Richard Ambrose v. Zach Roeckeman , 749 F.3d 615 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3690
RICHARD L. AMBROSE,
Petitioner-Appellant,
v.
ZACH ROECKEMAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:10-cv-00172-DRH — David R. Herndon, Chief Judge.
ARGUED OCTOBER 4, 2013 — DECIDED APRIL 15, 2014
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 Danger-
ous Persons Act (the “SDPA”), 725 ILCS 205/0.01-205/12. We
affirm.
2 No. 11-3690
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
1
The 2-1/2 year gap between the submission of the recovery application
and the denial was of concern to us and when questioned at oral argument,
counsel for Ambrose acknowledged that it was substantial and was unable
to explain it. As Ambrose has not asserted any claim related to that delay,
we make no further inquiry into it except to note that such delay, if not
attributed to the petitioner, is deeply troubling.
No. 11-3690 3
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 applica-
tion 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 commit-
ment 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 (Ill.
App. 4th Dist., July 9, 2009), Petitioner Appendix 23–24.
Ambrose argues that the admission of such allegations was so
4 No. 11-3690
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 Confronta-
tion 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 (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 rejec-
tion.” 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 Confron-
tation Clause challenge, but that claim immediately followed
No. 11-3690 5
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 Confronta-
tion 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 acknowl-
edges that the claim was not brought on direct appeal from the
denial of the recovery application and was therefore procedur-
ally defaulted in state court. See Baldwin v. Reese, 541 U.S. 27,
29 (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 funda-
mental 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.
6 No. 11-3690
In addressing this issue, both parties misunderstand this
court’s holding in Brown v. Williams, 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 commit-
ment proceedings under the Sexually Violent 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 (1986). A constitutional right to
effective assistance must be the predicate to any
such claim. See Coleman v. Thompson, 501 U.S. 722,
752 (1991). Mr. Brown provides no authority establish-
ing 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,
see Wis. 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.
2
The Sexually Violent Persons Act applies to people who have previously
been convicted of a sex offense, whereas the SDPA authorizes civil
confinement of persons who have yet to be convicted of sex offenses. Varner
v. Monohan, 460 F.3d 861, 865 (7th Cir. 2006).
No. 11-3690 7
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 expan-
sive 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 in appeals involving
criminal confinement. See e.g. Jenkins v. Director of Virginia
Center for Behavioral Rehabilitation, 624 S.E.2d 453, 460 (Va. 2006)
and cases cited therein (analyzing due process law and
concluding that “in view of the substantial liberty interest at
stake in an involuntary civil commitment based upon Vir-
ginia's Sexually Violent Predators Act, the due process
protections embodied in the federal and Virginia Constitutions
mandate that the subject of the involuntary civil commitment
process has the right to counsel at all significant stages of the
judicial proceedings, including the appellate process.”) The
confusion in the courts as to our holding may well have
stemmed from our footnote in Brown, in which we stated:
8 No. 11-3690
“Because we do not recognize a constitutional right to counsel
in these circumstances, we cannot accept the cause-and-
prejudice analysis urged by Mr. Brown, in which ineffective
assistance provides the requisite cause.” Id. at 609 n.7. Taken in
isolation, that could be misread as a determination that there
is no right to appellate counsel for proceedings under the
Sexually Violent Persons Act, but given the context that a
constitutional basis was never argued, the footnote is properly
understood as merely a statement that no such right has been
urged by Brown and therefore we cannot recognize such a
right in this particular case. Brown, then, does not express an
opinion at all on the merits of the issue of whether there is a
constitutional right to appellate counsel in an appeal in cases
involving indefinite civil confinement.
Unfortunately, the shared misinterpretation of Brown by the
parties here, as well as the district court, skewed the arguments
of the briefs on the merits of the issue, providing a less than
ideal presentation of the issue for this court. We need not reach
that issue, however, because it ultimately does not affect the
outcome of this appeal. Ambrose was represented by counsel
in his direct appeal, and has no meritorious argument that the
performance was deficient or that he was prejudiced by that
performance. Therefore, we can set aside the issue as to
whether there is a constitutional right to appellate counsel
because, even if that hurdle was met, there is no violation of
that right here and therefore no cause for the procedural
default.
In order to establish a claim of ineffective assistance of
counsel, Ambrose must demonstrate that his counsel’s perfor-
mance fell below an objective standard of reasonableness and
No. 11-3690 9
that there is a reasonable probability that but for that deficient
performance, the result of the proceeding would have been
different. Smith v. McKee, 598 F.3d 374, 384 (7th Cir. 2010);
Strickland v. Washington, 466 U.S. 668 (1984). Ambrose asserts
that his attorney was deficient in failing to challenge the
admission of the allegations of abuse in Arizona and Indiana
through the testimony of Dr. Stanislaus. For that argument, he
relies on People v. Beshears, 213 N.E.2d 55, 62 (Ill. App. 5th Dist.
1965), which held that in determining whether a person was
sexually dangerous under the SDPA, it was reversible error to
use evidence of arrests, unsupported by evidence of convic-
tion, to prove the commission of crimes. Ambrose asserts that
in light of Beshears, Ambrose’s appellate counsel should have
been aware that the Indiana and Arizona allegations were not
competent evidence of prior crimes, and the failure to chal-
lenge such use constituted deficient performance.
