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Brad Lieberman v. Alfreda Kirby

December 8, 2011


The opinion of the court was delivered by: Amy J. St. EVE,*fn2 District Court Judge:


Petitioner Brad Lieberman, a convicted sex offender, is civilly committed to the custody of Respondent Alfreda Kirby, Director of the Rushville Treatment and Detention Facility of the Illinois Department of Human Services. In this action, Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254 on the basis that his confinement violates his constitutional rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Ex Post Facto Clause of the United States Constitution. (R. 1, Pet. for Writ of Habeas Corpus ("Pet.") at 9-19.) For the reasons that follow, the Court denies Petitioner's application for a writ of habeas corpus.


A federal habeas court sitting in review of a state court judgment pursuant to 28 U.S.C. § 2254 will "presume state factual findings to be correct, unless the petitioner rebuts the presumption by clear and convincing evidence." Morgan v. Hardy, - F.3d -, 2011 WL 5319665, at *4 (7th Cir. Nov. 7, 2011) (citing 28 U.S.C. § 2254(e)(1)); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Wiggins v. Smith, 539 U.S. 510, 528, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005)). "This presumption of correctness also applies to factual findings made by a state court of review based on the trial record." Morgan, 2011 WL 5319665, at *4 (citing, inter alia, Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981)). With these principles in mind, the Court turns to the relevant factual and procedural background, as found by the last state court to consider the merits of Petitioner's claims, the Illinois Court of Appeals. See In re Detention of Lieberman, 379 Ill. App. 3d 585, 586, 884 N.E.2d 160, 318 Ill. Dec. 605 (Ill. App. Ct. 2007).

In 1980, Petitioner was convicted in the Circuit Court of Cook County of six counts of rape and one count of attempted rape, and in the Circuit Court of Lake County of one count of rape and one count of attempted rape. Id. Petitioner was sentenced to multiple concurrent terms of imprisonment. After application of certain sentencing credits and adjustments, the State of Illinois (the "State") set a release date of January 9, 2000. Id.

Three days before Petitioner's scheduled release, the State filed a civil commitment petition pursuant to the Sexually Violent Persons Commitment Act ("SVPCA" or "Act"), 725 ILCS 207/1 et seq.*fn3 In its petition, the State alleged that Petitioner "had been convicted of a number of sexually violent offenses and was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence." In re Detention of Lieberman, 379 Ill. App. 3d at 586. On February 10, 2005, following a hearing, the state trial court found that there was probable cause to conduct further proceedings on the State's petition and ordered that the Department of Human Services ("DHS") detain Petitioner pending a civil commitment trial. Id.

At trial, the State presented the testimony of two expert witnesses: Dr. Jacqueline Buck, a clinical psychologist and special evaluator for the state department of corrections ("DOC") and Dr. Barry Leavitt, a clinical psychologist who specializes in sexually violent persons ("SVP") evaluations. In addition to other witnesses, Petitioner presented the testimony of three experts: Dr. Fred Berlin, a psychologist and medical doctor who specializes in sexual disorders; Dr. Diane Lytton, a psychologist experienced in treating sex offenders; and Dr. Michael Fogel, a licensed clinical psychologist and director of the Illinois Sex Offender Evaluation Unit.

The State's first witness at trial was Dr. Jacqueline Buck. As the state appellate court found:

Dr. Buck testified that she conducted one two-hour interview with [Petitioner] in October 1999 and reviewed his master file as well as numerous other documents. Her review included psychological and psychiatric evaluations of [Petitioner], police reports, and other court documents provided by the DOC detailing the events that led to [Petitioner's] various convictions. Based upon her review and evaluation, Dr. Buck believed that [Petitioner] was at a high risk to sexually reoffend if he was released into the community without treatment and, in October 1999, she prepared a report to that effect. Dr. Buck updated her opinion every year thereafter and, although she did not conduct any additional interviews of [Petitioner] because he refused to speak with her, Dr. Buck did not believe that an additional interview was warranted because [Petitioner] refused to participate in sexual offender treatment. . . . [Dr. Buck] believed that [Petitioner] continued to be at a high risk to sexually reoffend.

