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Schloss v. Scott

United States District Court, N.D. Illinois

September 13, 2017

Jeremy Lee Schloss, (880564) Petitioner,
Gregg Scott, Program Director, Rushville Treatment and Detention Facility, Illinois Department of Human Services, Respondent.



         Petitioner Jeremy Lee Schloss, a sexually violent person (“SVP”) civilly committed at the Rushville Treatment and Detention Facility, Illinois Department of Human Services (“DHS”), brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging his 2013 adjudication as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq., (“SVP Act”) in the Eighteenth Judicial Circuit Court, DuPage County, Illinois. The present petition raises 17 claims challenging his adjudication as an SVP. He also brings a motion to expand the record and introduce newly discovered evidence. The Court denies both the motion to expand the record and introduce new evidence, and the habeas corpus petition. The Court also declines to issue a certificate of appealability.

         1. Background

         The following facts are drawn from the Appellate Court of Illinois' opinion affirming Petitioner's SVP adjudication. In re Schloss, No. 2-13-0658, 2014 WL 5822912 (Ill.App.Ct. Nov. 10, 2014). The state court findings are presumed correct, and Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C. 2254(e)(1)).

         In February 2005, Petitioner pled guilty to aggravated criminal sexual abuse of his wife. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *2. His wife, C.S., was sleeping in her bed with their nine-month-old son. Id. He entered the room, pulled his wife off the bed by her legs, put his left hand over her mouth, and, with his right hand, ripped off her sweatpants and underwear, and inserted his fingers into her vagina. Id. C.S. and the baby awoke during the attack. Id. at *2. She told Petitioner that the baby needed a bottle. Id. When Petitioner went to the kitchen to prepare a bottle, C.S. grabbed the baby and fled to a neighboring home. Id.

         Petitioner was initially sentenced to 180 days in jail, and 36 months of sex offender treatment probation. Id. at *1. He was barred from contacting his wife or son as a probation term. Id. at *3. Petitioner disagreed with the contact ban as he believed the incident was consensual. Id. He violated his probation by contacting his wife by telephone. Id. The state court revoked Petitioner's probation and sentenced him to seven years imprisonment followed by two years of mandatory supervised release (“MSR”). Id. at *1.

         The state filed a petition to adjudicate Petitioner an SVP prior to his release from prison. Id. The SVP Act authorizes involuntary civil commitment of an SVP for “control, care and treatment.” In re Stanbridge, 980 N.E.2d 598, 610-11 (Ill. 2012) (quoting 725 ILCS 207/40(a)). An SVP is defined as a person who has: (1) been convicted of a sexually violent offense; (2) is a danger because he suffers from a mental disorder; and, (3) the mental disorder makes it substantially probable that he will engage in acts of sexual violence in the future. In re Stanbridge, 980 N.E.2d at 611 (citing 725 ILCS 207/5(f)). A person adjudicated as an SVP can be indefinitely committed until such time as the person is no longer an SVP. In re Stanbridge, 980 N.E.2d at 611 (citing 725 ILCS 207/40(b)(2)). At trial, the state has the burden of establishing that the individual is an SVP beyond a reasonable doubt.

         In Petitioner's SVP proceedings, the trial court granted his request to represent himself pro se and appointed a stand-by attorney to assist him. In re Commitment of Schloss, No. 2-13-0658, 2014 WL 5822912, at *2. The state's evidence at trial consisted of the expert testimony of Drs. Vasiliki Tsoflias and Edward Smith. Dr. Michael Fogel testified as an expert on Petitioner's behalf, and Petitioner provided his own lay testimony.

         Beginning with the state's evidence, Drs. Tsoflias and Smith were experts in clinical psychology. Id. at *2, *5. Dr. Tsoflias specializes in sex offender evaluations and risk assessment, while Dr. Smith specializes in treatment and risk analysis of criminal sex offenders. Id. Both doctors reviewed Petitioner's criminal history, including police and probation reports, court documents, disciplinary history, Petitioner's Illinois Department of Corrections medical files, and previous mental health examination reports. Id. Dr. Smith also interviewed Petitioner, while Dr. Tsoflias did not, because Petitioner refused to speak to her. Id.

