United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge.
2009, Petitioner Samuel Rutherford was civilly committed as a
sexually violent person under the Illinois Sexually Violent
Persons Commitment Act (SVPCA), 725 Ill. Comp. Stat. 207/1
et seq. Since then, he has been in state custody at
a treatment and detention center operated by the Illinois
Department of Human Services. In 2015, he filed a pro
se habeas corpus petition pursuant to 28 U.S.C. §
2254 challenging the constitutionality of his custody. After
Respondent filed a motion to dismiss the petition as
untimely, Rutherford filed a motion to voluntarily dismiss
the petition without prejudice to his ability to file a
subsequent petition after he exhausts available remedies in
state court. For the reasons that follow, Rutherford's
motion is granted, and Respondent's motion is denied as
2007, the State of Illinois filed a petition in the Circuit
Court of DuPage County, Illinois, to have Rutherford civilly
committed under the SVPCA. In 2009, after Rutherford
stipulated to the allegations in the State's petition,
the court entered a judgment ordering Rutherford to be
civilly committed. Rutherford appealed the judgment to the
Illinois Appellate Court, which affirmed the judgment on
March 9, 2011. See In re Commitment of Rutherford,
No. 2-09-0794, 2011 WL 10099711, at *1 (Ill.App.Ct. Mar. 9,
2011). Rutherford did not file a petition for leave to appeal
before the Illinois Supreme Court. To this day, he remains
civilly committed at the Illinois Department of Human
Services's Treatment and Detention Facility in Rushville,
2015, Rutherford filed a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 before this
Court. He challenges his civil commitment on the
ground that it violates the Fourteenth Amendment's Due
Process Clause. Pet. at 5-6, ECF No. 1. Specifically, he
argues that the State's determination that he has a
mental disorder justifying his ongoing civil commitment is
erroneous because it is improperly based upon events that
took place while he was a minor, medically unreliable
“risk assessment tools, ” and testimony of
nonmedical witnesses. Id. at 5- 10. When Rutherford
filed his habeas petition, it was originally assigned to the
docket of the Honorable James B. Zagel. The case was
reassigned on April 6, 2017.
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a federal court may issue a writ of habeas corpus
only if the petitioner demonstrates that he is in custody in
violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2254(a). A person in custody
pursuant to a civil commitment order entered by a state court
may challenge the legality of his custody under AEDPA.
See Stanbridge v. Scott, 791 F.3d 715, 721 (7th Cir.
2015) (citing Ambrose v. Roeckeman, 749 F.3d 615,
616 (7th Cir. 2014)); Martin v. Bartow, 628 F.3d
871, 873 (7th Cir. 2010). When a petitioner proceeds pro
se, the Court must construe his filings liberally.
Martin, 628 F.3d at 878 (citing Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004)).
to limited exceptions, a federal court may not grant habeas
relief unless the petitioner first “exhaust[s] the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1). To meet the exhaustion requirement,
a petitioner challenging his custody pursuant to a judgment
entered by an Illinois court must appeal the judgment to the
Illinois Appellate Court, as well as present his claims in a
petition for leave to appeal before the Illinois Supreme
Court. Guest v. McCann, 474 F.3d 926, 930 (7th Cir.
2007) (citing O'Sullivan v. Boerckel, 526 U.S.
838, 842- 46 (1999)).
January 2016, Respondent filed a motion to dismiss
Rutherford's habeas petition as untimely.
Resp't's Mot. Dismiss at 3-7, ECF No. 7. Rutherford
subsequently filed a motion to voluntarily dismiss his
petition, requesting that the dismissal be “without
prejudice and with leave to reinstate upon exhaustion of
state court remedies.” Pet'r's Mot. Dismiss at
1, ECF No. 15. In support of his motion for voluntary
dismissal, Rutherford asserts that annual re-evaluation
proceedings are pending in the Circuit Court of DuPage County
pursuant to 725 Ill. Comp. Stat. 207/55. Id. at 2.
