IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
July 9, 2010
JOSHUA CLEMONS, PETITIONER,
LARRY PHILLIPS, FACILITY DIRECTOR, RUSHVILLE TREATMENT AND DETENTION FACILITY, RESPONDENT.
The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Respondent's Motion to Dismiss Petition for a Writ of Habeas Corpus as Unauthorized Second or Successive Petition (d/e 8) (Motion). Petitioner Joshua Clemons has been found to be a sexually violent person pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq. (Act). He was committed to the custody of Respondent pursuant to the Act. Petitioner previously filed a habeas petition challenging his custody. Morris et al. v. Phillips, C.D. Ill. Case No. 07-3057. The petition was dismissed on the merits with prejudice. Morris v. Phillips, Opinion entered April 23, 2008 (Case No. 07-3057 d/e 37) (2008 Opinion), at 6.
Petitioner must secure permission from the Seventh Circuit Court of Appeals before he may file another habeas petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner argues that he made an "as-applied" challenge to the Act in the prior petition, but now makes a facial challenge. Petitioner's Response to Respondent's Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus as Unauthorized Second or Successive Petition (d/e 9), at 1. Clemons could have brought a facial challenge in the prior proceeding, along with his as-applied challenge. He must bring all of his theories in one petition or secure permission from the Court of Appeals for the second petition. 28 U.S.C. § 2244(b)(3)(A).
The Petitioner also complains that he seeks habeas relief for his ongoing treatment. The Petition may not be a successive petition to the extent that Petitioner is challenging his treatment after his first petition was filed. Such a petition, however, challenges the specific conditions of confinement that the Petitioner is enduring. Such a challenge is an as-applied challenge to the Act. As explained in the 2008 Opinion, Petitioner can not secure habeas relief based on an as-applied challenge to the Act. 2008 Opinion, at 5-6, see Seling v. Young, 531 U.S. 250, 264-65 (2001).
Petitioner must bring an action under 42 U.S.C. § 1983, or other applicable federal or state law, to challenge the conditions of his custody. Habeas relief is not available. The Motion is therefore allowed.
THEREFORE, Respondent's Motion to Dismiss Petition for a Writ of Habeas Corpus as Unauthorized Second or Successive Petition (d/e 8) is ALLOWED. The Petition for Habeas Corpus (d/e 1) is dismissed. All motions are denied as moot. This case is closed.
IT IS THEREFORE SO ORDERED.
ENTER: July 9, 2010
JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE
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