United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINON AND ORDER
Honorable Marvin E. Aspen, United States District Judge.
us is Petitioner Brad Lieberman's petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Pet. (Dkt.
No. 1).) For the reasons set forth below, we deny
Petitioner's request for habeas relief.
following facts are taken from the decision of the Illinois
Appellate Court, In re Det. of Lieberman, 2017 IL
App (1st) 160962, 80 N.E.3d 649 (1st Dist.
2017). In 1980, Petitioner was convicted of
multiple counts of rape. Id. ¶ 2 (quoting
In re Det. of Stanbridge, 2012 IL 112337,
¶¶ 19-22, 980 N.E.2d 598 (Ill. 2012) (considering
Petitioner's earlier appeal to the Illinois Supreme Court
in a consolidated case)). He was sentenced to concurrent
terms of imprisonment. Id. Before his scheduled
release in 2000, Petitioner was involuntarily committed to
the Illinois Department of Human Services (the
“Department”) pursuant to the Illinois Sexually
Violent Persons Commitment Act (the “Act”), 725
ILCS 207/1 et seq. Id. In February 2006, a
jury found Petitioner to be a sexually violent person under
the Act. Id. At the time, the diagnosis forming the
basis of Petitioner's commitment was a mental disorder
called paraphilia, not otherwise specified, sexually
attracted to nonconsenting persons (“PNOS”).
person is committed, the Department must submit a written
report on the person's condition at least once every
twelve months to determine whether “(1) the person has
made sufficient progress in treatment to be conditionally
released and (2) the person's condition has so changed
since the most recent periodic examination (or initial
commitment, if there has not yet been a periodic
reexamination) that he or she is no longer a sexually violent
person.” 725 ILCS 207/55(a).
Department performed the requisite annual evaluations and
produced yearly reports on Petitioner's condition.
Lieberman, 2017 IL App (1st) 160962 at ¶ 3.
From 2007 to 2012, evaluators determined that Petitioner
continued to suffer from PNOS. (Pet'r's Exs. 16-21
(Dkt. No. 3-2 at PageID #:367-487; Dkt. No. 3-3 at PageID
2013, Petitioner's diagnosis changed. (Pet'r's
Ex. 1 (Dkt. No. 3-2 at PageID #:40-53).) Dr. Kimberly Weitl
prepared the 2013 reexamination report. Lieberman,
2017 IL App (1st) 160962 at ¶ 5. Petitioner refused an
interview with Dr. Weitl for the reexamination. Id.
Based on Petitioner's criminal history and
Petitioner's history of disciplinary issues in prison,
Dr. Weitl found, using the Diagnostic and Statistical Manual
of Mental Disorders (“DSM”), that Petitioner met
the diagnoses of sexual sadism and antisocial personality
disorder. Id. ¶¶ 6-8.
Dr. Weitl explained that sexual sadism “is a paraphilia
disorder that involves inflicting physical or psychological
pain and suffering on a non-consenting person during a sexual
act.” Dr. Weitl noted that [Petitioner] was
“formerly diagnosed with Paraphilia Not Otherwise
Specified, Non-Consent, but using the newly released fifth
edition of the DSM it is clear that he meets the diagnosis
for Sexual Sadism.” . . . She further stated that
sexual sadism was “considered a mental disorder under
Id. ¶ 8. Dr. Weitl determined that “[a]s
a result of [Petitioner's] mental disorder(s), it is
substantially probable that (he) will engage in acts of
sexual violence, ” that he “should continue to be
found a Sexually Violent Person, ” and that he
“should remain committed to the Illinois Department of
Human Services-Treatment and Detention Facility” for
further care. Id. ¶ 11. Based on Dr.
Weitl's report, the State of Illinois
(“State”) on March 19, 2014 filed a motion for a
finding that no probable cause existed to conclude that
Petitioner was no longer a sexually violent person under the
Act. Id. ¶ 4.
9, 2014, Petitioner filed a petition for discharge claiming
that he was entitled to release because of his change of
diagnosis from PNOS to sexual sadism. Id. ¶ 12.
Petitioner also argued that his civil commitment based on
sexual sadism violated his due process rights. Id.
The State argued that it was Petitioner's burden to show
that he was no longer sexually violent and his challenge to
his new diagnosis did not meet that burden. Id.
¶ 13. The State also argued that due process does not
require a new trial when an evaluator determines a person
remains sexually violent under a different diagnosis.
November 14, 2014, the trial court ordered discovery
regarding the significance of the new diagnosis. Id.
¶ 14. During her deposition, Dr. Weitl
testified that nothing in [Petitioner]'s condition or
behavior had changed since the most recent prior
reexamination, and aside from the version of the DSM, the
documents she used in making her diagnoses were the same. . .
