Schloss v. Scott

Filing 44

MEMORANDUM Opinion and Order: Petitioner's habeas corpus petition 1 is denied on the merits. Petitioner's motion to expand the record and introduce newly discovered evidence 33 is denied. Any pending motions are denied as moot. T he Court declines to issue a certificate of appealability. The Clerk is instructed to enter a judgment in favor of Respondent and against Petitioner. Civil Case Terminated. Signed by the Honorable Charles P. Kocoras on 9/13/2017. Mailed notice(vcf, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Jeremy Lee Schloss, (880564)

)
)
Petitioner,
)
)
v.
)
)
)
Gregg Scott, Program Director,
)
Rushville Treatment and Detention )
Facility, Illinois Department of
)
Human Services,
)
)
Respondent.
)

Case No. 16 C 3164
Judge Charles P. Kocoras

MEMORANDUM OPINION AND ORDER
Petitioner Jeremy Lee Schloss, a sexually violent person (“SVP”) civilly committed at the
Rushville Treatment and Detention Facility, Illinois Department of Human Services (“DHS”),
brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging his 2013
adjudication as a sexually violent person pursuant to the Sexually Violent Persons Commitment
Act, 725 ILCS 207/1, et seq., (“SVP Act”) in the Eighteenth Judicial Circuit Court, DuPage
County, Illinois. The present petition raises 17 claims challenging his adjudication as an SVP.
He also brings a motion to expand the record and introduce newly discovered evidence. The
Court denies both the motion to expand the record and introduce new evidence, and the habeas
corpus petition. The Court also declines to issue a certificate of appealability.
1.

Background
The following facts are drawn from the Appellate Court of Illinois’ opinion affirming

Petitioner’s SVP adjudication. In re Schloss, No. 2-13-0658, 2014 WL 5822912 (Ill. App. Ct.
Nov. 10, 2014). The state court findings are presumed correct, and Petitioner has the burden of

rebutting the presumption of correctness by clear and convincing evidence. Brumfield v. Cain,
135 S. Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C. 2254(e)(1)).
In February 2005, Petitioner pled guilty to aggravated criminal sexual abuse of his wife.
In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *2. His wife, C.S., was
sleeping in her bed with their nine-month-old son. Id. He entered the room, pulled his wife off
the bed by her legs, put his left hand over her mouth, and, with his right hand, ripped off her
sweatpants and underwear, and inserted his fingers into her vagina. Id. C.S. and the baby awoke
during the attack. Id. at *2. She told Petitioner that the baby needed a bottle. Id. When
Petitioner went to the kitchen to prepare a bottle, C.S. grabbed the baby and fled to a neighboring
home. Id.
Petitioner was initially sentenced to 180 days in jail, and 36 months of sex offender
treatment probation. Id. at *1. He was barred from contacting his wife or son as a probation
term. Id. at *3. Petitioner disagreed with the contact ban as he believed the incident was
consensual. Id. He violated his probation by contacting his wife by telephone. Id. The state
court revoked Petitioner’s probation and sentenced him to seven years imprisonment followed by
two years of mandatory supervised release (“MSR”). Id. at *1.
The state filed a petition to adjudicate Petitioner an SVP prior to his release from prison.
Id. The SVP Act authorizes involuntary civil commitment of an SVP for “control, care and
treatment.” In re Stanbridge, 980 N.E.2d 598, 610-11 (Ill. 2012) (quoting 725 ILCS 207/40(a)).
An SVP is defined as a person who has: (1) been convicted of a sexually violent offense; (2) is a
danger because he suffers from a mental disorder; and, (3) the mental disorder makes it
substantially probable that he will engage in acts of sexual violence in the future.
2

In re

Stanbridge, 980 N.E.2d at 611 (citing 725 ILCS 207/5(f)). A person adjudicated as an SVP can
be indefinitely committed until such time as the person is no longer an SVP. In re Stanbridge,
980 N.E.2d at 611 (citing 725 ILCS 207/40(b)(2)).

At trial, the state has the burden of

establishing that the individual is an SVP beyond a reasonable doubt.
In Petitioner’s SVP proceedings, the trial court granted his request to represent himself pro
se and appointed a stand-by attorney to assist him. In re Commitment of Schloss, No. 2-13-0658,
2014 WL 5822912, at *2. The state’s evidence at trial consisted of the expert testimony of Drs.
Vasiliki Tsoflias and Edward Smith. Dr. Michael Fogel testified as an expert on Petitioner’s
behalf, and Petitioner provided his own lay testimony.
Beginning with the state’s evidence, Drs. Tsoflias and Smith were experts in clinical
psychology.

Id. at *2, *5.

Dr. Tsoflias specializes in sex offender evaluations and risk

assessment, while Dr. Smith specializes in treatment and risk analysis of criminal sex offenders.
Id. Both doctors reviewed Petitioner’s criminal history, including police and probation reports,
court documents, disciplinary history, Petitioner’s Illinois Department of Corrections medical
files, and previous mental health examination reports. Id. Dr. Smith also interviewed Petitioner,
while Dr. Tsoflias did not, because Petitioner refused to speak to her. Id.
The materials reviewed by the doctors show that, in addition to the February 2005 attack
that resulted in Petitioner’s criminal conviction, Petitioner admitted to sexually assaulting C.S. on
three to five other occasions. Id. at *3. In one instance, Petitioner and C.S. were having an
argument when he pulled her to the floor and forcibly penetrated her digitally. Id.
In another incident occurring on Christmas Eve 2004, Petitioner and C.S. were getting
ready to go to a party at a relative’s home. Id. Petitioner pressed up against C.S. in the bathroom
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suggesting that he wanted to have sex, but she said there was not enough time. Id. Petitioner
responded by saying that they were going to have sex, and pushed C.S. onto the toilet. Id. C.S.
resisted and Petitioner grabbed her by the neck, resulting in C.S. falling into the bathtub. Id.
C.S. told Petitioner that they should go into the bedroom in an attempt to escape. Id. Their son
then started crying in the living room. Id. C.S. went to the living room and told Petitioner to
leave her alone because their son was in the room. Id. Petitioner responded that “this is how I
want it,” that he had always fantasized about raping a woman, and that this was a fantasy come
true. Id. Petitioner then pulled C.S. to the ground and raped with her. Id. Subsequently,
Petitioner threatened to rape C.S any time the couple argued. Id.
In addition to Petitioner’s sexual violence against C.S., Petitioner was charged in 2003
with criminal sexual abuse, but pleaded guilty to battery of a 17-year-old girl. Id. In that
incident, the girl was sitting outside a house on the front steps while Petitioner was sitting a couple
of steps below her. Id. Petitioner asked the girl if anyone was home, and if she wanted to have
sex. Id. The girl declined. Id. Petitioner responded by touching her vagina, and the girl
pushed his hand and told Petitioner to stop. Id. He repeated his attempts to touch her vagina five
to six times, and the girl repeatedly pushed his hand away. Id.
Petitioner also has five prior convictions for non-sexual offenses including theft, battery,
and driving under the influence. Id. He started drinking as a teen or even earlier, and was a
regular drinker as an adult. Id. He also had a history of using marijuana, cocaine, and LSD. Id.
He attended some Alcoholics Anonymous groups, and had completed a substance abuse education
program, but had not participated in substance abuse treatment. Id.

