United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
Dale Miller has filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Miller was (and remains) civilly
committed following a state court judge's determination
that he is a “sexually violent person.” Miller
argues that the trial court's probable cause hearing
violated an Illinois Supreme Court Rule, that his trial
counsel in his commitment proceeding was ineffective, that
his appellate counsel on direct review of his commitment was
ineffective, and that the evidence was insufficient for him
to be committed. The court does not reach the merits of these
claims, however, because they are procedurally defaulted. On
that basis, the petition is denied and the court declines to
issue a certificate of appealability.
federal habeas petitioner is in custody pursuant to a state
court adjudication, the state court's factual findings
are presumed to be correct unless the petitioner rebuts that
presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Thompkins v. Pfister, 698 F.3d
976, 983 (7th Cir. 2012). Petitioner Dale Miller has not
alleged any factual errors by the state court, so the facts
are drawn from the state court proceedings.
was convicted in 1972 of rape and in 1992 of robbery and
attempted aggravated criminal sexual assault. People v.
Miller, 2014 IL App (1st) 122186, ¶ 8 (8 N.E.3d
1281, 1284). In 2007, the state filed a petition to commit
Miller under the Sexually Violent Persons Commitment Act, 725
ILCS 207/1 et seq. (“SVCPA”).
Miller, 2014 IL App (1st) 122186, ¶ 3. The day
after the petition was filed, the state court held a probable
cause hearing at which Miller's lawyer indicated that
Miller wanted to proceed pro se. Id. ¶
4. The trial court judge asked Miller if he understood the
“perils of representing yourself” and
“strongly urge[d]” that Miller be represented by
his lawyer. See Pet. Ex. 1 at 1-2. Miller insisted
on representing himself and did so during the probable cause
hearing. Miller, 2014 IL App (1st) 122186, ¶ 4.
The trial court found probable cause to find Miller a
sexually violent person (“SVP”) based on
testimony that Miller had paraphilia and other mental
illnesses, “would lose control of his behavior when
someone said ‘no' to him, and that [Miller had]
received 135 disciplinary tickets while incarcerated.”
eventually agreed to have a lawyer represent him at trial
(although not before he missed several deadlines, including
the deadline to request a jury). Id. at ¶ at 6.
Miller refused to be transported for numerous hearings and
for his entire SVP trial. Id. at ¶¶ at
6-7. According to his petition, Miller refused to go to any
court appearances because he was not evaluated by his own
“expert evaluator.” Pet. at 18. At trial, the
state called two clinical psychologists who had tried to
interview Miller, but with whom Miller had refused to meet.
Miller, 2014 IL App (1st) 122186, ¶ 8. Each of
the psychologists testified based on Miller's medical and
prison files that Miller suffered from “paraphilia NOS,
” a sexual attraction to nonconsenting women.
Id. Each also testified that Miller was
substantially likely to re-offend given his failure to
participate in any sex offender treatment programs in prison,
his criminal history, his admitted “attitude problem,
” and his history of disciplinary problems.
Id. Miller's lawyer did not present any evidence
in his case-in-chief and, after hearing the parties'
arguments, the trial court found Miller to be an SVP.
Id. at ¶ 9.
appealed, arguing (through counsel) that the trial court had
improperly rejected his late demand for a jury trial under
Illinois law. Miller, 2014 IL App (1st) 122186,
¶ 12. The appellate court rejected his argument as a
matter of statutory interpretation, and also noting that
there is no constitutional jury right in civil commitment
proceedings and that Miller's own actions had contributed
to the delay. Id. at ¶¶ 12-25. Miller also
argued that he had been impermissibly denied a dispositional
hearing after the trial and before the commitment order was
issued. Id. at ¶ 27. The court found
that denial was not erroneous where neither party had
indicated they would present new evidence at such a hearing.
Id. at ¶¶ 28-29. Finally, Miller argued
that the state had failed to meet its burden in showing that
he should be committed to a secure facility rather than
conditionally released. Id. at ¶ 34. The court,
however, found that under Illinois law the state does not
have a burden of proof when presenting whether an SVP should
be committed to a secure facility. Id. Miller
appealed to the Illinois Supreme Court, raising again the
jury demand and post-trial hearing issues. See Resp.
