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Lieberman v. Scott

United States District Court, N.D. Illinois, Eastern Division

June 23, 2014

BRAD LIEBERMAN, Petitioner,
v.
GREGORY SCOTT, Program Director, Rushville Treatment and Detention Facility, Illinois Department of Human Services, Respondent.

MEMORANDUM OPINION AND ORDER

AMY ST. EVE, District Judge.

Before the Court is pro se Petitioner Brad Lieberman's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Lieberman's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2). Further, the Court denies Lieberman's motion for a mental examination [10], motion for an evidentiary hearing [31], and motion to show cause [24].

BACKGROUND

Lieberman does not present clear and convincing evidence challenging the statement of facts in the last state court decision addressing his arguments on the merits, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Ford v. Wilson, 747 F.3d 944, 947 (7th Cir. 2014). The Court therefore adopts the underlying facts as set forth by the Supreme Court of Illinois in In re Detention of Stanbridge, 980 N.E.2d 598, 366 Ill.Dec. 505 (Ill. 2012).

I. Introduction

Lieberman is civilly committed to the custody of Respondent Gregory Scott, Program Director of the Rushville Treatment and Detention Center, in Rushville, Illinois. On February 6, 2006, a jury in the Circuit Court of Cook County found that Lieberman was a sexually violent person ("SVP") pursuant to Illinois' Violent Persons Commitment Act ("SVPCA"), 725 ILCS 207/1, et seq. Thereafter, a Circuit Court judge ordered Lieberman committed to the Illinois Department of Human Services ("DHS"). In July 2008, Lieberman petitioned for discharge or conditional release pursuant to 725 ILCS 207/60. The present habeas petition challenges the denial of the 2008 discharge/conditional release petition.

II. Initial Commitment Proceedings

At Lieberman's initial commitment trial, the State established that he had been convicted of seven counts of rape and two counts of attempted rape. The State also presented expert witness testimony that Lieberman suffered from paraphilia, which is characterized by recurrent, intense, sexually arousing fantasies, urges, or behaviors involving nonconsenting persons. See In re Detention of Lieberman, 379 Ill.App.3d 585, 586, 884 N.E.2d 160, 318 Ill.Dec. 605 (1st Dist. 2007). Because the Diagnostic and Statistical Manual of Mental Disorders-IV ("DSM-IV") does not specifically list paraphilia involving nonconsenting persons, but includes a residual category for paraphilia "not otherwise specified, " the expert witnesses used the shorthand "paraphilia NOS, nonconsent" to describe Lieberman's mental disorder. In re Detention of Lieberman, 379 Ill.App.3d at 588, 592. One of the State's expert witnesses further "opined that it is substantially probable that [Lieberman] will continue to commit acts of sexual violence if released into the community." Id. at 589. The other expert testified that "based upon his clinical judgment and review of the actuarial result and risk factors, there is a high risk that [Lieberman] will sexually reoffend." Id. at 593. The jury found that Lieberman was a sexually violent person in February 2006 and Lieberman appealed.

The Illinois Appellate Court affirmed and the Supreme Court of Illinois denied Lieberman's petition for leave to appeal ("PLA"). Thereafter, the United States Supreme Court denied his petition for a writ of certiorari on April 27, 2009. Lieberman then filed his first habeas petition pursuant to 28 U.S.C. § 2254(d) on April 26, 2010. On December 8, 2011, the Court denied Lieberman's habeas petition and declined to certify any issues for appeal under 28 U.S.C. § 2253(c)(2). Lieberman did not file a petition for a certificate of appealability to the United States Court of Appeals for the Seventh Circuit. The Court presumes familiarity with its December 8, 2011, Memorandum, Opinion, and Order.

III. Proceedings on Petition for Discharge

In October 2007, DHS conducted an annual re-examination as required under 725 ILCS 207/55(a) to determine whether Lieberman had made sufficient progress to be conditionally released or discharged. The DHS evaluator, David Suire, a licensed clinical psychologist, reported that Lieberman refused to participate in the clinical interview for purposes of his annual reexamination. In his October 19, 2007 report, Dr. Suire stated that, to a reasonable degree of psychological certainty, Lieberman met the diagnostic criteria under the DSM for the following diagnoses: (1) paraphilia NOS, nonconsenting females; (2) cannabis abuse; (3) antisocial personality disorder; and (4) narcissistic personality disorder. Dr. Suire then concluded that - in his professional opinion and to a reasonable degree of psychological certainty - it was substantially probable that Lieberman would engage in acts of sexual violence in the future and recommended that the court find Lieberman to be a SVP and remain committed to the DHS treatment and detention facility.

