Dardagan v. Nicholson

2022 IL App (3d) 210313-U

• Court: Appellate Court of Illinois
• Decided: September 28, 2022
• Docket: 3-21-0313
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 210313-U

Order filed September 28, 2022

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022 SUVAD DARDAGAN, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellant, ) Will County, Illinois, ) v. ) Appeal No. 3-21-0313 ) Circuit No. 19-MR-1996 WALTER NICHOLSON, ) ) Honorable Brian E. Barrett, Defendant-Appellee. ) Judge, Presiding.

JUSTICE HAUPTMAN delivered the judgment of the court. Justices McDade and Peterson concurred in the judgment.

ORDER ¶1 Held: The circuit court did not err by dismissing plaintiff’s petition for habeas corpus, with prejudice, under section 2-615 of the Code of Civil Procedure. Further, this appeal is frivolous under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994). Within 30 days, plaintiff must show cause why sanctions should not be imposed.

¶2 Suvad Dardagan filed a petition for habeas corpus against the warden of Stateville

Correctional Center, Walter Nicholson, under section 10-102 of the Code of Civil Procedure

(Code) (735 ILCS 5/10-102 et seq. (West 2018)). Nicholson filed a motion to dismiss

Dardagan’s petition for habeas corpus under section 2-615 of the Code (735 ILCS 5/2-615 (West

2020)), which was granted by the circuit court with prejudice. Dardagan appeals.

¶3 I. BACKGROUND ¶4 In 1999, Dardagan was charged with four counts of predatory criminal sexual assault of

his niece in the circuit court of Cook County under section 12-14.1(a)(1) of the Criminal Code of

1961 (720 ILCS 5/12-14.1(a)(1) (West 1998)). In April 2003, the circuit court of Cook County

entered a judgment of conviction and sentence against Dardagan under grand jury indictment No.

99-CR-15727. The judgment was later modified in October 2007. Dardagan’s conviction and

sentence was affirmed by the First District of our appellate court, which noted he unsuccessfully

challenged his indictment before trial. See People v. Dardagan, No. 1-03-3415, p. 4 (2006)

(unpublished order under Illinois Supreme Court Rule 23). Our supreme court denied

Dardagan’s petition for leave to appeal. Dardagan is presently serving a 90-year prison sentence.

¶5 On July 3, 2019, Dardagan filed a petition for habeas corpus in the circuit court of Will

County against the warden of Stateville Correctional Center, Nicholson, under section 10-102.

Dardagan alleged the circuit court of Cook County was not provided with information that he

“committed any felony criminal offense *** within the territorial jurisdiction of the Circuit Court

of Cook County, or in any other County within the borders of this State.” Likewise, no police

department within the territorial jurisdiction of the circuit court of Cook County had a claim or

record of his arrest. The Cook County State’s Attorney allegedly failed to file a criminal

complaint to commence a criminal action against Dardagan. Dardagan argued, pursuant to an

attached affidavit from the Cook County State’s Attorney’s Office, “[t]here was no arrest report

or complaint submitted to the court on June 18, 1999[,] as the court hearing on that date was Mr.

Dardagan’s bond hearing.” Therefore, Dardagan requested an order that vacated the judgment of

conviction and sentence and directed Nicholson to grant his immediate release from custody.

¶6 On May 4, 2020, Nicholson filed a motion to dismiss under section 2-615. Nicholson also

requested a finding of frivolousness under section 22-105 of the Code (735 ILCS 5/22-105 (West

2 2020)). Nicholson argued the circuit court of Cook County was vested with subject matter

jurisdiction under article VI, section 9, of the Illinois Constitution. Nicholson also argued the

circuit court of Cook County obtained personal jurisdiction over Dardagan by his appearance.