         The materials reviewed by the doctors show that, in addition to the February 2005 attack that resulted in Petitioner's criminal conviction, Petitioner admitted to sexually assaulting C.S. on three to five other occasions. Id. at *3. In one instance, Petitioner and C.S. were having an argument when he pulled her to the floor and forcibly penetrated her digitally. Id.

         In another incident occurring on Christmas Eve 2004, Petitioner and C.S. were getting ready to go to a party at a relative's home. Id. Petitioner pressed up against C.S. in the bathroom suggesting that he wanted to have sex, but she said there was not enough time. Id. Petitioner responded by saying that they were going to have sex, and pushed C.S. onto the toilet. Id. C.S. resisted and Petitioner grabbed her by the neck, resulting in C.S. falling into the bathtub. Id. C.S. told Petitioner that they should go into the bedroom in an attempt to escape. Id. Their son then started crying in the living room. Id. C.S. went to the living room and told Petitioner to leave her alone because their son was in the room. Id. Petitioner responded that “this is how I want it, ” that he had always fantasized about raping a woman, and that this was a fantasy come true. Id. Petitioner then pulled C.S. to the ground and raped with her. Id. Subsequently, Petitioner threatened to rape C.S any time the couple argued. Id.

         In addition to Petitioner's sexual violence against C.S., Petitioner was charged in 2003 with criminal sexual abuse, but pleaded guilty to battery of a 17-year-old girl. Id. In that incident, the girl was sitting outside a house on the front steps while Petitioner was sitting a couple of steps below her. Id. Petitioner asked the girl if anyone was home, and if she wanted to have sex. Id. The girl declined. Id. Petitioner responded by touching her vagina, and the girl pushed his hand and told Petitioner to stop. Id. He repeated his attempts to touch her vagina five to six times, and the girl repeatedly pushed his hand away. Id.

         Petitioner also has five prior convictions for non-sexual offenses including theft, battery, and driving under the influence. Id. He started drinking as a teen or even earlier, and was a regular drinker as an adult. Id. He also had a history of using marijuana, cocaine, and LSD. Id. He attended some Alcoholics Anonymous groups, and had completed a substance abuse education program, but had not participated in substance abuse treatment. Id.

         Petitioner received five weeks of sex offender treatment while on probation. Id. He was offered treatment in prison, but refused, saying he did not need it. Id. Petitioner began treatment when transferred to DHS, dropped out for one year, and then restarted. Id. He was in phase two out of five of the treatment programs at DHS when his SVP trial occurred. Id.

         Dr. Tsoflias opined that Petitioner met the criteria for adjudication as an SVP. Id. at *5. Utilizing the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), Dr. Tsoflias diagnosed: paraphilia not otherwise specified, nonconsent; alcohol abuse in a controlled environment; and personality disorder not otherwise specified with antisocial and narcissistic features. Id. at *4. In support of the diagnosis, Dr. Tsoflias noted that Petitioner had committed multiple sexual assaults, fantasized about rape, and his behavior had caused significant disruption to his marriage and resulted in incarceration. Id. Petitioner showed a disregard for the safety of himself and others, as shown by his repeated criminal acts and alcohol and drug abuse. Id. He also showed a lack of remorse for his crimes and generally did not take responsibility for them. Id. Dr. Tsoflias concluded that these mental disorders predisposed Petitioner to commit acts of sexual violence because it made him more likely to act on his sexual urges and fantasies. Id.

         Dr. Tsoflias also concluded, based on several assessments, that Petitioner was likely to reoffend. Id. at *4. Petitioner scored in the moderate/high category for re-offense on the Static-99 test, high risk in the MnSOST-R test, and high level of psychopathic traits in the Hare PCLR exam. Id. Dr. Tsoflias additionally noted that Petitioner's criminality / lifestyle instability, intimacy deficit, difficulty in self-regulation, and lack of cooperation with supervisors all suggested Petitioner's likelihood to re-offend. Id.