He further states that he is represented by counsel in the
state court proceedings and that he intends to ask counsel to
bring the issues raised in his federal habeas petition before
the state court in the first instance. Id.
does not dispute that a federal court may dismiss a habeas
petition where the petitioner seeks voluntary dismissal.
Rather, in opposing Rutherford's motion, Respondent's
sole argument is that the petition should be dismissed with
prejudice as untimely, instead of dismissed without prejudice
in the manner that Rutherford requests. Resp. Pet'r's
Mot. Dismiss at 2-3, ECF No. 16. The difference matters,
because the basis on which the Court dismisses
Rutherford's petition determines whether a subsequently
filed petition would be deemed “second or
successive” for purposes of AEDPA. Under 28 U.S.C.
§ 2244(b), a habeas petitioner may not file a second or
successive petition without prior permission from a federal
court of appeals. 28 U.S.C. § 2244(b). When a habeas
petition is dismissed as premature-such as when a petition is
filed before the petitioner has exhausted available state
court remedies-a subsequently filed petition is not
“second and successive” under § 2244(b).
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003)
(citing Slack v. McDaniel, 529 U.S. 473, 485-86
(2000)). By contrast, when a habeas petition is voluntarily
dismissed “in the face of an imminent loss”-that
is, when the dismissed petition is defective in a way that
cannot be cured through a subsequent filing-a subsequently
filed petition counts as “second and successive”
and is therefore subject to § 2244(b)'s
restrictions. Id. (citing Potts v. United
States, 210 F.3d 770, 771 (7th Cir. 2000); Felder v.
McVicar, 113 F.3d 696, 698 (7th Cir. 1997)). According
to Respondent, the Court's dismissal of Rutherford's
petition should be treated as a dismissal “in the face
of an imminent loss” because the petition is
“indisputably time-barred.” Resp. Pet'r's
Mot. Dismiss at 1-2. The Court disagrees.
28 U.S.C. § 2244(d)(1), a federal habeas petition
brought by “a person challenging his custody pursuant
to the judgment of a State court” is subject to a
one-year statute of limitations. 28 U.S.C. § 2244(d)(1).
The limitations period begins to run from the latest of four
events enumerated in that provision. Id.; see
also Martin, 628 F.3d at 873. Here, the only event at
issue is “the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). Thus, the question of whether Rutherford's
habeas petition is time-barred under § 2244(d)(1) turns
on whether his habeas petition challenges the original civil
commitment order that was entered in 2009 (for which direct
review concluded on March 9, 2011), or whether it instead
challenges some later state court judgment pursuant to which
Rutherford's civil commitment remains ongoing.
Seventh Circuit addressed a similar question in Martin v.
Bartow, 628 F.3d 871 (7th Cir. 2010). In that case, the
petitioner, Stanley Martin, had been civilly committed as a
sexually violent person in 1996 pursuant to a Wisconsin
statute. Id. at 872. The statutory scheme at issue
required the State to reexamine civilly committed individuals
at least once each year to determine whether they still
qualified as “sexually violent persons.”
Id. at 873 (citing Wis.Stat. § 980.07).
Wisconsin law also permitted civilly committed individuals to
challenge their civil commitment at any time by filing a
discharge petition. Id. (citing Wis.Stat. §
980.09). In 2005, Martin filed a discharge petition in state
court. Id. Direct review of the discharge petition
concluded on August 18, 2008, and, a few weeks later, Martin
filed a federal habeas petition challenging the legality of
his civil commitment. Id. The district court
construed the habeas petition as a challenge to the original
commitment order issued in 1996, and it therefore dismissed
the petition as untimely under § 2244(d)(1)'s
one-year limitations period. Id. at 873-74.
appeal, the Seventh Circuit reversed, holding that
Martin's habeas petition should have been construed as a
challenge to the state court judgment denying the discharge
petition in 2005. Id. at 874. In so holding, the
Seventh Circuit looked to “the substance of the
claims” in Martin's petition and concluded that the
petition primarily challenged Martin's current status as
a sexually violent person, rather than the original
commitment order. Id. at 874-78. The Seventh Circuit
explained that Martin was “in custody pursuant only to
the most recent order extending his commitment for another
year”-that is, ...