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Springfield Division Greg Allen Kiger v. Larry Phillips

April 12, 2011

SPRINGFIELD DIVISION GREG ALLEN KIGER, PETITIONER,
v.
LARRY PHILLIPS, FACILITY DIRECTOR, RESPONDENT.



The opinion of the court was delivered by: Sue E. Myerscough United States District Judge

E-FILED

Tuesday, 12 April, 2011 03:04:58 PM

Clerk, U.S. District Court, ILCD

OPINION SUE E. MYERSC0UGH, U.S. District Judge:

This cause is before the Court on Respondent's Motion to Dismiss (d/e 19). For the reasons set forth below, Respondent's Motion to Dismiss is GRANTED.

BACKGROUND

Petitioner, Greg Allen Kiger, has a 2001 conviction for aggravated criminal sexual abuse in Vermilion County, Illinois, for which he was sentenced to 59 months' imprisonment. Petitioner also has a 2008 conviction for attempted criminal sexual abuse in Perry County, Illinois.

On September 5, 2008, within 90 days of his discharge or entry into mandatory supervised release on the Perry County conviction, the State filed a petition in Vermilion County to civilly commit Petitioner under the Illinois Sexual Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2008)). Following a September 8, 2008, hearing, the trial court found probable cause to believe Petitioner is a sexually violent person (SVP) and that Petitioner should be committed to the Department of Human Services for control, care, and treatment. The court also granted Petitioner's motion to transfer venue to Perry County. Since then, the case has been transferred back and forth between Vermilion and Perry Counties several times. The case has proceeded in Vermilion County since March 2010 and had been set for a trial to occur in February 2011. However, the docket sheet for the commitment proceedings pending in Vermilion County (Vermilion County case No. 2008 MR 182) shows that the scheduled February 2011 trial was continued without objection and is now scheduled for June 2011.*fn1

On September 16, 2010, Petitioner filed a pro se Complaint (d/e 1) naming as defendants the State of Illinois, Vermilion County, and Judge Claudia Anderson. The Complaint, purportedly brought under 42 U.S.C. § 1983, alleged that: (1) the September 5, 2008 petition ( the "SVP Petition") was wrongfully filed in Vermilion County and therefore Vermilion County did not have jurisdiction to make the initial probable cause finding; and (2) the transfers between Vermilion and Perry Counties have delayed the case for more than two years "so now the time has been way out for the State to finish [the] case according to law[.]" The relief Petitioner requested was "to be given [his] freedom back." He asked to be released from his place of detainment.

On September 29, 2010, after reviewing Petitioner's Complaint, a division of this Court determined Petitioner was seeking habeas release from his place of detainment and transferred the case for reassignment. In an Order (d/e 4) dated October 5, 2010, the Court ordered that: (1) Petitioner's Complaint be construed as a petition under 28 U.S.C. § (N.D.Ill.2007).

2254 for Writ of Habeas Corpus by a Person in State Custody; (2) granted Petitioner's Motion for Leave to Proceed in Forma Pauperis (d/e 2); (3) directed the clerk to substitute Respondent for the defendants Petitioner had named in his pro se Complaint; and (4) gave Respondent sixty (60) days to file a response to the petition. Because the Complaint was ordered to be construed as a petition under 28 U.S.C. § 2254, this Court will hereinafter refer to the Complaint (d/e 1) as the "Habeas Petition."

On January 13, 2011, Respondent filed a Motion to Dismiss. First, Respondent states that the Habeas Petition is not properly characterized as one arising under 28 U.S.C. § 2254 and instead should be considered as a petition pursuant to 28 U.S.C. § 2241. Moreover, Respondent contends the Habeas Petition should be dismissed in accordance with the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct 746, 27

L.Ed.2d 669 (1971), because Petitioner's state proceedings have not been completed and should not ...


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