IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HAROLD POWELL,

                                                 Petitioner,

              v.

MICHELLE R.B. SADDLER and LISA

MADIGAN,

                                                Respondents.

)

)

)

)

)

)

)

)

)

  

12 C 2928

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner Harold Powell brings this Motion for a Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2241 as well as a Motion to Stay Certain State Court Proceedings.  The State

of Illinois moves to dismiss Powell’s Motion pursuant to Federal Rule of Civil Procedure

12(b)(1), arguing that this Court should decline to exercise its jurisdiction over Powell’s

petition under the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971).

For the reasons set forth herein, the Court will abstain from deciding Powell’s Motion for

a Writ of Habeas Corpus pursuant to Younger, and therefore the Motion is dismissed

without prejudice.  Petitioners’s recently filed motion to stay the state court proceedings

is also denied.

PetitionerPowell is in the custody ofthe IllinoisDepartment of Human Services and

is housed at the secure Treatment and Detention Facility inRushville,Illinois.  Respondent

1
Michelle R.B. Saddler is the Secretary of the Illinois Department of Human Services.

On September 28, 2000, the People of the State of Illinois, through Respondent Lisa

Madigan,the Illinois Attorney General,filed a petition in the Circuit Court of Cook County

alleging that Powell is a sexually violent person subject to commitment under Illinois’s

Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq.  See In re Det. of Powell,

No. 00 CR 80003 (Ill. Cir. Ct.)  The Act provides a mechanism for the civil commitment of

an individual who is about to be released from the custody of the Illinois Department of

Corrections, has been convicted of a sexually violent offense, and suffers from a mental

disorder that predisposes him to future acts of sexual violence.  See 725 ILCS 207/15.  

At the first stage of proceedings on a Sexually Violent Persons Commitment Act

petition, an Illinois circuit court must determine whether probable cause exists to find that

the subject of the petition is a sexually violent person.  See 725 ILCS 207/30.  In Powell’s case

he stipulated that probable cause existed and the trial court accordingly issued an order

finding probable cause and committing Powell to the custody of the Illinois Department

of Human Services.  See In re Det. of Powell, No. 00 CR 80003 (Ill. Cir. Ct. Oct. 25, 2000).  At

the second stage of Sexually Violent Persons Commitment Act proceedings the State must

try an allegedly sexually violent person and prove the allegation in the petition beyond a

reasonable doubt.  See 725 ILCS 207/35.  Although the trial must be held within 120 days

of the probable cause hearing, delays to which the subject of the petition consent toll the

2
running of this period.  See 725 ILCS 207/35(a).

After the Circuit Court entered its order finding probable cause in Powell’s case he

moved to dismiss the Sexually Violent Persons Commitment Act petition on the ground

that it was not timely filed.  See In re Det. of Powell, No. 00 CR 80003 (Ill. Cir. Ct.).  The

Illinois Department of Corrections had set an anticipated date for Powell’s release on

mandatory supervised release and the State had filed a petition that was timely based on

that anticipatedreleasedate.  Powell argues thatthe Sexually ViolentPersons Commitment

Act petition was rendered untimely when he refused to sign the papers that would have

allowed his release on mandatory supervised release, thereby delaying the date of his

release.  See In re Det. of Powell, 799 N.E.2d 937, 939‐940 (Ill. App. Ct. 2003).  The trial court

denied the motion to dismiss.  See In re Det. of Powell, No. 00 CR 80003.  Powell filed an

interlocutory appeal, and the Illinois Appellate Courtreversed the trial court.  SeeIn re Det.

of Powell, 799 N.E.2d 937. The State then petitioned the Illinois Supreme Court for leave to

petition the judgment of the Illinois Appellate Court, and the Supreme Courtreversed the

Appellate Court, finding that the petition was timely.  See In re Det. of Powell, 839 N.E.2d

1008 (Ill. 2005).  The Supreme Court’s mandate was filed in the trial court on December 21,

2005.  See In re Det. of Powell, No. 00 CR 80003.

Following further pretrial proceedings in the trial court, a jury trial commenced on

March 1, 2011.  See In re Det. of Powell, No. 00 CR 80003 .  The jury was unable to agree on

3
a verdict, and as a result the trial court declared a mistrial.  See In re Det. of Powell, No. 00

CR 80003 (Ill. Cir. Ct. March 8, 2011).  Powell moved to dismiss the petition a second time,

arguing that the Act required dismissal when a trial results in a hung jury.  The trial court

denied his motion.  See In re Det. of Powell, No. 00 CR 80003 (Ill. Cir. Ct. March 15, 2011).

