Michael McGee v. Byran Bartow

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3278

M ICHAEL L. M C G EE,

Petitioner-Appellant,

v.

B YRAN B ARTOW,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 1:06-cv-01151-WCG—William C. Griesbach, Judge.

A RGUED D ECEMBER 5, 2008—D ECIDED JANUARY 27, 2010

Before R IPPLE, K ANNE and T INDER, Circuit Judges.

R IPPLE, Circuit Judge. In 2003, Michael McGee was

ordered to be civilly committed as a “sexually violent

person” (“SVP”) pursuant to Chapter 980 of the

Wisconsin Statutes. After exhausting his state appeals

and petitioning unsuccessfully for post-commitment

relief in the state courts, he filed a petition for habeas

corpus in the United States District Court for the

Eastern District of Wisconsin, contending that his contin-

2 No. 07-3278

ued state custody deprives him of his right to due process

of law. The district court denied the writ but issued a

certificate of appealability on the question. For the reasons

set forth in this opinion, we affirm the judgment of the

district court.

I

BACKGROUND

A.

In 1987, Mr. McGee entered an apartment that he be-

lieved was vacant, apparently intending to rob it. Instead,

he found a woman and her child asleep on the sofa.

Mr. McGee then ordered the woman upstairs, where he

raped her. Following the rape, Mr. McGee stayed in the

victim’s home until the next morning when she convinced

him that she had to take her son to school, which he

allowed her to do. As he accompanied his victim down

the street he repeatedly apologized to her. After ensuring

that her son had reached his school safely, the victim

was able to escape to her mother’s home. The victim

identified Mr. McGee in a photographic line-up, and he

later was convicted of burglary and sexual assault. He

was sentenced to eight years’ imprisonment and six

years’ probation.

In 1992, after serving five years of his sentence,

Mr. McGee was released on parole. He subsequently was

accused of two separate, additional incidents of sexual

assault, one involving a woman and another involving

an adolescent male, neither of which resulted in a con-

No. 07-3278 3

viction. His parole, however, was revoked, and he

was returned to the physical custody of the Wisconsin

authorities.

B.

In 1995, before his mandatory release, the State of

Wisconsin filed a petition seeking to have Mr. McGee

declared a SVP under Chapter 980. He was civilly com-

mitted following a jury trial. This first civil commitment

determination was reversed after a state court concluded

that Mr. McGee’s trial counsel in the commitment pro-

ceeding was ineffective for failing to discover evidence

that undermined the credibility of the accusers in the

1992 incidents. Accordingly, in 1999, he was released

from civil commitment.

In 2000, Mr. McGee’s parole again was revoked after

he tested positive for marijuana and had contact with

the alleged victim of one of the 1992 assaults. Before

his scheduled release, the State of Wisconsin again

initiated proceedings to have Mr. McGee committed as

a SVP.

C.

The proceedings resulting in Mr. McGee’s second civil

commitment form the basis of his current petition for

habeas relief. In those Chapter 980 proceedings,

Mr. McGee represented himself at a bench trial.

The state presented two experts. First, the state called

Dr. Caton Roberts, a psychologist employed by the Depart-

4 No. 07-3278

ment of Corrections and a university lecturer in psychol-

ogy. Dr. Roberts testified that his evaluation was based

upon fifteen hours of review of Mr. McGee’s record;

specifically relevant were Mr. McGee’s various rule

violations, difficulty staying out of trouble, physical

altercations, criminal convictions and “pervasive

impulsivity.” R.16, Ex. 83 at 118-21. Based upon his

review, Dr. Roberts testified that, in his opinion,

Mr. McGee suffered from “a personality disorder not

otherwise specified [“NOS”] with antisocial features.” Id.

at 119. Dr. Roberts believed that his diagnosis fit

within the criteria listed in the Diagnostic and Statistical

Manual of Mental Disorders (“DSM”) published by the

American Psychiatric Association (“APA”).1 Id. at 119-20.

He acknowledged that he could not diagnose Mr. McGee

with Antisocial Personality Disorder (“APD”) as

described in the DSM because the record was devoid of

any evidence of personality disorders before Mr. McGee

reached the age of 15, an explicit requirement in the

DSM for an APD diagnosis. Id. at 120-21. Dr. Roberts

further testified that he had reviewed other proposed

diagnoses in Mr. McGee’s file by other examiners, but

did not believe that they were supported in the record.

Dr. Roberts specifically stated that he did not believe

that the record supported a diagnosis of “a paraphili[c]

1

All references to the DSM refer to the Diagnostic and Statisti-

cal Manual of Mental Disorders, Fourth Edition, Text Revision,

published by the American Psychiatric Association in 2000.

In the profession, the text is sometimes referred to as the DSM-

IV-TR. For the sake of simplicity, we use the shorthand “DSM.”

No. 07-3278 5

disorder not otherwise specified.” Id. at 120. In addition

to his clinical diagnoses, Dr. Roberts testified about the

use of two actuarial tools that support, in his judgment,

a conclusion that Mr. McGee “was substantially probable

to reoffend sexually if not detained and treated.” Id. at 124.

The state also called Dr. Cynthia Marsh. Dr. Marsh

testified that she was also a state-employed counselor

and a university lecturer; she holds a Ph.D. in “urban

education specializing in counseling psychology.” Id., Ex.

84 at 19. Dr. Marsh testified that she had diagnosed

Mr. McGee with two mental illnesses that qualified him

to be committed as a SVP: paraphilia NOS and a per-

sonality disorder NOS with antisocial features. Id. at 34-35.

She stated that the “key characteristic” for a diagnosis of

personality disorder was “disregard for and violation of

the rights of others.” Id. at 35. She acknowledged that

she had based her diagnosis on Mr. McGee’s history,

including the sexual assault charges from 1992 that had

proved problematic in his first commitment proceeding.

Dr. Marsh also testified about the results of three actuar-

ial tools. She stated that subjects with scores similar to

Mr. McGee’s in each of these instruments reoffended at

rates of between forty-eight and fifty-four percent over

a six- to fifteen-year period following release. Her con-

clusion, based on her diagnoses and the actuarial tools,

was that Mr. McGee was “much more likely than not to

reoffend in a sexually violent manner.” Id. at 39.

Dr. Marsh was not subject to cross-examination because

Mr. McGee had refused to participate in the second day

of his commitment proceeding.

6 No. 07-3278

Based on the testimony of Drs. Roberts and Marsh, the

state court ordered Mr. McGee committed as a SVP

pursuant to Wis. Stat. § 980.06.

D.

Following his commitment, Mr. McGee took an unsuc-

cessful direct appeal and then petitioned, again unsuc-

cessfully, for state collateral relief. Mr. McGee next filed

a petition for habeas corpus in the United States

District Court for the Eastern District of Wisconsin. The

district court dismissed Mr. McGee’s petition, but

granted a certificate of appealability under 28 U.S.C.

§ 2253(c)(2). The substance of the state and federal pro-

ceedings are explored in significant detail below.

II

PROCEDURAL DEFAULT

As briefed to this court, Mr. McGee raises two chal-

lenges to his commitment. The first is whether confine-

ment as a SVP on the basis of his diagnoses, which he

claims lack a reasonable scientific foundation, violates

due process of law. The second is whether, under the

Supreme Court’s decision in Kansas v. Crane, 534 U.S. 407

(2002), committing courts must ascertain whether the

nature and specificity of a particular person’s mental

impairment is of a level which justifies civil confinement.

In his view, this latter challenge focuses on whether

the Wisconsin courts have failed to implement Crane

No. 07-3278 7

properly because the statute does not require that com-

mitment is supported by a finding of a “special and

serious lack of ability to control behavior.” Id. at 413.

Before the district court, the State contended that all of

Mr. McGee’s claims were procedurally defaulted. Before

this court, the State has abandoned a procedural challenge

to the first issue Mr. McGee presents. As to the second

issue, however, the State now contends that Mr. McGee

failed to present it to the state courts, resulting in a pro-

cedural default that would bar our consideration of

the issue. It also argues, in the alternative, that even if

the second issue regarding the application of Crane was

properly before the state courts, Mr. McGee forfeited

the argument in his federal habeas proceeding by failing

to present it to the district court.

