Lieberman v. Scott
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 11/6/2017:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
GREGORY SCOTT, Program Director,
Rushville Treatment and Detention
Facility, Illinois Department of Human
Case No. 16 C 6187
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court 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). For the following reasons, the Court denies
Lieberman’s habeas petition and declines to certify any issues for appeal under 28 U.S.C. §
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 June 26, 2015) (unpublished), appeal denied, 42 N.E.3d 370 (Ill.
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 newlyadministered 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
See, e.g., Lieberman v. Scott, No. 13 C 8599, 2014 WL 2832834 (N.D. Ill. June 23,
2014); In re. Det. of Stanbridge, 980 N.E.2d 598 (Ill. 2012); In re Det. of Lieberman, 962 N.E.2d
482 (Ill. 2011); In re Det. of Lieberman, 943 N.E.2d 1100 (Ill. 2011); In re Det. of Lieberman,
955 N.E.2d 118 (1st Dist. 2011); In re Det. of Lieberman, No. 1-09-2162, 2011 WL 9699478
(1st Dist. 2011); In re Det. of Lieberman, 935 N.E.2d 515 (Ill. 2010).
(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.
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 (MnSOST–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.
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
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
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. Rypma observed that
studies indicate more research on this topic is needed:
While Mr. Lieberman has certainly not chosen to participate in the formal
treatment program at Rushville, this evaluator is unable to conclude that the has
not achieved “Substantial Progress” in the environment in which he has lived over
the past six years of his confinement.
In re Det. of Lieberman, 2015 WL 3939872, at *4.
In October 2012, the State filed a motion for a finding of no probable cause based on Dr.
Weitl’s annual reexamination report. Again, Lieberman refused to participate in an interview
with Dr. Weitl. Accordingly, Dr. Weitl prepared her 2012 reexamination report based on the
same materials as the 2011 report, along with Dr. Rypma’s report and a brief interaction with
Lieberman. She then concluded that Lieberman continued to suffer from paraphilia NOS and
antisocial personality disorder. Moreover, Dr. Weitl concluded that Lieberman’s mental
disorders make it substantially probable that he will reoffend basing her conclusion on the
Static–99. Dr. Weitl noted that she did not use the Static–99R version like Dr. Rypma because
while that version was recommended for use beginning in 2009, the data used to develop this
revised version was not available until August 2011. Dr. Weitl explained that the Static–99R
“has yet to be published or peer reviewed and there appears to remain some controversial issues
surrounding the heavily weighted age item.” In re Det. of Lieberman, 2015 WL 3939872, at *4.
Lieberman scored a 7 on the Static–99 indicating he was high risk. Dr. Weitl also used the
MnSOST–R instrument, which is intended to identify predatory and violent sexual offenders.
Lieberman scored in the highest risk category for sexual re-offense. In her report, Dr. Weitl
noted that she had accounted for reductions in risk based on Lieberman’s age. She
recommended that Lieberman continue to be found a sexually violent person under the SVPCA
and that he should remain committed to the DHS for further secure care and sexual offense
Moreover, at her 2013 deposition, Dr. Weitl testified that Lieberman’s mental disorders,
namely, paraphilia NOS and antisocial personality disorder, predispose him to engage in acts of
sexual violence. She testified that her opinion was based on his actions in committing the sexual
assaults in 1979 and 1980. When asked if anything since then adds to her conclusion that
Lieberman lacks volitional control, she stated that “in the definition of paraphilias they’re
considered chronic, life-long disorders that don’t go away. So it’s inferred that those disorders
don’t go away, that he still has that predisposition.” In re Det. of Lieberman, 2015 WL 3939872,
at *5. Dr. Weitl also testified that her opinion was not affected by Dr. Rypma’s opposite
conclusions. In addition, Dr. Weitl explained that she accounted for Lieberman’s age in the
actuarial testing she used in reaching her conclusions.
At his 2013 deposition, Dr. Rypma testified that Lieberman never suffered from a
paraphilia even when committing the 1979 and 1980 sexual assaults. Further, Dr. Rypma stated:
Q: Are you saying that [Lieberman] no longer suffers from a paraphilia, or are
you saying that he never did suffer from a paraphilia?
A: I find from my review of the records that Bradley Lieberman was never
suffering from a paraphilia. I am aware, however, that the Court has found
otherwise. I believe what I tried to say is that if he did at one time it’s not
Q: Okay. Now, to find out if he ever did suffer from a paraphilia, does it help to
know why he offended?
Q: Why is that?
A: I believe that he was dealing with some anger issues that dealt with his family
of origin. He grew up in a family that is described throughout the record as well
as by himself, as well as by interviews that I conducted to be a very close family
His parents were divorced. There was some indication in the record as I recall
sitting here right now that he had recently left his mother’s house and was living
with his dad at the time of the offense.