What had changed, however, was an addition to the DSM-5
sexual sadism “Diagnostic Features, ” which
instructed that “[t]he diagnostic criteria for sexual
sadism disorder are intended to apply both to individuals who
freely admit to having such paraphilic interests and to those
that deny any sexual interest in the physical or
psychological suffering of another individual despite
substantial objective evidence to the contrary.” Dr.
Weitl explained that prior to this addition, she was not able
to diagnose [Petitioner] with sexual sadism under the DSM
IV-TR because the diagnostic criteria required her to know
respondent's motive for engaging in the violent behavior,
specifically that the victim's suffering was
“sexually exciting” to respondent. . . . [O]nce
the DSM-5 was released and explicitly directed that the
disorder could be diagnosed where the person denied such
interest “despite substantial objective evidence to the
contrary, ” Dr. Weitl believed that sexual sadism
“better describe[d]” respondent's behavior
and mental disorder.
When asked whether PNOS and sexual sadism were different
mental disorders, Dr. Weitl explained that “a yes or no
question” was not appropriate. She testified that she
was “telling the truth” when she had previously
diagnosed him with PNOS, but based on the new version of the
DSM, she concluded that [Petitioner] “still has a
Paraphilia” but his paraphilia was no longer “Not
Otherwise Specified” and instead was now
“specified by Sexual Sadism.” When questioned
about whether [Petitioner] no longer has PNOS, or whether he
could still be diagnosed with PNOS, Dr. Weitl testified that
PNOS could ‘‘still describe his
behavior'' and that “he is still attracted to
non-consenting victims.” Dr. Weitl testified that she
“would not say that he doesn't” have PNOS,
but she believed that the sexual sadism diagnosis better
described his behavior based on the instructions of the new
Dr. Weitl further testified that paraphilic disorders,
including PNOS and Sexual Sadism, are “chronic,
lifelong disorders” that do not go away but can be
managed with treatment. [Petitioner], however, had refused to
participate in any such treatment.
Id. ¶¶ 15-18. Although Petitioner
maintained that he should be discharged because his civil
commitment was based on a PNOS diagnosis, the State
reiterated that it was Petitioner's burden to show he no
longer had a mental disorder or was no longer substantially
likely to engage in acts of sexual violence. Id.
¶¶ 19, 21. The trial court agreed with the
State's position and granted its motion finding that no
probable cause existed to warrant discharge and denied
Petitioner's motion for discharge. Id. ¶
appealed the trial court's decision claiming that the
court violated his due process rights because it erred in
finding no probable cause to warrant his discharge.
Id. ¶ 25. The Illinois Appellate Court upheld
the trial court's decision and found no merit to
Petitioner's constitutional contentions because all the
evidence before the trial court indicated that Petitioner
continued to suffer from a mental disorder and that he would
be substantially probable to reoffend if released.
Id. ¶¶ 47, 62-64.
state court, Petitioner also alleged the State prevented him
from using the 2013 reexamination report in proceedings
related to his 2011 and 2012 reexaminations and therefore
committed a violation under Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963). Lieberman, 2017 IL
App (1st) 160962 at ¶ 55. The appellate court rejected
this argument, stating that Petitioner did not provide
authority that Brady applies to civil proceedings
pursuant to the Act. Id. ¶ 58. Even if
Brady did apply, the appellate court found
Petitioner would not be afforded relief in any event because
Dr. Weitl's reexamination report was not favorable to
him, exculpatory, or prejudicial. Id. ¶¶
6, 2017, Petitioner filed a Petition for Leave to Appeal to
the Illinois Supreme Court to reverse the appellate
court's decision allowing Petitioner's civil
commitment to continue. (Dkt. No. 10). The Illinois Supreme
Court denied Petitioner's petition for discharge.
Id. The present petition followed. (Pet.)
empowered to grant a writ of habeas corpus only if Petitioner
is imprisoned “in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112
S.Ct. 475, 480 (1991). Federal habeas relief may be granted
to a petitioner who can establish that the state court's
adjudication of his claim was “contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,
” 28 U.S.C. § 2254(d)(1), or where the state
court's decision was “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding, ” id. §
§ 2254(d)(1), the “contrary to” and
“unreasonable application” clauses are given
independent meaning. Williams v. Taylor, 529 U.S.
362, 405, 120 S.Ct. 1495, 1519 (2000). A state court decision
is “contrary to” established Supreme Court
precedent if the state court “arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law” or if the state court “confronts facts
that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at [an opposite result].”
court decision is “an unreasonable application”
of Supreme Court precedent if the state court
“identifies the correct governing legal rule from [the
Supreme] Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case” or
if the state court “either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.”
Id. at 407. The reasonableness inquiry “is
quite deferential, such that a state decision may stand so