To inform our analysis of the procedural status of these

claims, we begin with a detailed examination of the

parties’ positions at all stages of Mr. McGee’s challenge

to his commitment.

A.

Mr. McGee appeared pro se for most of his commit-

ment proceedings, including his trial, in the Wisconsin

Circuit Court for Racine County. After he was ordered

committed, he filed, pro se, a motion for relief from the

judgment with the committing court. In that motion, he

presented a variety of issues, one of which was

identified by the court as a claim “that the diagnosis,

essentially one of a personality trait [sic] is not sufficient

8 No. 07-3278

for the commitment.” R.85 at 11. At his hearing on the

motion, the nature of Mr. McGee’s contentions was some-

what clarified by his repeated interruptions of counsel

for the State to inquire what “not otherwise specified”

meant as related to his diagnosis. Id. at 14. Mr. McGee

called the diagnosis “bogus,” id. at 15, and insisted that

the State “basically made [the diagnosis] up,” id. at 17.

The circuit court denied the motion for relief from judg-

ment.

Mr. McGee was represented by counsel on appeal. Prior

to the appointment of counsel, he filed his own notice

of appeal, in which he cited three bases to challenge the

commitment. Specifically, he contended: (1) that his

commitment was based on insufficient evidence that

his “social history manifests the scientific diagnostic

criteria of any mental and/or personality disorder”; (2) that

confinement on the basis of his diagnosis “violates the

substantive component of the Due Process Clause”; and

(3) that the State’s use of a personality disorder NOS

diagnosis as the basis for confinement violated state

law and due process “inasmuch [as the] condition

[was] literally made up by” state psychologists. R.1,

Attach. 6 at 1.

In counsel’s brief to the appellate court, however, the

challenge articulated was instead that Mr. McGee’s bur-

glary conviction could not serve as the predicate

offense for a Chapter 980 proceeding because it was not

a “sexually motivated” offense. R.10, Ex. B at 6. The Court

of Appeals of Wisconsin affirmed. It does not appear,

from the record before us, that Mr. McGee petitioned for

discretionary review to the Supreme Court of Wisconsin.

No. 07-3278 9

B.

Following the Court of Appeals’ affirmance of his

commitment, Mr. McGee, again pro se, filed a habeas

petition in the Court of Appeals of Wisconsin under State

v. Knight, 484 N.W.2d 540 (Wis. 1992),2 challenging his

commitment with a claim of ineffective assistance of

appellate counsel.3 Although it is not a perfectly clear or

well-organized brief, it does appear to raise and attempt

to develop several issues relevant to the present pro-

ceeding. Mr. McGee’s overarching contention to the

Wisconsin court was that his appellate counsel was

2

State v. Knight, 484 N.W.2d 540 (Wis. 1992), involved a

collateral attack on a criminal conviction based on a claim of

ineffective assistance of appellate counsel. The Supreme Court

of Wisconsin held in Knight that the appropriate procedure

for such an attack was a habeas corpus proceeding filed in the

court that considered the direct appeal. Id. at 544-45. Such

proceedings have come to be known in Wisconsin as

“Knight petitions.” See, e.g., State ex rel. Panama v. Hepp, 758

N.W.2d 806, 808 (Wis. Ct. App. 2008) (discussing the applicabil-

ity of Knight petitions).

3

Chapter 980 proceedings include a statutory right to counsel.

See Wis. Stat. § 980.03(2)(a). The Supreme Court of Wisconsin

has held that where a statutory right to counsel exists, it

includes the right to effective assistance of counsel. A.S. v.

State, 485 N.W.2d 52, 54 (Wis. 1992). Wisconsin applies the

familiar deficiency and prejudice test of Strickland v.

Washington, 466 U.S. 668, 687 (1984), for ineffective assistance

claims based on a statutory right to counsel. See State ex rel.

Schmelzer v. Murray, 548 N.W.2d 45, 48 (Wis. 1996).

10 No. 07-3278

ineffective for failing to raise various arguments related

to his mental condition in the direct appeal. At trial, the

State’s experts had discussed Mr. McGee’s scores on

various actuarial tools and interpreted his results to

demonstrate his probability of reoffending. In his

Knight petition, Mr. McGee claimed that his scores, and

thus his risk of recidivism, did not actually bear on the

relevant question of whether he had a “mental condi-

tion” upon which civil confinement can be imposed

consistent with due process. R.1, Attach. 3 at 2. He further

contended that his confinement was based on a “non-

demonstratable [sic] personality disorder,” that it was a

“tautology of an antisocial per[so]nality disorder,” and

that his diagnosis, by definition, “does not cause any

inability to control behavior.” Id. at 3. He also con-

tended that the State’s experts did not demonstrate

“that mere features of an antisocial per[so]nality

disorder can be diagnosed as a disorder under the

category not otherwise specified in the (DSM).” Id. at 4. His

NOS diagnosis, therefore, was not of an “actual mental

condition” that could support confinement. Id. Finally,

he contended that his diagnosis was “literally made up”

and “only exist[s] in the minds of the chapter 980 evalua-

tion team but nowhere else.” Id. at 6.

The Court of Appeals of Wisconsin denied Mr. McGee’s

petition. After recounting the procedural history and

confirming that a Knight petition was the proper vehicle

for his challenges, the court turned to Mr. McGee’s sub-

stantive contentions. Noting that the brief was “difficult

to understand,” the court construed the single issue that

it could discern as a claim that appellate counsel was

No. 07-3278 11

ineffective for failing to challenge the use of actuarial

tools as part of the diagnostic model. R.10, Ex. E at 4. It

held that Mr. McGee’s petition was “an attempt to re-

try” his commitment and noted that its earlier order

upholding commitment was based on its assessment of

his intent in committing the burglary, “not the experts’

testimony.” Id. The court continued without further

explanation, that, “[t]herefore, even if appellate counsel

had made such arguments, they would not have been

successful.” Id. The petition was denied “on the grounds

that McGee was not prejudiced by his appellate

counsel’s performance.” Id. (citing Strickland v. Washington,

466 U.S. 668, 694 (1984)).

Mr. McGee, again proceeding pro se, next petitioned the

Supreme Court of Wisconsin for discretionary review of

his Knight petition. In his petition, he again raised

appellate counsel’s ineffectiveness for failing to

challenge the sufficiency of his diagnoses. He also again

contended that even if APD itself had been proved, it

did not cause any inability to control behavior, sexual or

otherwise. R.1, Attach. 1 at 1. The Supreme Court of

Wisconsin denied review.

C.

Mr. McGee, again proceeding pro se, filed a federal

habeas petition under 28 U.S.C. § 2254. We shall

endeavor to give his petition and his briefs the fairest

reading with an eye toward the issues he wishes to

present in the present appeal. See Baldwin v. Reese, 541

U.S. 27, 32 (2004) (identifying the petition and brief as

12 No. 07-3278

documents a court should reference for determining

whether the fair presentment requirement has been met).

Mr. McGee began by contending that he “cannot be

clinically diagnosed with anything.” R.8 at 2 (emphasis in

original). Mr. McGee’s briefing traced the history of his

challenges to his commitment and repeatedly stated that

he raised an issue regarding the application of the

Supreme Court’s decision in Kansas v. Crane and whether

his “disorder” caused the required inability to control

behavior. Id. at 4; see also id. at 12 (stating that a per-

sonality disorder diagnosis “without more” does not

satisfy “the requirement of a mental condition that

causes a lack of control”). He further claimed that the

state courts had ignored the issue. Id.