As I thought through the issue of paraphilia versus general criminal conduct, I
believe that that was what was going on. I do not believe that he was suffering
from a disorder of sexual arousal as I understand the diagnostic requirements.
In re Det. of Lieberman, 2015 WL 3939872, at *6. When asked why Lieberman committed the
1979 and 1980 offenses, Dr. Rypma stated that “he was young, he was irresponsible, he was
impulsive, he was 20 years old. He was–felt as many 20–year–olds I’ve come across feel, more
powerful than they really are. He was an irresponsible kid.” Id. In September 2013, Lieberman
filed another petition for discharge relying on Dr. Rypma’s report that he no longer suffers from
The Circuit Court conducted a hearing in March 2014 on the pending motions, namely,
the State’s 2011 and 2012 motions for no probable cause, as well as Lieberman’s February 2012
and September 2013 petitions for discharge. At the hearing, the court granted both motions for a
finding of no probable cause and denied Lieberman’s petitions for discharge as follows:
The issue is is there a plausible account of changed circumstances such that he is
no longer, has the mental disorder towards no longer likely to perform acts of
The opinions of the people that were submitted, Dr. Rypma, indicate that, and
these are issues that were heard and rejected by the jury, rape is not a paraphilia,
rejected by the jury; didn’t rape anyone in the penitentiary, therefore he’s okay,
rejected by the jury.
These tests that—the Impulsiveness Scale, Iowa Test, those were not heard by the
jury granted, but they don’t—on their own they don’t go not [sic] future dangers
sufficiently to that there are any changed circumstances.
Rypma is saying I don’t believe he has this thing because I don’t believe it exists.
And that was rejected by the jury, it’s also been rejected by the Supreme Court I
might add on this very case. It’s—I don’t see a sufficient change in
circumstances that indicate that he no longer has this mental disorder quite
In re Det. of Lieberman, 2015 WL 3939872, at *6-7. Lieberman appealed.
On appeal, Lieberman, by counsel, argued that: (1) the Circuit Court erred in denying his
SVPCA petitions for discharge because he established probable cause by providing a plausible
account that he is no longer a sexually violent person and that the court erred in failing to
properly apply the Supreme Court of Illinois’ decisions in In re Detention of Stanbridge and In
re Detention of Hardin; and (2) Dr. Weitl did not evaluate his current mental state, but rather
based her assessment solely on his past criminal conduct. On June 26, 2015, the Illinois
Appellate Court affirmed the Circuit Court concluding that Lieberman failed to present a
plausible account that he was no longer a sexually violent person. The appellate court also
rejected Lieberman’s argument that Dr. Weitl’s assessment was solely based on his past criminal
conduct as belied by the record.
Lieberman, by counsel, then filed a timely petition for leave to appeal (“PLA”) to the
Supreme Court of Illinois arguing that: (1) the Illinois Appellate Court erred in applying In re
Det. Stanbridge when it held that Dr. Rypma’s evaluation and the new evidence based on neverperformed psychometric tests failed to establish a plausible account that he no longer suffers
from a mental disorder; (2) the Illinois Appellate Court committed reversible error when it relied
solely on the statistical probability that he will recidivate to justify his continued confinement
regardless of his mental health; and (3) the Illinois courts impermissibly engaged in credibility
determinations regarding Dr. Rympa’s testimony in violation of In re Det. Hardin. The Supreme
Court of Illinois denied Lieberman’s PLA on November 25, 2015.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court
cannot grant habeas relief unless the state court’s decision was contrary to, or an unreasonable
application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529
U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Pinno v. Wachtendorf, 845 F.3d 328,
331 (7th Cir. 2017). The Supreme Court has explained that a state court’s decision is “contrary
to” clearly established Supreme Court law “if the state court arrives at a conclusion opposite to
that reached by this 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 a result
opposite to ours.” Williams, 529 U.S. at 405. Under the “unreasonable application” prong of the
AEDPA standard, a habeas petitioner must demonstrate that although the state court identified
the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See id.
Exhaustion and Procedural Default
“A federal habeas corpus petitioner is required to exhaust his available state remedies
before seeking federal relief.” Lisle v. Pierce, 832 F.3d 778, 785 (7th Cir. 2016) (citing 28
U.S.C. § 2254(b)(1)(A)). “Inherent in the habeas petitioner’s obligation to exhaust his state court
remedies before seeking relief in habeas corpus, is the duty to fairly present his federal claims to
the state courts.” King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) (citation omitted). More
specifically, a habeas petitioner must fully and fairly present his federal claims through one full
round of state court review before he files his federal habeas petition. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Tabb v. Christianson,
855 F.3d 757, 765 (7th Cir. 2017). If a habeas petitioner fails to fully and fairly present his
federal claims through one full round of state court review, he has procedurally defaulted his
claims. Tabb, 855 F.3d at 765. Procedural default precludes federal habeas courts from
reviewing the merits of a petitioner’s habeas claims. Thomas v. Williams, 822 F.3d 378, 384 (7th
A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing that the Court’s failure to consider the claim would
result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536, 126 S.Ct.
