Evans v. Wabash County, Illinois, Sheriff's Department
Filing
28
ORDER -- Both parties are directed to file a memorandum addressing (1) the status of Petitioners pursuit, if one exists, of his State court remedies regarding the 2016 ineffective assistance of counsel claim and (2) whether the Court should stay Petitioners case and hold it in abeyance. The memoranda should be filed by February 20, 2018. See Order for details. Signed by Judge David R. Herndon on 1/22/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CRAIG N. EVANS
Petitioner,
vs.
Civil No. 15-cv-01122-DRH-CJP
GREGORY SCOTT
Respondent.
MEMORANDUM and ORDER
Craig N. Evans (Petitioner) served six years’ imprisonment in the Illinois
Department of Corrections for an unspecified sexual crime. (Doc. 1, p. 14). In
2005, as his sentence was expiring, the State of Illinois filed a petition to civilly
commit Petitioner as a sexually violent person under Illinois’ Sexually Violent
Persons Commitment Act (725 ILCS 207/1). Id. at p. 6. Petitioner waived trial
and stipulated to commitment. Id.
In 2015, Petitioner filed a Petition for Writ of Habeas Corpus in this Court
pursuant to 28 U.S.C. § 2254 (§ 2254), (Doc. 1), followed by an Amended Petition
incorporating the original petition, (Doc. 21).
The Amended Petition presents
claims that have been exhausted in State court and one claim that has not. For
the following reasons, the Court directs both parties to file memoranda
addressing whether this case should be stayed and held in abeyance to afford
Petitioner an opportunity to exhaust his non-exhausted claim in State court. See
Rhines v. Weber, 544 U.S. 269 (2005).
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Background
Illinois’ Sexually Violent Persons Commitment Act (the Act) “allows the
State to extend the incarceration of criminal defendants beyond the time they
would otherwise be entitled to release if those defendants are found to be ‘sexually
violent.’” In re Detention of Samuelson, 189 Ill.2d 548, 552 (2000). The Act
mandates the Department of Human Services (DHS) conduct annual reevaluations of committed persons to determine (1) whether the person is eligible
for conditional release and (2) whether the person is still a sexually violent person
(SVP). 725 ILCS 207/55(a).
Following Petitioner’s commitment, DHS conducted a six-month reevaluation in April 2006 and the State court found “no probable cause” to believe
Petitioner was no longer an SVP. (Doc. 12, Ex. 1, p. 5). Petitioner underwent
annual evaluations thereafter and the court continued to find Petitioner was an
SVP through 2016. Id. at pp. 1-5.
Petitioner filed a petition under § 2254 in 2015. (Doc. 1). He argued his
counsel was ineffective at the initial commitment proceedings; the State
improperly utilized “risk assessment tools” to determine he is an SVP; the State
improperly relied on a Psy.D., rather than an M.D., to diagnose him with a mental
abnormality; and his commitment violates the Double Jeopardy Clause. See Doc.
1.
Respondent filed a Motion to Dismiss the petition as untimely; he asserted
Petitioner’s judgment became final on November 10, 2005, when the time for
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filing an appeal from his initial commitment expired. (Doc. 12, p. 2). According
to Respondent, Petitioner had until one-year later to file a § 2254 petition. Id.
The Court denied Respondent’s motion based on Seventh Circuit precedent
that a civilly committed person may bring a habeas petition challenging a
subsequent order continuing his commitment. (Doc. 17, p. 7). Thus, each order
continuing Petitioner’s commitment constituted a new judgment that triggered a
new statute of limitations. Id. The Court concluded that Petitioner’s claims “are
timely to the extent that they go to the 2015 order continuing his commitment.”
Id. at 8.
Respondent then filed a Motion for More Definite Statement, requesting
Petitioner specify the State judgment he challenges in his § 2254 petition. (Doc.
19). The Court granted the motion, (Doc. 20), and Petitioner filed an “Amended
Petition for Clarification,” (Doc. 21).
In the Amended Petition, Petitioner stated he challenges “the findings,
judgements, and orders pertaining to his civil commitment and continued
incarceration for the years of 2005 [through 2016].” Id. at p. 1. He also asserted
two new grounds for habeas relief: (1) his civil commitment violated the plea
agreement he executed in March of 2000, and (2) all of his State-appointed
counsel were ineffective, beginning in 2005 during his initial commitment
proceedings. Id. at pp. 1-2.
