United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
CHARLES P. KOCORAS UNITED STATES DISTRICT JUDGE
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
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)).
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.)
Petitioner's Motion to Expand the Record and Introduce
Newly Discovered Evidence.
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.
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.
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.
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