2064, 165 L.Ed.2d 1 (2006); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991). The Supreme Court defines cause sufficient to excuse procedural default as
“some objective factor external to the defense” which prevents a petitioner from pursuing his
constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986); Johnson v. Foster, 786 F.3d 501, 505 (7th Cir. 2015). Prejudice means
actual prejudice infecting the “entire trial with error of constitutional dimensions.” Murray, 477
U.S. at 494 (citation omitted). A fundamental miscarriage of justice occurs when a habeas
petitioner establishes that “a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Id. at 496.
Substantive Due Process Claim
In his first habeas claim, Lieberman asserts that the Illinois courts violated his substantive
due process rights by ignoring newly-administered psychological tests that established he is not a
SVP and does not have a mental disorder. Construing his pro se filings liberally, see Grant, 870
F.3d at 569, Lieberman bases his substantive due process claim on his civil confinement being “a
massive curtailment of liberty[.]” Vitek v. Jones, 445 U.S. 480, 491 (1980); see also Addington
v. Texas, 441 U.S. 418, 425 (1979) (“civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection”); In re Det. of New, 992 N.E.2d 519,
521 (1st Dist. 2013) (“Essentially, the respondent’s liberty is tied to an assessment of the mental
disorder and the risk of future sexual offenses.”). Part of Lieberman’s second habeas claim also
falls under the due process clause as explained in Kansas v. Hendricks, 521 U.S. 346, 368-69
(1997). See Hughes v. Dimas, 837 F.3d 807, 808 (7th Cir. 2016) (“the Supreme Court
understands the Fourteenth Amendment to require that civil detainees receive treatment for the
disorders that led to their confinement and be released when they’ve improved enough no longer
to be dangerous”). Respondent, however, argues that Lieberman has procedurally defaulted his
due process claim because he did not raise it through one complete round of Illinois appellate
review before presenting this claim in his habeas petition. See Hicks v. Hepp, 871 F.3d 513, 530
(7th Cir. 2017). The Court agrees.
On appeal, Lieberman, by counsel, argued that the Circuit Court did not adhere to the
Supreme Court of Illinois’ decisions in In re Detention of Stanbridge and In re Detention of
Hardin because the court failed to consider the new evidence presented by Dr. Rypma and
improperly accepted Dr. Weitl’s 2011 and 2012 reports as sufficient. (R. 8-11, 12/01/14
Corrected Opening Brief, at 12-13.) Lieberman also argued that he was being civilly detained
based on his past conduct and not his current mental state. (Id. at 17-19.) At no point in his
opening or reply legal memoranda on direct appeal did Lieberman argue that the Circuit Court
violated his due process rights. Lieberman, however, mentions his due process rights in his
September 4, 2015 PLA to the Supreme Court of Illinois. Nonetheless, he has procedurally
defaulted his due process claim for failing to raise it to the Illinois Appellate Court. See Brown
v. Brown, 847 F.3d 502, 517 (7th Cir. 2017) (“A federal court will not hear a state prisoner’s
habeas claim unless the prisoner has first presented it to the state courts for one full round of
To overcome his procedural default, Lieberman relies upon the fundamental miscarriage
of justice exception, also known as the actual innocence exception. (R. 17, Reply, at 19.)
Although the Seventh Circuit has concluded that the fundamental miscarriage of justice
exception applies to civil commitment cases, see Schmidt v. McCulloch, 823 F.3d 1135, 1137
(7th Cir. 2016), the Seventh Circuit has also explained that the “correct application of the actual
innocence exception to civil commitment cases is a difficult one.” Brown v. Watters, 599 F.3d
602, 610 (7th Cir. 2010). In any event, “[t]o pass through the actual-innocence gateway to a
merits review of a procedurally barred claim, the petitioner must have ‘new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial,’ and must persuade the district court that it is
‘more likely than not that no reasonable juror would have convicted him in light of the new
evidence[.]’” Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016) (citations omitted). In
support of his actual innocence claim, Lieberman points to Dr. Weitl’s 2013 reexamination
report that was not part of the underlying state court proceedings forming the basis of his present
habeas petition. See In re Det. of Lieberman, 80 N.E.3d 649, 652 (1st Dist. 2017), appeal
denied, No. 122443, 2017 WL 4386869 (Ill. Sept. 27, 2017). In other words, Lieberman does
not present evidence of his actual innocence, but challenges findings made in relation to his 2014
discharge proceedings based on his 2013 annual reexamination that are the subject of a separate
state court appeal. Therefore, his procedurally defaulted due process claim is not excepted by his
alleged actual innocence, and thus the Court is barred from considering the merits of this claim.