Mr. McGee also contended, at some length, that his

NOS diagnoses were lacking in validity and not

accepted within the psychiatric community. He noted

the variance between the diagnosis accepted in

Wisconsin and the diagnostic criteria of related, generally

accepted disorders as identified by the DSM.4 Id. at 3-4; see

also id. at 12-13 (listing the DSM criteria for APD and

stating that it is “nothing but another way of saying ‘Crimi-

nal’ ”); R.11 at 4 (quoting Justice Kennedy’s concurring

4

Although Mr. McGee sometimes uses the term “antisocial

personality” to describe his diagnosis, it is clear that he is

drawing a distinction between the actual APD diagnosis and

the NOS diagnosis upon which he was committed. See, e.g.,

R.11 at 3 (“[T]his petitioner does dispute whether antisocial

features alone is a legitimate diagnosis.” (emphasis in original)).

No. 07-3278 13

opinion in Kansas v. Hendricks, 521 U.S. 346, 372 (1997), for

the proposition that Hendricks’s disorder, pedophilia,

“is at least described in the DSM[]” (emphasis added by

petitioner)). In further briefing, he reiterated that the

personality disorder NOS diagnosis was, in his view, “not

a real diagnosis.” R.11 at 4 (Response to the State’s

Motion to Dismiss).

The district court, exercising its obligations under Rule 4

of the Rules Governing Section 2254 Cases, reviewed

the petition alone and concluded that summary dismissal

was not appropriate. Accordingly, it ordered the State

to file an answer to the claim that Mr. McGee’s “incar-

ceration under Chapter 980 violates the Constitution

because it is based on a diagnosis of personality disorder

that does not correspond to the requirements of due

process.” R.4 at 1 (citing Kansas v. Crane, 534 U.S. 407

(2002)).

The State of Wisconsin filed a motion to dismiss for

procedural default, and Mr. McGee responded. The

State’s position was that Mr. McGee had failed to raise

a due process challenge 5 to his commitment through one

5

The State acknowledges that Mr. McGee took a direct appeal

and filed a subsequent Knight petition. R.10 at 2. In its memoran-

dum in support of the motion to dismiss, the State vaguely

refers to Mr. McGee’s “brief in the Wisconsin Court of Ap-

peals,” id. at 4, as though there were only one brief. We take

the State to be referring to Mr. McGee’s direct appeal in

which he was assisted by counsel, because the State notes

(continued...)

14 No. 07-3278

complete round of state court review. R.10 at 3-4 (citing

O’Sullivan v. Boerckel, 526 U.S. 838, 854 (1999) (Stevens, J.,

dissenting)). The State further argued that, although a

claim for ineffective assistance of counsel was preserved

through the Knight petition proceedings, counsel was not

ineffective, and therefore Mr. McGee could not, by way

of a right to counsel claim, establish cause and prejudice

for the default of his due process claim.

In ruling on the motion, the district court carefully

reviewed the history of Mr. McGee’s commitment chal-

lenges and concluded that the due process claims had

been presented fairly to the state courts. The district

court acknowledged that Mr. McGee had failed to

present the due process arguments on direct appeal, but

noted that this was “hardly McGee’s fault.” R.12 at 8. The

court construed Mr. McGee’s Knight petition alleging

ineffective assistance as raising a claim that counsel

was ineffective for failing to contend

that [his] diagnosis is essentially a “bogus disor-

der” that was invented by state psychologists to

justify his continued confinement after he com-

pleted his sentence. . . . McGee also argued that an

antisocial personality disorder, by definition, does

not cause inability to control one’s behavior. Thus, he

claimed that his involuntary commitment on the

basis of such a diagnosis violated his Fourteenth

5

(...continued)

later that “no petition for review was filed,” id., a fact only

true with respect to the direct appeal.

No. 07-3278 15

Amendment right to due process of law as set

forth by the United [States] Supreme Court in

Kansas v. Crane . . . .

Id. at 6-7 (emphasis added) (citations omitted). In light of

this content in his Knight petition, the district court con-

cluded that the State had a fair opportunity “to consider

the gist of [] McGee’s claim, which was that due

process was violated because of the state’s reliance upon

a diagnosis not recognized in the field of mental health

as a basis to civilly confine an individual indefinitely.”

Id. at 8.6

After briefing on the merits, the contentions of which

are outlined above, the court denied the writ. Because

the state courts had not adjudicated Mr. McGee’s claim

on the merits, the district court noted that it was

required to “dispose of the matter as law and justice

require.” R.26 at 2 (citing 28 U.S.C. § 2243).

The court then stated that, in its view, Mr. “McGee’s

argument is quite narrow”: that his particular diagnoses

do not “live up to the Supreme Court’s requirements

6

The district court, in its subsequent order on the merits,

acknowledged that the claim of ineffective assistance of

counsel for failure to raise the due process issues was the claim

actually exhausted. R.26 at 2 n.2. The due process challenges

were only presented to the state courts as embedded, not

independent claims. The district court continued, “[b]ecause

I find that the claim ultimately fails, it follows that his

appellate counsel was not ineffective for failing to raise it in

McGee’s appeal.” Id.

16 No. 07-3278

for due process.” R.26 at 2-3. The court, relying on its

interpretation of Crane, ruled that “just as there are no

magic words, there are no magic diagnoses . . . . [F]or

due process purposes, it matters little whether the

disorder is described as ‘antisocial personality disorder’

or ‘personality disorder with antisocial features.’ ” Id. at

3. The court then reviewed the record and concluded

that Mr. McGee’s confinement was not based solely on a

“personality disorder,” but on a substantial probability

of reoffense, appropriately evaluated (contrary to

Mr. McGee’s contentions as interpreted by the district

court) by the use of actuarial risk assessment models. The

district court held that Mr. McGee properly had been

“found to be a SVP based on testimony that he had a

mental disorder that caused him to have serious

difficulty controlling his behavior.” Id. at 5.

D.

Mr. McGee, still pro se, petitioned the court for a certifi-

cate of appealability. In his petition, he identified four

issues. The first two relate to his claim that a diagnosis

of a personality disorder NOS is an invalid and unrecog-

nized creation of the Wisconsin Chapter 980 team.

The third claims that the district court sidestepped the

diagnostic validity issue when it found that Mr. McGee

was not confined “solely” on the basis of his diagnosis, but

on a finding of a substantial probability of reoffense. R.26

at 4-5. Finally, Mr. McGee’s fourth claim references the

opinion of the district court in a related case, brought by

Bruce Brown. Specifically, Mr. McGee quotes that

No. 07-3278 17

court on the subject of Mr. Brown’s paraphilia NOS

diagnosis and its conclusion that a petitioner may be

able to show that it does not distinguish between the

dangerous but typical recidivist, as required by

Supreme Court precedent. Mr. McGee seems to contend

that his diagnoses, particularly the personality disorder,

are infirm for the same reason.

The district court issued a certificate of appealability on

the “single issue” raised in Mr. McGee’s habeas petition:

“that his diagnosis for personality disorder does not

qualify under the Supreme Court’s due process require-

ments for involuntary incarceration.” R.34 at 1. The

district court continued, “[i]n essence, he believes the

State of Wisconsin manufactured a bogus diagnosis,

unrecognized out of the state’s own corridors, in order

to keep him locked up.” Id.

E.

Mr. McGee briefs his due process challenge to his

commitment as comprising two elements, first, that his

diagnoses are medically invalid and unrecognized, and

second, that Wisconsin has failed to implement Crane by

requiring a finding that the nature and severity of a

particular diagnosis cause a “special and serious lack of

ability to control behavior.” 534 U.S. at 413. The State

had claimed, in the district court, that Mr. McGee’s claims

were procedurally defaulted. The State now makes that

claim only with respect to the second element of

Mr. McGee’s due process challenge, that is, with respect

to the claim that Wisconsin procedures do not satisfy

18 No. 07-3278

Crane.7 The State further argues that this second element

is not encompassed within the certificate of appealability

and was forfeited by Mr. McGee in the district court.

If the State is correct that Mr. McGee did not present

his claims in state court, the consequence is significant.

Failure to present fairly claims through one complete

round of state court review works a procedural default,

barring a federal court from review of the substance of

a habeas petition, unless a petitioner can establish cause

and prejudice to excuse the default or can establish

that failure to consider his claims will result in a funda-

mental miscarriage of justice. See Johnson v. Hulett, 574

F.3d 428, 431 (7th Cir. 2009).