Dr. Buck testified that, in forming her opinions, she relied upon [Petitioner's] criminal history and the facts from cases in which he was convicted of rape and cases in which he was arrested and charged with a sexually related offense. . . . In arriving at her opinions, Dr. Buck also considered evidence of [Petitioner's] behavior while he was incarcerated in the DOC and in the custody of the DHS. . . . [Petitioner] received disciplinary reports for his conduct[, including drug offenses]. [Petitioner] had his visiting privileges revoked after demonstrating inappropriate behavior with a female in the visitor's room . . . .While in the custody of the DHS, [Petitioner] exhibited "angry, hostile, aggressive behaviors" . . . and insisted that he was being illegally detained. Dr. Buck also reviewed correspondence that [Petitioner] wrote to eight women over a period of approximately 10 months while he was incarcerated. On one occasion, . . . . [Petitioner] wrote to a woman whose picture he had seen in the newspaper, stating "how beautiful" she was, "how sweet and how hot," and "how lucky he would be to have a friend like her." . . .

Based upon all of these considerations, Dr. Buck diagnosed [Petitioner] with paraphilia not otherwise specified, sexually attracted to non-consenting persons (paraphilia nos). Dr. Buck described the group of paraphilia disorders, which are contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM), as essentially "sexually deviant behaviors," and testified that in this case, "we have what the law calls rape behavior, sexual assaults with non-consenting women."

Dr. Buck testified that the first criterion for paraphilia is that there be "intense recurring sexually arousing urges, fantasies or thoughts or behaviors which occur over at least a 6 month period of time," and that [Petitioner] met this criterion based on his multiple rapes committed over a 10-month period. The second criterion for paraphilia nos is that these behaviors cause distress or impair [Petitioner's] ability to function socially in the workplace or society. [Petitioner's] detention in the DOC and DHS met this criterion, and Dr. Buck testified that [Petitioner] is "not able to be in society and function the way other folks do." . . . . . . . . Dr. Buck further explained that paraphilia nos is a "very deep-seeded problem" that requires intensive treatment and does not heal itself or go away while someone who suffers from it is in prison. Moreover, although the 15 mental health evaluations [Petitioner] underwent while incarcerated did not diagnose paraphilia, Dr. Buck was the first examiner to do a sex-offender-specific evaluation.

Dr. Buck also diagnosed [Petitioner] with cannabis abuse and antisocial and narcissistic personality disorders. Dr. Buck described antisocial personality disorder as "the disregard for and violation of the rights of others," and narcissistic personality disorder as someone who is "very grandiose" in thought or behavior, who requires admiration, and exhibits a lack of empathy.

Dr. Buck also conducted a risk assessment using four actuarial tools to determine [Petitioner's] risk of committing future acts of sexual violence. Specifically, Dr. Buck employed: (1) the Minnesota Sex Offender Screening Tool Revised (MnSOST-R); (2) the Static-99; (3) the Violence Risk Appraisal Guide (V-RAG); and (4) the Sex Offender Risk Appraisal Guide (SORAG). [Petitioner] scored "very high" under the MnSOST-R, "extremely high" under the Static-99, "high" under the V-RAG, and "extremely high" under the SORAG.

Dr. Buck stated that she looked for mitigating factors to consider in reaching her opinions. . . . . Dr. Buck testified that [Petitioner] has refused to participate in any [sex offender programs offered by DHS] and was therefore unable to find any mitigating factors. Dr. Buck also considered [Petitioner's] age and testified that, because he scored as a psychopath, [Petitioner] did not exhibit the usual pattern of decreased crime corresponding to increased age.

Dr. Buck concluded that in her opinion, within a reasonable degree of psychological certainty, [Petitioner] suffers from mental disorders that are both congenital and acquired, affect his emotional and volitional capacity, and predispose him to commit future acts of sexual violence. Based upon her clinical evaluation, review of [Petitioner's] files, [Petitioner's] lack of sex offender treatment, and the actuarial instruments she employed, Dr. Buck opined that it is substantially probable that [Petitioner] will continue to commit acts of sexual violence if released into the community.

On cross-examination, Dr. Buck testified that the Association for Treatment of Sexual Abusers (ATSA) recommends the use of multiple sources of information when making evaluations such as those in this case. . . . . According to Dr. Buck, . . . the original version of the [Minnesota Multiphasic Personality Inventory], which [Petitioner] took in 1986, is no longer recommended for clinical use and was revised because it exaggerated individuals' mental health problems and generally over-diagnosed people with psychological problems. . . .

According to Dr. Buck, [Petitioner] was evaluated by a psychologist and psychiatrist while incarcerated in 1989. The psychologist did not diagnose [Petitioner] with paraphilia, cannabis abuse, or narcissistic and antisocial personality disorders, although Dr. Buck testified that these diagnoses were appropriate for these evaluations. . . .

