Lieberman, Brad v. Thomas, Brian ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3922
BRAD LIEBERMAN,
Petitioner-Appellant,
v.
BRIAN THOMAS, Director,1
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2531—Wayne R. Andersen, Judge.
____________
ARGUED MAY 2, 2007—DECIDED OCTOBER 10, 2007
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. After he served a twenty-
year prison sentence for multiple rape convictions, Brad
Lieberman was legally determined to be a sexually vio-
lent person and was civilly committed to the custody of
the Illinois Department of Human Services. To say that
Lieberman challenged the State of Illinois’ petition to have
him civilly committed would be an understatement. Since
1
After this appeal was filed, Brian Thomas replaced Thomas
Monahan as the director of the facility where the petitioner
is being held. We have therefore substituted Brian Thomas as
the respondent. See Fed. R. App. P. 43(c).
2 No. 05-3922
2000, Lieberman has simultaneously sought relief in the
courts of no less than three Illinois counties and in one
federal district court.
Lieberman’s effort to obtain federal habeas relief is at
issue in this appeal. Lieberman contends that after the
State moved to have him committed, he was denied a
probable cause hearing in the time required by Illinois law,
and as a result, his Fourteenth Amendment right to due
process was violated. Lieberman, however, did not give
the state courts the opportunity to review this question
because he failed to fairly present the federal nature of
his claim for state habeas relief. Therefore, like the dis-
trict court, we find that Lieberman procedurally defaulted
his claim, which precludes us from reaching the merits.
See Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
We further note that the merits of the petition would not
entitle Lieberman to habeas relief because he fails to
establish how the state court’s adjudication of his case
resulted in a decision that was contrary to, or an unreason-
able application of, Supreme Court precedent, or based
on an unreasonable determination of the facts. See 28
U.S.C. §§ 2254(d)(1) & (2). For these reasons, we affirm
the judgment of the district court.
I. BACKGROUND
A. State Court Proceedings
In 1980, Lieberman was convicted in Cook County,
Illinois, of six counts of rape and one count of attempted
rape, and sentenced to a number of concurrent prison
terms, the longest consisting of forty years. That same
year in Lake County, Illinois, Lieberman was also con-
victed of rape, robbery, and intimidation and sentenced to
a thirty-year prison term to run concurrently with his
Cook County sentences. After serving twenty years of his
No. 05-3922 3
sentence, Lieberman was scheduled for release on January
9, 2000. Before that day’s arrival, the Illinois Attorney
General filed a petition to civilly commit Lieberman under
the Illinois Sexually Violent Persons Commitment Act. See
725 Ill. Comp. Stat. § 207 et seq. This statute allows the
court to civilly commit an individual who has been con-
victed of a sexually violent offense and is dangerous
because the person suffers from a mental disorder that
makes it substantially likely he will commit further acts
of sexual violence. Id. §§ 207/5(f) & 207/40(a). If the State
seeks to commit a person already in custody, the statute
requires a trial court to hold a hearing within seventy-two
hours of the State’s filing to “determine whether there
is probable cause to believe that the person named in the
petition is a sexually violent person.” Id. § 207/30(b). If,
after the hearing, the trial court finds that probable cause
exists, it must hold a trial within 120 days. Id. § 207/35(a).
A person found by the trial court or a jury to be sexually
violent will be committed to the custody of the Illinois
Department of Human Services. Id. § 207/40.
On January 6, 2000, one day after the State filed its
petition, a Cook County trial judge ordered Lieberman
detained pending the outcome of his hearing, which it
set for Monday, January 10, 2000. See id. § 207/30(a)
(permitting a trial judge to order the person named in the
petition detained “if there is cause to believe that the
person is eligible for commitment” until the individual is
discharged after a trial or ordered committed). On the
date of the scheduled probable cause hearing, however,
Lieberman moved to dismiss the State’s petition, arguing
that rape was not a predicate sexually violent offense
under the civil commitment statute. As a result, no
probable cause hearing was held. The court continued the
matter to February 1, 2000, to render its ruling on Lieber-
man’s motion to dismiss. Lieberman’s counsel requested
4 No. 05-3922
that the probable cause hearing not be held on that date
because in the event the court denied the motion to
dismiss, he intended to file an interlocutory appeal, which
could ultimately resolve the case on the merits.
Upon concluding that rape was incorporated into the
offense of criminal sexual assault, the court orally denied
Lieberman’s motion on February 1. As promised, Lieber-
man responded by filing an interlocutory appeal, and an
Illinois appellate court reversed the trial judge’s ruling.
See In re Det. of Lieberman, 745 N.E.2d 699 (Ill. App. Ct.