See Crockett v. Butler, 807 F.3d 160, 166 (7th Cir. 2015).
Lieberman also argues that the Illinois Appellate Court impermissibly relied on a non-
statutory “made up” statistical likelihood of recidivism as proof of his mental disorder. Viewing
this claim as a challenge to the Illinois courts’ application of the SVPCA, any such claim is not
cognizable on habeas review because “[f]ederal habeas corpus relief is not available to correct
perceived errors of state law.” Crockett, 807 F.3d at 168. In other words, “it is only
noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral
attack in the federal courts[.]” Wilson v. Corcoran, 562 U.S. 1, 5, 131 S.Ct. 13, 178 L.Ed.2d 276
(2010) (emphasis in original). Likewise, Lieberman asserts that the Illinois courts improperly
relied on Dr. Weitl’s contradictory testimony and that the courts’ conclusions were inconsistent
with In re Commitment of Gavin, 14 N.E.3d 1163, 1185 (1st Dist. 2014). Again, Lieberman’s
claims concern questions of state law not cognizable on habeas review. See Estelle v. McGuire,
502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“habeas corpus relief does not lie for
errors of state law.”). Simply put, “[i]t is well-established that on habeas review, a federal court
cannot disagree with a state court’s resolution of an issue of state law.” King v. Pfister, 834 F.3d
808, 814 (7th Cir. 2016).
That being said, Lieberman also argues that “[a]ll claims raised in this petition
demonstrate Illinois’ departure from constitutional limits imposed by SCOTUS in Kansas v.
Hendricks, 521 U.S. 346 (1997) and its progeny.” (R. 1, Habeas Petition, at 5.) From the record,
it appears Lieberman is arguing that the Illinois Appellate Court solely relied upon his statistical
likelihood of re-offense as the basis for his continued confinement in violation of the Hendricks
Court’s admonishment that a “finding of dangerousness, standing alone, is ordinarily not a
sufficient ground upon which to justify indefinite involuntary commitment.” (See Ex. N., 9/4/15
PLA, at 16.). Based on Hendricks, Lieberman takes issue with the Illinois Appellate Court’s
failure to find him both mentally ill and dangerous. See Foucha v. Louisiana, 504 U.S. 71, 77
(1992); Varner v. Monohan, 460 F.3d 861, 864 (7th Cir. 2006) (“The Supreme Court has told us
that civil commitment of persons with both mental defects and dangerous proclivities comport
with the Constitution”).
Not only is this argument procedurally defaulted, but it is factually baseless. To clarify,
the Illinois Appellate Court determined that Lieberman had mental disorders, namely, paraphilia
NOS and antisocial personality disorder and that he was likely to reoffend based on evidence in
the record, including both Dr. Rympa’s and Dr. Weitl’s deposition testimony. As such, the Court
denies this aspect of Lieberman’s habeas petition.
Evidentiary Hearing under 28 U.S.C. § 2254(e)(2)
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Stechauner v. Smith, 852 F.3d 708, 721 (7th Cir. 2017)
(quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2001)). Moreover, under § 2254(e)(2), federal
courts do not hold evidentiary hearings in habeas cases except in limited circumstances – none of
which apply here. See Avila v. Richardson, 751 F.3d 534, 537 (7th Cir. 2014) (“AEDPA
forecloses federal-court fact-finding, except in certain unusual circumstances not present here”).
Accordingly, the Court will not conduct an evidentiary hearing in this matter.
Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Lieberman a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present ruling.
A habeas petitioner does not have the absolute right to appeal a district court’s denial of his
habeas petition, rather, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); Flores-Ramirez v.
Foster, 811 F.3d 861, 865 (7th Cir. 2016). A habeas petitioner is entitled to a certificate of
appealability only if he can make a substantial showing of the denial of a constitutional right.
See Miller-El, 537 U.S. at 336; 28 U.S.C. § 2253(c)(2). Under this standard, Lieberman must
demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quoting
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Similarly, in
cases where a district court denies a habeas claim on procedural grounds, a certificate of
appealability should issue only if the petitioner shows that (1) jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right, and (2)
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling. See Slack, 529 U.S. at 485.
Here, Lieberman has not established that reasonable jurists would debate the Court’s
procedural ruling concerning his due process challenges nor that certain claims are not
cognizable on habeas review. Moreover, Lieberman has not established that jurists of reason
would debate the Court’s merits determinations. Therefore, the Court declines to certify any
issues for appeal. See 28 U.S.C. § 2253(c)(2).
For these reasons, the Court denies Lieberman’s petition for a writ of habeas corpus and
declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d).
Dated: November 6, 2017
AMY J. ST. EVE
United States District Judge
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