¶7 Further, Nicholson disputed Dardagan’s claim that there was no criminal complaint filed

by the Cook County State’s Attorney, stating “[t]he affidavit referenced in *** [Dardagan’s]

complaint noted that the appropriate charging documents were filed against him on July 13,

1999[,] *** [a]nd [that] the appellate court noted *** [he] had sought dismissal of the indictment

prior to trial and filed separate motions for discharge and to quash the indictment, which were

denied.” According to the affidavit, the Cook County State’s Attorney provided Dardagan with

“the only arrest report in the case as well as the charging documents from July 13, 1999.”

Further, Dardagan did not challenge the indictment in his appeal. Nicholson argued Dardagan’s

petition for habeas corpus identified no postconviction basis for an immediate release from

custody. Since Dardagan only raised events that occurred prior to his conviction, Nicholson

sought a dismissal of the petition for habeas corpus due to the failure to state a claim.

¶8 On July 9, 2021, the circuit court dismissed Dardagan’s petition for habeas corpus, with

prejudice, under section 2-615, and entered a finding of frivolousness under section 22-105. The

circuit court imposed fines related to this litigation against Dardagan. Dardagan appeals.

¶9 II. ANALYSIS

¶ 10 On appeal, Dardagan argues the circuit court erred by dismissing his petition because

“[t]he claim raised *** [was] that the Cook County Circuit Court never established the existance

[sic] of the territorial jurisdiction to commence and prosecute a criminal charge.” Dardagan

asserts that his petition was supported by an affidavit of the Cook County State’s Attorney’s

Office, which indicated “that ‘[t]here was no complaint or arrest report submitted to the court on

3 June 18, 1999[,] as the court hearing on that date was Mr. Dardagan’s bond hearing.’ ” Since no

charge existed, Dardagan argues he must be granted an immediate release from custody. 1

¶ 11 Nicholson has not filed a brief on appeal. However, the Attorney General filed a brief,

echoing Nicholson’s arguments in the circuit court. The Attorney General also requests a further

finding of frivolousness and the imposition of sanctions against Dardagan, arguing his “custody

is supported by a plainly valid conviction and both his *** [petition] and his appellate brief raise

an allegation disproved by his own exhibit and available court records.” 2

¶ 12 Relevantly, a motion to dismiss a petition for habeas corpus under section 2-615 is

reviewed de novo. See Beacham v. Walker, 231 Ill. 2d 51, 57-58 (2008); accord Blumenthal v.

Brewer, 2016 IL 118781, ¶ 19. Such a motion challenges the legal sufficiency of the petition due

to facially apparent defects. See Beacham, 231 Ill. 2d at 57; accord Blumenthal, 2016 IL 118781,

¶ 19. When reviewing the motion to dismiss, courts must accept as true all well-pleaded facts and

all reasonable inferences that may be drawn from those facts. See Beacham, 231 Ill. 2d at 57-58;

accord Blumenthal, 2016 IL 118781, ¶ 19. Courts must also construe the allegations contained in

the petition in a light most favorable to the plaintiff. See Beacham, 231 Ill. 2d at 58; see also

Blumenthal, 2016 IL 118781, ¶ 19. The petition should not be dismissed unless it is clearly

apparent that no set of facts can be proven to entitle the plaintiff to relief. See Beacham, 231 Ill.

2d at 58. However, the plaintiff must allege sufficient facts to bring the claim within a legally

recognized cause of action. See id.; see also Blumenthal, 2016 IL 118781, ¶ 19.

1 Dardagan does not appeal the circuit court’s finding of frivolousness or the imposition of fines under section 22-105. 2 The Attorney General notes Dardagan’s habeas corpus arguments were presented to and rejected by the United States District Court for the Northern District of Illinois, Eastern Division. See Dardagan v. Hammers, No. 21-cv-1317 (N.D. Ill. Apr. 14, 2021) (unpublished order). 4 ¶ 13 Further, section 10-124 of the Code, pertaining to causes for discharge when in custody

on process of court, provides the only grounds on which habeas corpus relief is available. See

