Ambrose v. Roeckeman

• Decision Date: 15 April 2014
• Docket Number: No. 11–3690.,11–3690.
• Citation: 749 F.3d 615
• Parties: Richard L. AMBROSE, Petitioner–Appellant, v. Zach ROECKEMAN, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

749 F.3d 615

Richard L. AMBROSE, Petitioner–Appellant,

v.Zach ROECKEMAN, Warden, Respondent–Appellee.

No. 11–3690.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 4, 2013.

Decided April 15, 2014.

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner–Appellant.

Retha Stotts, Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

This case comes to us on appeal from the district court's denial of a petition for habeas corpus by Richard Ambrose pursuant to 28 U.S.C. § 2254. In the habeas petition, Ambrose challenged the constitutionality of his involuntary commitment under the Illinois Sexually Dangerous Persons Act (the “SDPA”), 725 ILCS 205/0.01–205/12. We affirm.

Ambrose's path to involuntary commitment began in October 1998, when the State of Illinois charged him with four counts of predatory criminal sexual assault pursuant to 720 ILCS 5/12–14.1(a)(1) (1998), stemming from his alleged sexual penetration of his five-year-old daughter and her five-year-old friend. In February 1999, the state sought civil commitment of Ambrose under the SDPA, which allows for the indefinite civil commitment of a person who had not yet been convicted of a sexual offense upon establishing that the person has a mental disorder that renders him or her a sexually dangerous person under 725 ILCS 205/1.01. A jury found him to be a sexually dangerous person, and the state court ordered him committed in May 1999.

The SDPA provides a vehicle for a committed person to seek release on the basis that he or she has recovered and is no longer a sexually dangerous person. See 725 ILCS 205/9. Ambrose sought release from that civil commitment with the filing of a recovery application in December 2005. Id. The state court denied that recovery application in June 2008,¹ and Ambrose filed his petition for habeas relief in March 2010.

In his habeas petition, Ambrose alleged that his continued confinement was unconstitutional on a number of grounds, but pursues only one due process claim on appeal. He argues to this court that his due process rights were violated when, at the hearing on his recovery application, evidence was admitted of allegations of abuse made against him in two other states, Arizona and Indiana.

Although acknowledging that evidentiary errors are rarely a basis for habeas relief, Ambrose nevertheless argues that such relief is proper here because the evidentiary ruling was so prejudicial that it compromised his due process right to a fundamentally fair trial. Ambrose argues that the allegations were improperly admitted into evidence through Dr. Angeline Stanislaus, a Big Muddy Correctional Center psychiatrist, who testified as to two alleged prior instances of out-of-state abuse in Arizona and Indiana based on statements allegedly made by victims to social workers and police. Although Ambrose focuses solely on the testimony by Dr. Stanislaus, the Illinois appellate court order from the denial of the recovery application indicates that such allegations were also revealed by Dr. Mark Carich, a Big Muddy Correctional Center service and psychologist administrator. According to the Illinois appellate court, Dr. Carich stated that in compiling his report evaluating whether Ambrose was recovered, he considered in part the underlying offenses which contributed to Ambrose's commitment as a sexually dangerous person, including the jury's finding that Ambrose had sexually abused his five-year-old daughter and her five-year-old friend in 1998, and allegations that Ambrose sexually abused an eight-year-old girl in Indiana in 1998 and a six-year-old stepdaughter in Arizona in 1991. People v. Ambrose, No. 4–08–0664, Unpublished Order at 4–5, 391 Ill.App.3d 1134, 367 Ill.Dec. 845, 982 N.E.2d 995 (Ill.App. 4th Dist., July 9, 2009), Petitioner Appendix 23–24. Ambrose argues that the admission of such allegations was so prejudicial that it compromised his due process right to a fundamentally fair trial.

There are multi-tiered problems with that claim, including preliminary concerns that Ambrose failed to adequately raise that challenge in the district court and that the claim was procedurally defaulted in state court. We will peel through those layers sequentially.