Upon review of the history of the proceedings, we

cannot agree with the State regarding the matters

properly before this court. We are mindful of our obliga-

tion to construe liberally the submissions of Mr. McGee

when he proceeded pro se. See Wyatt v. United States,

574 F.3d 455, 459 (7th Cir. 2009) (noting that it is appropri-

ate to construe district court habeas filings by pro se

petitioners liberally); Osagiede v. United States, 543 F.3d 399,

405 (7th Cir. 2008) (construing liberally a request for a

7

At oral argument, the attorney for the State told us that

while he did not “agree” with the district court regarding its

holding on default, it was not so far off the mark, in his view,

that the State would argue it was erroneous. The State’s argu-

ment, therefore, is that the district court’s ruling (and

Mr. McGee’s presentations in that court) only encompassed

the first element of the current challenge.

No. 07-3278 19

certificate of appealability); Lewis v. Sternes, 390 F.3d

1019, 1027 (7th Cir. 2004) (noting that it was proper to

make a “generous interpretation” of a habeas petitioner’s

state court filings in considering default). Mr. McGee,

who has not completed high school, has navigated the

bulk of his commitment proceedings, his state collateral

review, and, until his arrival at this court, his federal

habeas proceeding without the assistance of counsel. The

singular prior stage at which he accepted the assistance

of counsel was his state direct appeal. Prior to counsel’s

appointment on direct appeal, Mr. McGee indicated an

intent to raise the very issues before us today. Counsel

chose not to pursue those issues, and, at his next opportu-

nity, Mr. McGee argued that counsel’s performance rose

to the level of ineffective assistance because of that

choice. While his claims were not presented artfully, the

“basic rationale” of Mr. McGee’s due process challenge

was “readily discernible” in the state courts and in the

district court. Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir.

2004).

Mr. McGee never stated, as directly as he does in his

brief to this court, that as a consequence of Crane, the

Chapter 980 process was infirm for failing to require a

separate factual finding of a special and serious inability

to control behavior. Instead, Mr. McGee simply and

repeatedly stated that, with respect to his own diagnoses,

the State did not and could not demonstrate an inability

to control behavior. See, e.g., R.1, Attach. 3 at 2, 3 (Knight

petition); R.1, Attach. 1 at 1 (Petition for Review of

Knight petition). We also note that the district court’s

summation of the state court proceedings recognized that

20 No. 07-3278

the due process issue presented challenges to the validity

of the diagnoses themselves and their sufficiency under

Crane’s impairment standard. See R.12 at 6-7 (characteriz-

ing the challenge in the state court as whether he was

diagnosed with “a ‘bogus disorder’ that . . . . by definition,

does not cause inability to control one’s behavior . . . . [such]

that his involuntary commitment . . . violated his Four-

teenth Amendment right to due process of law as set

forth by the United [States] Supreme Court in Kansas

v. Crane”).

The district court was correct. The two arguments

Mr. McGee makes are part of the same basic due

process challenge, and both elements were part of his

submissions in both the state court in his Knight pro-

ceeding and the district court. See Sweeney v. Carter, 361

F.3d 327, 333 (7th Cir. 2004) (noting that “a mere variation

in legal theory” does not work a procedural default

and that “a petitioner may reformulate her claims so

long as the substance of the claim remains the same”)

(internal quotation marks omitted); see also United States

ex rel. Nance v. Fairman, 707 F.2d 936, 940 (7th Cir. 1983)

(drawing a distinction between the effect of a “mere

variation” in legal theory and a “different legal claim” for

procedural default purposes). If we were to find the

second element of his challenge lacking in any respect, it

would be that there is no direct reference to it in the

request for a certificate of appealability; but, as the State

acknowledges, this is not a fatal failing because our

court would be at liberty to consider his briefing of the

No. 07-3278 21

issue as a request for expansion of the certificate.8

Because we perceive the second element to be part of the

same due process challenge, however, we see no need

to expand the certificate, which itself only purported to

distill Mr. McGee’s claim to its “essence,” not present it

in detailed particulars. R.34 at 1.

The State’s reliance on the opinions of the district court

to justify limiting the issues presented in the case is

misplaced. The district court attempted to give fair treat-

ment to a muddled pro se pleading when it described,

at various times, the gist or essence of Mr. McGee’s sub-

missions. We do not take those distillations to be attempts

by the district court to narrow the issues before it rather

than simple attempts to understand the presentation

made to it. In any event, we are not limited to the

district court’s characterizations of the pleadings before

it in considering the issue of forfeiture, just as

the district court was not limited by the state court’s

characterizations of Mr. McGee’s submissions when it

considered the issue of default and concluded, contrary

to the Court of Appeals of Wisconsin, that the due

process challenge was fairly presented.

Upon review of the state court record, we view

Mr. McGee’s challenge regarding the Crane lack of control

8

Although the State has told us that it has not briefed the issue,

Appellee’s Br. 2-3, and will do so only upon further order of the

court, its brief actually does address this issue in substance.

See id. at 17-22. With the position of the State so before us,

we have determined that further briefing of this issue is unnec-

essary.

22 No. 07-3278

requirement to be on the same basic footing as his chal-

lenge to the validity of the diagnoses themselves. The

operative facts and the guiding legal principles were

presented to the state court. See Sweeney, 361 F.3d at 332.9

The two issues, to the extent they are at all separable, are

inextricably linked.

In sum, we conclude that Mr. McGee neither has proce-

durally defaulted nor forfeited his claims, and, therefore,

we shall proceed to consideration on the merits.

III

CONTROLLING PRECEDENT

We begin with an examination of the Supreme Court’s

guidance on civil commitment. When the Court has

examined the issue of civil commitment, it has

reaffirmed the principle that, when strict procedural

and substantive requirements are satisfied fully, commit-

9

We acknowledge that the due process challenges were

presented to the state courts as embedded within claims of

ineffective assistance. We do not understand the State’s argu-

ment, however, to be that the claims are defaulted because

they were embedded. See Lewis v. Sternes, 390 F.3d 1019, 1026

(7th Cir. 2004). In any event, we have recognized that in

some circumstances, where ineffective assistance claims are

presented “as a means to reach” the embedded claims and

those claims are the real substance of a petitioner’s challenge,

we will consider them fairly presented. See Malone v. Walls,

538 F.3d 744, 755 (7th Cir. 2008).

No. 07-3278 23

ment is a legitimate exercise of the authority of the state

and consistent with “our understanding of ordered lib-

erty.” Kansas v. Hendricks, 521 U.S. 346, 357 (1997). When

the process is lacking in either substance or procedure,

however, the Court has not hesitated to reject a commit-

ment as violative of due process.

A.

In Foucha v. Louisiana, 504 U.S. 71 (1992), the Court

examined the claim of a man who was detained indefi-

nitely after having been found not guilty by reason of

insanity. Specifically, a state statute provided for the

automatic commitment of an insanity acquittee in a

psychiatric hospital and permitted continued confinement

until the acquittee himself could prove that he was no

longer “dangerous,” whether or not he was then

mentally ill. Id. at 73.

Foucha was found not guilty by reason of insanity on

charges of burglary and discharge of a firearm and was

committed to the custody of a psychiatric hospital. After

four years of confinement, facility officials recommended

Foucha for discharge. As required by statute, a hearing

was held on his eligibility for release. The trial court

appointed the experts who conducted his pretrial exam-

ination, and they concluded that Foucha was not then

mentally ill. At the hearing, one of the doctors testified

that, although Foucha was in “good shape” mentally, he

had an antisocial personality and had been involved in

altercations in the facility. Id. at 75. As a result, the doctor

was not “comfortable in certifying” that Foucha was no

24 No. 07-3278

longer dangerous. Id. The trial court determined that

Foucha had not carried the burden of proving that he

was no longer dangerous and ordered his recommit-

ment. The Louisiana Supreme Court affirmed.