735 ILCS 5/10-124 (West 2018); Beacham, 231 Ill. 2d at 58 (citing People v. Gosier, 205 Ill. 2d

198, 205 (2001); Barney v. Prisoner Review Board, 184 Ill. 2d 428, 430 (1998)). As indicated by

those grounds, an order of habeas corpus will be entered only if (1) the prisoner was incarcerated

under a judgment of a court that lacked subject matter or personal jurisdiction, or (2) an

occurrence after the prisoner’s conviction entitles him or her to a release from prison. Beacham,

231 Ill. 2d at 58 (citing Gosier, 205 Ill. 2d at 205; Barney, 184 Ill. 2d at 430); accord Round v.

Lamb, 2017 IL 122271, ¶ 8; White v. Phillips, 405 Ill. App. 3d 190, 192 (2010). Even in cases of

constitutional rights, a petition for habeas corpus may not be used to review proceedings that do

not exhibit such defects. Beacham, 231 Ill. 2d at 58 (citing Gosier, 205 Ill. 2d at 205; Barney,

184 Ill. 2d at 430). Likewise, the remedy of habeas corpus is not available to review errors that

are of a nonjurisdictional nature, as to merely render a judgment voidable as opposed to void. Id.

at 58-59 (citing People ex rel. Lewis v. Frye, 42 Ill. 2d 311, 313 (1969)); accord White, 405 Ill.

App. 3d at 192. In practice, a petition for habeas corpus must be “ ‘in substantial accord and

compliance with the provisions of the statute[] and *** show[] upon its face that the petitioner is

entitled to *** discharge.’ ” Beacham, 231 Ill. 2d at 59 (quoting Hennings v. Chandler, 229 Ill.

2d 18, 28 (2008)). If it is clear from a review of the petition for habeas corpus that the plaintiff is

not entitled to relief, then the petition must be denied. Id. (quoting Hennings, 229 Ill. 2d at 26).

¶ 14 Here, personal jurisdiction was acquired by the circuit court of Cook County when

Dardagan, undisputedly, appeared on charges of four counts of predatory criminal sexual assault

under section 12-14.1(a)(1) of the Criminal Code of 1961. See People v. Rios, 2013 IL App (1st)

121072, ¶¶ 15-16; accord People v. Abtahi, 2020 IL App (1st) 181631, ¶ 18. Subject matter

5 jurisdiction was also acquired since the charges of predatory criminal sexual assault under

section 12-14.1(a)(1) of the Criminal Code of 1961 were “justiciable matter[s],” i.e.,

“controvers[ies] appropriate for review by the court, in that *** [they were] definite and

concrete, as opposed to hypothetical or moot, [and] touch[ed] upon the legal relations of parties

having adverse legal interests.” See Rios, 2013 IL App (1st) 121072, ¶¶ 15-16 (quoting Belleville

Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334-35 (2002)); see also Abtahi,

2020 IL App (1st) 181631, ¶ 18. This is all that was required by our constitution for subject

matter jurisdiction. See Rios, 2013 IL App (1st) 121072, ¶¶ 15-16; see also Ill. Const. 1970, art.

VI, § 9; Abtahi, 2020 IL App (1st) 181631, ¶ 18. As such, Dardagan was not incarcerated under a

judgment by a court that lacked jurisdiction. See Beacham, 231 Ill. 2d at 58; accord Round, 2017

IL 122271, ¶ 8; White, 405 Ill. App. 3d at 192. Dardagan’s other asserted bases for a release,

such as the mistaken belief that an arrest report and charging documents were filed on June 18,

1999, instead of July 13, 1999, occurred before his conviction and would not render the

judgment of conviction and sentence void. See Beacham, 231 Ill. 2d at 58-59; accord Round,

2017 IL 122271, ¶ 8; White, 405 Ill. App. 3d at 192. For these reasons, we conclude that the

circuit court properly dismissed Dardagan’s petition for habeas corpus under section 2-615.