Approximately one year later Powell moved the Illinois Supreme Court for leave to file a

complaint for an order of mandamus directing the trial court to dismiss the Sexually

Violent Persons petition.  The Illinois Supreme Court denied leave to file the mandamus

complaint on April 16, 2012.  See Powell v. Porter, No. 114024 (Ill. 2012).  Four days later

Powell filed in this Court the instant Motion for a Writ of Habeas Corpus along with a

Motion to Stay the State Court Proceedings in the Sexually Violent Persons Petition.  On

April 26,2012, this Court denied the motion to stay the state court proceedings without

prejudice and ordered the Respondents to respond to the Motion for a Writ of Habeas

Corpus.

Powell’s § 2241 habeas petition alleges the following claims:(1) the Sexually Violent

Persons petition was not timely filed under 725 ILCS 207/15(b‐5)(1); (2) he did not receive

an adequate probable cause hearing under 725 ILCS 207/30, in part because by stipulating

to probable cause Powell deprived himself of the opportunity to cross‐examine the State’s

expert;(3) he will be subjectto an unconstitutional ex postfacto law ifthe trial court applies

the version of the Act now in effect at his retrial; (4) the State has violated his right to a

4
speedy trial under 725 ILCS 207/35, and his rights under Article I, Section 8 of the Illinois

Constitution and the Sixth Amendment to the United States Constitution; (5) subjecting

him to a retrial violates 725 ILCS 207/35(f) and the Fifth Amendment’s prohibition against

double jeopardy; and (6) the State cannot prove beyond a reasonable doubt that he is a

sexually violent person and consequently this Court should prevent the State from

presenting its evidence to another jury.  Powell asks this Court for an order that (1) directs

the judge of the Circuit Court of Cook County to dismiss the Illinois Attorney General’s

Petition for Civil Commitment under the Sexually Violent Persons Commitment Act; (2)

bars the Illinois Attorney General for retrying him; and (3) directs the Secretary of the

Illinois Department of Human Services to release him from custody.

Powell has properly invoked 28 U.S.C. § 2241 as this Court’s basis for jurisdiction

over his Motion.  A detainee of a state who is not incarcerated pursuant to a final judgment

of a state court may invoke § 2241 forrelief 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. § 2241(c)(3).  A

petitioner who is in custody pursuant to a final judgment of a state court must seek any

habeas relief under 28 U.S.C. § 2254.  However, in cases such as this, in which the state

court has not yet rendered a final judgment, habeas relief may still be sought and § 2241

governs.    See Neville v. Cavanagh, 611 F.2d 673, 675 (7th Cir. 1979); see also Walck v.

Edmondson, 472 F.3d 1227, 1234‐1235 (10th Cir. 2007); Stringer v. Williams, 161 F.3d 259, 262

5
(5th Cir. 1998).

Pretrial habeas relief under § 2241 must be premised on a violation of federal law.

This is reflected in the plain language of §2241(c)(3) (the writ shall not extend to a prisoner

unless (1) he is in the custody of the United States; (2) he is in custody for an act done or

omitted in pursuance of an Act of Congress or an order, process, judgment or decree of a

court or judge of the United States; (3) he is in custody in violation of the Constitution or

laws or treaties of the United States; (4) he is a citizen of a foreign state and domiciled

therein is in custody for an act done or omitted under any alleged right, order or sanction

of any foreign state, or under color thereof, the validity and effect of which depend upon

the law of nations; or (5) it is necessary to bring him into court to testify or for trial).

Alleged violations of state law are not cognizable on federal habeas corpus review.  See

Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (“We have stated many times that federal

habeas relief does not lie for errors of state law”) (quoting Estelle v. McGuire, 502 U.S. 62,

67 (1991)) (internal quotations omitted); Wilson v. Corcoran, 131 S. Ct. 13, 16 (2011) (“it is not

the province of a federal habeas court to reexamine state‐court decisions on state‐law

questions.”) (quoting Estelle, 502 U.S. at 67‐68).

Furthermore, to properly pursue a claim under § 2241 a petitioner must have

exhausted his state court remedies.  See Braden v. 30th Judicial Circuit Court of Kentucky, 410

U.S. 484, 491‐492 (1973); Neville, 611 F.2d at 675; see also Dickerson v. Louisiana, 816 F.2d 220,

6
225 (5th Cir. 1987).  The doctrine of exhaustion under § 2241 is not a statutory requirement;

rather “decisional law has superimposed such a requirement in order to accommodate

principles of federalism.”  Phillips v. Court of Common Pleas, Hamilton County, Ohio, 668 F.3d

804, 810 n.4 (6th Cir. 2012) (citing United Statesex rel. Scranton v. New York, 532 F.2d 292, 294

(2d Cir. 1976)).  Thus, exhaustion has been imposed on motions brought pursuant to § 2241

by federal courts in construing the statute.