Before the Supreme Court of the United States, con-

sistent with the testimony of its expert, Louisiana did not

contend that Foucha was “mentally ill” at the time that

he sought release, id. at 78; instead, it contended “that

because Foucha once committed a criminal act and now

has an antisocial personality that sometimes leads to

aggressive conduct, a disorder for which there is no

effective treatment, he may be held indefinitely,” id. at 82.

The Court disagreed:

This rationale would permit the State to hold

indefinitely any other insanity acquittee not men-

tally ill who could be shown to have a per-

sonality disorder that may lead to criminal con-

duct. The same would be true of any convicted

criminal, even though he has completed his prison

term. It would also be only a step away from

substituting confinements for dangerousness for

our present system which, with only narrow

exceptions and aside from permissible confine-

ments for mental illness, incarcerates only those

who are proved beyond reasonable doubt to have

violated a criminal law.

Id. at 82-83. The Court ruled that the basis for continued

detention of Foucha as an insanity acquittee had “disap-

peared,” id. at 78, and, therefore, his commitment no

longer satisfied the requirement of due process that “the

No. 07-3278 25

nature of commitment bear some reasonable relation to

the purpose for which the individual is committed,” id. at

79; see also id. at 88 (O’Connor, J., concurring) (“I think it

clear that acquittees could not be confined as mental

patients absent some medical justification for doing so;

in such a case the necessary connection between the

nature and purposes of confinement would be absent.”).

Accordingly, the Court ruled that Louisiana was not

entitled to continue to confine Foucha absent “constitu-

tionally adequate procedures to establish the grounds for

his confinement.” Id. at 79. Because Louisiana had not

shown “by clear and convincing evidence that [Foucha

was] mentally ill and dangerous,” consistent with

existing precedent on civil commitment, his continued

confinement was held to be constitutionally infirm. Id.

at 80.

B.

Several years later, in Kansas v. Hendricks, 521 U.S. 346

(1997), the Court again examined the issue of civil con-

finement, this time in the context of sex offenders. Peti-

tioner Hendricks had a long history of serious sexual

abuse of children and had been diagnosed with pedophilia.

He admitted an uncontrollable urge to molest children.

He was committed pursuant to Kansas’s Sexually Violent

Predator Act, under which persons proven by clear and

convincing evidence to have a “mental abnormality” that

makes them “ ‘likely to engage in . . . predatory acts of

sexual violence’ ” were eligible for civil commitment. Id. at

352 (quoting Kan. Stat. § 59-29a02(a)). On appeal, the

26 No. 07-3278

Kansas Supreme Court reversed, holding the Kansas

statute unconstitutional under Foucha. The term “mental

abnormality,” it ruled, did not meet the requirement of

establishing a “mental illness” sufficient to support

confinement. Id. at 356.

The Supreme Court reversed. It concluded that sub-

stantive due process was satisfied by the statute’s re-

quirement of a “mental abnormality.” Id. at 359. The

Court acknowledged, as it had in Foucha, that “freedom

from physical restraint has always been at the core of

the liberty protected by the Due Process Clause from

arbitrary governmental action.” Id. at 356 (internal quota-

tion marks and citation omitted). That liberty interest, the

Court continued, “is not absolute,” id. at 356; in “certain

narrow circumstances” states have “provided for the

forcible civil detainment of people who are unable to

control their behavior and who thereby pose a danger to

the public health and safety,” id. at 357. The Court noted

that it has “consistently upheld such involuntary com-

mitment statutes provided the confinement takes place

pursuant to proper procedures and evidentiary stan-

dards.” Id. State statutes generally do not pass constitu-

tional muster premised on a “finding of dangerousness,

standing alone,” but have been deemed constitutionally

adequate when they have “coupled proof of dangerous-

ness with the proof of some additional factor, such as a

‘mental illness’ or ‘mental abnormality.’ ” Id. at 358.

This additional factor, the Court held, “serve[s] to limit

involuntary civil confinement to those who suffer from

a volitional impairment rendering them dangerous

beyond their control.” Id.

No. 07-3278 27

The Court was careful to note that the term “mental

illness,” used in Foucha to identify the required “additional

factor,” was “devoid of any talismanic significance.” Id. at

358-59. Not only had the Court itself referred to this

additional factor under many different names, but,

perhaps more importantly, “ ‘psychiatrists disagree

widely and frequently on what constitutes mental ill-

ness.’ ” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 81 (1985)).

The Court continued:

[W]e have never required state legislatures to

adopt any particular nomenclature in drafting

civil commitment statutes. Rather, we have tradi-

tionally left to legislators the task of defining

terms of a medical nature that have legal signifi-

cance. Cf. Jones v. United States, 463 U.S. 354, 365,

n. 13 (1983). As a consequence, the States have,

over the years, developed numerous specialized

terms to define mental health concepts. Often,

those definitions do not fit precisely with the

definitions employed by the medical commu-

nity. . . . Legal definitions . . . which must “take

into account such issues as individual responsibil-

ity . . . and competency,” need not mirror those

advanced by the medical profession. American

Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders xxiii, xxvii (4th ed.

1994).

Id. (modification of quotation in original). In Hendricks’s

case, he had been diagnosed with a condition that “the

psychiatric profession itself classifies as a serious mental

28 No. 07-3278

disorder.” Id. at 360. His diagnosis, together with his

admitted lack of volitional control and the predictions

relating to his future dangerousness, “adequately

distinguishe[d] Hendricks from other dangerous persons

who are perhaps more properly dealt with exclusively

through criminal proceedings.” Id. at 360. The Court,

therefore, upheld Hendricks’s commitment and the

Kansas statute’s structure as consistent with due process.

Concurring in the judgment, Justice Kennedy agreed

that the Kansas statute “is within [the] pattern and tradi-

tion of civil confinement.” Id. at 372 (Kennedy, J., concur-

ring). He specifically noted that the condition at issue,

pedophilia, “is at least described in the DSM[].” Id. Al-

though fully joining in the Court’s opinion, he con-

cluded: “If, however, civil confinement were to become

a mechanism for retribution or general deterrence, or if

it were shown that mental abnormality is too imprecise

a category to offer a solid basis for concluding that

civil detention is justified, our precedents would not

suffice to validate it.” Id. at 373.

Justice Breyer, writing in dissent, agreed with the major-

ity’s conclusion that Hendricks’s commitment did not

violate due process. He first noted, in agreement with

the majority, that “the Constitution gives States a degree

of leeway” in establishing the necessary criteria for com-

mitment. Hendricks, 521 U.S. at 375 (Breyer, J., dissenting).

Like Justice Kennedy, Justice Breyer also noted that

Hendricks’s disorder was a recognized disorder by the

psychiatric community, listed in the DSM. Justice Breyer

continued:

No. 07-3278 29

I concede that professionals also debate whether

or not this disorder should be called a mental

“illness.” But the very presence and vigor of this

debate is important. The Constitution permits a

State to follow one reasonable professional view,

while rejecting another. The psychiatric debate,

therefore, helps to inform the law by setting the

bounds of what is reasonable, but it cannot here

decide just how States must write their laws

within those bounds.

Id. (internal citations omitted). Moreover, the effect of

the disorder on Hendricks himself did “not consist

simply of a long course of antisocial behavior, but rather

it includes a specific, serious, and highly unusual

inability to control his actions.” Id. Finally, the result of

his inability to control his urges posed a very serious

danger to children. Under these circumstances, Justice

Breyer, while dissenting on the ground that Kansas had

violated the Ex Post Facto Clause, concluded that

Kansas had acted permissibly in classifying Hendricks

as mentally ill and dangerous as those terms had been

used in Foucha.

C.

Five years later, in Kansas v. Crane, 534 U.S. 407 (2002),

the Court again took up a due process challenge to civil

commitment. Crane was a convicted sex offender diag-

nosed with exhibitionism and antisocial personality

disorder. He was ordered committed under the same

Kansas statute at issue in Hendricks. After Hendricks, the

30 No. 07-3278

Kansas Supreme Court interpreted due process to

require a finding of a complete lack of volitional control

to support civil commitment and ruled Crane’s civil

commitment unconstitutional. The State of Kansas

sought review, and the Supreme Court vacated the judg-

ment.