2001). The Illinois Supreme Court later overturned that
decision, concluding that the state legislature intended to
include the offense of rape within the statute’s definition
of “sexually violent offense.” See In re Det. of Lieberman,
776 N.E.2d 218, 230 (Ill. 2002).
Lieberman’s appeal of the Cook County trial court’s
ruling coincided with his efforts to obtain habeas relief
through the court in LaSalle County, Illinois, the location
of his detention facility. There, on January 5, 2001,
Lieberman filed a habeas petition challenging the validity
of his order of detention on the basis that no probable
cause hearing had been conducted within the seventy-two-
hour time frame required by statute.2 The following
month, the trial court disagreed with Lieberman’s conten-
tion that he was being held pursuant to an invalid deten-
tion order and denied his petition after finding that habeas
2
Lieberman presented this argument as a secondary basis for
habeas relief. He had maintained in an earlier filing that he
was entitled to habeas relief because he was being detained as
a result of the Illinois Supreme Court’s decision in Lane v.
Sklodowski, 97 Ill.2d 311 (1983), which, according to Lieberman,
violated the ex post facto clauses of the federal and state
constitutions. Lieberman’s argument on this ground proved
unsuccessful, and he ultimately abandoned it in federal court.
No. 05-3922 5
relief was not available to a petitioner like Lieberman
who was serving a mandatory term of supervised release.
See R. 78, Ex. D. Lieberman appealed and argued that
he was being held under an invalid order of detention,
citing the civil commitment statute’s language that a
probable cause hearing was to be held within seventy-two
hours of the State’s filing of its petition. On June 4, 2002,
the appellate court affirmed the trial court’s denial of
habeas relief and concluded that the statute required
Lieberman’s temporary order of detention to remain in
effect until he was either discharged or committed. See R.
78, Ex. F at 11. The court also noted that Lieberman’s
then-pending interlocutory appeal would likely resolve the
issue of whether he was a sexually violent person; there-
fore, the court considered it reasonable for the Cook
County trial court to let that appeal proceed before hold-
ing a probable cause hearing. Id. at 10. Lieberman peti-
tioned for leave to appeal to the Illinois Supreme Court
contending in part that the trial court’s failure to con-
duct a probable cause hearing violated the statute and
his right to due process as guaranteed by the federal and
state constitutions; however, his petition was denied on
October 24, 2002.3 See R. 79, Ex. L.
Lieberman’s probable cause hearing finally occurred on
November 30, 2004, almost five years after the State
sought to have him committed. A Cook County trial judge
determined that probable cause existed to find that
Lieberman was a sexually violent person as defined by the
3
During Lieberman’s appeal of the LaSalle County proceedings,
Lieberman also filed a host of motions and petitions in the courts
of Cook and Will Counties as well as with the Illinois Supreme
Court in which he challenged his order of detention. These courts
either denied relief or dismissed his various pleadings;
Lieberman did not appeal or collaterally attack these rulings.
6 No. 05-3922
statute, and a two-week trial followed. A jury then found
that Lieberman qualified as a sexually violent person, and
on April 26, 2006, he was committed to the custody of the
Illinois Department of Human Services. Lieberman has
appealed that verdict to the Illinois appellate court.
B. Federal Court Proceedings
The lengthy procedural history in this case would be
incomplete without an account of Lieberman’s attempts to
obtain habeas relief in federal court. After Lieberman
moved to appeal the denial of his motion to dismiss by
the Cook County trial court, he filed his first federal
habeas petition in the Northern District of Illinois on
April 20, 2000. In that petition, Lieberman argued that a
decision by the Illinois Supreme Court violated the ex
post facto clauses of the federal and state constitutions
by retroactively canceling the availability of his good-time
credits. See supra n.2. Lieberman later amended his
petition to include the argument that the delay of his
probable cause hearing violated his Fourteenth Amend-
ment right to due process. Upon reviewing the amended
petition, the district court considered the merits of
Lieberman’s due process claim and dismissed his other
claims as unexhausted. See Lieberman v. Budz, No. 00 C
2531, 2002 WL 1888396, at *7 (N.D. Ill. Aug. 16, 2002).
The court denied the petition based on its determination
that the issue of the delayed probable cause hearing
concerned a matter of state law and, therefore, was not
cognizable on federal habeas review. Id. Lieberman
appealed to this court, and we reversed with instructions
that the district court stay Lieberman’s petition pending
the exhaustion of his other claims in state court.
