent shall specifically address Petitioner's continued civil confinement" (Doc. 5 at 3).
On March 28, 2006, Respondent filed an Answer, requesting that the petition be denied (Doc. 15). Respondent argued that dismissal was appropriate because Petitioner only challenged the 1998 trial and that challenge to that trial was time-barred (Doc. 15 at 8-9). In the alternative, Respondent argued that to the extent Petitioner challenged the subsequent applications for release, those claims either were filed beyond the one year statute of limitations or are procedurally defaulted. Petitioner did not file a reply brief.
Magistrate Judge Wilkerson, construing Petitioner's pro se petition broadly, found that Petitioner was not challenging just the initial proceeding committing him to civil confinement, but also all subsequent hearings in which his continued confinement was upheld. Magistrate Judge Wilkerson recommended that Petitioner's challenges to the initial, first, and second proceeding be denied as time-barred by 28 U.S.C. § 2244's statute of limitations (Doc. 25 at 5). Magistrate Judge Wilkerson further recommended that Petitioner's challenge to the third proceeding be denied for failure to exhaust his state court remedies by not filing a petition for leave to appeal the third proceeding with the Illinois Supreme Court.
Although he agrees that Petitioner's Petition should be denied, Respondent objects to "any conclusion that the petition represents a timely challenge to petitioner's third application for recovery" (Doc. 27 at 1). In the alternative, Respondent argues that the Court should adopt the Report and Recommendation.
Petitioner objects to the Report and Recommendation and argues that his challenges were not barred by 28 U.S.C. § 2244. In the alternative, he challenges the first 725 ILCS 205/9 proceeding because it does not fall outside the statute of limitations.
When timely objections to a Report and Recommendation have been filed, this Court must undertake a de novo review. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); Local Rule 73.1(b) of the United States District Court for the Southern District of Illinois; Harper v. City of Chicago Heights, 824 F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject, or modify the magistrate judge's recommended decision." Harper, 824 F.Supp. at 788. In making this determination, the Court must look at all of the evidence contained in the record and "give 'fresh consideration to those issues to which specific objections have been made." Id., quoting Charles Alan Wright, Arthur M. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 3076.8, at p. 55 (1992 Pocket Part).
A. Statute of Limitations
This Court previously found that, to the extent Petitioner is challenging the original 1998 judgment that he is a sexually dangerous person, such challenge is time-barred by 28 U.S.C. § 2244(d)(1) (see Doc. 5). The Court did not determine whether challenges to any subsequent 725 ILCS 205/9 proceedings on Petitioner's continued confinement are also time-barred. Magistrate Judge Wilkerson recommended that the 1998 trial and the first and second subsequent proceedings are time-barred, but that the third proceeding is not. Both Respondent and Petitioner challenge this determination. This Court has reviewed the record and pleadings de novo and agrees with Magistrate Judge Wilkerson that the 1998 trial and the first and second 725 ILCS 205/9 proceedings are time-barred, but that the third 725 ILCS 205/9 proceeding is not.
Though the face of Petitioner's initial habeas corpus petition appears to raise challenges only to his 1998 trial (Doc. 1), both this Court and Magistrate Judge Wilkerson read the pro se petition broadly to include the possible challenge to Petitioner's continued confinement (Docs. 5 at 2 and 25 at 3). See Whitford v. Boglino, 63 F.3d 527, 535 n. 10 (7th Cir. 1995) ("the briefs of pro se prisoners who are not skilled in legal analysis must be liberally construed"); see also McNeil v. United States, 508 U.S. 106, 113 (1993). Whether a pro se litigant has waived an issue must be determined on the facts of each individual case. Bates v. Jean, 745 F.2d 1146, 1150 (7th Cir.1984). This broad reading is supported by the arguments contained in Petitioner's objections to the Report and Recommendation (Doc. 29 at 2-3).
