Birch v. Director Scott et al

Filing 10

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 7/2/2018: For the following reasons, petitioner's 28 U.S.C. § 2254 petition 1 is denied. The court declines to issue a certificate of appealability. This matter is terminated. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 7/2/2018. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
John Birch, 867235,
Petitioner,
v.
Gregg Scott, Director, Rushville Treatment
and Detention Facility,
Respondent.

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Case No: 18 C 50072

Judge Philip G. Reinhard

ORDER
For the following reasons, petitioner’s 28 U.S.C. § 2254 petition [1] is denied. The court
declines to issue a certificate of appealability. This matter is terminated.
STATEMENT-OPINION
On February 26, 2018, petitioner John Birch filed a 28 U.S.C. § 2254 petition challenging
his state court judgment of conviction. See [1]. Respondent filed an answer to the petition on
May 23, 2018 [8], following the filing of the state court record [7]. Petitioner filed a reply on
June 22, 2018. See [9]. These matters are now ripe for the court’s review. The court will first
discuss the relevant factual and procedural background before analyzing petitioner’s various
claims.
I. Factual and Procedural History.
The following facts and procedural history are drawn from the state record. See [7].1
On December 7, 2005, a DeKalb County, Illinois state court judge found probable cause
to believe petitioner to be a sexually violent person pursuant to 725 ILCS 207/5(f).2 At
petitioner’s jury trial, held November 13 and 14, 2013,3 the state called two psychologists to
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“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
2
“’Sexually violent person’ means a person who has been convicted of a sexually violent offense, has
been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually
violent offense by reason of insanity and who is dangerous because he or she suffers from a mental
disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725
ILCS 207/5(f).
3
Previously, on September 25, 2013, at the first trial, the circuit court declared a mistrial due to concerns
regarding the health of petitioner’s expert.
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testify as to their opinions regarding a finding of petitioner as a sexually violent person - Dr.
John Arroyo, a clinical and forensic psychologist with Wexford Health Sources, and Dr. Richard
Travis, a licensed clinical psychologist and sexually violent persons evaluator for the state of
Illinois. The doctors testified they reviewed documents related to petitioner including, among
other things, police reports, victim statements, and medical and mental health records and
evaluations. They individually interviewed petitioner and authored reports on their findings.
They testified petitioner had previously been convicted of attempt aggravated criminal sexual
assault, aggravated criminal sexual abuse, aggravated unlawful restraint, and resisting a peace
officer. In that case, the facts revealed petitioner approached a woman entering her apartment
and held a knife to her throat. He forced her behind some bushes, put duct tape over her mouth
and eyes and taped her arms behind her back. Petitioner sexually assaulted this victim until he
heard a car coming and attempted to move her. The victim resisted so he picked her up and was
crossing the street with her when a car stopped; he then dropped her in the street and ran.
Petitioner received 30 years’ incarceration in the Illinois Department of Corrections for these
crimes.
In a previous case, petitioner pled guilty to home invasion and received 15 years’
incarceration. In that case, petitioner followed a woman from a gas station, broke into her home,
lunged at her with a screwdriver, knocked her to the floor, and pulled off her sweater. He then
sexually assaulted her and forced her to perform oral sex on him. In another case, petitioner was
charged with, but not convicted of, aggravated assault. In that case, petitioner approached a
woman on a college campus, told her she was sexy and asked her if she ever considered having
sex with a stranger. The woman became frightened, yelled for help and ran away. In an out-ofstate incident, considered by both doctors to be “sexually motivated,” petitioner was convicted of
burglary and robbery. In that case, among other crimes, petitioner broke into a woman’s
apartment, grabbed her and dragged her to a bedroom and forced her to masturbate him.
Petitioner told Dr. Arroyo that he operated under fantasies of robbing and raping women. Dr.
Arroyo testified petitioner told him he had been stalking women and masturbating in public and
that he was “turned on” by the violence. Based on their review of petitioner’s history and
testing, as well as their interviews with petitioner, Drs. Arroyo and Travis diagnosed petitioner,
who is now by the court’s calculation 57 years old, with mental disorders related to sexual
deviancy that predispose him to engage in acts of sexual violence and anti-social personality
disorder. Dr. Travis also diagnosed petitioner with bipolar disorder. Drs. Arroyo and Travis
each testified that petitioner is substantially probable to engage in future acts of sexual violence.
In their opinions, petitioner met the criteria for a sexually violent person.
At trial, petitioner presented Dr. Philip Reidda in his defense. After a review of records
and interviews with petitioner, Dr. Reidda diagnosed petitioner with an unspecified personality
disorder and bipolar disorder. He testified that while petitioner did meet the criteria for a
condition that would predispose petitioner to engage in acts of sexual violence, Dr. Reidda did
not think it was “substantially probable” that petitioner would act out sexually in the future. Dr.
Reidda further testified that he did not believe petitioner met the criteria as a sexually violent
person. Petitioner also testified at trial in his own behalf.