Respondents Michelle R.B. Saddler and Lisa Madigan rely on Younger, 401 U.S. 37,

which sets forth a limitation on the exercise offederal jurisdiction, and they assertthattheir

Motion toDismiss is premised on FederalRule of Civil Procedure 12(b)(1).  They argue that

pursuant to Younger this Court should abstain from interfering with ongoing state court

Sexually Violent Persons proceedings and should dismiss Powell’s Motion without

prejudice.  See Sweeney v. Bartow, 612 F.3d 571, 573 (7th Cir. 2010) (affirming dismissal of

habeas petition that sought to enjoin ongoing state commitment proceedings).  Because

Younger abstention concerns whether courts should exercise jurisdiction that they have

over the parties’ claims, motions to dismiss on Younger grounds are best construed as

motions pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject

matter jurisdiction.    See FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007)

(“Younger generally requires federal courts to abstain from taking jurisdiction over federal

constitutional claimsthatinvolve or call into question ongoing state proceedings)(emphasis

7
supplied);see also Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir. 2010) (“The Younger abstention

doctrine, as it has evolved, provided that federal courts should abstain from exercising

jurisdiction when” certain conditions of the doctrine are satisfied) (emphasis supplied);

Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir. 2003) (“[I]n cases in which Younger applies,

the federal courts have jurisdiction over the parties’ claims; Younger abstention concerns

whetherthey should exercise thatjurisdiction.”)(emphasis in original);see,e.g.,City of New

York v. Milhelm Attea & Bros., Inc., 550 F. Supp. 2d 332, 341 (E.D.N.Y. 2008) (“A motion to

dismiss based on an abstention doctrine is. . . considered as a motion made pursuant to

Rule 12(b)(1).”).  Thus, the Court will construe the instant Motion to Dismiss as brought

pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matterjurisdiction.

Powell’s first claim pursuant to § 2241, alleging that the Sexually Violent Persons

petition was not timely filed under 725 ILCS 207/15(b‐5)(1) is a non‐cognizable claim for

immediate federal habeas corpus relief because itrests solely on state law.  Pursuant to the

Act a petition under the Act must be filed no more than ninety days before the discharge

or entry into mandatory supervised release from an Illinois Department of Corrections

facility or no more that thirty days after the person’s entry into mandatory supervised

release.  See 725 ILCS 207/15(b‐5)(1).  Afterthe trial court deniedPowell’s motion to dismiss

the petition as untimely, Powell sought interlocutory review in the appellate court, which

found that the petition was untimely.    The State sought leave to petition the Illinois

8
Supreme Court on the question of whether the ninety‐day period set forth in the Act can

be calculated based on the Illinois Department of Correction’s anticipated date of release.

This question presented solely an issue of statutory interpretation of Illinois state law.  See

In re Det. of Powell, 839 N.E.2d at 1014 (“The issue before us is a matter of statutory

construction.”).  The Illinois Supreme Courtreversed the intermediate appellate court and

held that the timeliness of a petition under the Act could indeed be calculated based on an

anticipated date of release.  Powell claims that the Supreme Court’s interpretation of its

own state’s law violated his constitutional rights because it infringes on his constitutional

liberty interestin his release from state custody.  The determination by the Illinois Supreme

Court as to the meaning of the Act is not reviewable by this Court on a motion for a writ

of habeas corpus.  When the state’s highest court renders a judgment on the validity of a

state law the Supreme Court of the United States may not review the judgment if the

petitioner’s argument is premised on state law grounds.  Here, the Petitioner alleges that

the Illinois Supreme Court’s interpretation of the Act violated his federal constitutional

rights.  If Powell wished to contest the Illinois Court’s interpretation of the Act his remedy

was to file for a writ of certiorari with the Supreme Court of the United States—not to file

for a writ of habeas corpus pursuant to § 2241.  The issue Powell raises in his Motion

provides no basis for this Court to interfere with the ongoing state proceedings because it

concerns a non‐cognizable state law issue and therefore abstention is appropriate.  The

9
Court will not constitutionalize on habeas corpus review what is patently a state law claim

regarding the properinterpretation of the Sexually Violent Persons Commitment Act.  The

forum to seek redress for an alleged violation of the Petitioner’s constitutional rights as a

result of the Illinois Supreme Court’s judgment regarding the interpretation of state law

is in the Supreme Court of the United States.  In other words, if Powell wishes to argue that

the Illinois Supreme Court’s ruling violates the federal Constitution he must petition the

Supreme Court of the United States for a writ of certiorari and proceed with his

constitutional challenge in that forum.  Not in this one.  Thus, Powell’s first claim forrelief

under § 2241 is dismissed without prejudice.