First, respondent-appellee Roeckeman (hereinafter the “State”) maintains that Ambrose's habeas petition to the district court did not raise a due process challenge to the admission of the out-of-state abuse allegations, and therefore the issue is not properly before us. According to the State, the habeas petition challenged that admission only on Confrontation Clause grounds, and his due process claim was distinct from that challenge. We have repeatedly emphasized that pro se petitions are to be construed liberally, and should be held to standards less stringent than formal pleadings drafted by attorneys. Ray v. Clements, 700 F.3d 993, 1002–03 (7th Cir.2012), citing Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Koons v. United States, 639 F.3d 348, 353 n. 2 (7th Cir.2011). As we noted in Osagiede v. United States, 543 F.3d 399, 405 (7th Cir.2008), “[p]ro se petitioners will, at times, confuse legal theories or draw the wrong legal implications from a set of facts ... [b]ut we do not treat every technical defect as a grounds for rejection.” The question for us is whether the petition adequately presents the legal and factual basis for the claim, even if the precise legal theory is inartfully articulated or more difficult to discern. Id.;McGee v. Bartow, 593 F.3d 556, 565–66 (7th Cir.2010). Here, the claim was asserted in the context of a Confrontation Clause challenge, but that claim immediately followed a generalized claim that he was denied a fair trial in violation of the Due Process Clause. The factual allegations of the claim and the harm identified were applicable to both the Confrontation Clause and Due Process Clause allegations. In the context of a pro se pleading and consistent with our commitment to liberal construction, we hold that the petition adequately presented the claim to the district court, and therefore may be raised on appeal.

That leads to the next hurdle, which is whether the claim was procedurally defaulted at the state level and therefore cannot be presented in a habeas petition. Ambrose acknowledges that the claim was not brought on direct appeal from the denial of the recovery application and was therefore procedurally defaulted in state court. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Anderson v. Benik, 471 F.3d 811, 814–15 (7th Cir.2006); Rodriguez v. Scillia, 193 F.3d 913, 916–17 (7th Cir.1999). He asserts, however, that we can nevertheless consider his claim because he can demonstrate cause and prejudice for the failure to properly present it in state court. Bolton v. Akpore, 730 F.3d 685, 696 (7th Cir.2013) (“[p]rocedural default may be excused ... if the petitioner can show both cause for and prejudice from the default, or can demonstrate that the district court's failure to consider the claim would result in a fundamental miscarriage of justice.”); Anderson, 471 F.3d at 815. As cause for the default, Ambrose alleges ineffective assistance of appellate counsel. That leads to the State's next contention, which is that Ambrose cannot rely on ineffective assistance of appellate counsel to demonstrate cause because there is no constitutional right to appellate counsel at all for such appeals.

In addressing this issue, both parties misunderstand this court's holding in Brown v. Watters, 599 F.3d 602, 609 (7th Cir.2010). They both take as given that in Brown we held that there is no constitutional right to counsel in appeals of civil commitment proceedings under the SexuallyViolent Persons Act. In fact, the point of contention for the parties is whether that “holding” in Brown should encompass proceedings under the SDPA as well, which is a distinct statute.² A number of district court decisions have similarly read Brown, but that is not a proper reading of our holding in Brown.

In Brown, we stated:

When preserved, meritorious claims of ineffective assistance can excuse default. Murray v. Carrier, 477 U.S. 478, 488–89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A constitutional right to effective assistance must be the predicate to any such claim. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Mr. Brown provides no authority establishing a constitutional right to appellate counsel to challenge a civil commitment. [emphasis added] Where, as here, the right to counsel is a creation of state statute only, seeWis. Stat. § 980.03(2)(a), it follows that denial of that right does not establish the necessary cause to excuse the default of any underlying claims.

Id. Our holding in Brown was not a determination of whether such a constitutional right could ever exist, but rather a recognition that Brown had failed to provide any argument for such a constitutional right. Examination of the briefs in the Brown appeal confirms this, in that the parties presented no argument whatsoever that there was a constitutional right to appellate counsel. We addressed the claim in the context of a right to counsel based on a state statute, Wis. Stat. § 980.03(2)(a), and our holding in Brown was that such a right must be grounded in the Constitution in order for ineffective assistance to constitute cause for procedural default. Brown, 599 F.3d at 609. We were never presented with the substantive argument as to whether a constitutional right existed, and therefore presented no opinion on that matter. In fact, our decision in Brown presumably would have been more expansive if we were actually addressing the substantive issue of whether indefinite civil confinement warrants the same type of access to appellate counsel as is required...