Lieberman v. Thomas

• Decision Date: 10 October 2007
• Docket Number: No. 05-3922.,05-3922.
• Citation: 505 F.3d 665
• Parties: Brad LIEBERMAN, Petitioner-Appellant, v. Brian THOMAS, Director,<SMALL><SUP>1</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

505 F.3d 665

Brad LIEBERMAN, Petitioner-Appellant, v. Brian THOMAS, Director,¹ Respondent-Appellee.

No. 05-3922.

United States Court of Appeals, Seventh Circuit.

Argued May 2, 2007.

Decided October 10, 2007.

Mary P. Benz, Giel Stein (argued), Winston & Strawn, Chicago, IL, for Petitioner-Appellant.

David H. Iskowich (argued), Office of the Attorney General Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge.

After he served a twenty-year prison sentence for multiple rape convictions, Brad Lieberman was legally determined to be a sexually violent person and was civilly committed to the custody of the Illinois Department of Human Services. To say that Lieberman challenged the State of Illinois' petition to have him civilly committed would be an understatement. Since 2000, Lieberman has simultaneously sought relief in the courts of no less than three Illinois counties and in one federal district court.

Lieberman's effort to obtain federal habeas relief is at issue in this appeal. Lieberman contends that after the State moved to have him committed, he was denied a probable cause hearing in the time required by Illinois law, and as a result, his Fourteenth Amendment right to due process was violated. Lieberman, however, did not give the state courts the opportunity to review this question because he failed to fairly present the federal nature of his claim for state habeas relief. Therefore, like the district court, we find that Lieberman procedurally defaulted his claim, which precludes us from reaching the merits. See Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). We further note that the merits of the petition would not entitle Lieberman to habeas relief because he fails to establish how the state court's adjudication of his case resulted in a decision that was contrary to, or an unreasonable application of, Supreme Court precedent, or based on an unreasonable determination of the facts. See 28 U.S.C. §§ 2254(d)(1) & (2). For these reasons, we affirm the judgment of the district court.

I. BACKGROUND

A. State Court Proceedings

In 1980, Lieberman was convicted in Cook County, Illinois, of six counts of rape and one count of attempted rape, and sentenced to a number of concurrent prison terms, the longest consisting of forty years. That same year in Lake County, Illinois, Lieberman was also convicted of rape, robbery, and intimidation and sentenced to a thirty-year prison term to run concurrently with his Cook County sentences. After serving twenty years of his sentence, Lieberman was scheduled for release on January 9, 2000. Before that day's arrival, the Illinois Attorney General filed a petition to civilly commit Lieberman under the Illinois Sexually Violent Persons Commitment Act. See 725 Ill. Comp. Stat. § 207 et seq. This statute allows the court to civilly commit an individual who has been convicted of a sexually violent offense and is dangerous because the person suffers from a mental disorder that makes it substantially likely he will commit further acts of sexual violence. Id. §§ 207/5(f) & 207/40(a). If the State seeks to commit a person already in custody, the statute requires a trial court to hold a hearing within seventy-two hours of the State's filing to "determine whether there is probable cause to believe that the person named in the petition is a sexually violent person." Id. § 207/30(b). If, after the hearing, the trial court finds that probable cause exists, it must hold a trial within 120 days. Id. § 207/35(a). A person found by the trial court or a jury to be sexually violent will be committed to the custody of the Illinois Department of Human Services. Id. § 207/40.

On January 6, 2000, one day after the State filed its petition, a Cook County trial judge ordered Lieberman detained pending the outcome of his hearing, which it set for Monday, January 10, 2000. See id. § 207/30(a) (permitting a trial judge to order the person named in the petition detained "if there is cause to believe that the person is eligible for commitment" until the individual is discharged after a trial or ordered committed). On the date of the scheduled probable cause hearing, however, Lieberman moved to dismiss the State's petition, arguing that rape was not a predicate sexually violent offense under the civil commitment statute. As a result, no probable cause hearing was held. The court continued the matter to February 1, 2000, to render its ruling on Lieberman's motion to dismiss. Lieberman's counsel requested that the probable cause hearing not be held on that date because in the event the court denied the motion to dismiss, he intended to file an interlocutory appeal, which could ultimately resolve the case on the merits.