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The jury found petitioner to be a sexually violent person. He was ordered committed to
the custody of the Illinois Department of Human Services, Rushville Treatment and Detention
Facility.
A. Direct Appeal to the Illinois Appellate Court.
Petitioner appealed his conviction as a sexually violent person. On direct appeal,
petitioner raised three issues for review: (1) whether the evidence was sufficient to support the
jury’s verdict where there was no evidence petitioner “lacked volitional control”; (2) whether the
trial court erred in allowing the testimony of Drs. Arroyo and Travis; and (3) whether the court
erred in ordering petitioner committed to a secure institutional setting.
On August 3, 2016, the appellate court affirmed petitioner’s conviction. The court found
that “lack of volitional control” was not a separate element the state had to prove; nothing
prohibited the state from obtaining two evaluations of petitioner; and where the state presented
evidence that petitioner would be a danger to the community, the trial court did not abuse its
discretion in ordering petitioner committed to a secure institutional setting. Petitioner filed a pro
se petition for rehearing with the appellate court, which was denied. Petitioner then filed a pro
se petition for leave to appeal to the Illinois Supreme Court, arguing (as he did in his petition for
rehearing), among other things (as best as this court can discern), that the Illinois statutes on
sexually violent persons are unconstitutional and that the state failed to sufficiently prove his
status as a sexually violent person. On September 27, 2017, the Illinois Supreme Court denied
petitioner’s petition for leave to appeal.
Petitioner has not filed a post-conviction petition in this matter.
B. Federal Habeas Corpus Petition.
Petitioner’s § 2254 habeas petition presents the following claims:
(1)

(2)
(3)
(4)

The Illinois Sexually Violent Persons Commitment Act is unconstitutional as to:
(a)
Section 207/15(b)(5), which asserts someone charged under the Act is
dangerous under a “substantially probable” standard rather than a “beyond
a reasonable doubt” standard;
(b)
Section 207/15(f), which allows for the “reckless admission of
evidence”;
(c)
Section 207/20, which states the proceedings are civil in nature; and
(d)
Section 207/35(b), which allows for the admissibility of evidence of
crimes without a showing of beyond a reasonable doubt;
Petitioner was not shown to be dangerous beyond a reasonable doubt (considering
length of time since prior offenses);
Petitioner’s request for additional expert evaluations was ignored, pursuant to
Section 207/25(e); and
The trial court abused its power by failing to dismiss the state’s petition with
prejudice, pursuant to Section 207/35(f), following the September 2013
declaration of a mistrial.
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II. Analysis.
28 U.S.C. § 2254 limits a federal district court’s ability to grant habeas relief to state
prisoners. Relief will not be granted unless the court determines that a state court’s adjudication
of a claim “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the United States Supreme
Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented. . .” 28 U.S.C. § 2254 (d)(1)-(2). The federal courts review a
state court’s decision on a deferential standard of review. Griffin v. Pierce, 622 F.3d 831, 841
(7th Cir. 2010). A federal court may not grant relief if it determines a state court applied federal
law incorrectly. Instead, a writ can only be issued if the federal court determines that a state
court’s application of federal law was “objectively unreasonable.” Williams v. Taylor, 529 U.S.
362, 409 (2000). “The issue is not whether [the] federal judge[] agree[s] with the state court
decision or even whether the state court decision was correct. The issue is whether the decision
was unreasonably wrong under an objective standard.” Dassey v. Dittmann, 877 F.3d 297, 302
(7th Cir. 2017). This is a difficult standard for a habeas petitioner to prove as the Seventh Circuit
has defined objectively unreasonable as “something lying well outside the boundaries of
permissible differences of opinion.” McFowler v. Jaimet, 349 F.3d 436, 447 (7th Cir. 2003).
A. State Law Claims not Cognizable.
First, respondent argues that two of petitioner’s habeas claims are not cognizable for
purposes of § 2254 habeas review: (1) petitioner’s claim that the state court misapplied 725 ILCS
207/25(e) by ignoring his request for additional expert witnesses, and (2) his claim that the trial
court abused its discretion, under 725 ILCS 270/35(f), by failing to dismiss the state’s petition
with prejudice after declaring a mistrial in petitioner’s September 2013 trial. Respondent argues
these claims are not cognizable because they rest solely in state law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (inquiry into state court rulings plays no part in federal habeas corpus
review; “…it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
See also Burris v. Smith, 819 F.3d 1037, 1042 (7th Cir. 2016) (plaintiff failed to show that his
claim in any way violated U.S. Constitution such that it would be appropriate for federal habeas
relief). Here, to the extent petitioner asks this court to examine state law, his claims are not
cognizable.
B. Claim Barred as Adjudicated on the Merits.
Respondent next argues petitioner’s claim that he was not shown to be dangerous beyond
a reasonable doubt is barred by Section 2254(d) as adjudicated on the merits in state court.
The Supreme Court has held “[a] habeas petitioner meets th[e] demanding standard [of
Section 2254(d)] only when he shows that the state court’s decision was ‘so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’” Dunn v. Madison, 138 S.Ct. 9, 11 (2017) (per
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curiam) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). Additionally, in seeking federal
habeas relief where the claims were previously adjudicated on the merits by a state court,
petitioner is limited to the record that was before that state court. Cullen v. Pinholster, 563 U.S.
170, 180-81 (2011).
A review of the state court record in petitioner’s direct appeal reveals the appellate court
considered petitioner’s argument that he was not proven to be dangerous beyond a reasonable
doubt. The appellate court thoroughly analyzed all the testimony presented at petitioner’s trial,
including petitioner’s argument that it would not be “substantially probable” that he would
commit future acts of violence because the state’s witnesses relied on acts that petitioner had
committed in the past and he had not committed any acts of sexual violence since incarceration
despite the fact that he had contact with female staff members. The appellate court credited the
expert opinions of both Dr. Arroyo and Dr. Travis and held the jury could find beyond a
reasonable doubt the elements required to prove that petitioner is a sexually violent person.
Based on this court’s review of the state court record, petitioner cannot show that the state
court’s ruling was “so lacking in justification” that an “error was well understood and
comprehended.”
This court finds petitioner’s claim that he was not found dangerous beyond a reasonable
doubt was adjudicated on the merits and the appellate court’s decision was not an unreasonable
determination of the facts in light of the evidence presented in petitioner’s state court proceeding.
Therefore, these claims are denied as barred by § 2254(d).
C. Claims Procedurally Defaulted.
Finally, respondent contends that petitioner’s constitutional claims are procedurally
defaulted because they were not adequately briefed in state court.
Before a prisoner can bring claims to a federal court under 28 U.S.C. § 2254, the prisoner
must comply with the statutory exhaustion requirement and present each of his claims in one full
round of review in the state courts. See 28 U.S.C. § 2254(b)(1)(A); see also Oaks v. Pfister, 863
F.3d 723, 726 (7th Cir. 2017). Failure to exhaust available remedies in at least one full round of
review in state court results in procedural default and a federal court cannot review the merits of
the claim. Mulero v. Thompson, 668 F.3d 529, 535-36 (7th Cir. 2012); Smith v. McKee, 598 F.3d
374, 382 (7th Cir. 2010). In order to do so, petitioner must present to each court the same
“operative facts and the legal principles that control each claim” that the petitioner seeks review
of in his federal habeas petition. See Bolton v. Akpore, 730 F.3d 685, 695 (7th Cir. 2013). A
procedural default occurs when a state court disposes of a claim on independent and adequate
state law grounds. Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008). Additionally, “[a] state
is entitled to treat as forfeited a proposition that was not presented in the right court, in the right
way, and at the right time – as state rules define those courts, ways, and times. Failure to comply
with the state’s procedural rules furnishes an independent and adequate state ground of decision
that blocks federal collateral review.” Szabo v. Walls, 313 F.3d 392, 395 (7th Cir. 2002) (citation
omitted).