4

Petitioner received five weeks of sex offender treatment while on probation. Id. He was
offered treatment in prison, but refused, saying he did not need it. Id. Petitioner began treatment
when transferred to DHS, dropped out for one year, and then restarted. Id. He was in phase two
out of five of the treatment programs at DHS when his SVP trial occurred. Id.
Dr. Tsoflias opined that Petitioner met the criteria for adjudication as an SVP. Id. at *5.
Utilizing the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), Dr. Tsoflias
diagnosed: paraphilia not otherwise specified, nonconsent; alcohol abuse in a controlled
environment; and personality disorder not otherwise specified with antisocial and narcissistic
features. Id. at *4. In support of the diagnosis, Dr. Tsoflias noted that Petitioner had committed
multiple sexual assaults, fantasized about rape, and his behavior had caused significant disruption
to his marriage and resulted in incarceration. Id. Petitioner showed a disregard for the safety of
himself and others, as shown by his repeated criminal acts and alcohol and drug abuse. Id. He
also showed a lack of remorse for his crimes and generally did not take responsibility for them.
Id. Dr. Tsoflias concluded that these mental disorders predisposed Petitioner to commit acts of
sexual violence because it made him more likely to act on his sexual urges and fantasies. Id.
Dr. Tsoflias also concluded, based on several assessments, that Petitioner was likely to
reoffend. Id. at *4. Petitioner scored in the moderate/high category for re-offense on the
Static-99 test, high risk in the MnSOST-R test, and high level of psychopathic traits in the Hare
PCLR exam.

Id.

Dr. Tsoflias additionally noted that Petitioner’s criminality / lifestyle

instability, intimacy deficit, difficulty in self-regulation, and lack of cooperation with supervisors
all suggested Petitioner’s likelihood to re-offend. Id.

5

Dr. Smith, the other state expert, testified that he also concluded that Petitioner met the
criteria for being an SVP. Id. at *6. Dr. Smith examined the same records as Dr. Tsoflias, but
unlike Dr. Tsoflias, Dr. Smith was able to interview Petitioner. Id. at *5. In the interview,
Petitioner attempted to minimize the incident with the girl, claiming she dressed like a “whore,”
leading Petitioner to believe the girl welcomed his behavior. Id. He also claimed he did not
touch her vagina, but instead only pulled her underwear to the side.

Id.

Petitioner also

minimized and failed to accept responsibility for the sexual assaults of his wife. Id. Finally,
Petitioner described the sex offender treatment in prisoner as “bullshit.” Id.
Like Dr. Tsoflias, Dr. Smith diagnosed Petitioner with paraphilia, alcohol dependence, and
antisocial personality disorder. Id. at *6. Dr. Smith also concluded that Petitioner had an anger
management problem. Id. Petitioner became extremely angry after his parents’ divorce when he
was a child. Id. In school, he once said something regarding climbing a clock tower and
shooting people. Id. There were also records of Petitioner lashing out at other people or being
disruptive while detained at the DHS facility. Id. Dr. Smith also concluded, based on the
Static-99 and MnSOST-R actuarial instruments, that there was a high risk that Petitioner would
reoffend as a sex offender. Id.
Petitioner’s case consisted of his testimony and the expert testimony from Dr. Fogel.
Regarding the incident with the 17-year-old girl, Petitioner claimed he had known her for one year
because she was his neighbor. Id. at *6. He admitted that he asked her to have intercourse, and
she said no. Id. Despite that, he pulled her underwear to one side, exposing her vagina. Id.
Petitioner claimed she giggled and pushed his hand away. Id. Petitioner persisted pulling her
underwear three more times. Id. She again told him to stop, which he did. Id.
6

Petitioner explained that the sexual assaults of C.S. occurred at a time when he was
drinking heavily, but he had not used alcohol in eight years. Id. at *7. He explained that he had
come to realize that his assaults of C.S. were predicated upon his feelings of extreme
powerlessness, anger, lack of control, and emasculation that were triggered when C.S. rejected his
efforts to have consensual sex. Id. He explained how he understood that his own prior history of
being an abuse victim also influenced his behavior. Id.
Dr. Fogel, an expert in clinical psychology specializing in sexual offenders, interviewed
Petitioner for over 12 hours, spoke to his family members, and reviewed the record examined by
Drs. Tsoflias and Smith. He explained that Petitioner’s relationship with C.S. was dysfunctional,
abusive, and influenced by Petitioner’s unresolved issues regarding abuse he suffered as a child.
Id. at *7.
Petitioner’s father was an alcoholic who physically and emotionally abused Petitioner’s
mother when Petitioner was a child. Id. The father also directed anger toward and demeaned
Petitioner. Id. Additionally, Petitioner felt abandoned and unloved when his parents divorced
when he was nine years old. Id. He began using anger and aggression to protect himself from
being emotionally hurt. Id.
Petitioner also reported being a victim of verbal, physical, and sexual abuse as a child. Id.
Other children would beat and tease Petitioner because he was small in stature and did not have
much money for clothing. Id. One of his older sisters was physically abusive towards Petitioner,
touching his penis on two occasions. Id.
When Petitioner was approximately 13 years old, a man five or six years older befriended
Petitioner.

Id.

