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White v. Ashby

United States District Court, C.D. Illinois, Urbana Division

April 2, 2014

GREGORY A. WHITE, Petitioner,
v.
FORREST ASHBY, Director, Illinois Department of Human Services Treatment and Detention Facility, Respondent.

OPINION

COLIN S. BRUCE, District Judge.

On February 13, 2012, Petitioner, Gregory A. White, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254 (#1), [1] with attached exhibits. Petitioner alleged that his confinement in the custody of the Department of Human Services (DHS) at the Rushville Treatment Facility violates his constitutional rights. Petitioner claimed that the DHS lost jurisdiction to detain him as a sexually violent person (SVP) when it transferred him to the custody of the Illinois Department of Corrections. Petitioner also contended that his commitment violated the double jeopardy and ex post facto clauses of the Constitution and also violated his right to due process. On March 20, 2012, Petitioner's Motion for Leave to Proceed in forma pauperis (#2) was GRANTED, and his Motion for Appointment of Counsel (#3) was DENIED.

On June 19, 2012, Respondent filed an Answer (#11) and also filed the state court record (#12). Respondent argued that all of Petitioner's claims are time-barred. Respondent also argued, in the alternative, that Petitioner's claims are noncognizable, procedurally defaulted, or meritless. On August 28, 2012, Petitioner filed a Response (#16), with attached exhibits. Petitioner argued that equitable tolling should apply so that his Petition should not be found untimely. Petitioner argued that DHS has no law library and that DHS has hampered and blocked his access to the courts. Petitioner also filed another Motion for Appointment of Counsel (#17). On September 20, 2012, United States District Judge Sue E. Myerscough entered an Opinion (#19) and denied the Motion for Appointment of Counsel. On December 18, 2013, this case was assigned to this court.

FACTS

In 1999, Petitioner entered an Alford plea, [2] in the circuit court of Rock Island County to one count of aggravated criminal sexual abuse. The trial court sentenced him to a term of four years of imprisonment. In February 2001, shortly before Petitioner's scheduled release from prison, the Illinois Attorney General petitioned the circuit court of Rock Island County to declare Petitioner an SVP. A jury trial was held in September 2001, and the jury determined that Petitioner was an SVP. On October 12, 2001, the trial court committed Petitioner to the custody of DHS. Petitioner appealed to the Illinois Appellate Court. Petitioner argued that the evidence was insufficient to prove he was an SVP and that the trial court erred by allowing the State's experts to testify to the hearsay statements that were used in forming their opinions. On August 8, 2002, the Illinois Appellate Court, Third District, affirmed. People v. White, Case No. 3-01-0854 (2002) (unpublished order). The court found that the trial court correctly admitted the experts' testimony, as it was part of the basis for their opinions. Id. at p.5. The court also rejected Petitioner's argument that the evidence was insufficient. The court stated:

In order for a respondent to be found a sexually violent person, the State must prove, beyond a reasonable doubt, that: (1) the respondent has been convicted of, inter alia, aggravated criminal sexual abuse; (2) the respondent has a mental disorder; and (3) because of that disorder, it is substantially probable that the respondent will engage in acts of sexual violence. 725 ILCS 207/5(e), (f), 35(d)(1) (West 2000); [ People v. Tittlebach, 754 N.E.2d 484 (Ill.App.Ct. 2001)].
The State presented evidence that the respondent had been convicted of, inter alia, aggravated criminal sexual abuse. The State's experts diagnosed the respondent with paraphilia and antisocial personality disorder with narcissistic tendencies. They also opined that based on these disorders and several predictive tests they had given the respondent, there was a very high likelihood that he would reoffend if released from custody. The respondent's expert disagreed with the diagnosis of paraphilia, but conceded that the respondent had a 30 to 70 percent chance of reoffending. Based on the evidence, a reasonable jury could have found all the elements of the statute to have been proven beyond a reasonable doubt. Therefore, we find that the respondent was properly proven to be a sexually violent person.

White, Case No. 3-01-0854, at p. 5-6. The record shows that Petitioner did not file a petition for leave to appeal (PLA) with the Illinois Supreme Court.

On April 4, 2002, while he was detained at the DHS treatment facility, Petitioner attacked another detainee. Sergeant Gerald Sampson intervened, but Petitioner leapt on Sampson's back and began beating the other detainee. Sampson was injured and later had to be hospitalized. At the time of this incident, Petitioner was on mandatory supervised release (MSR) for his Rock Island County conviction. Petitioner's parole supervisor recommended that his MSR be revoked. On April 4, 2002, Petitioner was transferred to the custody of the Illinois Department of Corrections (IDOC) to serve the remainder of his MSR term in prison.

In September 2002, Petitioner was charged in the circuit court of Will County with the aggravated battery of Sgt. Sampson. Soon thereafter, DHS issued a "hold order" to IDOC, the Will County Sheriff, and the Will County Jail, stating that Petitioner was an SVP who should not, under any circumstances, be released from custody. Petitioner's MSR term for his aggravated criminal sexual abuse conviction ended on September 18, 2002. IDOC transferred Petitioner to the Will County Jail to face charges in the aggravated battery case. Despite the hold order, Petitioner was released after posting 10% of a $5, 000 bond. When the Will County State's Attorney's Office realized the error, it moved to increase Petitioner's bond. The trial court granted the motion, increased the bond to $1, 000, 000, and issued an arrest warrant. Petitioner surrendered, and he was ultimately convicted of battery and sentenced to 250 days in jail. After serving that sentence, Petitioner was returned to DHS custody.

Petitioner committed another battery against a DHS guard on March 11, 2005, and was charged with aggravated battery in Will County. On April 18, 2005, Petitioner was transferred to the Will County Jail, where he was held pending the disposition of this second aggravated battery case. In May 2006, the state trial court found Petitioner guilty of aggravated battery and sentenced him to two years of imprisonment. Petitioner was returned to DHS custody on May 25, 2006.

In February 2008, Petitioner filed a complaint for habeas corpus relief in the state trial court. Petitioner alleged that DHS relinquished its authority to detain him as an SVP when it transferred him to IDOC and the Will County Jail. The trial court dismissed the complaint with prejudice on October 23, 2009. Petitioner appealed, arguing that: (1) DHS relinquished its authority to detain Petitioner as an SVP when it transferred him to IDOC custody; (2) returning him to DHS custody after the first transfer to IDOC custody violated the double jeopardy clause; and (3) returning Petitioner to DHS custody without holding a hearing to determine whether he was an SVP violated the due process clause.

On October 22, 2010, the appellate court affirmed the dismissal of the habeas corpus complaint. White v. Phillips, 937 N.E.2d 786 (Ill.App.Ct. 2010). The appellate court stated that, if a person is determined to be an SVP at the conclusion of a trial, the trial court "must issue an order committing the person to the custody of the Department of Human Services until such time as the person is no longer a sexually violent person.'" White, 937 N.E.2d at 788, citing 725 ILCS 207/40(a) (West 2008). The court then explained:

The Act provides only one way for an SVP to be discharged from the custody of the Department of Human Services: by court order. 725 ILCS 207/65 (West 2008). A hearing to request a discharge order can be obtained in two ways. First, the Secretary of the Department of Human Services authorizes a person whom he believes is no longer a sexually violent person to petition the court for discharge. 725 ILCS 207/65(a)(1) (West 2008). Second, a sexually violent person can apply for discharge at the time of periodic reviews conducted by the Department of Human Services. 725 ILCS 207/65(b)(1) (West 2008). Upon a proper petition, a ...

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