Miller v. Scott et al

Filing 15

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 10/26/2017. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DALE MILLER,
Petitioner,
v.
GREGORY SCOTT,
Respondent.

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No. 17 C 0487
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Petitioner 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.
I. Background
When a 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.

Miller 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.” Id.
Miller 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

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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.
Miller 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. 1 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).
Miller 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

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The dispositional hearing “is analogous to a sentencing hearing.” Miller, 2014 IL App
(1st) 122186, ¶ 32. It follows a determination that a respondent is a sexually violent person and
entails a determination of whether an SVP should be placed in a secure facility for treatment or
conditionally released. Id. at ¶ 27.
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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. 2 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.

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Under Illinois law, a person in custody may seek habeas corpus relief only on the
grounds specifically enumerated in section 10–124 of the Habeas Corpus Act. See 735 ILCS
5/10–124 (West 1998). The Illinois Supreme Court has consistently held that a writ under this act
is available only to obtain the release of a prisoner who has been incarcerated under a judgment
of a court that lacked jurisdiction of the subject matter or the person of the petitioner, or where
there has been some occurrence subsequent to the prisoner's conviction that entitles him to
release. People v. Gosier, 205 Ill. 2d 198, 205, 792 N.E.2d 1266, 1270 (2001). Presumably,
Miller sought state habeas relief because as an adjudicated SVP he is deemed to be in civil
custody and the procedures of the the state’s Post-Conviction Hearing Act, 725 ILCS 5/122-1 et
seq., are available only to those serving a sentence following a criminal conviction. See People v.
Carpenter, 2013 IL App (1st) 113452-U, ¶¶ 12-13 (Ill. App. Ct. 2013); People v. Phillips (In re
Phillips), 857 N.E.2d 746, 751-52 (Ill. App. Ct. 2006).
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II. Analysis
The 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.” 3 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. 4 Thus, Miller never filed anything in the appeal of his

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Another reason Miller’s claim about the trial court’s failure to adequately warn him
about proceeding pro se fails is that, although framed as a Sixth and Fourteenth Amendment
claim, Miller’s claim is really that the trial court failed to adequately follow Illinois Supreme
Court Rule 401(a) at his probable cause hearing. This argument cannot support a federal habeas
claim, because violations of state law are not cognizable on federal habeas. Steward v. Gilmore,
80 F.3d 1205, 1214 (7th Cir. 1996); see also United States ex rel. Simmons v. Scott, No. 13 C
3370, 2014 WL 3906774, at *4 (N.D. Ill. Aug. 6, 2014) (“Petitioner has not cited any Supreme
Court precedent, nor does any exist, that holds that a habeas petitioner is entitled to relief based
on alleged error at the probable cause stage of civil commitment.”). The Court also notes that the
Seventh Circuit has expressed skepticism that SVPs are constitutionally required to be provided
with counsel at all when appealing their commitment decisions, so Miller’s ineffective assistance
of appellate counsel claim rests on similarly shaky ground. See Brown v. Watters, 599 F.3d 602,
609 n.7 (7th Cir. 2010); see also Ambrose v. Roeckeman, 749 F.3d 615, 618-20 (7th Cir. 2014)
(explaining that Watters did not hold that there is no constitutional right to counsel, but only that
petitioner had not presented authority establishing such a right).
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Although as noted above in note 2, state habeas relief is generally not available to
committed SVPs in Illinois because their commitment is civil rather than criminal, Miller could
have filed a petition for relief from judgment under 735 ILCS 5/2-1401 within two years of his
commitment proceeding. See In re Morris, 840 N.E.2d 731, 734 (Ill. App. Ct. 2005). His failure
to do so constitutes another aspect of his procedural default.
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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. 5
A 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 . . . .”).
* * * * *
For the 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

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Miller’s claims have also been procedurally defaulted because the state appellate court
dismissed his habeas appeal for failure to comply with Illinois procedural rules regarding the
time to file a brief. See Coleman v. Thompson, 501 U.S. 722, 729–30 (1991).
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undeniable that Miller’s claims are procedurally defaulted and that he has failed to offer grounds
to excuse his procedural default.
Petitioner 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 Appeals for the Seventh Circuit. See Fed. R. App. P. 4(a)(1); 28 U.S.C.
§ 2253(c)(1).

Dated: October 26, 2017

______________________
John J. Tharp, Jr.
United States District Judge

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