Petitioner spent the night at the man’s home where, without Petitioner’s
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knowledge, the man gave Petitioner alcohol. Id. The man anally raped Petitioner and forced
Petitioner to perform oral sex on him. Id.
Petitioner felt powerless after the sexual assault. Id. He used anger to lash out at others
and began drinking to numb his feelings. Id. Petitioner started to have more trouble in school.
Id. Despite this, Petitioner had a romantic relationship between the ages of 18 and 20 where there
was no evidence of abuse. Id.
Petitioner began experimenting with drugs between ages 19 and 21, but did not like the
way they made him feel. Id. He continued to use marijuana and alcohol, but would become
angry when he drank because of his unresolved childhood and abuse issues. Id. at *8.
Petitioner met C.S. in August 2002. Id. They moved in together in 2003. Id. Soon
thereafter, they began arguing, and the arguing increased once C.S. became pregnant. Id.
Petitioner was verbally and emotionally abusive towards C.S. when she was pregnant. Id.
Petitioner described the abuse as reinforcing his power and control in the relationship. Id.
C.S. was a teacher with a bachelor’s degree, while Petitioner had one semester at a
community college. Id. Petitioner quit his job and stayed at home to care for the baby and
perform household tasks while C.S. was working because it was less expensive than daycare. Id.
He felt a level of inferiority and power differential from the decision to stay home with the baby,
and this resulted in anger. Id.
C.S. suffered from postpartum depression and her sexual relations with Petitioner
essentially stopped after the birth of their child. Id. Petitioner explained that he had played the
caretaker role since the pregnancy, and was feeling resentful and angry, like he was her “whipping
boy.” Id.
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Dr. Fogel opined that Petitioner did not meet the SVP definition because he did not suffer
from a condition that predisposed him to engage in acts of sexual violation, and that Petitioner did
not have a mental disorder. Id. In support of this conclusion, Dr. Fogel explained that although
Petitioner had sexual fantasies that C.S. would submit to his instructions, a study has shown that
one-third of individuals in the non-offending population have rape fantasies. Id. He also noted
that Petitioner did not manifest an arousal from the unwillingness of his victim and demonstrated
an ability to stop his conduct and show remorse. Id.
The jury adjudicated Petitioner an SVP, and he was committed to DHS custody. Id. at *9.
The SVP adjudication was affirmed on direct appeal. Petitioner now proceeds with the present
habeas corpus petition, (Dkt. 1.) and motion to expand the record and introduce new evidence.
(Dkt. 33.)
2.

Analysis
A.

Petitioner’s Motion to Expand the Record and Introduce Newly Discovered
Evidence.

Petitioner filed his motion to expand the record and introduce newly discovered evidence
while the parties were briefing the habeas corpus petition. (Dkt. 33.) In sum, Petitioner argues
that he has additional evidence demonstrating that he does not suffer from a mental disorder, and
therefore was wrongfully adjudicated as an SVP. Petitioner does not provide the evidence he
wishes to supplement, but instead provides short descriptions of the materials. He claims he has
undergone sex offender treatment while in the custody of DHS including a polygraph and penile
plethysmograph.

He further states he has a letter from the creator of the DSV-IV and

DSM-IV-TR, a quote from a former therapist, and other correspondence that support his case. He

9

also claims to have materials supporting his ineffective assistance of counsel claims raised in the
instant habeas corpus petition.
Petitioner’s motion to expand the record and introduce newly discovered evidence is
denied. First, Petitioner has failed to tender the proposed evidence. He simply provides short
discussions of the material in his filing. The Court has no way to verify the accuracy of
Petitioner’s descriptions without reviewing the source materials.
Second, even if the source materials were tendered to the Court, Petitioner would still be
unable to supplement the record with this material. Petitioner’s claims are governed by the
Antiterrorism and Effective Death Penalty Act.

(“AEDPA”).

The Court’s analysis of

Petitioner’s claims under the AEDPA are “backward looking.” Cullen v. Pinholster, 563 U.S.
170, 182 (2011).

The Court is limited to reviewing the record before the state court at the time

that court made its decision. Id. The AEDPA prohibits Petitioner from presenting new evidence
that was not before the state court in support of his habeas corpus petition. Petitioner cannot
present new evidence regarding his claims for the first time in this Court when that evidence was
not before the state court. Price v. Thurmer, 637 F.3d 831, 837 (7th Cir. 2011).
Finally, beyond the above stated reasons against expansion of the record, the Court notes
that the evidence Petitioner seeks to introduce would not likely affect this Court’s consideration of
his claims for habeas corpus relief. An overarching theme of Petitioner’s case is his steadfast
view that he is not an SVP. He believes this new evidence will show that he is not an SVP.
However, Petitioner’s case can be summed up as a battle of the experts. This is not a situation
where evidence conclusively disproves the state’s case such as an alibi or DNA evidence showing
a wrongful conviction. To the contrary, Petitioner’s adjudication as an SVP occurred after the
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consideration of multiple experts. Petitioner attempts to marshal additional evidence in support
of his position, but that does not refute the state’s evidence demonstrating he is an SVP.
Petitioner’s motion to expand the record and introduce new evidence is denied.
B.

Petitioner’s Claims

Turning to the habeas corpus petition, (Dkt. 1.), Petitioner asserts the following claims in
his petition.1 (Dkt. 1., pgs. 4-5; Dkt. 5, pgs. 2-5.)
1.

Insufficient evidence to support Petitioner’s SVP adjudication. Petitioner
also alleges he is actually innocent as to the SVP charge. (Respondent
labels it Claim 1 in his answer, hereinafter referred to as “Respondent 1”).

2.

Petitioner’s Fourth, Fifth, and Sixth Amendment rights were violated by the
administering of Dr. Quackenbush’s evaluation because false statements
and false charges were alleged against Petitioner. (Respondent 7).

3.

Past police reports were improperly introduced to allege Petitioner’s mental
disorder in violation of his Sixth and Fourteenth Amendment rights.
(Respondent 6 and 9).

4.

Denial of proposed jury instruction of special interrogatory resulted in
structural error. (Respondent 10).

5.

Permitting testimony regarding documents of Petitioner’s juvenile and
adult criminal record and other material not produced during discovery
violated his right to a fair trial, and resulted in a Brady v. Maryland, 373
U.S. 83 (1963) violation. (Respondent 2, 3, 4, 5, and 11.)

6.

Adjudication and commitment as an SVP predicated upon prior criminal
conviction results in cruel and unusual punishment under the Eighth
Amendment. (Respondent 12).

7.

The trial court erred in allowing the jury to have a copy of the criminal
indictments during deliberations. (Respondent 13).

1 Respondent’s answer reorganizes and renumbers Petitioner’s claims without making reference
to the original numbering used by Petitioner. (Dkt. 23, pgs. 19-20.) The Court has done its best
to match the numbering used in Respondent’s answer to the claims as originally numbered by
Petitioner in the habeas corpus petition. The Court shall refer to a claim by both the number
assigned by Petitioner, and the corresponding number assigned by Respondent to avoid confusion.
11

8.

Treatment records by the Illinois Department of Human Services contained
compelled and false statements that, if properly excluded, would have
resulted in Petitioner being found actually innocent of the SVP charge.
(Respondent 7).

9.

Excluding the term “commitment” from the name of the SVP Act in the jury
instructions resulted in a structural error. (Respondent 14).

10.

Use of Petitioner’s prior criminal conviction as part of the basis for his SVP
adjudication resulted in collateral estoppel and double jeopardy violations.
(Respondent 15).