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Petitioner may avoid default by demonstrating both cause for and prejudice stemming
from that default, or that the denial of relief will result in a miscarriage of justice. Murray v.
Carrier, 477 U.S. 478, 495-96 (1986). Cause is ordinarily established by showing an external
impediment prevented petitioner from presenting his claim to the state court, id. at 488, and
prejudice is established by showing that the alleged violation was to petitioner’s substantial
disadvantage “infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). A miscarriage of justice may result if petitioner can show that
he is actually innocent of the offense for which he is convicted. Gladney v. Pollard, 799 F.3d
889, 896 (7th Cir. 2015).
As noted above, petitioner brings various constitutional challenges to the Illinois Sexually
Violent Persons Commitment Act (725 ILCS 207/1, et seq.). Petitioner did not raise these
constitutional challenges in his appellate brief. He did attempt to raise these federal arguments in
his petition for rehearing before the appellate court and again in his petition for leave to appeal to
the Illinois Supreme Court, but this is insufficient. “[A]n appellant does not fully and fairly
present a federal claim to the state courts when he raises that claim for the first time in a petition
for rehearing before the state appellate court or in a petition asking the state supreme court to
grant him leave to appeal.” Lewis v. Sternes, 390 F.3d 1019, 1031 (7th Cir. 2004) (citations
omitted). Additionally, nothing in petitioner’s brief or in the state court record persuades this
court that petitioner can overcome his procedural default. Petitioner has not demonstrated (nor
does this court find that the record supports) a cause and prejudice stemming from the default, or
that a denial of relief will result in a miscarriage of justice.
Therefore, the court finds that petitioner’s constitutional claims regarding the Illinois
Sexually Violent Persons Commitment Act are procedurally defaulted.
D. Certificate of Appealability.
Pursuant to Rule 11(a) of the Rules Governing § 2254 Proceedings For the United States
District Courts, the court declines to issue a certificate of appealability. A certificate may issue
only if petitioner has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). The court finds that petitioner’s claims are not cognizable, procedurally
defaulted or otherwise without merit, and the court does not find that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014) (quotations omitted). As such,
the court declines to issue a certificate of appealability. This matter is terminated.
Date: 07/02/2018

ENTER:

_______________________________________
United States District Court Judge
Notices mailed by Judicial Staff. (LC)

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