On July 15, 2008, Lieberman filed a petition for release from custody and later filed a petition for conditional release. The Circuit Court then appointed Dr. Eric Ostrov to conduct an independent examination of Lieberman and granted Lieberman's request for an examination by Dr. Chester Schmidt. Both experts prepared reports that were submitted to the court. On September 17, 2008, the Circuit Court held a probable cause hearing to determine whether facts existed to warrant a hearing on whether Lieberman remains a SVP at which Dr. Schmidt, Dr. Ostrov, Dr. Suire, and Lieberman testified.

Lieberman's expert Dr. Schmidt testified that "paraphilia NOS, nonconsent" is not included in the DSM-IV, but admitted that the diagnosis of paraphilia NOS, nonconsent is widely used and that an ongoing debate exists in the medical community regarding this diagnosis. Dr. Schmidt also testified that Lieberman's behavior while incarcerated and civilly committed indicated that he did not suffer from paraphilia explaining that only a small fraction of rapists suffer from paraphilia. Further, Dr. Schmidt believe that Lieberman's sexual experiences as a teenager resulted in Lieberman's belief that "when women say no they really meant yes." Also, Dr. Schmidt noted that during the time period when Lieberman committed the rapes, he was acting selfishly and had no regard for the law.

Dr. Ostrov, the court-appointed expert, also testified at the September 2008 probable cause hearing stating that, within a reasonable degree of psychological certainty, Lieberman's diagnoses was paraphilia involving nonconsenting persons and a personality disorder with antisocial and narcissistic features. He testified that these disorders predispose Lieberman to committing future acts of sexual violence. Further, Dr. Ostrov testified that the DSM contains guidance for a diagnosis of paraphilia NOS, nonconsent, stating that the person must have "recurrent and intense" sexually arousing fantasies, sexual urges, or behaviors. He also explained that the DSM gives examples of the objects of these fantasies, urges or behaviors, including "children or other nonconsenting persons."

In addition, Dr. Ostrov explained several aspects of Lieberman's behavior that informed his diagnosis, including that Lieberman committed the numerous rapes despite fear of apprehension and that he continued to commit rapes even after he was arrested and released on bond. Dr. Ostrov also rejected Lieberman's position that he committed the rapes because he was young and stupid. Specifically, he testified that this conduct was not "youthful caprice" but "driven behavior." In addition, Dr. Ostrov stated that Lieberman had not participated in sex-offender treatment while in custody.

DHS expert Dr. Suire also testified at the hearing diagnosing Lieberman with "paraphilia not otherwise specified, sexually attracted to nonconsenting person nonexclusive, " cannabis abuse, antisocial personality disorder, and narcissistic personality disorder. He testified that he was aware of the disagreement in the medical community regarding the diagnosis of paraphilia NOS, nonconsent, but that this disagreement did not prevent him from diagnosing Lieberman with the disorder because "there is probably nothing in the field of psychology that doesn't have some degree of disagreement." He then explained that not all rapes are due to paraphilic urges, and thus it is important to determine if the driving force behind the rape-type behavior is an underlying specific urge toward nonconsenting sexual contact. In making this determination, Dr. Suire considered the use of a kind of "stereotype repetitious pattern, " whether the rape-type behaviors were occurring while the person had access to consenting sexual partners, the frequency of the acts of sexual misconduct, and whether Lieberman was committing other crimes while committing the rapes. Dr. Suire also noted that Lieberman had never participated in core sexual offender treatment that can "substantially reduce the risk of sexually reoffending."

Lieberman testified at the hearing that since his civil commitment, he has married, taken computer classes, obtained an Occupational Safety and Health Administration ("OSHA") certification, and participated in an institutional newsletter. He also testified that he has refused to participate in the facility's formal sexual offender treatment program because it requires that he admit that he lacks volitional control. Also, he testified that he has not participated in formal treatment because he does not want to listen to fellow detainees ...


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