Reading a "continued confinement" challenge into Petitioner's habeas petition means that Petitioner is challenging both the 1998 trial and the subsequent Writ of Recovery actions. Petitioner asserts in his objections that he does challenge his "continued confinement" and not just the initial trial. Because of both this broad construction of pro se petitions and the fact that Petitioner makes clear that he wishes to challenge his continued confinement, the Court will examine all of the proceedings.*fn4
As discussed above, this Court already found that a challenge to the 1998 trial would be time-barred because "he did not file this action until December 19, 2005, over five years after the end of the one-year limitation period" (Doc. 5 at 2). Petitioner makes two arguments challenging this Court's finding as to the 1998 trial and Magistrate Judge Wilkerson's findings that the first and second 725 ILCS 205/9 proceedings are time-barred, all of which are without merit.*fn5
He argues that none of his challenges is time-barred, relying on subpart (2) of 28 U.S.C. § 2244(d). Neither this Court nor the Magistrate Judge explicitly considered this subpart, which reads: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." This argument fails because the term "collateral review" in 28 U.S.C. § 2244(d)(2) does not include 725 ILCS 205/9 proceedings. Illinois law*fn6 does not specifically address whether the "writ of recovery" action is a collateral review or some other form of proceeding. However, the standard legal definition of "collateral attack," a similar term, implies that the attack must undermine the original trial by showing that it was somehow improper.*fn7 In addition, one Illinois case does imply by negative inference that the 725 ILCS 205/9 proceeding is not a collateral attack because it sets up an alternative means by which those committed as sexually dangerous might collaterally attack the judgments committing them. People v. Lawton, 818 N.E.2d 326 (Ill. 2004).
Petitioner argues that the three 725 ILCS 205/9 proceedings were collateral reviews within the meaning of 28 U.S.C. § 2244(d)(1), because "it is the same challenges each time a writ of recovery is filed and that is challenge to his continue[d] confinement." It is true that the same basic issue is contested in each proceeding, whether Petitioner remains sexually dangerous, but each 725 ILCS 205/9 proceeding is independent of the others. The State of Illinois must prove in each proceeding that Petitioner remains sexually dangerous; if the State fails to sustain its burden of proof this does not undermine the earlier judgments. So, the state's failure to carry its burden of proof means only that Petitioner is no longer sexually dangerous. While each 725 ILCS 205/9 proceeding affords Petitioner an opportunity to challenge the continuance of his confinement, the claims are independent because they arise at different times. Accordingly, these proceedings are not collateral reviews of the 1998 trial or earlier claims, and Petitioner must, if he brings a habeas corpus claim as to any of them, fully exhaust his state courts' remedies for each.
In addition, Petitioner inaccurately states that this Court "has rule[d] that this application is not time-barred under 2244(d)(1)" (Doc. 29 at 2). He refers to the Court's statement in the February 2, 2006, Order that the "Court is unable to determine whether such a challenge is barred by either the one-year period of limitation or by any other limitation to relief pursuant to 28 U.S.C. § 2254. Accordingly, to the extent Petitioner is challenging his continued civil confinement, this action cannot be dismissed at this point in the litigation" (Doc. 5 at 2). This characterization is incorrect -- the Court did not hold that the challenge was not barred, but simply that the "Court [was] unable to determine whether such a challenge is barred" (Doc. 5 at 2).
The 1998 trial and the first and second 725 ILCS 205/9 proceedings are time-barred under 28 U.S.C. § 2244(d). The 1998 trial was final more than five years before Petitioner filed this habeas petition, and Petitioner has not alleged any of the exceptions listed in 28 U.S.C. § 2244(d)(1). The first proceeding -- initiated July 16, 2002 -- ended December 3, 2003, when the Illinois Supreme Court denied leave to appeal, and became final March 2, 2004. The second proceeding was dismissed by the trial court on August 2, 2002, and became final October 31, 2002. More than one year elapsed between the date each of these became final and the date this habeas petition was filed; therefore, these are barred under 28 U.S.C. § 2244(d)(1). As discussed above, 28 U.S.C. § 2244(d)(2) does not toll the limitations period for the 1998 trial or either of the later 725 ILCS 205/9 proceedings, since these can't be characterized as collateral reviews of either the 1998 trial or later two proceedings. The third proceeding is not barred by the statute of limitations because that proceeding ended in 2005, the same year that Petitioner filed this habeas corpus petition.
B. Procedural Default
While the "continued confinement" challenge opens the way for this Court to evaluate each of the proceedings in which Petitioner has challenged his commitment as sexually dangerous,*fn8 it is not a "magic" term that releases Petitioner from the obligations of habeas corpus law. Thus, only claims based on the purported defects in the third 725 ILCS 205/9 proceeding are still available, since the other proceedings' defects are barred by the statute of limitations. The claims in this third proceeding are scotched by procedural default.*fn9
There are two contexts in which procedural default arises: (1) where the petitioner fails to give the state courts a full and fair opportunity to review his claim (sometimes known as the "exhaustion" requirement) and (2) where the state court judgment rests on independent and adequate state law grounds, including state procedural rules (otherwise known as "procedural bar"). Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000) (failure to give state full and fair opportunity obviated need to address adequate and independent state law grounds issue). Failure of either makes federal habeas relief unavailable. This Court agrees with Magistrate Judge Wilkerson that Petitioner's claim is procedurally defaulted under the first category and adds that it also is barred under the second category.
