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).

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 twentyyear prison sentence for multiple rape convictions, Brad

Lieberman was legally determined to be a sexually violent 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
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 district 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 unreasonable 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 convicted 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 convicted 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 Lieberman’s motion to dismiss. Lieberman’s counsel requested
4 No. 05-3922

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.

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, Lieberman 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-twohour time frame required by statute.2

 The following

month, the trial court disagreed with Lieberman’s contention that he was being held pursuant to an invalid detention order and denied his petition after finding that habeas
No. 05-3922 5

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. 

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; therefore, the court considered it reasonable for the Cook

County trial court to let that appeal proceed before holding a probable cause hearing. Id. at 10. Lieberman petitioned for leave to appeal to the Illinois Supreme Court

contending in part that the trial court’s failure to conduct 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
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 Amendment 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 violation, 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 interests 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 opportunity 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 procedurally 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 citing “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’ commitment 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 constitutional 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 mainstream of constitutional litigation.” Id. “A given set of

facts can be said to fit within the mainstream of constitutional 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 omitted). We find this to be the case with Lieberman’s petition. 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 Addington v. Texas, 441 U.S. 418, 425 (1979), we are not convinced 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. Nonetheless, Lieberman maintains that his claim was crafted in a

way that called to mind his federal procedural due process 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 petition, he makes no attempt to meet his burden under

AEDPA by pointing out alleged errors in the state appellate court’s decision that would entitle him to relief.

Instead, Lieberman uses his petition to repeat his argument 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