Upon concluding that rape was incorporated into the offense of criminal sexual assault, the court orally denied Lieberman's motion on February 1. As promised, Lieberman responded by filing an interlocutory appeal, and an Illinois appellate court reversed the trial judge's ruling. See In re Det. of Lieberman, 319 Ill App.3d 1020, 253 Ill.Dec. 576, 745 N.E.2d 699 (2001). The Illinois Supreme Court later overturned that decision, concluding that the state legislature intended to include the offense of rape within the statute's definition of "sexually violent offense." See In re Det. of Lieberman, 201 Ill.2d 300, 267 Ill.Dec. 81, 776 N.E.2d 218, 230 (2002).

Lieberman's appeal of the Cook County trial court's ruling coincided with his efforts to obtain habeas relief through the court in LaSalle County, Illinois, the location of his detention facility. There, on January 5, 2001, Lieberman filed a habeas petition challenging the validity of his order of detention on the basis that no probable cause hearing had been conducted within the seventy-two-hour time frame required by statute.² The following month, the trial court disagreed with Lieberman's contention that he was being held pursuant to an invalid detention order and denied his petition after finding that habeas relief was not available to a petitioner like Lieberman who was serving a mandatory term of supervised release. See R. 78, Ex. D. Lieberman appealed and argued that he was being held under an invalid order of detention, citing the civil commitment statute's language that a probable cause hearing was to be held within seventy-two hours of the State's filing of its petition. On June 4, 2002, the appellate court affirmed the trial court's denial of habeas relief and concluded that the statute required Lieberman's temporary order of detention to remain in effect until he was either discharged or committed. See R. 78, Ex. F at 11. The court also noted that Lieberman's then-pending interlocutory appeal would likely resolve the issue of whether he was a sexually violent person; therefore, the court considered it reasonable for the Cook County trial court to let that appeal proceed before holding a probable cause hearing. Id. at 10. Lieberman petitioned for leave to appeal to the Illinois Supreme Court contending in part that the trial court's failure to conduct a probable cause hearing violated the statute and his right to due process as guaranteed by the federal and state constitutions; however, his petition was denied on October 24, 2002.³ See R. 79, Ex. L.

Lieberman's probable cause hearing finally occurred on November 30, 2004, almost five years after the State sought to have him committed. A Cook County trial judge determined that probable cause existed to find that Lieberman was a sexually violent person as defined by the statute, and a two-week trial followed. A jury then found that Lieberman qualified as a sexually violent person, and on April 26, 2006, he was committed to the custody of the Illinois Department of Human Services. Lieberman has appealed that verdict to the Illinois appellate court.

B. Federal Court Proceedings

The lengthy procedural history in this case would be incomplete without an account of Lieberman's attempts to obtain habeas relief in federal court. After Lieberman moved to appeal the denial of his motion to dismiss by the Cook County trial court, he filed his first federal habeas petition in the Northern District of Illinois on April 20, 2000. In that petition, Lieberman argued that a decision by the Illinois Supreme Court violated the ex post facto clauses of the federal and state constitutions by retroactively canceling the availability of his good-time credits. See supra n. 2. Lieberman later amended his petition to include the argument that the delay of his probable cause hearing violated his Fourteenth Amendment right to due process. Upon reviewing the amended petition, the district court considered the merits of Lieberman's due process claim and dismissed his other claims as unexhausted. See Lieberman v. Budz, No. 00 C 2531, 2002 WL 1888396, at *7 (N.D.Ill. Aug.16, 2002). The court denied the petition based on its determination that the issue of the delayed probable cause hearing concerned a matter of state law and, therefore, was not cognizable on federal habeas review. Id. Lieberman appealed to this court, and we reversed with instructions that the district court stay Lieberman's petition pending the exhaustion of his other claims in state court.

After we remanded his case, Lieberman voluntarily dismissed his unexhausted claims and filed a second amended habeas petition, which consisted of the claim that the State had violated his Fourteenth Amendment right to due process by denying him a probable cause hearing as required by the statute. The district court again denied the petition, but this time it found that Lieberman failed to fairly present his federal due process claim to the state courts and, therefore, had procedurally defaulted this claim. See Lieberman v. Budz, No. 00 C 2531, 2005 WL 1311200, at *4 (N.D.Ill. Apr.28, 2005). The district court alternatively considered the merits of...