1. Full and Fair Opportunity
The AEDPA provides that an application for habeas corpus shall not be granted unless the applicant has exhausted the remedies available in the courts of the State," such that he lacks "the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(b)(1)(A), (c). The principle of exhaustion is based on comity and the fact that state courts, like federal courts, are obliged to enforce federal law. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Spreitzer, 219 F.3d at 645. Thus, comity dictates that "when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." Boerckel, 526 U.S. at 844. A petitioner must give the state courts a "full and fair opportunity" to hear his claims. A full presentation of claims entails pursuit of all available avenues of relief offered by the state courts before turning to the federal courts, while a fair presentation requires that the petitioner give the state courts an opportunity to deal with the particular claims or issues later brought to the federal courts. Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999).
A. Full Opportunity
Here, Petitioner failed to petition the Illinois Supreme Court for leave to appeal the third 725 ILCS 205/9 proceeding. Respondent raised this matter(Doc. 15 at 5), and Petitioner did not until his Objections to Magistrate Judge Wilkerson's Report and Recommendation claim to have actually petitioned for leave to appeal to the Supreme Court of Illinois. He says he did so in April 2004 (Doc. 29 at 4). But this can't be, since this predates the trial court's entry of judgment. And as discussed above, while the Illinois Supreme Court did deny a petition for leave to appeal in one of Petitioner's cases on May 31, 2007, in People v. Dinwiddie, 871 N.E.2d 57 (Ill. 2007) (Table), this does not pertain to the third proceeding.
Petitioner failed to fully exhaust his state court remedies by failing to petition the Illinois Supreme Court for leave to appeal the third 725 ILCS 205/9 proceeding. In Boerckel, the Supreme Court held that a petitioner is required to present his claims to the Illinois Supreme Court, though that court's decision to hear such a claim was discretionary. 526 U.S. at 846, 848.
Petitioner argues that he did "in fact present his claim to one complete round of state court review, and had completely exhaust[ed] his state court remedies in (2003) on the 7th day of July" (Doc. 29 at 4)." It is true that he did complete two full rounds of state court review, for his 1998 trial and the first 725 ILCS 205/9 proceeding. However, the relevant inquiry is not whether Petitioner has ever exhausted state remedies for any claims, but whether he exhausted his state remedies for the claims that are still available for review. While his claims relating to the third proceeding are not time-barred, they are barred because he failed to exhaust his available state remedies.
A state law remedy must be available, of course, in order for a petitioner to exhaust it. Boerckel appeared to leave open whether a remedy is still "available" if the time has run for seeking review of a decision in state court. Some light was shed on this issue when the Court explained in Edwards v. Carpenter that it had considered the interplay between exhaustion ["full and fair opportunity"] and procedural default ["adequate and independent state grounds"] . in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed. 2d 1 (1999), concluding that the latter doctrine was necessary to "'protect the integrity' of the federal exhaustion rule." Id., at 848, 119 S.Ct. 1728 (quoting id., at 853, 119 S.Ct. 1728 (STEVENS, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by "'letting the time run'" so that state remedies were no longer available. Id., at 848, 119 S.Ct. 1728. 529 U.S. 446, 453 (2000).
This was further clarified in Woodford v. Ngo:
In habeas, state-court remedies are described as having been "exhausted" when they are no longer available, regardless of the reason for their unavailability. See Gray v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 135 L.Ed. 2d 457 (1996). Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted, ibid., but exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding. Id., at 162, 116 S.Ct. 2074; Coleman, supra, at 744-751, 111 S.Ct. 2546. 548 U.S. 81, 126 S.Ct. 2378, 2387 (2006). When the citation to Gray v. Netherland is analyzed, the Court's note that "if the petitioner procedurally defaulted those claims [by failing to present them to the state court in time for it to hear them], the prisoner generally is barred from asserting those claims in a federal habeas proceeding" becomes clearer. While the remedy may be unavailable, that unavailability (because of the petitioner's failure to comply with the state court's timing rules) is itself an adequate and independent state-law ground that bars a federal court's ability to hear the claim.