The Supreme Court held that Hendricks did not require

a determination that the committed individual had a

complete lack of control. Instead, the Court clarified,

“Hendricks underscored the constitutional importance

of distinguishing a dangerous sexual offender subject to

civil commitment from other dangerous persons who

are perhaps more properly dealt with exclusively

through criminal proceedings.” Id. at 412 (internal quota-

tion marks and citations omitted). That distinction was

made in Hendricks in part by the “presence of what the

psychiatric profession itself classifie[d] . . . as a serious

mental disorder.” Id. (internal quotation marks omitted)

(modification in original). The Court further noted that

a “critical distinguishing feature” of the serious disorder

in Hendricks was “a special and serious lack of ability to

control behavior.” Id. at 412-13. What due process

requires in this context, the Court determined, is

proof of serious difficulty in controlling behavior.

And this, when viewed in light of such features

of the case as the nature of the psychiatric diagno-

sis, and the severity of the mental abnormality

itself, must be sufficient to distinguish the danger-

ous sexual offender whose serious mental illness,

abnormality, or disorder subjects him to civil

No. 07-3278 31

commitment from the dangerous but typical

recidivist convicted in an ordinary criminal case.

Id. at 413. The Court acknowledged the imprecision in its

definition but noted that “the Constitution’s safeguards

of human liberty in the area of mental illness and the

law are not always best enforced through precise

bright-line rules.” Id. It must be so, the Court reasoned,

to respect the “considerable leeway” of states in defining

the conditions that make individuals eligible for commit-

ment. Id. Moreover, “the science of psychiatry, which

informs but does not control ultimate legal determina-

tions, is an ever-advancing science, whose distinctions

do not seek precisely to mirror those of the law.” Id.

In an additional section of its opinion, the Court noted

that, although volitional impairment had been at the

center of its analysis in Hendricks, which dealt with an

individual suffering from pedophilia, the Court had

not drawn “a clear distinction between the purely ‘emo-

tional’ sexually related mental abnormality and the ‘voli-

tional.’ ” Id. at 415. “Nor,” the Court continued, “when

considering civil commitment, have we ordinarily distin-

guished for constitutional purposes among volitional,

emotional, and cognitive impairments. The Court in

Hendricks had no occasion to consider whether confine-

ment based solely on ‘emotional’ abnormality would be

constitutional, and we likewise have no occasion to do

so in the present case.” Id. (internal citations omitted).

In dissent, Justice Scalia contended that the majority

had “gutt[ed]” Hendricks, and had introduced significant

uncertainties in precisely how state courts could conduct

32 No. 07-3278

commitment proceedings; requiring commitment to be

supported by some degree of inability to control

behavior “displays an elegant subtlety of mind,” but, he

noted, does little to instruct trial courts conducting com-

mitment proceedings. Id. at 422, 423 (Scalia, J., dissenting).

Against this backdrop, we now turn to an analysis of

the case before us.

IV

ANALYSIS

A.

As in all habeas corpus proceedings under 28 U.S.C.

§ 2254, the successful petitioner must demonstrate that

he “is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a).

For claims actually “adjudicated on the merits in State

court proceedings,” the statute commands that we under-

take a limited review. Id. § 2254(d). We evaluate the

record to discern only whether the state court’s adjudica-

tion of the claim (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States,” id. § 2254(d)(1), or (2) “was based on an unrea-

sonable determination of the facts in light of the

evidence presented,” id. § 2254(d)(2).

These narrow and deferential standards of review

do not apply, however, where the relevant state courts

did not adjudicate the claims presented on a federal

No. 07-3278 33

habeas petition. Cheeks v. Gaetz, 571 F.3d 680, 684-85

(7th Cir. 2009). In such cases, we apply the general stan-

dard of review contained in 28 U.S.C. § 2243, which

directs that we “dispose of the matter as law and justice

require.” Id.10

B.

We first address Mr. McGee’s challenges to the Wis-

consin civil commitment procedures. He claims that the

procedures fail to ensure, in the language of Crane, that

commitment be ordered only upon some “proof of serious

difficulty in controlling behavior.” 534 U.S. at 413. In

Mr. McGee’s view, this language necessarily requires, in

each case, an explicit finding of some inability to control

behavior. Because his committing court made no

such finding, Mr. McGee contends that his commitment

violates the due process standards set forth in Crane.

We considered and rejected a similar challenge to Wis-

consin procedures in Laxton v. Bartow, 421 F.3d 565 (7th

Cir. 2005), but the posture of that case called for highly

deferential review under 28 U.S.C. § 2254(d). In Laxton’s

direct challenge to his commitment, the state court had

determined that its statute satisfied Crane in the absence

of a specific finding. On habeas review, we found that

interpretation of Crane not unreasonable. Id. at 572.

We now take up the same question here, when our

review, for reasons explained above, is de novo.

10

We have equated this standard with de novo review.

See Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).

34 No. 07-3278

We begin with the guidance provided by the Supreme

Court cases we have discussed. In Crane, the Court held

that the Constitution would not permit civil confine-

ment ordered “without any lack-of-control determina-

tion.” 534 U.S. at 412 (emphasis in original). Such a deter-

mination was necessary, the Court continued, to “distin-

guish[] a dangerous sexual offender subject to civil com-

mitment from other dangerous persons who are

perhaps more properly dealt with exclusively through

criminal proceedings.” Id. (internal quotation marks

omitted). To satisfy this purpose, the Constitution

requires “proof of serious difficulty in controlling be-

havior,” which, admittedly, “will not be demonstrable

with mathematical precision.” Id. at 413. This proof, when

viewed in light of the nature and severity of the

diagnosis at issue, the Court reiterated, limits civil com-

mitment to the subset of offenders whose “illness, abnor-

mality, or disorder,” renders them dangerous and

thus forms a constitutional basis for indefinite state

custody. Id. As we have noted earlier, the explicitness

of this guidance, or at least the universality of its applica-

tion, was placed in question by the ensuing section of

the Court’s opinion that noted that the Court has not

drawn a distinction between volitional, emotional and

cognitive impairments.1 1

11

Writing in dissent, Justice Scalia contended that the majority

had misread Kansas v. Hendricks, 521 U.S. 346 (1997), to “estab-

lish[] the requirement of a finding of inability to control behav-

ior.” Kansas v. Crane, 534 U.S. 407, 419 (2002) (Scalia, J., dissent-

(continued...)

No. 07-3278 35

State and federal courts have been non-uniform in

their interpretation of Crane with respect to the issue

of whether a separate finding is required. The majority

of jurisdictions to have considered whether Crane

imposed a new requirement of a separate finding of

serious difficulty to control behavior have con-

cluded that it does not. See Richard S. v. Carpinello, 589

F.3d 75, 83-84 (2d Cir. 2009) (collecting cases accepting

both positions and adopting the majority view).

This case does not require that we answer these broad

questions. Mr. McGee contends only that the com-

mitting court failed to make a necessary determination

about his inability to control his behavior; he does not

contend that the State impermissibly relied solely upon

an “emotional impairment.” Moreover, although the

committing court did not make a specific finding about

his inability to control his behavior, we believe that such

a finding was implicit in the findings that the com-

mitting court did make under the specific provisions of

the Wisconsin statute.

11

(...continued)

ing) (emphasis in original). In the view of the dissenting Justices,

Hendricks had ruled that the Kansas statute’s “causal connection

between the likelihood of repeat acts of sexual violence and the

existence of a ‘mental abnormality’ or ‘personality disorder’

necessarily establishes ‘difficulty if not impossibility’ in con-

trolling behavior.” Id. (emphasis in original). That is, the

Kansas statute at issue in Hendricks and again in Crane passed

constitutional muster because an inability to control behavior

is implicit in a scheme that requires a nexus between a

disorder and the likelihood of recidivism.