On cross-examination, Dr. Buck also testified that it was important for the results of actuarial instruments to be replicated by other psychologists before they are relied upon to determine if someone should be civilly committed. Dr. Buck acknowledged[, among other things,] . . . that according to [an authoritative article], three of the four risk scales that she used on [Petitioner] do not predict the specific kind of recidivism that is at issue in this case . . .

Dr. Buck also used a personality inventory called the Hare Psychopathy Checklist-Revised (PCL-R) to assess [Petitioner's] risk to recidivate and to substantiate her diagnoses of antisocial and narcissistic personality disorders. . . . Dr. Buck testified under cross-examination that she made several errors in scoring [Petitioner's] actuarial results and that, according to Dr. Hanson, some of the risk factors upon which she relied could not be used to predict if a person will sexually reoffend. Dr. Buck acknowledged that, according to a 2001 brief by the APA submitted in another case, substance abuse and personality disorders usually have little explanatory connection to an offender's sexual behavior. Moreover, according to Dr. Hanson, offenders who denied their offenses are at no higher risk to recidivate than are other sexual offenders.

Dr. Buck further testified that [Petitioner] was assigned a primary therapist when he was placed in a DHS treatment and detention facility in 2000. During that time, approximately 14 master treatment plans were prepared by [Petitioner's] primary therapist and other mental health staff. Dr. Buck acknowledged that 12 of those treatment plans did not diagnose [Petitioner] with narcissistic personality disorder, although they did indicate narcissistic features, and that 11 of those plans did not diagnose [Petitioner] with cannabis abuse. . .

Dr. Buck gave specific testimony on cross-examination regarding [Petitioner's] volitional control. Dr. Buck testified that professionals in her field do not measure volitional control as "high, low, up, [or] down," and explained that she was not aware of any way of measuring volitional capacity. Rather, according to Dr. Buck, [Petitioner's] mental disorders impact his emotional and volitional control by warping his perceptions and feelings, which allows him to exhibit sexually assaulting behavior. Dr. Buck testified that [Petitioner] has volitional control and capacity to do what he wants because he is not mentally ill, and that those without volitional control are mentally ill and include schizophrenics and manic-depressives who are not taking medication and are usually in a psychiatric hospital. Dr. Buck further testified that [Petitioner] committed the crimes intentionally and made a volitional choice to execute them, and that "all of [Petitioner's] behavior over the past well documented 26 years screams that he has volitional control, volitional capacity."

Id. at 586-93.

The State's second witness at trial was Dr. Barry Leavitt. As the state appellate court found:

Dr. Barry Leavitt is a clinical psychologist who specializes in [SVP] evaluations. Because [Petitioner] refused to be clinically interviewed, Dr. Leavitt conducted his evaluation by reviewing [Petitioner's] master file. According to Leavitt, an examination based solely on a review of available records is an acceptable method of conducting a [SVP] evaluation.

Dr. Leavitt testified that, in his expert opinion, [Petitioner] suffers from: (1) paraphilia nos; (2) antisocial personality disorder; (3) narcissistic personality disorder; and (4) cannabis abuse within a controlled environment. Dr. Leavitt explained that paraphilia was the primary predisposing condition that compelled [Petitioner] to commit sexually violent acts and that [Petitioner's] other disorders act as disinhibiting influences that make it easier for him to exhibit sexually violent behavior. Dr. Leavitt further testified that [Petitioner's] paraphilia is a congenital or acquired disorder that affects his volitional or emotional control and predisposes him to commit future acts of sexual violence. Dr. Leavitt explained that [Petitioner's] recurrent sexual behaviors were not simply impulse driven but, rather, highly planned and consistent with someone who is compelled to engage in sexually deviant behavior. Moreover, paraphilia cannot be cured but it can be controlled through treatment. Dr. Leavitt opined that, in his expert opinion, there is a substantial probability that [Petitioner] will commit future acts of sexual violence unless he participates in appropriate treatment. . . . . According to Dr. Leavitt, [Petitioner] qualified for a diagnosis of paraphilia nos, which requires a recurrent pattern of sexual urges, fantasies or behaviors toward non-consenting persons over a period of at least six months, because he was identified by 16 women as having or attempting to have committed sexually violent offenses against them and approximately half of those cases resulted in convictions. . . .

Dr. Leavitt used actuarial instruments to conduct a risk assessment and measure [Petitioner's] likelihood of reoffending. [Petitioner] fell into the "high risk" category under both the Static 99 and the MnSOST-R actuarial tools. Both instruments are viewed as providing an underestimate of someone's future likelihood of reoffending. [Petitioner's] results from these instruments served to confirm Dr. Leavitt's clinical judgment that it was substantially probable that [Petitioner] would commit future acts of sexual violence were he released into the community.

