Lieberman v. Scott

• Decision Date: 12 June 2019
• Docket Number: 1:18 CV 5713
• Parties: BRAD LIEBERMAN, Petitioner, v. GREGG SCOTT, Program Director, Rushville Treatment and Detention Facility, Illinois Department of Human Services, Respondent.
• Court: U.S. District Court — Northern District of Illinois

BRAD LIEBERMAN, Petitioner, v. GREGG SCOTT, Program Director, Rushville Treatmentand Detention Facility, Illinois Department of Human Services, Respondent.

1:18 CV 5713

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

June 12, 2019

Hon. Marvin E. Aspen

MEMORANDUM OPINON AND ORDER

MARVIN E. ASPEN, District Judge:

Before us is Petitioner Brad Lieberman's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet. (Dkt. No. 1).) For the reasons set forth below, we deny Petitioner's request for habeas relief.

BACKGROUND

The following facts are taken from the decision of the Illinois Appellate Court, In re Det. of Lieberman, 2017 IL App (1st) 160962, 80 N.E.3d 649 (1st Dist. 2017).¹ In 1980, Petitioner was convicted of multiple counts of rape. Id. ¶ 2 (quoting In re Det. of Stanbridge, 2012 IL 112337, ¶¶ 19-22, 980 N.E.2d 598 (Ill. 2012) (considering Petitioner's earlier appeal tothe Illinois Supreme Court in a consolidated case)). He was sentenced to concurrent terms of imprisonment. Id. Before his scheduled release in 2000, Petitioner was involuntarily committed to the Illinois Department of Human Services (the "Department") pursuant to the Illinois Sexually Violent Persons Commitment Act (the "Act"), 725 ILCS 207/1 et seq.² Id. In February 2006, a jury found Petitioner to be a sexually violent person under the Act. Id. At the time, the diagnosis forming the basis of Petitioner's commitment was a mental disorder called paraphilia, not otherwise specified, sexually attracted to nonconsenting persons ("PNOS"). Id.

After a person is committed, the Department must submit a written report on the person's condition at least once every twelve months to determine whether "(1) the person has made sufficient progress in treatment to be conditionally released and (2) the person's condition has so changed since the most recent periodic examination (or initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer a sexually violent person." 725 ILCS 207/55(a).

The Department performed the requisite annual evaluations and produced yearly reports on Petitioner's condition. Lieberman, 2017 IL App (1st) 160962 at ¶ 3. From 2007 to 2012, evaluators determined that Petitioner continued to suffer from PNOS. (Pet'r's Exs. 16-21 (Dkt. No. 3-2 at PageID #:367-487; Dkt. No. 3-3 at PageID #:488-505).)

In 2013, Petitioner's diagnosis changed. (Pet'r's Ex. 1 (Dkt. No. 3-2 at PageID #:40-53).) Dr. Kimberly Weitl prepared the 2013 reexamination report. Lieberman,2017 IL App (1st) 160962 at ¶ 5. Petitioner refused an interview with Dr. Weitl for the reexamination. Id. Based on Petitioner's criminal history and Petitioner's history of disciplinary issues in prison, Dr. Weitl found, using the Diagnostic and Statistical Manual of Mental Disorders ("DSM"), that Petitioner met the diagnoses of sexual sadism and antisocial personality disorder. Id. ¶¶ 6-8.

Dr. Weitl explained that sexual sadism "is a paraphilia disorder that involves inflicting physical or psychological pain and suffering on a non-consenting person during a sexual act." Dr. Weitl noted that [Petitioner] was "formerly diagnosed with Paraphilia Not Otherwise Specified, Non-Consent, but using the newly released fifth edition of the DSM it is clear that he meets the diagnosis for Sexual Sadism." . . . She further stated that sexual sadism was "considered a mental disorder under the [A]ct."

Id. ¶ 8. Dr. Weitl determined that "[a]s a result of [Petitioner's] mental disorder(s), it is substantially probable that (he) will engage in acts of sexual violence," that he "should continue to be found a Sexually Violent Person," and that he "should remain committed to the Illinois Department of Human Services-Treatment and Detention Facility" for further care. Id. ¶ 11. Based on Dr. Weitl's report, the State of Illinois ("State") on March 19, 2014 filed a motion for a finding that no probable cause existed to conclude that Petitioner was no longer a sexually violent person under the Act. Id. ¶ 4.