Respondent moved to dismiss the petition as untimely. (Doc. 22). He also
asserted that under Younger v. Harris, 401 U.S. 37 (1971) the Court must abstain
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from addressing Petitioner’s claims related to the State court’s 2016 commitment
order because a motion for reconsideration was pending. (Doc. 22). As an initial
matter, the Court found Petitioner’s Amended Petition incorporated the grounds
for relief set forth in his initial petition. (Doc. 25, p. 8). The Court then granted
the motion, in part, dismissing as untimely Petitioner’s claims related to all
commitment orders entered prior to September 8, 2015. (Doc. 25, p. 10). The
Court denied Respondent’s motion to dismiss Petitioner’s claims related to the
2015 and 2016 commitment orders and instructed Respondent to file a
memorandum addressing (1) the status of Petitioner’s motion for reconsideration
of the 2016 commitment order; and (2) whether Petitioner exhausted his State
remedies. Id. at 10-11. Respondent filed the memorandum at Doc. 27.
Analysis
1 . Younger Abstention
Under Younger, federal courts must abstain from interfering with certain
ongoing State court proceedings, including civil commitment proceedings directed
at sex offenders. Sweeney v. Bartow, 612 F.3d 571, 573 (7th Cir. 2010). Younger
abstention is appropriate where judicial or “judicial in nature” State proceedings
are (1) ongoing; (2) implicate important State interests; and (3) provide an
adequate opportunity to raise constitutional challenges.
Trust & Investment
Advisers, Inc. v. Hogsett, 43 F.3d 290, 295 (7th Cir. 1994).
Here, the State court denied Petitioner’s motion to reconsider the 2016
commitment order and Petitioner did not file an appeal before the time for doing
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so expired. (Doc. 27, Ex. 1, p. 15-16). Both parties agree there are no ongoing
State court proceedings and Younger is therefore inapplicable.
2 . Exhaustion of State Remedies
Pursuant to 28 U.S.C. § 2254, a person in custody pursuant to a State
court judgment may bring a petition for a writ of habeas corpus “on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.”
28 U.S.C. § 2254(a).
Before a federal court can entertain a
petition brought under § 2254, principles of comity mandate a petitioner exhaust
all of his State court remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Respondent, here, concedes Petitioner has exhausted his State court
remedies as to all but one of his claims. Respondent asserts Petitioner has not
exhausted his “ineffective-assistance-of-counsel claim based on extra-record
evidence” because he may raise it in a petition for relief from judgment under 735
ILCS 5/2-1401 (§ 2-1401). (Doc. 27, p. 2).
The Supreme Court of Illinois has explained that
[t]he purpose of post-judgment review [under § 2-1401] is not to relitigate
matters that were or could have been raised on direct appeal, but rather to
resolve arguments that new or additional matters, if they had been known
at the time of trial, could have prevented a finding that the defendant was
guilty of the crimes charged. Claims that were raised on direct appeal, or
that could have been made on direct appeal, are barred under principles of
res judicata and collateral estoppel.
People v. Burrows, 172 Ill. 2d 169, 187 (1996).
Petitioner, here, could have asserted his ineffective assistance claim in a
direct appeal from the 2016 commitment order. People v. Lawton, 212 Ill.2d
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285, 295 (2004). However, it is unclear whether Petitioner can now raise it in a §
2-1401 petition.
Respondent cites In re Commitment of Walker, 2014 IL App (2d) 130372, ¶
55, where an Illinois appellate court stated that a person committed under
Illinois’ Sexually Dangerous Persons Act (SDPA) could raise an ineffective
assistance claim in a § 2-1401 petition. Walker relied on People v. Lawton, 212
Ill.2d 285 (2004) and In re Detention of Morris, 362 Ill. App. 3d 321 (4th Dist.
2005). In Lawton, the Supreme Court of Illinois permitted a person committed
under the SDPA to bring an ineffective assistance claim under § 2-1401 because
his trial counsel also represented him on direct appeal. Lawton, 212 Ill.2d 285 at
296. In Morris, an Illinois appellate court opined, “A defendant committed under
the [SDPA] may assert an ineffective-assistance-of-counsel claim under section 21401, at least where his trial counsel, who cannot be expected to argue his own
ineffectiveness, represented him on the direct appeal.” Morris, 362 Ill. App. 3d
321 at 324 (emphasis added). The court in Morris noted, “In the present case,
defendant was represented by new counsel on his direct appeal.
