Ambrose v. Evans

Filing 31

ORDER denying 22 Motion to Supplement; denying 24 Motion to Supplement and adopting 26 Report and Recommendations. The Court dismisses with prejudice this casuse of action. See Order for details. Signed by Chief Judge David R. Herndon on 11/7/11. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD L. AMBROSE,
Petitioner,
v.
JOHN EVANS,
Respondent.

No. 10-0172-DRH
MEMORANDUM and ORDER

HERNDON, Chief Judge:
I. Introduction and Background
This matter comes before the Court on Magistrate Judge Frazier’s Report and
Recommendation (“the Report”) recommending that the Court deny the habeas
corpus petition, the motions to supplement and the request for evidentiary hearing
(Doc. 26).1 Ambrose filed objections to the Report (Doc. 29). Based on the following
the Court ADOPTS the Report in its entirety.
On March 3, 2010, Richard Ambrose, a person civilly committed as a sexually
dangerous person in the Big Muddy Correctional Center, filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his
confinement.2

1

Specifically, he challenges actions concerning a so-called

On September 27, 2011, the Court denied the motion for evidentiary hearing (Doc. 30).

2

Originally, Ambrose was indicted in the Circuit Court for Sangamon County, Illinois on
four counts of predatory criminal sexual assault, pursuant to 720 ILCS 5/1214/1(a)(1). The
charges stem from his alleged sexual penetration of his five-year-old daughter and her five-year-old

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discharge/recovery proceeding. Ambrose remains confined pursuant to a June,
2008, state court order denying his recovery application.3 Ambrose claims that he
was deprived of his liberty in violation of the Fourteenth Amendment’s Due Process
Clause; that he was deprived of his right to confront his accusers in violation of the
Sixth Amendment when Dr. Angeline Stanislaus described statements made by
individuals who did not testify and were not subject to cross-examination; and that
the proceedings violated the Ex Post Facto Clause in Article 1, Section 9 because
statutory provisions enacted after Ambrose filed his application were considered by
the State Court. On November 17, 2010, respondent filed his response to the habeas
corpus petition arguing that all of petitioner’s claims are procedurally defaulted as
Ambrose failed to raise any of these claims in one complete round of the state court
review (Doc. 14). On November 24, 2010, Ambrose filed a reply (Doc. 17).
Thereafter, Judge Frazier entered the Report finding that petitioner failed to
present his federal claims to the Illinois Appellate Court; that he has not
demonstrated cause for this failure and that he has not demonstrated a fundamental
miscarriage of justice as the materials do not reveal that he is actually innocent of
being a sexually dangerous person (Doc. 26). Thus, the Report recommends that
the Court deny and dismiss Ambrose’s 28 U.S.C. § 2254 petition for writ of habeas

friend. The State of Illinois petitioned the Circuit Court of Illinois, Sangamon County, to proceed
under the Sexually Dangerous Persons Act (“SDPA”), 725 ILCS 205 et seq. A jury found Ambrose
to be a sexually dangerous person and on June 1, 1999, he was remanded to the Illinois
Department of Corrections (“IDOC”), Adult Division, for “care and treatment.”
3

Under Illinois law, individuals that have been found to be sexually dangerous may file a
motion to determine whether they have recovered.

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corpus. On August 17, 2011, Ambrose filed objections to the Report (Doc. 29).
Since timely objections have been filed, this Court must undertake de novo
review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern
District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th
Cir. 1992). The Court may “accept, reject or modify the recommended decision.”
Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999).

In making this

determination, the Court must look at all the evidence contained in the record and
give fresh consideration to those issues to which specific objection has been made.
Id.
II. Facts
In 2005, Ambrose filed an application for rehearing asserting that he was no
longer sexually dangerous. At the bench trial on his application for release, the State
of Illinois tendered Dr. Mark Carich as an expert on sex offender evaluation and
treatment. The state court judge allowed Ambose to voir dire Carich and Ambrose’s
counsel attempted to question Carich whether he had a “personal conflict of interest”
with Ambrose. The state court judge sustained the State’s objection to that line of
questioning, noting that the purpose of the voir dire was “merely to determine
whether [Carich] can be admitted as an expert” and that Ambrose’s proposed
questioning “drift[ed] into cross examination.” The state court judge accepted Carich
as an expert. Thereafter, Carich testified that based on his “eight-step evaluation,”
he determined that Ambrose had not recovered and remained sexually dangerous.
Ambrose moved to strike the testimony on the basis that Carich’s methodology was
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not “generally accepted in the field of psychiatry.” The state court judge denied the
motion; found Ambrose was “still a sexually dangerous person” and denied his
application for release.
In his appeal from the order denying his recovery application, Ambrose
presented two issues based solely on Illinois law to the Illinois Appellate Court: (1)
whether the trial court abused its discretion in barring voir dire regarding whether
Dr. Carich had a “personal conflict of interest” with petitioner and (2) whether the
trial court abused its discretion in denying Ambrose’s motion to strike Carich’s
testimony as not “generally accepted” (Doc. 14-1, ps. 9-16). The Illinois Appellate
Court affirmed the trial court on July 9, 2009. On August 4, 2009, Ambrose filed a
petition for rehearing and the Illinois Appellate Court denied the request that day.
On August 18, 2009, Ambrose filed a petition for leave to appeal to the Illinois
Supreme Court.4 On November 25, 2009, the Illinois Supreme Court denied his
petition for leave to appeal.
On March 3, 2010, Ambrose filed the petition for writ of habeas corpus raising
the following claims:
(1) the State’s evidence was insufficient to support a finding that he
remains sexually dangerous;
(2) the admission of evidence concerning his prior offenses violated the
confrontation clause;
(3) the admission of Dr. Carich’s testimony violated due process;
4

In his petition for leave to appeal to the Illinois Supreme Court, Ambrose raised the claim
that the trial court abused its discretion in denying the motion to strike Carich’s testimony; the
petition also hinted at whether the trial court abused its discretion in barring voir dire regarding
whether Carich had a personal conflict of interest and added several other arguments not made at
the Appellate Court level.