After we remanded his case, Lieberman voluntarily
dismissed his unexhausted claims and filed a second
amended habeas petition, which consisted of the claim
No. 05-3922 7
that the State had violated his Fourteenth Amendment
right to due process by denying him a probable cause
hearing as required by the statute. The district court
again denied the petition, but this time it found that
Lieberman failed to fairly present his federal due process
claim to the state courts and, therefore, had procedurally
defaulted this claim. See Lieberman v. Budz, No. 00 C
2531, 2005 WL 1311200, at *4 (N.D. Ill. Apr. 28, 2005).
The district court alternatively considered the merits of
Lieberman’s petition and concluded that the state trial
court’s failure to hold a probable cause hearing within
seventy-two hours did not amount to a due process vio-
lation, especially when it considered Lieberman’s efforts
to dismiss the petition as preventing the hearing from
being timely held. Id. at *6. Lieberman requested a
certificate of appealability, which the district court
granted on the issue of whether Lieberman procedurally
defaulted his claim that his federal right to due process
was violated when no probable cause hearing was held
within seventy-two hours.
II. ANALYSIS
A. Lieberman’s due process claim is procedurally
defaulted.
A petitioner is generally required to exhaust all of his
available state court remedies before seeking a writ of
habeas corpus in federal court. 28 U.S.C. § 2254(b)(1)(A);
Picard v. Connor, 404 U.S. 270, 275 (1971). This so-called
exhaustion-of-state-remedies doctrine serves the inter-
ests of federal-state comity by giving states the first
opportunity to address and correct alleged violations of
a petitioner’s federal rights. Picard, 404 U.S. at 275;
Perruquet, 390 F.3d at 513. The petitioner is therefore
required to first “present the state courts with the same
claim he urges upon the federal courts.” Picard, 404 U.S.
8 No. 05-3922
at 275-76. If the petitioner fails to do so and the opportu-
nity to raise that claim in state court has lapsed, the
petitioner has procedurally defaulted his claim, and a
federal court is precluded from reviewing the merits of his
habeas petition. Conner v. McBride, 375 F.3d 643, 648 (7th
Cir. 2004); Perruquet, 390 F.3d at 514. We review de novo
the district court’s determination that Lieberman proce-
durally defaulted his due process claim by not fairly
presenting this argument to the state courts. Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002).
One consideration in our fair presentment inquiry is
whether Lieberman’s state habeas petition cited either
federal cases that employed constitutional analysis or state
cases that applied a constitutional analysis to a set of
similar facts. See Wilson v. Briley, 243 F.3d 325, 327 (7th
Cir. 2001). However, the habeas petitioner is not limited
to presenting his federal claim to the state courts by cit-
ing “book and verse” of the Constitution, see Picard, 404
U.S. at 278; rather, our analysis focuses on whether the
petitioner has offered the operative facts and controlling
legal principles of his claim to the state courts, Anderson
v. Benik, 471 F.3d 811, 814 (7th Cir. 2006); Verdin v.
O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). So we must
also inquire into whether the petitioner has framed his
claim in the state proceedings in a way that brings to
mind a specific constitutional right, and whether he has
alleged a set of facts “well within the mainstream of
constitutional litigation.” Wilson, 243 F.3d at 327. In short,
we assess whether the petitioner alerted the state court
to the federal nature of his claim in a manner sufficient
to allow that court to address the issue on a federal basis.
Verdin, 972 F.2d at 1476.
In federal district court, Lieberman sought habeas
relief on the ground that his right to procedural due
process as guaranteed by the Fourteenth Amendment
No. 05-3922 9
was violated when a Cook County trial court failed to hold
a probable cause hearing within seventy-two hours of the
State’s filing of its civil commitment petition. When
seeking relief in the state trial court, Lieberman, acting
pro se, did not phrase his habeas petition in these terms;
instead, he laid claim to an “absolute statutory and
Constitutional right” to a timely probable cause hearing
by citing to the language of § 207/30(b) of Illinois’ commit-
ment statute, which provides in part, “[i]f the person
named in the petition is in custody, the court shall hold
the probable cause hearing within 72 hours . . . .” See
R. 78, Ex. B at 1. Because no probable cause hearing had
been held within the seventy-two-hour time frame,
Lieberman argued, “[t]he statute has been violated and
[he] is entitled to immediate discharge under the Illinois
Habeas Corpus Act.” Id. at 3. Lieberman did not rely on
any federal or state cases that applied a federal constitu-
tional analysis to a set of similar facts, see Wilson, 243
F.3d at 327; instead, he referred only to state court
decisions to support his proposition that the Cook County
trial judge was not permitted to apply the statute in a
manner inconsistent with its express terms. Although a
petitioner’s failure to cite federal constitutional cases in
and of itself is not fatal to a finding of fair presentment,
after reviewing the substance of Lieberman’s petition
we are not convinced that he sufficiently alerted the
state trial courts to the presence of a federal issue.