         Dr. Smith, the other state expert, testified that he also concluded that Petitioner met the criteria for being an SVP. Id. at *6. Dr. Smith examined the same records as Dr. Tsoflias, but unlike Dr. Tsoflias, Dr. Smith was able to interview Petitioner. Id. at *5. In the interview, Petitioner attempted to minimize the incident with the girl, claiming she dressed like a “whore, ” leading Petitioner to believe the girl welcomed his behavior. Id. He also claimed he did not touch her vagina, but instead only pulled her underwear to the side. Id. Petitioner also minimized and failed to accept responsibility for the sexual assaults of his wife. Id. Finally, Petitioner described the sex offender treatment in prisoner as “bullshit.” Id.

         Like Dr. Tsoflias, Dr. Smith diagnosed Petitioner with paraphilia, alcohol dependence, and antisocial personality disorder. Id. at *6. Dr. Smith also concluded that Petitioner had an anger management problem. Id. Petitioner became extremely angry after his parents' divorce when he was a child. Id. In school, he once said something regarding climbing a clock tower and shooting people. Id. There were also records of Petitioner lashing out at other people or being disruptive while detained at the DHS facility. Id. Dr. Smith also concluded, based on the Static-99 and MnSOST-R actuarial instruments, that there was a high risk that Petitioner would reoffend as a sex offender. Id.

         Petitioner's case consisted of his testimony and the expert testimony from Dr. Fogel. Regarding the incident with the 17-year-old girl, Petitioner claimed he had known her for one year because she was his neighbor. Id. at *6. He admitted that he asked her to have intercourse, and she said no. Id. Despite that, he pulled her underwear to one side, exposing her vagina. Id. Petitioner claimed she giggled and pushed his hand away. Id. Petitioner persisted pulling her underwear three more times. Id. She again told him to stop, which he did. Id.

         Petitioner explained that the sexual assaults of C.S. occurred at a time when he was drinking heavily, but he had not used alcohol in eight years. Id. at *7. He explained that he had come to realize that his assaults of C.S. were predicated upon his feelings of extreme powerlessness, anger, lack of control, and emasculation that were triggered when C.S. rejected his efforts to have consensual sex. Id. He explained how he understood that his own prior history of being an abuse victim also influenced his behavior. Id.

         Dr. Fogel, an expert in clinical psychology specializing in sexual offenders, interviewed Petitioner for over 12 hours, spoke to his family members, and reviewed the record examined by Drs. Tsoflias and Smith. He explained that Petitioner's relationship with C.S. was dysfunctional, abusive, and influenced by Petitioner's unresolved issues regarding abuse he suffered as a child. Id. at *7.

         Petitioner's father was an alcoholic who physically and emotionally abused Petitioner's mother when Petitioner was a child. Id. The father also directed anger toward and demeaned Petitioner. Id. Additionally, Petitioner felt abandoned and unloved when his parents divorced when he was nine years old. Id. He began using anger and aggression to protect himself from being emotionally hurt. Id.

         Petitioner also reported being a victim of verbal, physical, and sexual abuse as a child. Id. Other children would beat and tease Petitioner because he was small in stature and did not have much money for clothing. Id. One of his older sisters was physically abusive towards Petitioner, touching his penis on two occasions. Id.

         When Petitioner was approximately 13 years old, a man five or six years older befriended Petitioner. Id. Petitioner spent the night at the man's home where, without Petitioner's knowledge, the man gave Petitioner alcohol. Id. The man anally raped Petitioner and forced Petitioner to perform oral sex on him. Id.

         Petitioner felt powerless after the sexual assault. Id. He used anger to lash out at others and began drinking to numb his feelings. Id. Petitioner started to have more trouble in school. Id. Despite this, Petitioner had a romantic relationship between the ages of 18 and 20 where there was no evidence of abuse. Id.

         Petitioner began experimenting with drugs between ages 19 and 21, but did not like the way they made him feel. Id. He continued to use marijuana and alcohol, but would become angry when he drank because of his unresolved childhood and abuse issues. Id. at *8.