Powell’s second claim pursuantto § 2241, alleging that he did notreceive a probable

cause hearing as required by 725 ILCS 207/30 does not provide a basis for immediate

habeas relief because the claim has not been exhausted, and to the limited extent that the

claim raises a federal constitutional issue it is without merit.  Powell has not pursued this

claim before the Illinois Appellate Court or the Illinois Supreme Court, and therefore it

remains unexhausted and thus cannot provide a basis for immediate habeas relief.  See

Neville, 611 F.2d at 675.  Even if the claim were properly exhausted, it appears to lack a

federal constitutional basis.   Powell argues that his stipulation to probable cause was

invalid because it deprived him of any opportunity to cross‐examine the State’s expert.

Under the Act, a petitioner has a right to cross‐examine a State witness if one testifies, but

10
here Powell’s stipulation that probable cause existed made the State’s presentation of

testimony unnecessary.  See 725 ILCS 207/25(c)(3).  The issue of whether a petitioner’s

stipulation to probable cause obviates the need for the State to present testimony at a

probable cause hearing depends on a construction of the Act, and any violation of the state

statute does not provide a basis for federal habeas relief.  See Wilson, 131 S. Ct. at 16.  The

Petitioner seems to argue that his rights under the Confrontation Clause will be violated

if he is unable to cross‐examine the doctor who evaluated him in 2000 and concluded that

he was sexually violent.   This contention is unexhausted and unripe for adjudication

because it pertains to events that have yet to occur.  Further still, Powell does not have a

Sixth Amendment confrontation right in the present case.  See U.S. Const. amend. VI (the

right to confront one’s accusers applies to “criminal prosecutions”); In re Tiney‐Bey, 7070

N.E.2d 751, 754 (Ill. App. Ct. 1999) (“Because proceedings under the Commitment Act are

civil in nature, they do not trigger respondent’s constitutional rights.”); see also In re

Commitment of Weekly, 956 N.E.2d 634, 643‐644 (the Illinois General Assembly amended the

Sexually Violent Persons Act in 2001 to remove provisions that gave Sexually Violent

Persons respondents the same rights as criminal defendants).    The possibility that a

violation of a state statutory right to confrontation might arise does not provide any basis

forthis Courttodisrupt ongoing state proceedings and therefore abstentionunderYounger

is appropriate.  If Powell is determined to be a sexually violent person he can pursue an

11
alleged violation of any statutory right to confrontation before the Illinois courts.  Thus,

Powell’s second claim for relief under § 2241 is dismissed without prejudice.

Powell’s third claim pursuant to § 2241, alleging that he will be subject to an

unconstitutional ex post facto law if the trial court applies the version of the Act now in

effect at his retrial does not provide a basis for immediate habeas relief because the claim

is unexhausted and because ex post facto claims are subject to Younger abstention.  Powell

has not presented this claim to the Illinois Appellate Court or the Illinois Supreme Court.

Therefore the claim is unexhausted and is not subject to federal habeas review under

§ 2241.  See Neville, 611 F.2d at 675.  Even if the claim were properly exhausted, there is no

reason to interfere with ongoing state proceedings and abstention under Younger is

appropriate.  Ex post facto claims are subject to Younger abstention.  See Sweeney, 612 F.3d

at 571.  Thus, Powell’s third claim for relief under § 2241 is dismissed without prejudice.

Powell’s fourth claim pursuant to § 2241, alleging the State has violated his right to

a speedy trial under 725 ILCS 207/35, and his rights under Article I, Section 8 of the Illinois

Constitution and the Sixth Amendment to the United States Constitution does not provide

a basis for immediate habeas relief because the claim is unexhausted and rests on an

alleged violation of state law.  Powell did not pursue this claim before the Illinois Appellate

Court or the Illinois Supreme Court and therefore it remains unexhausted and thus not

subject to federal habeas corpus review pursuant to § 2241.  See Neville, 611 F.2d at 675.