¶ 15 Next, we recognize that the circuit court exercised its statutory authority under section

22-105 by entering a finding of frivolousness and imposing certain fines against Dardagan. Now,

we address the Attorney General’s request for a finding that Dardagan’s appeal is also frivolous,

such that the imposition of sanctions is warranted in this appeal. Our authority to impose

sanctions for a frivolous appeal derives from Rule 375(b), which provides as follows:

“If, after consideration of an appeal *** in a reviewing court, it is

determined that the appeal *** itself is frivolous[] *** an appropriate sanction

6 may be imposed upon any party or the attorney or attorneys of the party or parties.

An appeal or other action will be deemed frivolous where it is not reasonably well

grounded in fact and not warranted by existing law or a good-faith argument for

the extension, modification, or reversal of existing law *** .

Appropriate sanctions for violation of this section may include an order to

pay to the other party *** the reasonable costs of the appeal *** and any other

expenses necessarily incurred by the filing of the appeal ***, including reasonable

attorney fees.

A reviewing court may impose a sanction upon a party *** upon the

motion of another party *** or on the reviewing court’s own initiative where the

court deems it appropriate. If the reviewing court initiates the sanction, it shall

require the party or attorney, or both, to show cause why such a sanction should

not be imposed before imposing the sanction. Where a sanction is imposed, the

reviewing court will set forth the reasons and basis for the sanction in its opinion

or in a separate written order.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).

See also Johnson v. Williams, 2016 IL App (3d) 150824, ¶¶ 10-12 (Third District applying Rule

375(b) in an appeal from the dismissal of a habeas corpus action). The propriety of sanctions

under Rule 375(b) is determined by an objective standard of conduct. Garlick v. Bloomingdale

Township, 2018 IL App (2d) 171013, ¶ 59. Rule 375(b) sanctions are intended to condemn and

punish litigants’ abusive conduct since frivolous litigation wastes time, money and resources that

could be better spent addressing the potentially meritorious claims of good-faith litigants. Id.;

Johnson, 2016 IL App (3d) 150824, ¶ 10. Rule 375(b) sanctions may be imposed against pro se

litigants “under sufficiently egregious circumstances.” Garlick, 2018 IL App (2d)171013, ¶ 59.

7 ¶ 16 Here, the Attorney General is correct that the record and Dardagan’s own exhibits

indicate his arguments on appeal are entirely without merit. For example, the affidavit from the

Cook County State’s Attorney plainly demonstrates that Dardagan was provided the arrest report

and charging documents from July 13, 1999. Nevertheless, in this appeal, Dardagan persists in

arguing that no charges existed in the Cook County circuit court because there is no arrest report

or charging documents for the date of his bond hearing, June 18, 1999. Likewise, the undisputed

facts of record and the settled legal authorities indicate Dardagan’s arguments are fabricated. The

bases for a release, alleged by Dardagan, occurred before his conviction. Further, Dardagan

undisputedly appeared in the circuit court of Cook County, where the circuit court could clearly

address the justiciable matters raised by the charges under section 12-14.1(a)(1) of the Criminal

Code of 1961. See Rios, 2013 IL App (1st) 121072, ¶¶ 15-16; Abtahi, 2020 IL App (1st), ¶ 18.

¶ 17 For these reasons, Dardagan’s appeal is frivolous under Rule 375(b). His arguments are

not reasonably well grounded in fact, warranted by existing law, or warranted by a good-faith

argument for the extension, modification, or reversal of existing law. See Ill. S. Ct. R. 375(b)

(eff. Feb. 1, 1994); Garlick, 2018 IL App (2d) 171013, ¶ 59. Therefore, within 30 days of this

order, Dardagan is ordered to show cause why sanctions should not be imposed under Rule

375(b). See Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994); Johnson, 2016 IL App (3d) 150824, ¶ 12

(Third District ordering pro se plaintiff, in appeal from the dismissal of a habeas corpus action,

to show cause within 30 days why sanctions should not be imposed under Rule 375(b)).

¶ 18 III. CONCLUSION

¶ 19 The judgment of the circuit court of Will County is affirmed.

¶ 20 Affirmed.