11.

Ineffective assistance of counsel for failing to raise Fourth and Fifth
Amendment claims regarding his evaluation by Dr. Quackenbush.
(Respondent 8).

12.

Ineffective assistance of counsel for failing to object to a second IDOC
evaluation. (Respondent 16).

13.

Improper appointment of standby counsel when Petitioner chose to proceed
pro se. (Respondent 17).

14.

Use of statistical actuarial data to determine dangerousness violates
Petitioner’s right to be found guilty of every element beyond a reasonable
doubt. (Respondent 18).

15.

The SVP Act is a punitive application of criminal law in violation of his
Eighth and Fourteenth Amendment rights. (Respondent 12).

16.

The attorney for the state shoving a hand inches from Petitioner’s face and
called him “this rapist” during closing arguments at the SVP trial, violating
Petitioner’s right to a fair trial. (Respondent 19).

17.

The trial court’s failure to fully and fairly admonish Petitioner of the
“quasi-criminal” nature of the case prevented Petitioner from preparing a
proper defense. (Respondent 20).

i.

Petitioner’s Procedurally Defaulted Claims

Respondent argues Petitioner’s Claim 2 (Respondent 7), Petitioner’s Claim 3 (Respondent
6 and 9), Petitioner’s Claim 4 (Respondent 10), portions of Petitioner’s Claim 5 (Respondent 2, 4,
12

5, and 11), Petitioner’s Claim 7 (Respondent 13), Petitioner’s Claim 8 (Respondent 2), Petitioner’s
Claim 9 (Respondent 14), Petitioner’s Claim 11 (Respondent 8), Petitioner’s Claim 12
(Respondent 16), Petitioner’s Claim 13 (Respondent 17), Petitioner’s Claim 14 (Respondent 18),
Petitioner’s Claim 16 (Respondent 19), and Petitioner’s Claim 17 (Respondent 20) are
procedurally defaulted. (Dkt. 23, pgs. 20-26.)
In specific, Respondent argues the following procedural defaults:


Claims procedurally defaulted for failure by Petitioner to preserve them through a
timely objection at trial are: Petitioner’s Claim 2 (Respondent 7), a portion of
Petitioner’s Claim 3 (Respondent 9), a portion of Petitioner’s Claim 5 (Respondent
11), Petitioner’s Claim 7 (Respondent 13), and Petitioner’s Claim 14 (Respondent
18). (Dkt. 23, pg. 20.)



Claims procedurally defaulted because they were presented in a cursory fashion
without proper citation to authority in the state appellate court are: Petitioner’s
Claim 9 (Respondent 14), Petitioner’s Claim 16 (Respondent 19), and Petitioner’s
Claim 17 (Respondent 20). (Dkt. 23, pgs. 20-21.)



Claims procedurally defaulted because they were not presented through one
complete round of state court review are: portions of Petitioner’s Claim 5
(Respondent 2, 4, 5), Petitioner’s Claim 3 (Respondent 6 and 9), Petitioner’s Claim
11 (Respondent 8), Petitioner’s Claim 4 (Respondent 10), Petitioner’s Claim 7
(Respondent 13), Petitioner’s Claim 12 (Respondent 16), and Petitioner’s Claim 13
(Respondent 17). (Dkt. 23, pgs. 22-26.)
a.

Claims Procedurally Defaulted by Adequate and Independent
State Law Grounds of Decision.

Respondent raises two different adequate and independent state law grounds of decision as
procedural defaults. “‘A federal habeas court will not review a claim rejected by a state court if
the decision of the state court rests on a state law ground that is independent of the federal question
and adequate to support the judgment.’” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting
Beard v. Kindler, 558 U.S. 53, 55 (2009); Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The
failure to properly preserve an issue at trial through a contemporaneous objection, Kaczmarek v.
13

Rednour, 627 F.3d 586, 592 (7th Cir. 2010), as well as raising the claim in the state court in a
cursory fashion without citation to authority, Olawale v. Hodge, No. 13 C 8535, 2016 WL 278871,
at *7 (N.D. Ill. Jan. 22, 2016), each result in procedural default based an adequate and independent
state law ground for the decision.
i.

Claims Defaulted due to Failure with Illinois’s
Contemporenous Objection Rule

Petitioner’s Claim 2 (Respondent 7), argues that his Fourth, Fifth, and Sixth Amendment
rights were violated during his examination interview with Dr. Quackenbush. (Dkt. 5, pgs.
37-41.) This claim was raised as Issue 25 in his state appellate court brief.2 (Dkt. 24-2, pgs. 18).
The state appellate court held that the claim was barred because of Petitioner’s failure to bring a
timely objection at trial. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *10.
This holding is an independent and adequate state-law ground preventing this Court’s habeas
corpus review.

Kaczmarek, 627 F.3d at 592.

Petitioner’s Claim 2 (Respondent 7) is

procedurally defaulted.
A portion of Petitioner’s Claim 3 (Respondent 9) argues that Petitioner was denied a fair
trial by allowing the State to introduce police reports at trial. (Dkt. 5, pgs. 41-42.) This claim
was raised to the state appellate court on direct appeal as Issue 20 in his state appellate court brief.
(Dkt. 24-2, pgs. 18). The state appellate court found the claim was defaulted for failing to bring a
2 Petitioner listed his claims in a different order in his state appellate court brief from the
numbering used in his habeas corpus petition. The state appellate court opinion often referred to
Petitioner’s claim by number only. Thus, to track a claim, one must identify it by its number in
the state appellate court opinion and then match it to the corresponding number assigned by
Petitioner in his habeas corpus petition, and the different number assigned by Respondent’s
answer. Unfortunately, each claim is assigned three different numbers in the record.
Consequently, the Court has addressed each claim in a separate paragraph. Although repetitive,
the Court utilized this approach to allow the reader to follow each claim through the multiple
numbering.
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timely objection at trial. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *10.
This holding is an independent and adequate state-law ground preventing this Court’s habeas
corpus review.

Kaczmarek, 627 F.3d at 592.

Petitioner’s Claim 3 (Respondent 9) is

procedurally defaulted.
A portion of Petitioner’s Claim 5 (Respondent 11) argues that Petitioner was denied a fair
trial when the trial court allowed testimony regarding Dr. Smith’s reliance on Petitioner’s juvenile
criminal history in forming his opinion that Petitioner was an SVP. (Dkt. 5, pgs. 45-46).
Petitioner raised this claim as Issue 20 in his state appellate court brief. (Dkt. 24-2, pg. 18.). The
state appellate court found the claim was defaulted for failing to bring a timely objection at trial.
In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *10. This holding is an
independent and adequate state-law ground preventing this Court’s habeas corpus review.
Kaczmarek, 627 F.3d at 592. The relevant portion of Petitioner’s Claim 5 (Respondent 11) is
procedurally defaulted.
Petitioner’s Claim 7 (Respondent 13) argues that the trial court erred in allowing the jury to
have a copy of the criminal indictments during deliberation. (Dkt. 5, pg. 59.) The claim was
raised as Issue 13 in his state appellate court brief. (Dkt. 24-2, pg. 17.)