Petitioner alternatively argues that there is no state court remedy available to allow him to raise his claim that the "trial court had not applied the new standards enumerated by the Illinois Supreme Court" in People v. Masterson, 798 N.E.2d 735 (Ill. 2003) (applying Kansas v. Crane, 534 U.S. 407, 412 (2002) to Illinois statute) (Doc. 29 at 3). Petitioner could have raised this issue in any of the 725 ILCS 205/9 proceedings,*fn10 assuming these proceedings are the "trial court" to which he refers. It was not raised in the third 725 ILCS 205/9 proceeding, which was not fully exhausted in any event.*fn11
B. Fair Opportunity
Since Petitioner failed even to seek a full hearing by the state courts relating to his third 725 ILCS 205/9 proceeding, a full discussion of whether he "fairly presented"*fn12 his constitutional claims based on that proceeding to the Illinois courts is unnecessary. It is relevant to observe however, that the only grounds of Petitioner's appeal of the third 725 ILCS 205/9 proceeding were state law issues, so he necessarily failed to give the state courts a fair opportunity to determine whatever federal constitutional issues he brings from that proceeding. In his two briefs to the appellate court, Petitioner, who was represented by counsel, raised only state-law evidentiary and procedural issues and failed to raise or even imply any federal constitutional claims (Docs. 15-20 and 15-23).*fn13
Whatever federal claims Petitioner alleges in his habeas petition that pertain to his third 725 ILCS 205/9 proceeding were not fairly presented to the Illinois state courts.
2. Independent and Adequate State Law Grounds
Under the AEDPA, a federal court shall entertain an application for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Habeas relief may be granted only if the adjudication of the claim by the state court "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). However, federal courts "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 applies to bar consideration of any of a petitioner's claims that a state court declined to address because the petitioner failed to satisfy a state procedural requirement because, under those circumstances, the state judgment rests on independent and adequate state procedural grounds. Id. at 729-30. In such a case, the petitioner's claims are "procedurally barred in the federal system," such that his habeas claims are deemed "procedurally defaulted." Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir. 1997); see also Rogers-Bey v. Lane, 896 F.2d 279, 281-82 (7th Cir. 1990).
The Illinois appellate court dismissed Petitioner's appeal on statutory waiver grounds, as Petitioner's attorney had waived Petitioner's motion for a directed finding at the close of the State's case in chief and had failed to reassert the motion at the close of all the evidence (Doc. 15-24). The Illinois court relied purely on state law, both statutory and case law, to decide that Petitioner had waived his right to appeal the denial of directed finding, citing clear Illinois law stating that when a defendant proceeds to "adduce evidence in support of his or her defense" after a motion for directed finding is denied, the motion is waived. Petitioner could have reasserted the motion at the close of all the evidence under Illinois law but chose not to do so (Doc. 15-24 at 1-3).*fn14 The Illinois court also determined from a review of the record that the "evidence presented was more than sufficient" for the State to have met its burden (Doc. 15-24 at 3). Both state substantive and procedural laws are sufficient to procedurally bar a petitioner's claim under the "adequate and independent" state grounds doctrine. Coleman, 501 U.S. at 729.
In order to escape a procedural default, a petitioner must show cause for the default and prejudice resulting from it, or that a "manifest miscarriage of justice" will result from the denial of the petition. Coleman, 501 U.S. at 750; Edwards, 529 U.S. at 451; Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002). Petitioner here has not attempted to make either of these arguments.
Finally, Petitioner does make an argument that might be interpreted as a request for this Court to make an exception to the procedural rules of habeas corpus in his case, but it is without merit. Petitioner quotes*fn15 from People v. Sweeney, 251 N.E.2d 897, 899 (Ill. App. Ct. 1969) (abrogated on other grounds by People v. Trainor, 752 N.E.2d 1055 (Ill. 2001), an Illinois case which, in context, indicates an argument that certain procedural rules may be set aside in certain situations, such as where the petitioner challenges his "continued confinement." The argument as applied here is without merit, as Sweeney is an Illinois case and does not govern the federal courts' interpretation or application of federal law.*fn16
For the foregoing reasons, the Report and Recommendation of Magistrate Judge Wilkerson (Doc. 25) is ADOPTED. The petition under 28 U.S.C. § 2254 for writ of habeas corpus (Doc. 1) is DENIED, and this action is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.