No reason
appears why the claims defendant now makes could not have been raised on
direct appeal.” Id. However, the court still addressed the underlying ineffective
assistance claim. Id.
Petitioner, here, never filed a direct appeal, but he asserts he attempted to
exhaust his remedies by “urging his appointed attornies [sic] to put forth effort to
defend his interests by repeatedly asking them to argue the findings of the court.”
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(Doc. 21, p. 2). Based on the above case law and Petitioner’s circumstances, it
appears as if Illinois courts may still permit Petitioner to bring an ineffective
assistance claim under § 2-1401. Moreover, the time for bringing the petition has
not yet expired. See § 2-1401(c). Accordingly, Petitioner has not exhausted his
State remedies as to his ineffective assistance of counsel claim related to the 2016
commitment order.
Petitioner, however, has exhausted his remedies for his remaining claims.
Commitment orders under the Act are reviewable on appeal, § 207/35(g), and
subject to Illinois’ rules regarding civil procedure, People v. Tapp, 2012 IL App
(4th) 10064, ¶ 4. Accordingly, Petitioner had 30 days to file a notice of appeal
from his 2015 and 2016 orders, 72 ILCS 207/20, but he admits he failed to do so,
see Doc. 1. Moreover, even if Petitioner is permitted to bring ineffective assistance
claims under § 2-1401, the time for raising an argument as to the 2015
proceedings has passed. See § 2-1401(c).
Petitioner has no other State court avenues to pursue 1 and has accordingly
met the requirements for exhaustion. Coleman, 501 U.S. 722 at 732 (“A habeas
petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies any longer ‘available’ to
him.”).
3 . “ Mixed” Petitions Under Lundy and Rhines
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Petitioner is not permitted to challenge the State’s determination that he is an SVP under Illinois’
Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.). In re Commitment of Phillips, 367 Ill.
App. 3d 1036, 1041-42 (5th Dist. 2006).
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Petitioner’s Amended Petition is “mixed”; it presents both exhausted and
not exhausted claims. Rhines v. Weber, 544 U.S. 269, 269 (2005). In Rose v.
Lundy, 455 U.S. 509 (1982), the Supreme Court imposed a “total exhaustion”
requirement on habeas petitions and directed district courts to dismiss mixed
petitions without prejudice to allow petitioners to return to State court and
exhaust their remedies. Lundy, 455 U.S. 509 at 518-19.
Lundy, however, preceded the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), which imposes a one-year statute of
limitations on filing habeas petitions in federal court. See 28 U.S.C. § 2244(d).
The interplay between the AEDPA’s statute of limitations and Lundy’s total
exhaustion requirement created a predicament for petitioners who filed timely but
mixed petitions. Rhines, 544 U.S. 269 at 275. If district courts dismissed mixed
petitions after the limitations periods expired, petitioners could not return to
federal court after exhausting their State court remedies. Id. They, therefore,
risked “forever losing their opportunity for any federal review of their
unexhausted claims.” Id.
In Rhines, the Supreme Court “recognize[d] the gravity of this problem” and
held district courts may stay mixed petitions and hold them in abeyance while
petitioners exhaust their remedies in State court. Id. at 275. However, stay and
abeyance is appropriate only in “limited circumstances” where petitioners have
good cause for failure to exhaust and their claims are not “plainly meritless.” Id.
at 277.
If the district court determines stay and abeyance is inappropriate,
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petitioners then have the opportunity “to delete the unexhausted claims and to
proceed with the exhausted claims . . . .” Id. at 278.
In light of the above, both parties are directed to file a memorandum
addressing (1) the status of Petitioner’s pursuit, if one exists, of his State court
remedies regarding the 2016 ineffective assistance of counsel claim and (2)
whether the Court should stay Petitioner’s case and hold it in abeyance.
The
memoranda should be filed by February 20, 2018.
Judge Herndon
2018.01.22
15:21:24 -06'00'
IT IS SO ORDERED:
United States District Judge
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