Birch v. Director Scott et al

Filing 13

ORDER : For the reasons stated below, defendant's motion to reconsider this court's denial of his petition pursuant to 28 U.S.C. § 2254 12 is denied. [See STATEMENT] Signed by the Honorable Philip G. Reinhard on 7/11/2018. Mailed notice (jp, )

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 reasons stated below, defendant’s motion to reconsider this court’s denial of his
petition pursuant to 28 U.S.C. § 2254 [12] is denied.
STATEMENT
The court has received petitioner John L. Birch’s motion to reconsider this court’s denial of
his habeas corpus petition filed under 28 U.S.C. § 2254. See [12]. On July 2, 2018, in denying
petitioner’s § 2254 petition, the court found (1) petitioner’s state law claims were not cognizable,
(2) his claim that he was not shown to be dangerous beyond a reasonable doubt was barred as
adjudicated on the merits, and (3) his constitutional claims were procedurally defaulted. See [10].
In his motion to reconsider, petitioner appears to be arguing the court should have found that
petitioner avoided procedural default of his constitutional claims because he demonstrated both
cause for and prejudice stemming from the default, and that any denial of relief resulted in a
miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986) and United States v.
Frady, 456 U.S. 152, 170 (1982). However, petitioner misinterprets the law and, regardless, cannot
adequately demonstrate that default should be avoided. Beyond these arguments, petitioner also
seems to argue the state proceeded under unconstitutional state statutes and, therefore, misapplied
the burden of proof to find petitioner a sexually dangerous person.
Petitioner does not specify if he is bringing his motion for reconsideration under FED. R. CIV.
P. 59(e) or 60(b). Under Rule 59(e), a movant may file a motion to alter or amend a judgment no
later than 28 days after the entry of the judgment. FED. R. CIV. P. 59(e). To be entitled to relief
under Rule 59(e), the movant must “clearly establish[ ] a manifest error of law or fact” or point to
newly discovered evidence. Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015). Under Rule
60(b), the court may relieve a party from final judgment under a “limited set of circumstances
including fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 528
(2008); FED. R. CIV. P . 60(b). Rule 60(b) also include a “catch-all” provision: “any other reason
that justifies relief.” Id. Petitioner’s arguments fail under either Rule.

As noted in the court’s opinion, petitioner’s constitutional claims are procedurally defaulted
because he failed to adequately brief them in his state court proceedings. In his motion to
reconsider, petitioner neither acknowledges nor addresses this failure. Petitioner remains unable to
show any external impediment which may have prevented him from presenting his claims in state
court (Murray), nor how this alleged violation infected his trial with “error of constitutional
dimensions” (Frady). As to miscarriage of justice, petitioner has provided no evidence to support
the argument he was actually innocent of the offense for which he was convicted. Gladney v.
Pollard, 799 F.3d 889, 896 (7th Cir. 2015). Petitioner again argues he was not a sexually violent
person at the time of his trial. However, the jury found petitioner to be a sexually violent person
based on testimony of two psychologists who testified it was their professional opinion that it was
“substantially probable” that petitioner would act out sexually in the future, and, therefore, met the
requirements of the state statute to be found a sexually violent person. The Illinois appellate court
affirmed the jury’s verdict and the Illinois Supreme Court denied petitioner’s petition for leave to
appeal. Petitioner’s reiteration of his argument that he is not sexually dangerous is unavailing. As
to his purported claims that the Illinois state statutes are unconstitutional and that the state did not
meet its burden, petitioner’s conclusory statements and reiterations of his trial arguments do not
meet the requirements of Rule 59(e) or 60(b) sufficient to convince the court to reconsider its ruling.
A manifest error “is not demonstrated by the disappointment of the losing party. It is the
wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks omitted).
A Rule 59(e) motion “is not an appropriate forum for rehashing previously rejected arguments.”
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
Additionally, under Rule 60(b), petitioner’s arguments reveal no fraud, mistake or newly discovered
evidence. Moreover, by making the same arguments in his motion to reconsider as he did in his §
2254 petition, the court is not persuaded there is any other reason to justify relief.
For the above reasons, petitioner’s motion to reconsider the court’s denial of petitioner’s
28 U.S.C. § 2254 petition is denied. This case remains closed.

Date: 07/11/2018

ENTER:

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

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