The state appellate court

found the claim was defaulted for failing to bring a timely objection at trial. In re Commitment of
Schloss, No. 2-13-0658, 2014 WL 5822912, at *10. This holding is an independent and adequate
state-law ground preventing this Court’s habeas corpus review. Kaczmarek, 627 F.3d at 592.
Claim 7 (Respondent 13) is procedurally defaulted.
Petitioner’s Claim 14 (Respondent 18) argues that the use of statistical actuarial data to
determine dangerousness violates Petitioner’s right to be found guilty of every element beyond a
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reasonable doubt. Petitioner raised this claim as Issue 7 in his state appellate court brief. (Dkt.
24-2, pg. 17.) The state appellate court found the claim was defaulted for failing to bring a timely
objection at trial. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *10. This
holding is an independent and adequate state-law ground preventing this Court’s habeas corpus
review. Kaczmarek, 627 F.3d at 592. Claim 14 (Respondent 18) is procedurally defaulted.
The Court must address three topics before concluding its consideration of these
procedural defaults. First, the fact that the state appellate court considered the underlying merits
of these claims does not defeat the procedural default because the state court did so as part of plain
error review. Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010) (“And we have repeatedly
explained that where a state court reviews the claim for plain error as the result of a state
procedural bar such as the Illinois doctrine of waiver, that limited review does not constitute a
decision on the merits.”) (citations omitted).
Second, Petitioner argues that his defaults should be excused because his standby attorney
influenced him to not object at times during trial. However, Petitioner chose to proceed pro se
both at trial and on his state appeals. Petitioner is bound by his actions and those of his standby
attorney resulting in procedural default. Coleman v. Thompson, 501 U.S. 722, 754 (1991). The
Court will consider later in this opinion whether Petitioner can excuse his defaults through cause
and prejudice or fundamental miscarriage of justice, but at this point in the analysis the issue is that
Petitioner’s inaction of not objecting when required by Illinois law resulted in the procedural
default.
Finally, Petitioner argues that the state appellate court erred in finding the default because
he preserved the claims in his post-trial motion. (Dkt. 24-19, pgs. 91, 92, 98, 99, 104.) He
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argues that the post-trial motion is sufficient and the state court erred in finding a default based on
the failure to bring a contemporaneous objection.

However, Illinois law requires both a

contemporaneous objection and a timely post-trial motion to preserve an issue for appeal. Illinois
v. Belknap, 23 N.E.3d 325, 340 (Ill. 2014). Petitioner’s claims are procedurally defaulted as
explained above.
ii.

Claims Defaulted for Being Raised in a Cursory Fashion
without Proper Citation to Authority.

Petitioner’s Claim 9 (Respondent 14) argues that excluding the term “commitment” from
the name of the SVP Act in the jury instructions resulted in a structural error. This claim was
raised as Issue 15 in Petitioner’s state appellate court brief. (Dkt. 24-2, pg. 17.) The state
appellate court found the claim was defaulted because Petitioner presented the claim in a cursory
fashion and without citation to relevant legal authority. In re Commitment of Schloss, No.
2-13-0658, 2014 WL 5822912, at *10. This holding is an independent and adequate state-law
ground preventing this Court’s habeas corpus review of the claim. Olawale, No. 13 C 8535, 2016
WL 278871, at *7. Claim 9 (Respondent 14) is procedurally defaulted.
Petitioner’s Claim 16 (Respondent 19) argues that the prosecutor at the SVP trial violated
Petitioner’s right to a fair trial by shoving his hand inches from Petitioner’s face and calling him
“this rapist” during closing arguments at the SVP trial. This claim was raised as Issue 12 in
Petitioner’s state appellate court brief. (Dkt. 24-2, pg. 17). The state appellate court found the
claim was defaulted because Petitioner presented the claim in a cursory fashion and without
citation to relevant legal authority. In re Commitment of Schloss, No. 2-13-0658, 2014 WL
5822912, at *10. This holding is an independent and adequate state-law ground preventing this

17

Court’s habeas corpus review of the claim. Olawale, No. 13 C 8535, 2016 WL 278871, at *7.
Claim 16 (Respondent 19) is procedurally defaulted.
Petitioner’s Claim 17 (Respondent 20) argues that the trial court failed to fully and fairly
admonish Petitioner of the “quasi-criminal” nature of the SVP proceedings, and this prevented
Petitioner from preparing a proper defense. This claim was raised as Issue 23 in Petitioner’s state
appellate court brief. (Dkt. 24-2, pg. 18.) The state appellate court found the claim was
defaulted because Petitioner presented the claim in a cursory fashion and without citation to
relevant legal authority. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *10.
This holding is an independent and adequate state-law ground preventing this Court’s habeas
corpus review of the claim. Olawale, No. 13 C 8535, 2016 WL 278871, at *7. Claim 17
(Respondent 20) is procedurally defaulted.
b.

Claims Procedurally Defaulted for Failure to Raise the Claim
through One Complete Round of State Court Review.

Respondent next argues that Petitioner’s Claim 5 (Respondent 2, 4, 5), Petitioner’s Claim 3
(Respondent 6 and 9), Petitioner’s Claim 11 (Respondent 8), Petitioner’s Claim 4 (Respondent
10), Petitioner’s Claim 7 (Respondent 13), Petitioner’s Claim 12 (Respondent 16), and Petitioner’s
Claim 13 (Respondent 17) are procedurally defaulted because the claims were not raised through
one complete round of review in the state courts. “To obtain federal habeas review, a state
prisoner must first submit his claim through one full round of state-court review.” Johnson v.
Hulett, 574 F.3d 428, 431 (7th Cir. 2009) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971));
see also 28 U.S.C. § 2254(b)(1). The prisoner must present the operative facts and controlling
law of the claim before the state courts so that they have a meaningful opportunity to consider the
claim before it is raised in federal court. Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006)
18