36 No. 07-3278

The Wisconsin statute applies only to sexually violent

persons. In the Wisconsin scheme, a “sexually violent

person” eligible for commitment is defined as:

a person who has been convicted of a sexually

violent offense, has been adjudicated delinquent

for a sexually violent offense, or has been found

not guilty of or not responsible for a sexually

violent offense by reason of insanity or mental

disease, defect, or illness, and who is dangerous

because he or she suffers from a mental disorder that

makes it likely that the person will engage in one or

more acts of sexual violence.

Wis. Stat. § 980.01(7) (emphasis added). The term “mental

disorder” is further defined as “a congenital or acquired

condition affecting the emotional or volitional capacity that

predisposes a person to engage in acts of sexual vio-

lence.” Id. § 980.01(2) (emphasis added). Unlike the

Kansas statute at issue in Hendricks and Crane, personality

disorders are not listed as a separate and independent

statutory basis upon which commitment could be based;

Wisconsin instead has interpreted the term “mental

disorder” to encompass personality disorders. See In re

Commitment of Adams, 588 N.W.2d 336, 340 (Wis. Ct. App.

1998).

The requirement of some inability to control behavior,

which the Crane dissenters contended was implicit in

the Kansas scheme, has been made an explicit element of

eligibility for civil confinement in Wisconsin. The Wis-

consin statute expressly requires that, in order to

No. 07-3278 37

satisfy the legal definition of a “mental disorder,” the

committed person must suffer from an emotional or

volitional impairment. Wis. Stat. § 980.01(2). Moreover,

the Supreme Court of Wisconsin has interpreted this

statute to require a connection between the person’s

mental condition and the individual’s dangerousness.

See In re Commitment of John Laxton, 647 N.W.2d 784, 792-

93 (Wis. 2002) (referencing the definition of a SVP in

§ 980.01(7), supra). A person can be adjudicated a

sexually violent person only if the person is dangerous

because he suffers from a mental disorder that makes it

substantially probable that the person will engage in acts

of sexual violence. The requirement of a connection

between the mental disorder in the functioning of the

person’s emotional or volitional capacity and his

likelihood of engaging in sexual violence “necessarily

and implicitly requires proof that the person’s mental

disorder involves serious difficulty for such person in

controlling his or her behavior.” Id. at 793-94. When a

Wisconsin court makes a finding that an individual has

a “mental disorder” within the meaning of the statute,

that court has necessarily found that emotional or voli-

tional capacity is impaired. See Wis. Stat. § 980.01(2). Thus,

the critical element identified as lacking in Crane, “proof

of serious difficulty in controlling behavior,” 534 U.S.

at 413, is an existing requirement under Wisconsin law.

38 No. 07-3278

C.

As we have noted, Mr. McGee was diagnosed with

two conditions that were offered to establish the

requisite “mental disorder” that made him substantially

probable to commit future acts of sexual violence. See

Wis. Stat. § 980.01. Dr. Roberts diagnosed him with a

personality disorder NOS with antisocial features;

Dr. Marsh agreed with that diagnosis and further diag-

nosed him with paraphilia NOS-nonconsent.

Mr. McGee asks us to hold that neither diagnosis

suffices for due process purposes. First, he contends that

both are “invalid and unreliable ‘disorders.’ ” Appellant’s

Br. 10. Specifically, Mr. McGee notes that, while both

diagnoses were purportedly arrived at after con-

sideration of the diagnostic criteria in the DSM, neither

is a listed and defined disorder. Instead, both diagnoses

derive from catchall “not otherwise specified” categories

of disorders.12 As a result, the specific diagnoses at

issue lack generally accepted, standardized diagnostic

criteria. Moreover, Mr. McGee contends that the failure

of the APA to include the disorders within the DSM

12

The DSM identifies broad classes of disorders (e.g., “Anxiety

Disorders”) and lists within each class specific, related disorders

(Panic Disorder, Social Phobia, Obsessive-Compulsive

Disorder, etc.), each of which are discussed in some detail and

guidelines for the diagnosis of which are provided. Each class

of disorder also includes at least one “not otherwise speci-

fied” category, for which brief, non-exhaustive examples, but

no specific diagnostic criteria, are provided.

No. 07-3278 39

demonstrates that the consensus view in the profession

does not find the disorders valid or reliable. Mr. McGee

also claims that, even if the use of “not otherwise speci-

fied” categories is not categorically infirm, additional

problems with his diagnoses have resulted in a denial of

due process. He claims that he cannot be diagnosed

legitimately with any personality disorder because all

personality disorders require, as a diagnostic criterion,

presentation in adolescence; the diagnosing professionals

acknowledged at trial that no adolescent presentation

had been documented in his case. Finally, he claims

that the diagnosis of paraphilia NOS (nonconsent or

rape) represents an extreme minority viewpoint in the

profession that has been explicitly and publicly rejected

by the APA in crafting the DSM.

1.

Because Mr. McGee’s contentions rely heavily upon the

DSM, we begin with some observations about the text.

According to the editors, the “highest priority” of the text

is “to provide a helpful guide to clinical practice.” DSM,

xxiii. The editors refer to it as “[a]n official nomenclature,”

and, as such, make clear that it “must be applicable in a

wide variety of contexts” including environments for

clinicians and researchers, as well as health and mental

health professionals. Id. With respect to fields outside

of these medical and psychological settings, the text

includes a “Cautionary Statement,” which provides:

The specified diagnostic criteria for each mental

disorder are offered as guidelines for making

40 No. 07-3278

diagnoses, because it has been demonstrated that

the use of such criteria enhances agreement

among clinicians and investigators. The proper

use of these criteria requires specialized clinical

training that provides both a body of knowledge

and clinical skills.

These diagnostic criteria and the DSM-IV Classi-

fication of mental disorders reflect a consensus of

current formulations of evolving knowledge in our

field. They do not encompass, however, all the condi-

tions for which people may be treated or that may be

appropriate topics for research efforts.

The purpose of DSM-IV is to provide clear

descriptions of diagnostic categories in order to

enable clinicians and investigators to diagnose,

communicate about, study, and treat people with

various mental disorders. It is to be understood that

inclusion here, for clinical and research purposes, of a

diagnostic category such as Pathological Gambling

or Pedophilia does not imply that the condition meets

legal or other non-medical criteria for what constitutes

mental disease, mental disorder, or mental disability.

The clinical and scientific considerations involved in

categorization of these conditions may not be wholly

relevant to legal judgments, for example, that take into

account such issues as individual responsibility, disabil-

ity determination, and competency.

DSM, xxxvii (emphasis added).

With respect to the circumstances of forensic evaluations,

the DSM includes a specific response. The editors note

No. 07-3278 41

the “imperfect fit between the questions of ultimate

concern to the law and the information contained in a

clinical diagnosis” and the resultant “risks and limita-

tions.” Id. at xxxiii. The text explicitly mentions that a

DSM-based diagnosis “does not carry any necessary

implications regarding the individual’s degree of control

over [his] behavior[] . . . . Even when diminished control

over one’s behavior is a feature of the disorder,

having the diagnosis in itself does not demonstrate that

a particular individual is (or was) unable to control his

or her behavior at a particular time.” Id.; see also Barefoot

v. Estelle, 463 U.S. 880, 920 (1983) (Blackmun, J., dissent-

ing) (quoting the Brief for the American Psychiatric

Association as Amicus Curiae for the proposition that

“[t]he unreliability of psychiatric predictions of long-term

future dangerousness is by now an established fact

within the profession”). Clearly, however, the APA is

aware that its text is used for forensic purposes, even

though standardization in that context was not a goal of

the APA in drafting the DSM. The text notes the value of

“the use of an established system of diagnosis,” as is

provided in the DSM, to “enhance[] the value and reliabil-

ity” of legal determinations, including those relevant to

involuntary civil commitment. DSM, xxxiii.

