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Richard L. Ambrose, Petitioner v. John Evans

November 7, 2011

RICHARD L. AMBROSE, PETITIONER,
v.
JOHN EVANS, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM and ORDER

I. Introduction and Background

This matter comes before the Court on Magistrate Judge Frazier's Report and Recommendation ("the Report") recommending that the Court deny the habeas corpus petition, the motions to supplement and the request for evidentiary hearing (Doc. 26).*fn1 Ambrose filed objections to the Report (Doc. 29). Based on the following the Court ADOPTS the Report in its entirety.

On March 3, 2010, Richard Ambrose, a person civilly committed as a sexually dangerous person in the Big Muddy Correctional Center, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement.*fn2 Specifically, he challenges actions concerning a so-called discharge/recovery proceeding. Ambrose remains confined pursuant to a June, 2008, state court order denying his recovery application.*fn3 Ambrose claims that he was deprived of his liberty in violation of the Fourteenth Amendment's Due Process Clause; that he was deprived of his right to confront his accusers in violation of the Sixth Amendment when Dr. Angeline Stanislaus described statements made by individuals who did not testify and were not subject to cross-examination; and that the proceedings violated the Ex Post Facto Clause in Article 1, Section 9 because statutory provisions enacted after Ambrose filed his application were considered by the State Court. On November 17, 2010, respondent filed his response to the habeas corpus petition arguing that all of petitioner's claims are procedurally defaulted as Ambrose failed to raise any of these claims in one complete round of the state court review (Doc. 14). On November 24, 2010, Ambrose filed a reply (Doc. 17).

Thereafter, Judge Frazier entered the Report finding that petitioner failed to present his federal claims to the Illinois Appellate Court; that he has not demonstrated cause for this failure and that he has not demonstrated a fundamental miscarriage of justice as the materials do not reveal that he is actually innocent of being a sexually dangerous person (Doc. 26). Thus, the Report recommends that the Court deny and dismiss Ambrose's 28 U.S.C. § 2254 petition for writ of habeas corpus. On August 17, 2011, Ambrose filed objections to the Report (Doc. 29).

Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

II. Facts

In 2005, Ambrose filed an application for rehearing asserting that he was no longer sexually dangerous. At the bench trial on his application for release, the State of Illinois tendered Dr. Mark Carich as an expert on sex offender evaluation and treatment. The state court judge allowed Ambose to voir dire Carich and Ambrose's counsel attempted to question Carich whether he had a "personal conflict of interest" with Ambrose. The state court judge sustained the State's objection to that line of questioning, noting that the purpose of the voir dire was "merely to determine whether [Carich] can be admitted as an expert" and that Ambrose's proposed questioning "drift[ed] into cross examination." The state court judge accepted Carich as an expert. Thereafter, Carich testified that based on his "eight-step evaluation," he determined that Ambrose had not recovered and remained sexually dangerous. Ambrose moved to strike the testimony on the basis that Carich's methodology was not "generally accepted in the field of psychiatry." The state court judge denied the motion; found Ambrose was "still a sexually dangerous person" and denied his application for release.

In his appeal from the order denying his recovery application, Ambrose presented two issues based solely on Illinois law to the Illinois Appellate Court: (1) whether the trial court abused its discretion in barring voir dire regarding whether Dr. Carich had a "personal conflict of interest" with petitioner and (2) whether the trial court abused its discretion in denying Ambrose's motion to strike Carich's testimony as not "generally accepted" (Doc. 14-1, ps. 9-16). The Illinois Appellate Court affirmed the trial court on July 9, 2009. On August 4, 2009, Ambrose filed a petition for rehearing and the Illinois Appellate Court denied the request that day. On August 18, 2009, Ambrose filed a petition for leave to appeal to the Illinois Supreme Court.*fn4 On November 25, 2009, the Illinois Supreme Court denied his petition for leave to appeal.

On March 3, 2010, Ambrose filed the petition for writ of habeas corpus raising the following claims:

(1) the State's evidence was insufficient to support a finding that he remains sexually dangerous;

(2) the admission of evidence concerning his prior offenses violated the confrontation clause;

(3) the admission of Dr. Carich's testimony violated due process;

(4) the application of the "clear and convincing evidence" standard to his case violated ...


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