(citations omitted). Petitioner must raise the claim through all levels of the Illinois courts,
including in a petition for leave to appeal (PLA) before the Supreme Court of Illinois. Guest v.
McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 842-46
(1999)).
Petitioner raises several Brady v. Maryland, 373 U.S. 83 (1963), arguments in his Claim 5.
Respondent subdivides the Brady arguments into individual claims and renumbers the individual
claims. The Court shall address the claims individually.
Petitioner’s Claim 5 (Respondent 2) argues that the State violated Brady by failing to
disclose a June 19, 2008, clinic note written by a prison counselor. Respondent is correct that this
issue was neither raised in Petitioner’s appeal in the Appellate Court of Illinois, nor in his PLA in
the Supreme Court of Illinois. (Dkt. 24-2, 24-7.) Petitioner’s Claim 5 (Respondent 2) is
procedurally defaulted.
Petitioner’s Claim 5 (Respondent 4) argues the State violated Brady by failing to disclose
transcripts of Petitioner’s resentencing hearing. Petitioner raised the claim before the Appellate
Court of Illinois, (Dkt. 24-2, pg. 18) but failed to raise it in his PLA in the Supreme Court of
Illinois. (Dkt. 24-7.)
Petitioner responds that he did attempt to raise the issue, but asserts the state appellate court
mischaracterized his claim. (Dkt. 39, pg. 80.) There is no dispute that Petitioner raised the claim
before the appellate court; the procedural default is his failure to raise the claim in his PLA in the
state supreme court. He also claims that he did raise the claim in the PLA. However, his citation
is to a portion of his PLA challenging his trial court counsel’s representation. (Dkt. 39, pg. 80

19

(citing PLA at pg. 36.) There is no mention of the relevant claim in the PLA. Petitioner’s Claim
5 (Respondent 4) is procedurally defaulted.
Petitioner’s Claim 5 (Respondent 5) argues that Brady was violated by appointed counsel’s
failure to turn over materials to Petitioner that had been disclosed by the State to counsel upon
Petitioner representing himself and counsel transitioning to stand-by status. The claim was
neither raised in the appeal before the Appellate Court of Illinois, nor in the PLA in the Supreme
Court of Illinois.

(Dkt. 24-2, 24-7.)

Petitioner’s Claim 5 (Respondent 5) is procedurally

defaulted.
Petitioner’s Claim 3 (Respondent 6) argues the trial court erred by limiting Petitioner’s
cross-examination of Dr. Smith regarding a progress note. The claim was neither raised in the
appeal before the Appellate Court of Illinois, nor in the PLA in the Supreme Court of Illinois.
(Dkt. 24-2, 24-7.) Petitioner’s Claim 3 (Respondent 6) is procedurally defaulted.
Petitioner’s Claim 3 (Respondent 9) argues that the trial court erred by allowing the
introduction of police reports at his SVP trial. This claim was raised in Petitioner’s brief before
the Appellate Court of Illinois, (Dkt. 24-2, pg. 17) but it was not raised in his PLA in the Supreme
Court of Illinois. Petitioner’s Claim 3 (Respondent 9) is procedurally defaulted.
Petitioner’s Claim 11 (Respondent 8), argues that defense counsel was ineffective for
failing to raise Fourth and Fifth Amendment grounds regarding his evaluation by Dr.
Quackenbush.3 Petitioner failed to raise the claim in his brief before the Appellate Court of
Illinois, or in his PLA before the Supreme Court of Illinois. (Dkt. 24-2, 24-7.)

3 Respondent rephrases the claim slightly differently than ineffective assistance of trial counsel
for failing to move to dismiss the SVP petition on Fourth and Fifth Amendment grounds. Despite
phrasing the claim differently, it is clear that the parties are addressing the same issue of ineffective
20

Despite failing to raise the Sixth Amendment ineffective assistance of counsel argument in
the state court, Petitioner did raise the underlying argument that Dr. Quackenbush’s examination
violated his Fourth and Fifth Amendment rights. This, however, is insufficient to fairly present
the claim to the state courts.
Petitioner was required to alert the state court to his federal claim so that the state court
could adjudicate the federal issue in order to exhaust the claim. Weddington v. Zatechy, 721 F.3d
456, 465 (7th Cir. 2013). Fair presentment requires informing the state court of both the operative
facts and controlling legal principles. Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008).
Petitioner did not give the state court an opportunity to adjudicate a Sixth Amendment claim
because there was no mention of an alleged Sixth Amendment violation in Petitioner’s brief before
the Appellate Court of Illinois, or in his PLA in the Supreme Court of Illinois. Petitioner’s Claim
11 (Respondent 8) is procedurally defaulted.
Petitioner’s Claim 4 (Respondent 10) alleges that the trial court’s failure to tender
Petitioner’s proposed jury instruction resulted in a structural error. Petitioner did challenge the
trial court’s refusal to tender his proposed jury instructions both in his appellate court brief, (Dkt.
24-2, pgs. 98-99), and in his PLA. (Dkt. 24-7, pg. 41.) However, Respondent is correct that
Petitioner’s arguments were limited to questions of state law and did not raise the present issue of
whether the failure to provide Petitioner’s jury instruction resulted in structural error. Savage v.
Robert, No. 12 C 1802, 2013 WL 1789396, at *5-*6 (N.D. Ill. Apr. 26, 2013) (citing Verdin v.
O’Leary, 972 F.2d 1467, 1474-75 (7th Cir. 1992); Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir.
1984)) (internal quotations omitted)) (asserting state law challenge to jury instructions is
assistance of counsel for failing to raise Fourth and Fifth Amendment claims arising from Dr.
Quackenbush’s examination of Petitioner.
21

insufficient to fairly present federal claim to state court). Petitioner’s Claim 4 (Respondent 10) is
procedurally defaulted.4
Petitioner’s Claim 7 (Respondent 13) alleges that the trial court erred in allowing the jury
to have a copy of the criminal indictment during deliberations. This claim was raised before the
Appellate Court of Illinois, (Dkt. 24-2, pg. 17) but was not raised in the PLA before the Supreme
Court of Illinois. (Dkt. 24-7.) Petitioner’s Claim 7 (Respondent 13) is procedurally defaulted.
Petitioner’s Claim 12 (Respondent 16) alleges ineffective assistance of trial counsel for
failing to object to Petitioner’s evaluation by a second Illinois Department of Corrections expert.
Petitioner did not raise this claim in his appeal before the Appellate Court of Illinois or in his PLA
before the Supreme Court of Illinois. (Dkt. 24-2, 24-7.) Petitioner raised a claim regarding the
second IDOC evaluator in his appellate court brief. However, this related to the evaluator only
and did not assert an ineffective assistance of counsel claim. Additionally, there is no mention of
the claim in the PLA. Petitioner’s Claim 12 (Respondent 16) is procedurally defaulted.
Petitioner’s Claim 13 (Respondent 17) challenges the appointment of standby counsel after
he chose to proceed pro se at trial. Petitioner did not raise this claim in his appeal before the
Appellate Court of Illinois or in his PLA before the Supreme Court of Illinois. (Dkt. 24-2, 24-7.)
Petitioner’s Claim 13 (Respondent 17) is procedurally defaulted.