Dr. Leavitt also looked at additional "dynamic risk factors" that might serve to solidify, modify or aggravate the level of risk as determined by the actuarial instruments and the clinical impressions. . . . . Dr. Leavitt testified that based upon his clinical judgment and review of the actuarial result and risk factors, there is a high risk that [Petitioner] will sexually reoffend.

On cross-examination, Dr. Leavitt acknowledged that [professional rules] advise[] psychologists to discuss the limits of any conclusions that are not based on a personal interview. However, Dr. Leavitt testified that he complied with that requirement by disclosing that [Petitioner] refused to be interviewed and that his report was based on a review of available records. . . .

Dr. Leavitt also disagreed with a treatise indicating that paraphiliac fantasies and ritualized behavior need to be elicited in order to diagnose paraphilia, and believed that, instead, he needed evidence of sexually arousing fantasies, urges or sexual behaviors. . .

Id. at 592-95.

Petitioner's first witness at trial was Dr. Fred Berlin. As the state appellate court found: . . . Dr. Fred Berlin [is] a psychologist and medical doctor who specializes in sexual disorders. . . . Dr. Berlin testified that actuarial instruments, while helpful . . . , cannot accurately predict the likelihood that a particular individual will commit a future sexual offense. Dr. Berlin believed that clinical judgment was preferred over actuarial instruments [and] also characterized Dr. Buck's statements that the actuarial instruments placed [Petitioner] at an extremely high risk of sexually reoffending as misleading. Dr. Berlin acknowledged that neither Dr. Leavitt nor Dr. Buck used actuarial tools alone in arriving at his and her opinion in this case.

Petitioner's second witness at trial was Dr. Jacqueline Buck. As the state appellate court found:

Dr. Diane Lytton[,] a psychologist experienced in treating sex offenders, . . . reviewed [Petitioner's] master file, Dr. Buck's and Dr. Leavitt's reports,[] Dr. Buck's deposition and trial testimony in this case[, and] interviewed [Petitioner] on three occasions . . . and interviewed several of his family members.

Dr. Lytton . . . testified that, in her expert opinion, [Petitioner] does not suffer from a mental disorder that affects his emotional and volitional control and predisposes him to commit acts of sexual violence, and that it was not substantially probable that [Petitioner] would commit a sexually violent offense in the future. Dr. Lytton opined that [Petitioner] did not have a mental disorder because his sexual offenses occurred 26 years ago, the majority of those who commit rape do not have mental disorders, and [Petitioner] does not currently have recurrent intense sexually arousing fantasies, urges or behaviors that would support a diagnosis of paraphilia. Dr. Lytton gave considerable weight to [Petitioner's] family and social upbringing[, which] . . . showed Dr. Lytton that [Petitioner] was very engaged with others socially, although she acknowledged that a person with antisocial and narcissistic personality disorders might also participate in these activities. . . . . Dr. Lytton also reviewed the 15 mental health evaluations compiled while [Petitioner] was incarcerated and opined that those evaluations, which did not diagnose paraphilia, narcissistic personality disorder or cannabis abuse, were inconsistent with the four disorders diagnosed by Dr. Buck and Dr. Leavitt.

Dr. Lytton also relied upon [Petitioner's] behavior while in prison[, noting that Petitioner] obtained his GED, . . . , and was allowed to travel to coed correctional centers for prison band performances. . . . Dr. Lytton testified that even though [Petitioner] was in a secure facility, it was nevertheless significant that he was allowed to be around women because sexual assaults can and do occur in a prison environment.

Dr. Lytton also reviewed approximately 33 letters of recommendation from prison guards, officers and wardens. . . . Dr. Lytton's review of these letters indicated that [Petitioner] followed most of the rules while incarcerated, that he was not aggressive, did not have anger control issues, was able to show empathy, and was a psychologically stable person. . . .

Dr. Lytton also explored [Petitioner's] attitudes toward women by interviewing him and reviewing his relations with his former wife and current fiancee and the unsolicited letters he sent to women while he was incarcerated. . . . Dr. Lytton concluded that [Petitioner] did not have sexually deviant fantasies or urges and gave no indication of sexually deviant behavior.

Dr. Lytton also testified that [Petitioner] did not suffer from cannabis abuse [and] . . . . did not have narcissistic personality disorder and found that he was able to empathize with and demonstrate concern and care for others. Finally, Dr. Lytton opined ...

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