12
Although Powell invokes the Sixth Amendment to the United States Constitution in

support of his claim, he is in fact relying on an alleged violation of Illinois law.  The Sixth

Amendment’s Speedy Trial Clause by its express terms does not confer a right to a speedy

trial in a civil commitment proceeding.    See U.S. Const. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.”); In re Tiney‐

Bey, 707 N.E.2d at 754.  The Act provides the right to a speedy trial by requiring that a trial

shall commence no laterthan 120 days afterthe date of the probable cause hearing.  See 725

ILCS 207/35(a).  An alleged violation of a state statutory right provides no basis for habeas

relief.    See Wilson, 131 S. Ct. at 16.    Even if Powell could set forth a colorable Sixth

Amendment basis for his speedy trial claim abstention is still required.  Younger does not

require abstention where a petitioner seeks to enforce his right to a speedy trial by having

a federal court order that a trial take place, but abstention is appropriate if a petitioner

seeks to enjoin ongoing state court proceedings based on a speedy trial claim.  See Braden,

410 U.S. at 493; Neville, 611 F.2d at 676 (whether a petitioner seeks to enforce his speedy

trial right or enjoin state proceedings is crucial to deciding whether a federal court should

abstain).    Therefore, the Court must abstain from interfering with ongoing state

proceedings pursuant to Younger, and Powell’s fourth claim for relief under § 2241 is

dismissed without prejudice.

Powell’s fifth claim pursuant to § 2241, alleging that subjecting him to a retrial

13
violates 725 ILCS 207/35(f) and the prohibition against double jeopardy provides no basis

for immediate habeas relief because the claim is partially unexhausted, it turn on a non‐

cognizable question of state law, and does not present a colorable federal constitutional

violation.    Powell exhausted his statutory claim by attempting to file a mandamus

complaint in the Illinois Supreme Court, but that complaint did not exhaust his double

jeopardy claim.   Thus, Powell’s constitutional claim is unexhausted and therefore not

subject to federal habeas review.  See Neville, 611 F.2d at 675.  Powell’s statutory claim turns

on a question of state and not federal law, and therefore it is non‐cognizable on § 2241

review.  See Wilson, 131 S. Ct. at 16.  Furthermore, Powell cannot present a colorable claim

to relief under the Fifth Amendment’s Double Jeopardy Clause.  The Fifth Amendment

provides that no person may “be subject for the same offense to be twice put in jeopardy

of life or limb.”  U.S. Const. amend. X.  The plain language of the Clause applies only to an

“offense,” which is a trial on a criminal charge and not a civil commitment proceeding.  See

Kansas v. Hendricks, 521 U.S. 346, 369 (1997) (Kansas’s sex‐offender commitment scheme

was civil rather than criminal in nature and thus removed an essential prerequisite to

petitioner’s double jeopardy claim).   Thus, double jeopardy is not a defense to a civil

commitment petition.   The federal prohibition on double jeopardy does not apply to

Sexually Violent Persons Commitment Act proceedings.  See In re Samuelson, 727 N.E.2d

228, 234 (Ill. 2000) (because proceedings under the Sexually Violent Persons Commitment

14
Act are civil in nature they do not constitute a prosecution and thus double jeopardy

concerns are not implicated).  Because Powell’s double jeopardy claim is not colorable he

cannot avoid abstention under Younger.  Thus, Powell’s fifth claim for relief under § 2241

is dismissed without prejudice.

Finally, Powell’s sixth claim pursuant to § 2241, alleging that the State cannot prove

beyond a reasonable doubtthat he is a sexually violent person and consequently this Court

should prevent the State from presenting its evidence to anotherjury provides no basis for

immediate habeas relief because the claim is unexhausted and premature.  Powell has not

presented this claim to the Illinois Appellate Court or the Illinois Supreme Court and

therefore it remains unexhausted and thus not subject to § 2241 review.  See Neville, 611

F.2d at 675.  Furthermore, Powell has a right to hold the State to its burden of proof at his

second trial.  If he is correctthatthe State cannot meet its burden, he has adequate remedies

in state court.  He could be acquitted, or he could seek reversal of an adverse sexually

violent person adjudication by appealing the trial court’s judgment on the basis of the

sufficiency of the evidence.  Pursuant to Younger this Court must abstain from interfering

with ongoing state proceedings by interjecting its own opinion about the sufficiency of the

State’s evidence against Powell.   Thus, Powell’s sixth claim for relief under § 2241 is

dismissed without prejudice.

For the reasons set forth above, this Court must abstain from deciding Powell’s

15
Motion for a Writ of Habeas Corpus pursuant to Younger, which limits this Court’s

jurisdiction over cases in whichconcurrent state courtproceedings are contemporaneously

underway.  Thus, the Motion is dismissed without prejudice.  

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: September 6, 2012

16