United States District Court, C.D. Illinois, Rock Island Division
DARROW UNITED STATES DISTRICT JUDGE.
the Court are Petitioner Timothy Bell's petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, ECF No.
1; Respondent's motion to dismiss that petition, ECF No.
12; Bell's motion for a status update, ECF No. 17; his
renewed motion to request counsel, ECF No. 18; and his motion
for a ruling on his motion for appointment of counsel, ECF
No. 19. For the reasons that follow, the motion to dismiss is
GRANTED and the petition DISMISSED; the other motions are
MOOT, except for the motion for appointment of counsel, which
was civilly committed as a sexually violent person after a
jury trial in Cook County, Illinois. See Judgment
and Commitment Order, In re Commitment of Bell, No.
06 CR 80007 (Cir. Ct. Cook Cnty. Oct. 18, 2007), ECF No. 14.
Meanwhile, Bell had been charged with aggravated battery in
Illinois for having bitten a security guard on the hand.
Petition 1. He pleaded guilty to the charge and received a
four year sentence. Id. at 2. On May 6, 2008, he
challenged his adjudication as a sexually violent person in
Illinois court, on the basis that the court that had civilly
committed him lost jurisdiction once he was charged with the
aggravated battery stemming from the biting incident.
Id. Later in 2008, Bell's court-appointed
attorney withdrew the motion, assertedly against Bell's
will; Bell challenged the withdrawal and sought to have his
attorney removed from representation, but to no avail.
then challenged his adjudication as a sexually violent person
in a federal petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. On January 14, 2009, Judge Shadur, of
the Northern District of Illinois, denied the petition on the
merits. See Bell v. Mathy, 08 C 5622 (N.D. Ill.
2009); ECF No. 13. Petitioner filed the instant petition on
January 15, 2016.
argues that the Illinois court responsible for civilly
committing him erred in determining that it had not
sacrificed its jurisdiction over him when he was charged with
or sentenced for the biting incident. Petition 3-4.
Respondent replies that Bell's petition is a successive
petition for relief under 28 U.S.C. § 2254, and must be
denied for want of jurisdiction.
Legal Standard on a Petition for Issuance of Writ of Habeas
Corpus Pursuant to 28 U.S.C. §
courts may entertain applications for the writ of habeas
corpus by persons in custody of a State in violation of the
Constitution. 28 U.S.C. § 2254(a). However, such
applications raising claims already presented in a petition
for relief under § 2254 will be dismissed. Id.
§ 2244(b)(1). A claim not raised in a prior § 2254
application, and then raised in a successive application,
will still be dismissed unless the petitioner could not have
discovered its factual basis via due diligence, and unless
the facts, if proven true, would establish by clear and
convincing evidence, that, but for a constitutional error, no
reasonable factfinder would have found the petitioner guilty
of the underlying offense. Id. § 2244(b)(2)(B).
On a successive application, even if the claim for relief was
not presented in the previous petition, the petitioner must
move in the appropriate court of appeals for an order
authorizing the district court to consider the renewed
application. Id. § 2244(b)(3)(A). If a
petitioner does not do so, the district court lacks
jurisdiction to consider his petition. Lambert v.
Davis, 449 F.3d 774, 777 (7th Cir. 2006).
petition is successive, since he already challenged his civil
commitment via a habeas petition in 2009. He requires
authorization from the Seventh Circuit Court of Appeals,
which he lacks. Therefore, this court does not have
jurisdiction to consider his claim. See Lambert, 449
F.3d at 777.
response to Respondent's motion to dismiss, Bell argues
that his petition is not successive, but rather a new attack
on his “re-detention” in civil commitment after
he finished serving his term of incarceration for the biting
incident. Resp. Mot. Dismiss 2, ECF No. 16. It is true that a
§ 2254 petition is not automatically “second or
successive” within the meaning of § 2244(b) merely
because it attacks the same state court judgment as an
earlier such petition. See Panetti v. Quarterman,
551 U.S. 930, 944 (2007) (“The Court has declined to
interpret ‘second or successive' as referring to
all § 2254 applications filed second or successively in
time, even when the later filings address a state-court
judgment already challenged in a prior § 2254
application.”). However, Congress clearly countenanced
the possibility that a § 2254 claim could be
“second or successive” even when it contains
particular claims seeking to invalidate a judgment that are
based on new evidence, or evidence not available to a
petitioner in his first attack on a judgment. See 28
U.S.C. § 2244(b)(2)(B); Magwood v. Patterson,
561 U.S. 320, 334-36 (2010) (explaining that “second or
successive” refers to applications for habeas relief,
and not individual claims, and that accordingly, in order to
give sense to the statutory text, applications may
be able to be successive even when they contain
claims that are not). Here, Bell seeks to challenge
his already-challenged civil commitment, and although he
maintains that the challenge is based on a separate set of
facts than those which formed the basis of his earlier
petition, it is clear that this petition seeks to challenge
the validity of the same judgment attacked by the earlier
petition, and that there is nothing exceptional about this
second claim that would warrant the Court's not treating
it as successive, in the sense that the Seventh Circuit must
give its approval before this Court may even consider
Bell's petition. Bell must receive authorization to make
this successive petition from the Seventh Circuit before
lodging it with this Court. 28 U.S.C. § 2244(b)(3)(A).
Court notes that the events for which Bell now seeks a
remedy-the denial of his attempt to make this argument in
Illinois court in 2008-preceded the filing of his original
habeas petition in 2009, making it unlikely that a successive
petition would be permitted as being based on facts excusably
not then in his possession. 28 U.S.C. § 2244(b)(2)(B).
But the Court lacks jurisdiction to rule on that question, as
final matter. Bell once again moves for appointment of
counsel. However, in support of his application he only
repeats arguments that the court has rejected.
“[P]arties to civil litigation have no right to
counsel, ” Thornhill v. Cox, 113 F. App'x
179, 181 (7th Cir. 2004), and Bell has not shown, as the
Court previously explained to him he must, why he is unable
to litigate this matter himself. That Bell has ‘little
general education, and no legal education at all, ”