On July 9, 2014, Petitioner filed a petition for discharge claiming that he was entitled to release because of his change of diagnosis from PNOS to sexual sadism. Id. ¶ 12. Petitioner also argued that his civil commitment based on sexual sadism violated his due process rights. Id. The State argued that it was Petitioner's burden to show that he was no longer sexually violent and his challenge to his new diagnosis did not meet that burden. Id. ¶ 13. The State also argued that due process does not require a new trial when an evaluator determines a person remains sexually violent under a different diagnosis. Id.

On November 14, 2014, the trial court ordered discovery regarding the significance of the new diagnosis. Id. ¶ 14. During her deposition, Dr. Weitl

testified that nothing in [Petitioner]'s condition or behavior had changed since the most recent prior reexamination, and aside from the version of the DSM, the documents she used in making her diagnoses were the same. . . .

What had changed, however, was an addition to the DSM-5 sexual sadism "Diagnostic Features," which instructed that "[t]he diagnostic criteria for sexual sadism disorder are intended to apply both to individuals who freely admit to having such paraphilic interests and to those that deny any sexual interest in the physical or psychological suffering of another individual despite substantial objective evidence to the contrary." Dr. Weitl explained that prior to this addition, she was not able to diagnose [Petitioner] with sexual sadism under the DSM IV-TR because the diagnostic criteria required her to know respondent's motive for engaging in the violent behavior, specifically that the victim's suffering was "sexually exciting" to respondent. . . . [O]nce the DSM-5 was released and explicitly directed that the disorder could be diagnosed where the person denied such interest "despite substantial objective evidence to the contrary," Dr. Weitl believed that sexual sadism "better describe[d]" respondent's behavior and mental disorder.

When asked whether PNOS and sexual sadism were different mental disorders, Dr. Weitl explained that "a yes or no question" was not appropriate. She testified that she was "telling the truth" when she had previously diagnosed him with PNOS, but based on the new version of the DSM, she concluded that [Petitioner] "still has a Paraphilia" but his paraphilia was no longer "Not Otherwise Specified" and instead was now "specified by Sexual Sadism." When questioned about whether [Petitioner] no longer has PNOS, or whether he could still be diagnosed with PNOS, Dr. Weitl testified that PNOS could ''still describe his behavior'' and that "he is still attracted to non-consenting victims." Dr. Weitl testified that she "would not say that he doesn't" have PNOS, but she believed that the sexual sadism diagnosis better described his behavior based on the instructions of the new DSM.

Dr. Weitl further testified that paraphilic disorders, including PNOS and Sexual Sadism, are "chronic, lifelong disorders" that do not go away but can be managed with treatment. [Petitioner], however, had refused to participate in any such treatment.

Id. ¶¶ 15-18. Although Petitioner maintained that he should be discharged because his civil commitment was based on a PNOS diagnosis, the State reiterated that it was Petitioner's burden to show he no longer had a mental disorder or was no longer substantially likely to engage in actsof sexual violence. Id. ¶¶ 19, 21. The trial court agreed with the State's position and granted its motion finding that no probable cause existed to warrant discharge and denied Petitioner's motion for discharge. Id. ¶ 22.

Petitioner appealed the trial court's decision claiming that the court violated his due process rights because it erred in finding no probable cause to warrant his discharge. Id. ¶ 25. The Illinois Appellate Court upheld the trial court's decision and found no merit to Petitioner's constitutional contentions because all the evidence before the trial court indicated that Petitioner continued to suffer from a mental disorder and that he would be substantially probable to reoffend if released. Id. ¶¶ 47, 62-64.

In state court, Petitioner also alleged the State prevented him from using the 2013 reexamination report in proceedings related to his 2011 and 2012 reexaminations and therefore committed a violation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Lieberman, 2017 IL App (1st) 160962 at ¶ 55. The appellate court rejected this argument, stating that Petitioner did not provide authority that Brady applies to civil proceedings pursuant to the Act. Id. ¶ 58. Even if Brady did apply, the appellate court found Petitioner would not be afforded relief in any event because Dr. Weitl's reexamination report was not favorable to him, exculpatory, or prejudicial. Id. ¶¶ 58-59.

On July 6, 2017, Petitioner filed a Petition for Leave to Appeal to the Illinois Supreme Court to reverse the appellate court's decision allowing Petitioner's civil commitment to continue. (Dkt. No. 10). The Illinois Supreme Court denied Petitioner's petition for discharge. Id. The present petition followed. (Pet.)

LEGAL STANDARD

We are empowered to grant a writ of habeas corpus only if Petitioner is imprisoned "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991). Federal habeas relief may be granted to a petitioner who can establish that the state court's adjudication of his claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or where the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

Under §...