4 Beyond being procedurally defaulted, Petitioner’s argument that the trial court failed to tender a
proposed jury instruction resulted in a structural error is meritless. Errors in jury instructions are
subject to harmless error review; they are not automatically structural errors as Petitioner claims.
Neder v. United States, 527 U.S. 1 (1999).
22

c.

Petitioner’s Defaults are not Excused by Cause and Prejudice
or Fundamental Miscarriage of Justice.

Petitioner cannot excuse his procedural defaults through either the cause and prejudice or
fundamental miscarriage of justice exceptions. Regarding cause and prejudice, cause is an
“‘objective factor, external to [Petitioner] that impeded his efforts to raise the claim in an earlier
proceeding.’” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (quoting Smith v. McKee,
596 F.3d 374, 382 (7th Cir. 2010)). Examples of cause include: (1) interference by officials
making compliance impractical; (2) the factual or legal basis was not reasonably available to
counsel; or, (3) ineffective assistance of counsel. Guest v. McCann, 474 F.3d 926, 930 (7th Cir.
2007) (citing McCleskey v. Zant, 499 U.S. 467 (1991)). The first two types of cause are not
applicable to this case.
Regarding ineffective assistance of counsel to be “cause” excusing the default of an
underlying issue, the ineffective assistance of counsel that resulted in the failure to preserve the
claim must itself be properly preserved in the state courts. Edwards v. Carpenter, 529 U.S. 446,
453 (2000); Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). Petitioner failed to raise an
ineffective assistance of counsel claim in the state court. Additionally, Petitioner proceeded pro
se at trial and on appeal, so any deficient representation was the result of his own shortcomings
when representing himself. Petitioner cannot demonstrate cause and prejudice to excuse his
procedural defaults.
This leaves Petitioner with the fundamental miscarriage of justice (actual innocence)
gateway to excuse his default. Proving actual innocence in this context requires Petitioner to
demonstrate that “‘in light of the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.’” McQuiggins v. Perkins, 133 S. Ct. 1924, 1928
23

(2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). This is a “demanding” and “seldom
met” standard. McQuiggins, 133 S. Ct. at 1928 (citing House v. Bell, 547 U.S. 518, 538 (2006)).
Petitioner must present new, reliable evidence that was not presented at trial − such as exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence − to make a
credible claim of actual innocence. House, 547 U.S. at 537 (citing Schlup, 513 U.S. at 324); see
McDonald v. Lemke, 737 F.3d 476, 483-84 (7th Cir. 2013) (quoting Hayes v. Battaglia, 403 F.3d
935, 938 (7th Cir. 2005) (“[A]dequate evidence is ‘documentary, biological (DNA), or other
powerful evidence: perhaps some non-relative who places him out of the city, with credit card
slips, photographs, and phone logs to back up the claim.’”)). “[A]ctual innocence means factual
innocence . . . .” Bousley v. United States, 523 U.S. 614, 624 (1998) (citing Sawyer v. Whitley,
505 U.S. 333, 339 (1992)).
Petitioner’s main theme in this case is that he is actually innocent because he is not an SVP.
As discussed above in the Court’s rejection of Petitioner’s motion to supplement and expand the
record, Petitioner provides no evidence to support his claim of actual innocence. He makes
references to comments that mental health professionals allegedly made to him, but he does not
provide supporting affidavits. Nor does he provide reports from these experts supporting his
position that he is not an SVP.

Petitioner merely presents the case in his favor without

considering that the state presented multiple experts who opined that Petitioner met the
requirements of the SVP statute. Petitioner ignores the state experts at his trial who opined that he
met the requirements to be an SVP. He does nothing to rebut their opinions or provide his own
evidence in support of his claim that he is not an SVP. Petitioner does not meet the demand

24

fundamental miscarriage of justice exception.

Petitioner cannot excuse his procedurally

defaulted claims.
ii.

Petitioner’s Remaining Claims are Meritless

Petitioner’s Claim 1 (Respondent 1), Petitioner’s Claim 5 (Respondent 3), Petitioner’s
Claim 6 (Respondent 12), Petitioner’s Claim 10 (Respondent 15), and Petitioner’s Claim 15
(Respondent 12) are denied on the merits.
A writ of habeas corpus cannot issue unless 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). As the
state courts adjudicated Petitioner’s claims on the merits, the Court’s review of the present habeas
corpus petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). The Court may not grant habeas relief unless the state court’s decision on the merits
was contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, or if the state court decision is based on an
unreasonable determination of facts. 28 U.S.C. § 2254(d).
“‘A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court
applies a rule different from the governing law set forth in [the Supreme Court’s] cases, or if it
decides a case differently than [the Supreme Court has] done on a set of materially
indistinguishable facts.’” Premo v. Moore, 562 U.S. 115, 128 (2011) (quoting Bell v. Cone, 535
U.S. 685, 694 (2002)). “An ‘unreasonable application’ occurs when a state court ‘identifies the
correct legal principle from [the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of Petitioner’s case.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting

25

Wiggins v. Smith, 539 U.S. 510, 520 (2003); Williams v. Taylor, 529 U.S. 362, 413 (2000) (opinion
of O’Connor, J.)).
Clearly established federal law is the “‘holdings, as opposed to the dicta, of [the Supreme
Court’s] decisions as of the time of the relevant state-court decision.’” Carey v. Musladin, 549
U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). The state court is not required to cite to,
or even be aware of, the controlling Supreme Court standard, as long as the state court does not
contradict the Supreme Court standard. Early v. Packer, 537 U.S. 3, 8 (2002). The Court begins
with a presumption that state courts both know and follow the law. Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (citations omitted).
As previously mentioned, the Court’s analysis is “backward looking.” Cullen, 563 U.S. at
182.

