JOHN J. THARP Jr., District Judge.
Petitioner Dale Miller has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Miller was (and remains) civilly committed following a state court judge's determination that he is a "sexually violent person." Miller argues that the trial court's probable cause hearing violated an Illinois Supreme Court Rule, that his trial counsel in his commitment proceeding was ineffective, that his appellate counsel on direct review of his commitment was ineffective, and that the evidence was insufficient for him to be committed. The court does not reach the merits of these claims, however, because they are procedurally defaulted. On that basis, the petition is denied and the court declines to issue a certificate of appealability.
When a federal habeas petitioner is in custody pursuant to a state court adjudication, the state court's factual findings are presumed to be correct unless the petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012). Petitioner Dale Miller has not alleged any factual errors by the state court, so the facts are drawn from the state court proceedings.
Miller was convicted in 1972 of rape and in 1992 of robbery and attempted aggravated criminal sexual assault. People v. Miller, 2014 IL App (1st) 122186, ¶ 8 (8 N.E.3d 1281, 1284). In 2007, the state filed a petition to commit Miller under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq. ("SVCPA"). Miller, 2014 IL App (1st) 122186, ¶ 3. The day after the petition was filed, the state court held a probable cause hearing at which Miller's lawyer indicated that Miller wanted to proceed pro se. Id. ¶ 4. The trial court judge asked Miller if he understood the "perils of representing yourself" and "strongly urge[d]" that Miller be represented by his lawyer. See Pet. Ex. 1 at 1-2. Miller insisted on representing himself and did so during the probable cause hearing. Miller, 2014 IL App (1st) 122186, ¶ 4. The trial court found probable cause to find Miller a sexually violent person ("SVP") based on testimony that Miller had paraphilia and other mental illnesses, "would lose control of his behavior when someone said `no' to him, and that [Miller had] received 135 disciplinary tickets while incarcerated." Id.
Miller eventually agreed to have a lawyer represent him at trial (although not before he missed several deadlines, including the deadline to request a jury). Id. at ¶ at 6. Miller refused to be transported for numerous hearings and for his entire SVP trial. Id. at ¶¶ at 6-7. According to his petition, Miller refused to go to any court appearances because he was not evaluated by his own "expert evaluator." Pet. at 18. At trial, the state called two clinical psychologists who had tried to interview Miller, but with whom Miller had refused to meet. Miller, 2014 IL App (1st) 122186, ¶ 8. Each of the psychologists testified based on Miller's medical and prison files that Miller suffered from "paraphilia NOS," a sexual attraction to nonconsenting women. Id. Each also testified that Miller was substantially likely to re-offend given his failure to participate in any sex offender treatment programs in prison, his criminal history, his admitted "attitude problem," and his history of disciplinary problems. Id. Miller's lawyer did not present any evidence in his case-in-chief and, after hearing the parties' arguments, the trial court found Miller to be an SVP. Id. at ¶ 9.
Miller appealed, arguing (through counsel) that the trial court had improperly rejected his late demand for a jury trial under Illinois law. Miller, 2014 IL App (1st) 122186, ¶ 12. The appellate court rejected his argument as a matter of statutory interpretation, and also noting that there is no constitutional jury right in civil commitment proceedings and that Miller's own actions had contributed to the delay. Id. at ¶¶ 12-25. Miller also argued that he had been impermissibly denied a dispositional hearing after the trial and before the commitment order was issued.
Miller then filed, on February 11, 2015, a pro se state habeas petition arguing that he had received ineffective assistance of counsel at trial and on appeal, that he had been inadequately admonished regarding the dangers of self-representation, and that the evidence was insufficient to prove he was an SVP. Resp. Ex. F. The state moved to dismiss the petition on the grounds that a habeas corpus petition is only available in Illinois when the trial court lacked jurisdiction or a post-judgment occurrence entitled the petitioner to release.
The state raises several arguments as to why Miller's petition should be dismissed, but only one is needed: Miller's claims are procedurally defaulted. Before undergoing federal appellate review, a state prisoner must "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."
A procedurally defaulted claim can be overcome if the petitioner can demonstrate cause and prejudice. See Oaks v. Pfister, 863 F.3d 723, *2 (7th Cir. 2017; not yet paginated in F.3d). Miller, however, has made no argument that he can demonstrate cause or prejudice. Nor has Miller argued that the "fundamental miscarriage of justice" exemption should be applied to excuse his procedural default. Miller was provided an opportunity to file a reply brief (ECF No. 10) but did not do so. Accordingly, he has forfeited these arguments and there is no basis to excuse his procedural default. Hicks v. Hepp, 871 F.3d 513, 531 (7th Cir. 2017) ("The petitioner. . . has not advanced any argument that these exceptions should apply here. Therefore, any argument that these exceptions apply has been forfeited. . . .").
For the reasons stated above, the petition for a writ of habeas corpus is denied. Further, the Court declines to issue a certificate of appealability. A COA is appropriate only if a petitioner has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(B)(2). When a petition is denied on procedural grounds, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, it is undeniable that Miller's claims are procedurally defaulted and that he has failed to offer grounds to excuse his procedural default.
Petitioner is advised that this is a final decision ending his case in this Court. If Petitioner wishes to appeal, he must (absent a basis for extension) file a notice of appeal in this Court within thirty days of the entry of judgment and seek a certificate of appealability from the United States Court of Appeals for the Seventh Circuit. See Fed. R. App. P. 4(a)(1); 28 U.S.C. § 2253(c)(1).