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Lieberman v. Scott

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

November 6, 2017

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



         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). For the following reasons, the Court denies Lieberman's habeas petition and declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).


         When considering habeas petitions, federal courts must presume the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Hicks v. Hepp, 871 F.3d 513, 525 (7th Cir. 2017). Where Lieberman has not provided clear and convincing evidence to rebut this presumption, the following factual background is based on the Illinois Appellate Court's findings in In Detention of Brad Lieberman, No. 1-14-1360, 2015 IL App (1st) 141360-U (1st Dist. June 26, 2015) (unpublished), appeal denied, 42 N.E.3d 370 (Ill. 2015).

         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' Sexually 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”). Since his commitment, Lieberman has periodically and unsuccessfully petitioned for discharge or conditional release and the Court presumes familiarity with these earlier challenges.[1] Lieberman's challenges are based on the SVPCA's required yearly report that determines “whether the person has made sufficient progress to be conditionally released or discharged.” 725 ILCS 207/55(a).

         The present § 2254(d) habeas petition challenges the state court proceedings resulting from Lieberman's 2011 and 2012 reexaminations. Construing his pro se habeas pleadings liberally, see Grant v. Trs. of Ind. Univ., 870 F.3d 562, 569 (7th Cir. 2017), Lieberman argues that the Illinois courts erred when granting the State's 2011 and 2012 motions for findings of no probable cause and denying his corresponding 2012 and 2013 petitions for discharge or conditional release. More specifically, Lieberman contends:

(1) The Illinois courts violated his due process rights by ignoring newly-administered psychological tests that established he is not a SVP and does not have a mental disorder;
(2) The Illinois Appellate Court impermissibly relied upon a non-statutory statistical likelihood of recidivism as proof of his mental disorder; and
(3) The Illinois courts improperly relied upon Dr. Kimberly Weitl's expert conclusion that he currently suffers from a mental disorder and is a SVP.

         II. Relevant Proceedings

         In November 2011, the State filed a motion for a finding of no probable cause to warrant an evidentiary hearing on the issue of whether Lieberman is currently a sexually violent person in need of treatment on a secure basis. In support of its motion, the State included an October 2011 report prepared by Dr. Weitl. In her report, Dr. Weitl indicated that Lieberman refused to participate in an interview with her and that he has not participated in any sex offender treatment programs while at Rushville. She further stated that she prepared her report based on the record from Lieberman's criminal trial, his master treatment plan, progress notes, Illinois Department of Corrections disciplinary reports, prior examinations, the Static-99 actuarial instrument, the Minnesota Sex Offender Screening Tool-Revised (Mn SOST-R), and peer consultation. Based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), Dr. Weitl diagnosed Lieberman with paraphilia, not otherwise specified, nonconsenting females (paraphilia NOS), and antisocial personality disorder. Specifically, Dr. Weitl concluded:

As a result of Mr. Lieberman's mental disorder(s), it is substantially probable that (he) will engage in acts of sexual violence. He scored in the [h]ighest risk categories on two actuarial instruments and has several additional empirically based risk factors. Age may serve as a protective factor, but does not decrease his risk below that of substantially probable.

In re Det. of Lieberman, 2015 WL 3939872, at *2.

         Lieberman filed a response to the State's motion arguing that (1) Dr. Weitl's diagnosis of paraphilia NOS does not exist in the DSM; and (2) Dr. Weitl did not conduct a personal examination of him and that her conclusions are based on his prior crimes from 1979 and 1980. In February 2012, Lieberman filed a petition for discharge or conditional release asserting that he is not a sexually violent person under the SVPCA, that he is not in need of commitment, and that it is not substantially probable that he will engage in acts of sexual violence if discharged or conditionally released. Further, Lieberman filed a motion to appoint Dr. Craig Rypma for his yearly petition for discharge. In March 2012, the Circuit Court granted the State's motion for a finding of no probable cause, granted Lieberman's motion to appoint Dr. Rypma, and continued the matter.

         In his March 2012 memorandum supporting his petition for discharge, Lieberman included a declaration from Dr. Allen Frances. Dr. Frances averred that he was a member of the DSM-IV task force that prepared the official manual used to guide psychiatric diagnoses. In discussing paraphilia NOS, Dr. Frances explained that the task force “never anticipated that [the] opening sentence of the section would be considered a forensic definition of Paraphilia or be used in determining the suitability of long term psychiatric incarceration in SVP cases.” In re Det. of Lieberman, 2015 WL 3939872, at *2. Dr. Frances disagreed with Dr. Weitl's diagnosis and agreed with an expert in Lieberman's prior SVPCA proceedings in “finding no evidence to support a diagnosis of paraphilia.” Id. Dr. Frances also agreed with this prior expert's “characterization of ‘Paraphilia NOS sexually attracted to nonconsenting females' as made up, non-official, and scientifically unsupported.” Id.

         In September 2012, Dr. Rypma filed an annual independent progress review with the court explaining:

Mr. Lieberman does not qualify for a diagnosis of a paraphilia. In order for an individual to qualify for the diagnosis of a paraphilia, there must be evidence of recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors generally involving nonhuman objects, suffering or humiliation of oneself or one's partner, children, or other non-consenting persons. There is not sufficient evidence in this record to justify this diagnosis. He has not demonstrated an ongoing, let alone intense urge for engaging in assaultive sexual activity.

Id. In addition, Dr. Rypma observed that there is a conflict within the psychiatric community about the validity of a paraphilia NOS diagnosis for the purpose of civil commitment. More specifically, he explained that “[t]his practice risks inaccurately conveying to the [c]ourt that an examinee suffers from a sexual disorder, when indeed their sexual crimes have been secondary to a more primary disorder, not contemplated by the civil commitment laws.” Id. at 3. Further, Dr. Rypma concluded that Lieberman did not qualify for a diagnosis of antisocial personality disorder. His report also included results from several psychological tests, including the Static- 99R, which is an actuarial instrument used to assess the risk of recidivism. This version of the instrument included reductions in the risk based on the offender's age. Lieberman received a score of 7, which placed him in the “high range, relative to other sex offenders.” Id. The other tests Dr. Rypma administered included the Psychopathy Checklist-Revised (PCL-R) rating scale, the SILS intelligent screening instrument, the MCSDS test, the Barratt Impulsiveness Scale, the Iowa Gambling Test, the Personality Assessment Inventory, and the Millon Clinical Multiaxial Inventory III.

         In October 2012, Dr. Rypma submitted a supplemental report addressing changes to the SVPCA. In this report, he considered whether the SVPCA required the court to find that Lieberman “has substantially changed as the result of treatment.” Dr. ...

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