The Court is limited to reviewing the record before the state court at the time that court

made its decision. Id. The Court is also limited in considering the Supreme Court’s “precedents
as of ‘the time the state court renders its decision.’” Greene v. Fisher, 132 S. Ct. 38, 44 (2011)
(quoting Cullen, 562 U.S. at 182; Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (emphasis
omitted).
“The AEDPA’s standard is intentionally ‘difficult for Petitioner to meet.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 134 S. Ct. 1702
(2014); Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)). “As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
26

This “‘highly deferential

standard [] demands that state-court decisions be given the benefit of the doubt.’” Cullen, 563 U.S.
at 181 (quoting Woodford, 537 U.S. at 24).
Petitioner’s Claim 1 (Respondent 1) challenges the sufficiency of the evidence supporting
Petitioner’s SVP adjudication. The Court applies a “twice-deferential standard” in reviewing the
state court’s ruling on the sufficiency of the evidence claim. Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). First, the Court must be deferential to the verdict. “‘[I]t is the responsibility
of the [finder of fact] to decide what conclusions should be drawn from evidence admitted at
trial.’” Parker, 567 U.S. at 43 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). With
this in mind, “[t]he evidence is sufficient to support [the adjudication] whenever, ‘after viewing
the evidence in the light most favorable to the [state], any rational trier of fact could have found the
essential elements of the [the SVP Act] beyond a reasonable doubt.’” Parker, 567 U.S. at 43
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). Additionally, the
Court must accord an additional level of deference required by § 2254(d) under the AEDPA.
Parker, 567 U.S. at 43 (citing Cavazos, 132 S. Ct. at 4).
The clearly established federal law comes from Kansas v. Crane, 543 U.S. 407 (2002),
Kansas v. Hendricks, 521 U.S. 346 (1997), and Foucha v. Louisiana, 504 U.S. 71 (1992). These
cases stand for the proposition that due process requires a finding that an individual suffers from a
mental condition that effects his ability to refrain from activities that endanger others so as to make
him dangerous. McGee v. Bartow, 593 F.3d 566, 570, 579 (7th Cir. 2010).
The state court decision is neither contrary to, nor an unreasonable application of, these
standards. The state court properly identified that the evidence had to show that Petitioner had a
mental disorder that made him a danger to others because it was substantially probable that he
27

would commit sexual violence towards others. In re Commitment of Schloss, No. 2-13-0658,
2014 WL 5822912, at *2. The state court recognized that two state experts diagnosed Petitioner
with paraphilia and opined that this condition made him likely to commit sexual violence towards
others. This was sufficient evidence to support the SVP finding. Brown, 599 F.3d at 611-12
(holding that diagnosis of paraphilia with evidence of future dangerousness was sufficient to
upholding SVP adjudication); Lieberman v. Kirby, No. 10 C 2570, 2011 WL 6131176, at *15-*18
(N.D. Ill. Dec. 8, 2011) (same). Petitioner’s arguments to the contrary are nothing more than an
attempt to reargue the trial evidence. This is impermissible. Murrell v. Frank, 332 F.3d 1102,
1120 (7th Cir. 2003). Petitioner’s Claim 1 (Respondent 1) is denied on the merits.
Petitioner’s Claim 5 (Respondent 3) argues that the state violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963), regarding his juvenile record.

Despite invoking Brady,

Petitioner’s claim is not actually a Brady claim.
Petitioner argues that he requested a number of documents, including his juvenile record,
prior to trial. The state allegedly responded that it did not have these documents. Despite this,
the information was used at trial.

Petitioner protests the unfairness of the situation.

Understandably, the state court on appeal did not address the claim within the context of Brady
because Petitioner’s claim is actually about whether the state properly disclosed information
during pretrial discovery.
The Court sees no Brady concerns. The challenged information, Petitioner’s juvenile
history, is a matter Petitioner knew prior to trial because it is his own criminal history. Petitioner
cannot complain about the unfairness of using information that he already knows. Additionally,
even if there was a Brady disclosure requirement, Petitioner concedes that the material was
28

presented at trial. There is no Brady violation when evidence was disclosed during trial and
Petitioner was able to make effective use of the material at trial. United States v. Lawson, 810
F.3d 1032, 1043 (7th Cir. 2016) Petitioner’s Claim 5 (Respondent 3) is meritless.
Finally, Petitioner claims his adjudication as an SVP predicated upon his prior criminal
conviction violates his right to be free from cruel and unusual punishment, (Petitioner’s Claim 6
(Respondent 12)), the prohibition on double jeopardy (Petitioner’s Claim 10 (Respondent 15)),
and is a punitive application of the criminal law (Petitioner’s Claim 15 (Respondent 12)). The
Supreme Court has previously rejected these lines of arguments, holding that the SVP
proceeding’s status as a civil proceeding separate and distinct from the prior criminal proceeding
addresses these constitutional concerns. Hendricks, 521 U.S. at 369-71. The state court’s
rejection of these claims is neither contrary to, nor an unreasonable application of, clearly
established federal law. Petitioner’s Claim 6 (Respondent 12) Claim 10 (Respondent 15), and
Claim 15 (Respondent 12) are meritless.
In conclusion, Petitioner’s Claims 2, 3, 4, a portion of 5, 7, 8, 9, 11, 12, 13, 14, 16, and 17
are denied because they are procedurally defaulted. The remaining claims of 1, the remaining
portion of 5, 6, 10, and 15 are denied on the merits. The habeas corpus petition is denied.
3.

Certificate of Appealabilty
The Court declines to issue a certificate of appealability under Rule 11 of the Rules

Governing Section 2254 Cases in the United States District Courts. Petitioner cannot make a
substantial showing of the denial of a constitutional right, or that reasonable jurists would debate,
much less disagree, with this Court’s resolution of this case. Resendez v. Knight, 653 F.3d 445,
446-47 (7th Cir. 2011) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000); Barefoot v. Estelle,
29

463 U.S. 880, 893 & n.4 (1983)).
Petitioner is advised that this is a final decision ending his case in this Court. If Petitioner
wishes to appeal, he must file a notice of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. P. 4(a)(1). Petitioner need not bring a motion to reconsider this Court’s
ruling to preserve his appellate rights. However, if Petitioner wishes the Court to reconsider its
judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule
59(e) motion must be filed within 28 days of the entry of this judgment. Fed. R. Civ. P. 59(e).
The time to file a motion pursuant to Rule 59(e) cannot be extended. Fed. R. Civ. P. 6(b)(2). A
timely Rule 59(e) motion suspends the deadline for filing an appeal until the Rule 59(e) motion is
ruled upon. Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a
reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than
one year after entry of the judgment or order. Fed. R. Civ. P. 60(c)(1). The time to file a Rule
60(b) motion cannot be extended. Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the
deadline for filing an appeal until the Rule 60(b) motion is ruled upon only if the motion is filed
within 28 days of the entry of judgment. Fed. R. App. P. 4(a)(4)(A)(vi).
4.

Conclusion
Petitioner’s habeas corpus petition [1] is denied on the merits. Petitioner’s motion to

expand the record and introduce newly discovered evidence [33] is denied. Any pending motions
are denied as moot. The Court declines to issue a certificate of appealability. The Clerk is
instructed to enter a judgment in favor of Respondent and against Petitioner.
Terminated.
ENTERED:
30

Civil Case

Dated: 9/13/2017

____________________________________
CHARLES P. KOCORAS
United States District Judge

31