United States District Court, Eastern District of Virginia, Richmond Division
James R. Spencer Senior U.S. District Judge
John Woodward Ickes, Jr., a Virginia civil detainee proceeding pro se and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter "§ 2254 Petition") challenging his detention during proceedings seeking his commitment as a sexually violent predator by the Circuit Court of the County of Chesterfield (hereinafter "Circuit Court"). On January 29, 2015, the Magistrate Judge issued a Report and Recommendation that recommended dismissing the action. The Court advised Ickes that he could file objections within fourteen (14) days after the entry of the Report and Recommendation. Ickes has filed objections. (ECF No. 30.) For the reasons that follow, Ickes's objections will be OVERRULED, the Motion to Dismiss (ECF No. 13) will be GRANTED, the Motion to Compel (ECF No. 27) will be DENIED, and the action will be DISMISSED.
The Magistrate Judge made the following findings and recommendation:
Ickes argues entitlement to relief on the following grounds:
Claim One: "Pre-trial detention is unlawful because I am housed in the wrong institution." (§ 2254 Pet. 5.)
Claim Two: "My detention is unlawful because my Sixth Amendment right to a speedy trial has been violated." (Id. at 6.)
Claim Three: "My detention is unlawful because my right to due process has been violated" (Id. at 8.)
Claim Four: "My detention is unlawful [because][section] 37.2-906(A) is both an ex post facto law and a bill of attainder ... ." (Id. at 10).
Claim Five: "My detention is unlawful because the conditions in which I am confined amount to punishment." (Id. at 12.)
Respondent has moved to dismiss the action (ECF No. 13). For the reasons that follow, it is RECOMMENDED that the §2254 Petition be DISMISSED WITHOUT PREJUDICE because Ickes's § 2254 Petition contains claims that are unexhausted.
A. State Proceedings
On November 15, 2010, the Circuit Court ordered that Ickes be held in the Virginia Department Corrections until a final order was entered in the pending civil action seeking to have Ickes committed as a sexually violent predator pursuant to the Sexually Violent Predators Act, Va. Code Ann. § 37.2-900, et seq. (West 2014) (hereinafter "SVPA"). Commonwealth v. Ickes, No. CL10-3073, at 1-2 (Va. Cir. Ct. Nov. 15, 2010). The Circuit Court appointed counsel and set a probable cause hearing for January 31, 2011. Ickes, however, refused to speak with Dr. Miller, the expert hired to evaluate him. See Ickes, No. CL10-3073, at 1 (Va. Cir. Ct. Jan. 13, 2011). At some point, Ickes agreed to speak with Dr. Miller, and upon agreement of the parties, the Circuit Court continued the probable cause hearing until March 21, 2011 to permit Dr. Miller to evaluate Ickes. See Id. On March 21, 2011, the Circuit Court found probable cause to believe that Ickes was a sexually violent predator. Ickes, No. CL10-3073, at 1 (Va. Cir. Ct. Mar. 21, 2011). The Circuit Court set the matter for a trial on August 10, 2011, a date agreed upon by counsel. Id.
Over the course of the next several years, Ickes inundated the Circuit Court with various pro se filings as a method to hinder and delay the proceedings. During a January 28, 2014, motions hearing, Ickes called counsel as a witness and counsel testified that Ickes requested counsel to put off the trial as long as possible until his concurrent federal sentence expired in the fall of 2012. (Jan. 28, 2014 Tr. 69.) Due to problems with expert witnesses, and several continuances requested by counsel, the Circuit Court continued the bench trial until April 12, 2013. (See Jan. 28, 2014 Tr. 69-72.) On March 29, 2013, Ickes filed a Motion to Dismiss the civil commitment proceedings alleging errors in his assessment. Motion to Dismiss at 1-5, Ickes, No. CL10-3073 (Va. Cir. Ct. filed Mar. 29, 2013). In response, the Commonwealth requested a continuance of the trial date due to a necessary witness's unavailability. Motion to Continue at 1-3, Ickes, No. CL10-3073 (Va. Cir. Ct. filed Apr. 11, 2013). Over Ickes's objection, the ...