Gough v. Garnett et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 5/9/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAY A. GOUGH,
# R-00646,
Petitioner,
vs.

Case No. 17-cv-247-DRH

JASON C. GARNETT,
and ATTORNEY GENERAL,
STATE of ILLINOIS,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, a state prisoner, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement.
Petitioner challenges his continuing incarceration as a sexually dangerous
person, 1 after his commitment in Ogle County Case Nos. 99-CF-207 and 99-CF209. He asserts that his constitutional right to a speedy trial was violated, when
the trial court took 10 years to conduct Petitioner’s retrial after his case was
reversed and remanded for a new trial in 2004.
This case is now before the Court for a preliminary review of the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 provides that upon preliminary consideration by the

1

Persons civilly committed under the Sexually Dangerous Persons Act (725 Ill. Comp.
Stat. 205/0.01 et seq.) are deemed to be pretrial detainees, not convicted prisoners. See
Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th Cir. 2003).

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district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.”

The

Petition survives this preliminary review, and a response shall be ordered.
The Petition
In 1999, Petitioner was found to be a sexually dangerous person. (Doc. 1,
p. 5). He appealed that determination, and in March 2004, the Illinois Appellate
Court reversed and remanded his case for a new trial. People v. Gough, 345 Ill.
App. 3d 1155, 863 N.E.2d 861 (2004) (table). Petitioner was held in the Ogle
County Jail for more than 10 years, until his retrial commenced in 2014. Id.
Several matters contributed to the delay, including Petitioner’s attempts to
discharge his court-appointed attorney and represent himself, the resolution of
the State’s motion for a fitness hearing filed in 2010, and a 214-day continuance
in 2013 due to a change in the law regarding licensing of psychological evaluators.
(Doc. 1, pp. 5, 10, 16).
After the 2014 retrial, Petitioner was again civilly committed as a sexually
dangerous person.

The judgment was entered on November 19, 2014.

He

appealed, raising the speedy trial issue under both the United States Constitution
and the Illinois Constitution, and raising several other matters.

The Illinois

Appellate Court affirmed the trial court’s ruling on March 7, 2016.

People v.

Gough, 2016 IL App (2d) 150170-U, No. 2-15-0170, http://www.illinoiscourts.gov/

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R23_Orders/recent_R23_appellate.asp. The reviewing court found no error in the
trial court’s balancing of the relevant factors in addressing Petitioner’s
constitutional speedy-trial claim.
Petitioner sought review in the Illinois Supreme Court, but his petition for
leave to appeal was denied on September 28, 2016. (Doc. 1, p. 2). He filed the
instant habeas corpus Petition on March 9, 2017. (Doc. 1, pp. 15-16). He seeks
release from custody on the basis of the speedy trial violation. (Doc. 1, p. 15).
Disposition
Petitioner’s pleading indicates that he has exhausted his state court
remedies with respect to the speedy trial claims raised in his federal habeas
petition; furthermore, he appears to have filed his petition in a timely manner.

See 28 U.S.C. § 2244(d)(1)(A). Without commenting on the merits of Petitioner’s
claims, the Court concludes that the Petition survives preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts.
Petitioner’s motion for appointment of counsel (Doc. 3) is DENIED without
prejudice at this time as premature.

Counsel may be appointed in a habeas

corpus proceeding only if an evidentiary hearing is needed or if interests of justice
so require.

See Rule 8(c) Rules Governing Section 2254 Cases. Whether the

interests of justice require appointment of counsel in this case cannot be
determined until after the Court has had an opportunity to review and consider
the Respondent’s answer to the petition.

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Finally, on the Court’s own motion, the Illinois Attorney General is
DISMISSED as a party. See Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996),
cert denied, 520 U.S. 1171 (1997) (a state’s attorney general is a proper party in a
habeas petition only if the petitioner is not then confined); see also Rules 2(a) and
(b) of the Rules Governing Section 2254 Cases. In this case, Petitioner is not
challenging a future sentence, but rather his present confinement. Therefore, the
Illinois Attorney General is not a proper party.
IT IS HEREBY ORDERED that the Respondent Warden shall answer the
Petition or otherwise plead within thirty days of the date this order is entered (on
or before June 8, 2017). 2 This preliminary order to respond does not, of course,
preclude the State from making whatever waiver, exhaustion or timeliness
argument it may wish to present.

Service upon the Illinois Attorney General,

Criminal Appeals Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois
60601 shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a

referral.
2

The response date Ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.

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Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Signed this 9th day of May, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.05.09
17:47:14 -05'00'
United States District Judge

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