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(4) the application of the “clear and convincing evidence” standard to his
case violated the Ex Post Facto Clause;
(5) the trial court “impermissibl[y] shifted the burden of proof” to him’
(6) the admission of expert reports containing petitioner’s “hearsay”
statements violated due process; and
(7) he was denied speedy trial.
III. Legal Standard
Habeas Corpus relief will not be granted unless the state court's adjudication
of a claim resulted in a decision that “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). The federal court deferentially reviews the
decision of the last state court. Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir.2010).
State-court factual findings are presumed to be correct unless the petitioner rebuts
this presumption with “clear and convincing evidence.” Schriro v. Landrigan, 550
U.S. 465, 473-74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. §
2254(e)(1)). Federal courts liberally construe pro se petitions for habeas corpus
relief. Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004).
A petitioner is required to exhaust all the remedies available to him in state
court before seeking habeas corpus relief in federal court. 28 U.S.C. § 2254(b)(1)(A).
In exhausting his remedies, the petitioner is required to “present the state courts with
the same claim he urges upon the federal courts.” Picard v. Connor, 404 U.S. 270,
275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A petitioner's claims must be
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presented “in concrete, practical terms, [so that] the state court [is] sufficiently
alerted to the federal constitutional nature of the issue.” Ellsworth v. Levenhagen,
248 F.3d 634, 639 (7th Cir. 2001) ( Ellsworth ). Claims that are not fairly presented
to the state court are procedurally defaulted upon habeas review.

Baldwin v.

Reese, 541 U.S. 27, 29, 30-31, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).
To determine whether a petitioner has fairly presented a claim to the state
court, the court examines four factors: “(1) whether the petitioner relied on federal
cases that engage in a constitutional analysis; (2) whether the petitioner relied on
state cases which apply a constitutional analysis to similar facts; (3) whether the
petitioner framed the claim in terms so particular as to call to mind a specific
constitutional right; and (4) whether the petitioner alleged a pattern of facts that is
well within the mainstream of constitutional litigation.” Ellsworth, 248 F.3d at 639.
Procedurally defaulted claims will be reviewed only if “the petitioner can establish
cause and prejudice for the default or that the failure to consider the claim would
result in a fundamental miscarriage of justice.” Kaczmarek v. Rednour, 627 F.3d
586, 591 (7th Cir. 2010).
III. Analysis
A review of the record indicates that Ambrose failed to raise any of these
claims in one complete round of state court review. Ambrose was required to
present all of these claims to the Illinois Appellate Court. It is not sufficient to
include these claims in the petition for leave to appeal to the Illinois Supreme Court.

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The record demonstrates that he did not present any of these claims to the Illinois
Appellate Court. Morever, Ambrose did not even offer a hint of any of these claims
in the Illinois Appellate Court. Thus, all of his claims are defaulted. See O’Sullivan
v. Boerckel, 526 U.S. 838, 848 (1999)(claims must be presented through “one
complete round” of state court review.); Duncan v. Henry, 513 U.S. at 366 (“If
habeas petitioner wishes to claim an evidentiary ruling at a state court trial denied
him the due process of law guaranteed by the Fourteenth Amendment, he must say
so, not only in federal court, but in state court.”).
Also, the Court finds that Ambrose has not shown cause to excuse the
procedural defaults nor has he shown that the failure to consider his claims will
result in a fundamental miscarriage of justice. As to cause, Ambrose merely argues
that Judge Frazier misapplies federal law and that his counsel was deficient for
failing to include and “reserve” his federal claims. He also argues that he does have
a constitutional right to counsel in trial court and direct appeal. The Court rejects
these arguments. First, there is no constitutional right to counsel on direct appeal
from a civil commitment judgment. See Brown v. Watters, 599 F.3d 602, 609 n. 7
(7thh Cir. 2010)(“Because we do not recognize a right to counsel [on direct appeal
from civil commitment], we cannot accept the cause-and-prejudice analysis urged by
[petitioner], in which ineffective assistance provides the requisite cause.”). Thus,
Ambrose’s counsel’s failure to raise his federal claims on direct appeal cannot
constitute cause. Finally, Ambrose cannot make a showing that he is innocent of the
civil commitment standard. A petitioner claiming “actual innocence” must point to
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“new reliable evidence ... that was not presented at trial.” House v. Bell, 547 U.S.
518, 537 (2006). Ambrose as not done so and a review of the record does not
indicate a claim that Ambrose is actually innocent of being a sexually dangerous
person. Thus, Ambrose’s defaulted claims are not subject to federal habeas review.
Lastly, Ambrose objects to the portion of the Report recommending that the
Court deny his motions for leave to supplement. He argues that Judge Frazier
misconstrued his motions. Based on the above analysis, the Court agrees with Judge
Frazier and finds that the supplemental evidence would not have aided the Court in
deciding whether his federal claims are procedurally barred.
IV. Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 26); DENIES
the motions to supplement (Docs. 22 & 24) and DENIES Ambrose’s petition for writ
of habeas corpus (Doc. 1). Thus, the Court DISMISSES with prejudice the petition.
Further, the Court DIRECTS the Clerk of the Court to enter judgment reflecting the
same.
IT IS SO ORDERED.
Signed this 7th day of November, 2011.

Digitally signed by
David R. Herndon
Date: 2011.11.07
11:02:29 -06'00'

Chief Judge
United States District Court

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