Ex. D. The Illinois Supreme Court denied the petition for
leave to appeal on September 24, 2014. People v.
Miller, 20 N.E.3d 1260 (Ill. 2014).
then filed, on February 11, 2015, a pro se state
habeas petition arguing that he had received ineffective
assistance of counsel at trial and on appeal, that he had
been inadequately admonished regarding the dangers of
self-representation, and that the evidence was insufficient
to prove he was an SVP. Resp. Ex. F. The state moved to
dismiss the petition on the grounds that a habeas corpus
petition is only available in Illinois when the trial court
lacked jurisdiction or a post-judgment occurrence entitled
the petitioner to release. See Resp. Ex. G. The trial
court dismissed the habeas petition on August 31, 2015,
without discussing the merits. See Resp. Ex. H.
Miller filed a notice of appeal, but failed to file a brief
in support of his appeal. See Resp. Ex. I. On April
7, 2016, the state appellate court dismissed Miller's
appeal on the basis of his failure to comply with Illinois
Supreme Court Rules 342 & 343, which govern the contents
and timing of appellate briefs. See Ill. Sup. Ct. R.
342-343. Resp. Ex. I. Miller petitioned the Illinois Supreme
Court for leave to appeal the denial of his ineffective
assistance of counsel claim, but the Illinois Supreme Court
denied his petition on September 28, 2016. See Resp.
Ex. J; Miller v. Scott, 60 N.E.2d 874 (Ill. Sup. Ct.
2016). Miller then timely filed his federal habeas petition
on January 20, 2017, arguing that he was insufficiently
warned about the risks of proceeding pro se under
Illinois Supreme Court Rule 401(a), that his trial and
appellate counsel were ineffective, and that the evidence was
insufficient to commit him.
state raises several arguments as to why Miller's
petition should be dismissed, but only one is needed:
Miller's claims are procedurally defaulted. Before
undergoing federal appellate review, a state prisoner must
“must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). If he has not raised his claims at each
stage of one complete round, his claims are procedurally
defaulted. Miller did not raise any of the arguments he
advances in this federal habeas petition in his state direct
review proceeding, so he cannot rely on having gone through
one full round of argumentation on direct review. He did
raise his claims in his state habeas petition submitted to
the state trial court, but he did not raise any of them on
appeal of the denial of the writ to the state appellate
court; indeed, he filed no brief at all in that
court. Thus, Miller never filed anything in the
appeal of his state habeas petition that “fairly
presented both the operative facts and legal principles that
control each claim, ” or even which claims he wanted to
appeal. Smith v. McKee, 598 F.3d 374, 382 (7th Cir.
2010). Accordingly, the claims he asserts in this petition
have all been procedurally defaulted.
procedurally defaulted claim can be overcome if the
petitioner can demonstrate cause and prejudice. See Oaks
v. Pfister, 863 F.3d 723, *2 (7th Cir. 2017; not yet
paginated in F.3d). Miller, however, has made no argument
that he can demonstrate cause or prejudice. Nor has Miller
argued that the “fundamental miscarriage of
justice” exemption should be applied to excuse his
procedural default. Miller was provided an opportunity to
file a reply brief (ECF No. 10) but did not do so.
Accordingly, he has forfeited these arguments and there is no
basis to excuse his procedural default. Hicks v.
Hepp, 871 F.3d 513, 531 (7th Cir. 2017) (“The
petitioner . . . has not advanced any argument that these
exceptions should apply here. Therefore, any argument that
these exceptions apply has been forfeited . . . .”).
reasons stated above, the petition for a writ of habeas
corpus is denied. Further, the Court declines to issue a
certificate of appealability. A COA is appropriate only if a
petitioner has “made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(B)(2). When a petition is denied on procedural
grounds, the petitioner must show “that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here,
it is undeniable that Miller's claims are procedurally
defaulted and that he has failed to offer grounds to excuse
his procedural default.
is advised that this is a final decision ending his case in
this Court. If Petitioner wishes to appeal, he must (absent a
basis for extension) file a notice of appeal in this Court
within thirty days of the entry of judgment and seek a
certificate of appealability from the United States Court of