To begin, we do not view the fact pattern set out in
Lieberman’s state petition as falling “within the main-
stream of constitutional litigation.” Id. “A given set of
facts can be said to fit within the mainstream of con-
stitutional litigation only when the fact pattern is so
commonly thought to involve constitutional constraints . . .
that the constitutional basis of the claim is undeniably
obvious . . . .” Id. at 328 (internal quotations and citations
omitted). In applying this standard, we are cognizant
10 No. 05-3922
of the “special danger that a claim in state court may well
present the echo of a federal claim while still not alerting
the state court to the federal nature of the claim.” Verdin,
972 F.2d at 1475 (internal quotations and citation omit-
ted). We find this to be the case with Lieberman’s peti-
tion. While we are well aware that the civil commitment
of an individual amounts to a deprivation of liberty that
requires the protections of federal due process, see Adding-
ton v. Texas, 441 U.S. 418, 425 (1979), we are not con-
vinced that Lieberman’s allegations, made “without federal
citation or other conspicuous federal emblemata,” fall
within the mainstream of constitutional litigation, see
Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir. 1989); see
also Verdin, 972 F.2d at 1475.
At its core, Lieberman’s state petition complained that
because a state trial court failed to follow a state law
procedure, his order of detention was rendered invalid. In
support, he cited the language of the applicable statute
and relied on theories of statutory interpretation. Nonethe-
less, Lieberman maintains that his claim was crafted in a
way that called to mind his federal procedural due pro-
cess rights. See Wilson, 243 F.3d at 327. In particular,
Lieberman focuses on the petition’s assertion that he
had an “absolute . . . Constitutional right” to a timely
probable cause hearing and that he was being held without
a hearing. Because the state court was confronted with a
pro se pleading, Lieberman’s petition was entitled to a
more liberal construction than formal pleadings drafted by
lawyers. See People v. Smith, 645 N.E.2d 313, 318 (Ill.
App. Ct. 1994). Even so, we do not believe that
Lieberman’s single and undeveloped use of the term
“constitutional,” when balanced against the petition’s
heavy emphasis on the statute’s language, called to the
reviewing state trial judge’s attention a potential violation
of Lieberman’s Fourteenth Amendment right to due
process. Cf. Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir.
No. 05-3922 11
1995) (scattering the words “due process” in a brief
without setting out why the conviction violates that
clause is insufficient for purposes of fair presentment).
Because Lieberman’s petition faltered at the state court
level, he procedurally defaulted his federal due process
claim, which he was required to fairly present at each level
of state court review. See Lewis v. Sternes, 390 F.3d 1019,
1025 (7th Cir. 2004). Therefore, it is unnecessary for us
to analyze the sufficiency of his briefing to the state
appellate court or his petition for leave to appeal to the
Illinois Supreme Court.
B. Lieberman’s habeas petition fails on the merits.
Although Lieberman presents us with no equitable
exceptions to our finding of procedural default, such as
cause for the default and resulting prejudice, see
Perruquet, 390 F.3d at 514, we take a moment to explain
that even if Lieberman had adequately informed the
state courts of the federal basis of his petition, he still
would not be entitled to habeas relief.
To obtain such an extraordinary form of relief, the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
requires Lieberman to establish that the state court
produced a decision that was contrary to, or involved an
unreasonable application of, federal law as determined by
the Supreme Court, or was based on an unreasonable
determination of the facts considering the evidence
before it. 28 U.S.C. § 2254(d)(1) & (2). The last state
court to rule on the merits of Lieberman’s petition, the
Illinois appellate court, produced the relevant decision for
assessment under AEDPA. See Charlton v. Davis, 439 F.3d
369, 374 (7th Cir. 2006).
12 No. 05-3922
In Lieberman’s second amended federal habeas peti-
tion, he makes no attempt to meet his burden under
AEDPA by pointing out alleged errors in the state appel-
late court’s decision that would entitle him to relief.
Instead, Lieberman uses his petition to repeat his argu-
ment that he was denied his constitutional right to due
process when the trial court did not hold a probable
cause hearing within seventy-two hours. Nowhere in
the petition does Lieberman demonstrate how the state
appellate court’s opinion conflicts with, or unreasonably
applied, relevant Supreme Court precedent, nor does he
show how the court’s decision rested on unreasonable
factual determinations, as required by AEDPA. Rather,
he claims that the district court’s earlier denial of his
first amended petition for habeas relief was erroneous
under Illinois Supreme Court Rule 308(e), which relates
to the circumstances by which a party’s request for an
appeal will stay proceedings in the trial court. See R. 72
at 8. Lieberman cannot win under this theory either so
his petition for habeas relief cannot be granted.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-07