         Petitioner met C.S. in August 2002. Id. They moved in together in 2003. Id. Soon thereafter, they began arguing, and the arguing increased once C.S. became pregnant. Id. Petitioner was verbally and emotionally abusive towards C.S. when she was pregnant. Id. Petitioner described the abuse as reinforcing his power and control in the relationship. Id.

         C.S. was a teacher with a bachelor's degree, while Petitioner had one semester at a community college. Id. Petitioner quit his job and stayed at home to care for the baby and perform household tasks while C.S. was working because it was less expensive than daycare. Id. He felt a level of inferiority and power differential from the decision to stay home with the baby, and this resulted in anger. Id.

         C.S. suffered from postpartum depression and her sexual relations with Petitioner essentially stopped after the birth of their child. Id. Petitioner explained that he had played the caretaker role since the pregnancy, and was feeling resentful and angry, like he was her “whipping boy.” Id.

         Dr. Fogel opined that Petitioner did not meet the SVP definition because he did not suffer from a condition that predisposed him to engage in acts of sexual violation, and that Petitioner did not have a mental disorder. Id. In support of this conclusion, Dr. Fogel explained that although Petitioner had sexual fantasies that C.S. would submit to his instructions, a study has shown that one-third of individuals in the non-offending population have rape fantasies. Id. He also noted that Petitioner did not manifest an arousal from the unwillingness of his victim and demonstrated an ability to stop his conduct and show remorse. Id.

         The jury adjudicated Petitioner an SVP, and he was committed to DHS custody. Id. at *9. The SVP adjudication was affirmed on direct appeal. Petitioner now proceeds with the present habeas corpus petition, (Dkt. 1.) and motion to expand the record and introduce new evidence. (Dkt. 33.)

         2. Analysis

         A. Petitioner's Motion to Expand the Record and Introduce Newly Discovered Evidence.

         Petitioner filed his motion to expand the record and introduce newly discovered evidence while the parties were briefing the habeas corpus petition. (Dkt. 33.) In sum, Petitioner argues that he has additional evidence demonstrating that he does not suffer from a mental disorder, and therefore was wrongfully adjudicated as an SVP. Petitioner does not provide the evidence he wishes to supplement, but instead provides short descriptions of the materials. He claims he has undergone sex offender treatment while in the custody of DHS including a polygraph and penile plethysmograph. He further states he has a letter from the creator of the DSV-IV and DSM-IV-TR, a quote from a former therapist, and other correspondence that support his case. He also claims to have materials supporting his ineffective assistance of counsel claims raised in the instant habeas corpus petition.

         Petitioner's motion to expand the record and introduce newly discovered evidence is denied. First, Petitioner has failed to tender the proposed evidence. He simply provides short discussions of the material in his filing. The Court has no way to verify the accuracy of Petitioner's descriptions without reviewing the source materials.

         Second, even if the source materials were tendered to the Court, Petitioner would still be unable to supplement the record with this material. Petitioner's claims are governed by the Antiterrorism and Effective Death Penalty Act. (“AEDPA”). The Court's analysis of Petitioner's claims under the AEDPA are “backward looking.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011). The Court is limited to reviewing the record before the state court at the time that court made its decision. Id. The AEDPA prohibits Petitioner from presenting new evidence that was not before the state court in support of his habeas corpus petition. Petitioner cannot present new evidence regarding his claims for the first time in this Court when that evidence was not before the state court. Price v. Thurmer, 637 F.3d 831, 837 (7th Cir. 2011).

         Finally, beyond the above stated reasons against expansion of the record, the Court notes that the evidence Petitioner seeks to introduce would not likely affect this Court's consideration of his claims for habeas corpus relief. An overarching theme of Petitioner's case is his steadfast view that he is not an SVP. He believes this new evidence will show that he is not an SVP. However, Petitioner's case can be summed up as a battle of the experts. This is not a situation where evidence conclusively disproves the state's case such as an alibi or DNA evidence showing a wrongful conviction. To the contrary, Petitioner's adjudication as an SVP occurred after the consideration of multiple experts. Petitioner attempts to marshal additional ...

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