There are multiple problems with this assertion. First, the
evidence regarding the alleged out-of-state abuse was never
admitted into evidence as proof that those incidents occurred,
and therefore Ambrose’s counsel did not err in failing to
prevent the admission for that purpose. The evidence was
presented not to prove the abuse allegations, but to cast light
on the information considered by Dr. Stanislaus in the process
of reaching her expert opinion. Such evidence may properly be
considered, as indicated in Federal Rule of Evidence 703 which
was adopted by the Illinois courts. See Wilson v. Clark, 417
N.E.2d 1322, 1326-27 (Ill. 1981). Under that rule, an expert may
provide opinion testimony which relies on facts and data that
are not independently admissible for the truth of the matter, as
long as it is the type of information that experts in the field
10 No. 11-3690
would reasonably rely upon in forming an opinion. The
underlying facts may be disclosed to the jury as long as the
prejudice does not outweigh the probative value. See Fed. R.
Evid. 703. As the plurality recognized in Williams v. Illinois, ___
U.S. ___, 132 S. Ct. 2221, 2234–35 (2012), under both the Illinois
and Federal Rules of Evidence, an expert may rely on inadmis-
sible evidence, and “[i]n bench trials, … both Illinois and the
Federal Rules place no restriction on the revelation of such
information to the factfinder.” In this case, the testimony as to
the allegations of out-of-state abuse was elicited in identifying
the facts and data considered by Dr. Stanislaus in her evalua-
tion of Ambrose, and was not admitted as evidence of the
abuse itself. Rather than establishing that the abuse occurred,
it simply established that those allegations were considered by
Dr. Stanislaus in her evaluation. That contrasts with Beshears,
in which law enforcement officers testified directly as to the
arrests and the evidence was presented to establish that the
incidents occurred and that he was sexually dangerous.
Accordingly, Ambrose cannot succeed on his claim that he was
denied due process by the admission of testimony of abuse in
Indiana and Arizona, because no testimony was admitted into
evidence as proof of such abuse. The evidence was properly
admitted as evidence of the facts underlying the expert’s
opinion, and Ambrose has failed to argue that use of the
allegations for that limited purpose was a denial of due
process.
Moreover, as the plurality opinion in Williams noted, the
potential for prejudice caused by the admission of such
evidence is minimized in the context of a bench trial. Id. at
2235. “When the judge sits as the trier of fact, it is presumed
No. 11-3690 11
that the judge will understand the limited reason for the
disclosure of the underlying inadmissible information and will
not rely on that information for any improper purpose.” Id.;
Harris v. Rivera, 454 U.S. 339, 346 (1981); United States v. Miller,
800 F.2d 129, 136 (7th Cir. 1986) (noting that “as a legal matter
the district court is presumed to have considered only relevant
and admissible evidence in reaching its factual findings.”) Rule
703 effectively recognizes that distinction in limiting the
admissibility of such evidence only as to juries. Accordingly,
any potential for prejudice is minimal given that the hearing
was conducted before the judge rather than a jury, and there is
no reason to believe the judge relied upon that information for
an improper purpose such that Ambrose would be prejudiced.
Ambrose argues, however, that because this was a recovery
application rather than an initial civil commitment, that
information had no proper application whatsoever and must
have fundamentally impacted the fairness of the trial. This
argument is without merit. The issue in a recovery application
is whether the sexually dangerous person has recovered, but
that does not impose some arbitrary time limitation that
restricts the court to evidence following the commitment itself.
In determining whether a person has overcome a mental
disorder under the SDPA, see 725 ILCS 205/1.01, the basis for
that original determination of a mental disorder is certainly
relevant in ascertaining whether that disorder is no longer
manifest. In fact, it would be hard to conceive of a situation in
which such information would not in fact be relevant to such
a determination. The nature of the proceeding does not,
therefore, render the information irrelevant and prejudicial.
12 No. 11-3690
At the recovery hearing, the testimony revealed that
Ambrose categorically denied that he was a sex offender, and
refused to participate in treatment at all. In denying the
recovery application, the trial court noted that the purpose of
the hearing was not to relitigate the original determination that
Ambrose suffered from a mental disorder that rendered him a
sexually dangerous person, and noted Ambrose’s complete
lack of interest in treatment in ultimately concluding that
Ambrose continued to suffer from that mental disorder.
Ambrose does not dispute those contentions that he failed to
acknowledge his mental disorder or avail himself of treatment,
and those findings further doom any claim of prejudice here.
Given that Ambrose has failed to acknowledge the history that
formed the basis for a determination that he is sexually
dangerous, and has refused to participate in any treatment for
that disorder, there is no basis for this court to conclude that
absent the reference to the out-of-state abuse allegations, the
outcome of the proceeding would have been different.
Ambrose therefore has failed to demonstrate cause and
prejudice to excuse his procedural default, and the district
court properly dismissed the petition. The decision of the
district court is AFFIRMED.