Despite its limitations in a non-medical setting, the

DSM is a highly influential and useful tool. The Supreme

Court has cited the DSM authoritatively, most notably in

Crane. 534 U.S. at 411, 414; see also Hendricks, 521 U.S. at

372 (Kennedy, J., concurring) (noting with approval that

the disorder which formed the basis of the commitment

proceedings was “at least described in the DSM[]”). Many

42 No. 07-3278

mental health professionals have advocated that a valid,

DSM-recognized diagnosis be a necessary, but not suffi-

cient, condition for involuntary civil commitment.1 3

Whether a legitimate mental health diagnosis must be

based on the DSM is a question for the members of the

mental health profession, and, therefore, one to which we

do not address ourselves. Our concern is with the due

process requirements for the relevancy and legitimacy

of evidence adduced in civil commitment proceedings. In

that narrow legal context, we cannot adopt any rule

that asks the DSM to do what the text itself professes

that it was not intended to do: answer ultimate legal

questions or create a perfect fit between law and medicine

in the realm of involuntary civil commitment.

13

See, e.g., John Matthew Fabian, To Catch a Predator, And Then

Commit Him for Life, 33 Champion 44, 49 (Feb. 2009) (noting that

it “is critical . . . that psychiatric and psychological clinicians

who testify in good faith as to mental abnormality are able to

identify psychiatric disorders that are defined in the DSM[]”);

Robert A. Prentky et al., Sexually Violent Predators in the Court-

room: Science on Trial, 12 Psychol. Pub. Pol’y & L. 357, 364 (2006)

(“The classification of a syndrome as a mental disorder in the

DSM[] must be regarded as the primary standard for medical

validity in the SVP context.”); Brett Trowbridge & Jay Adams,

Sexually Violent Predator Assessment Issues, 26 Am. J. Forensic

Psychol. 29, 37 (2008) (“Although a diagnosis of a DSM[] mental

disorder is not sufficient in and of itself to meet [the civil

commitment] standard, it nevertheless permits the evaluator

to utilize accepted diagnostic categories and thus go beyond

mere opinion or speculation.”).

No. 07-3278 43

Not only has the Supreme Court cautioned that bright-

line rules are often an ill-fit for this context, see Crane, 534

U.S. at 413, it has spoken directly to the issue of medical

evidence in commitment proceedings: “[T]he science of

psychiatry, which informs but does not control ultimate

legal determinations, is an ever-advancing science,

whose distinctions do not seek precisely to mirror those

of the law.” Id.; see also Hendricks, 521 U.S. at 359 (“Legal

definitions . . . need not mirror those advanced by the

medical profession.”). Having made clear in Foucha

that dangerousness without proof of some underlying

mental condition is not sufficient to sustain an involun-

tary commitment, the Court’s more recent statements

have reflected the need to provide states with “leeway”

in crafting legal standards reflecting the available sci-

ence. Crane, 534 U.S. at 413; Hendricks, 521 U.S. at 374

(Breyer, J., dissenting).

The Supreme Court’s cases on this point teach that

civil commitment upon a finding of a “mental disorder”

does not violate due process even though the predicate

diagnosis is not found within the four corners of the

DSM. A factfinder may have stronger confidence

in his conclusions when the examining mental health

professionals rely upon authoritative, consensus materials

in the field. See Crane, 534 U.S. at 412 (noting that, in

Hendricks, the committed person was distinguished from

other dangerous persons not subject to commitment, in

part by the “presence of what the psychiatric profession

itself classifie[d] . . . as a serious mental disorder” (modifi-

cation in original) (internal quotation marks omitted));

Hendricks, 521 U.S. at 372 (Kennedy, J., concurring)

44 No. 07-3278

(finding support for the conclusion that the commit-

ment was lawful in the fact that the diagnosis at issue “is

at least described in the DSM[]”). Indeed, reliance on

such a respected source permits reliability that should

not be minimized when so grave a restriction of

individual liberty is at issue. Likewise, when a particular

diagnosis is not accepted or is explicitly rejected by the

DSM or other authoritative sources, that factor is a

highly relevant consideration for the factfinder. In

either situation, however, the factfinder has the ultimate

responsibility to assess how probative a particular diagno-

sis is on the legal question of the existence of a “mental

disorder”; the status of the diagnosis among mental

health professionals is only a step on the way to that

ultimate legal determination. The methodology and the

outcome of any mental health evaluation offered as

evidence is a proper subject for cross-examination, and

we would expect that, in the ordinary case, such efforts

would expose the strengths and weaknesses of the profes-

sional medical opinions offered.

No doubt, a medical diagnosis can be based on so

little evidence that bears on the controlling legal criteria

that any reliance upon it would be a violation of due

process. See Hendricks, 521 U.S. at 373 (Kennedy, J., concur-

ring) (noting that a constitutional violation may be

found “if it were shown that mental abnormality is too

imprecise a category”). Therefore, a particular diagnosis

may be so devoid of content, or so near-universal in its

rejection by mental health professionals, that a court’s

reliance on it to satisfy the “mental disorder” prong of

the statutory requirements for commitment would

No. 07-3278 45

violate due process. Whether that point was reached in

this case is the question to which we now turn.

2.

Both diagnoses at issue are based purportedly on “not

otherwise specified,” or NOS, diagnoses within the

general classes of personality disorders and paraphilias.

Perhaps in anticipation of criticism that these categories are

too amorphous to provide the kind of standardized,

clinical guidance found elsewhere in the text, the DSM

provides an explicit explanation of its use of NOS diagno-

ses. It begins by noting that “the diversity of clinical

presentations” makes it “impossible for the diagnostic

nomenclature to cover every possible situation.” DSM, 4.

The introductory note then identifies four specific situa-

tions in which an NOS diagnosis may be appropriate.

They include situations in which, although the presenta-

tion reflects the general guidelines for a diagnostic class,

“the symptomatic picture does not meet the criteria for

any of the specific disorders. This situation would occur

either when the symptoms are below the diagnostic threshold

for one of the specific disorders or when there is an atypi-

cal or mixed presentation.” Id. (emphasis added). In

addition, where a “symptom pattern” is not consistent

with a specific DSM classification, but “clinically causes

significant distress or impairment,” an NOS diagnosis

likewise would be appropriate. Id.

Mr. McGee is generally critical of the use of NOS cate-

gories because, in the view of some professionals, they

are “ ‘less of a real diagnostic category than a receptacle

46 No. 07-3278

for miscellaneous symptoms.’ ” Appellant’s Br. 11

(quoting Thomas K. Zander, Civil Commitment Without

Psychosis: The Law’s Reliance on the Weakest Links in

Psychodiagnosis, 1 J. Sex. Offender Civ. Commitment 17, 67

(2005)); see also Brett Trowbridge & Jay Adams, Sexually

Violent Predator Assessment Issues, 26 Am. J. Forensic Psych.

29, 42 (2008) (“[T]he NOS categories are not diagnostic

categories at all but merely catch-all categories for symp-

toms not listed elsewhere.”). He also makes more

specific objections. First, he contends that the state court

erroneously accepted a diagnosis of personality disorder

NOS with antisocial features, as based in the DSM, even

though Mr. McGee did not meet the diagnostic criteria

for any personality disorder or meet the DSM’s

more specific guidelines for a personality disorder NOS

diagnosis. Second, he contends that his diagnosis for

paraphilia NOS (nonconsent or rape) has been rejected

explicitly by the profession and is only accepted by an

extreme minority primarily composed of state-em-

ployed professionals charged with civil commitment

evaluations. We shall address the due process chal-

lenges raised in each of these objections.

a.

With regard to his personality disorder diagnosis, Mr.

McGee makes specific, textual arguments based on

the DSM. We therefore begin with a brief explanation of

the structure of the text. With each class of disorder, the

DSM provides general diagnostic criteria that apply to

all of the listed disorders within the class. In the case

No. 07-3278 47

of personality disorders, that list includes six criteria, the

first of which states that the affected individual exhibits

“[a]n enduring pattern of inner experience and behavior

that deviates markedly from the expectations of the indi-

vidual’s culture.” DSM, 689. Another criterion states

that this pattern “is stable and of long duration, and its

onset can be traced back at least to adolescence or early adult-

hood.” Id. (emphasis added). After these general guidelines

are set forth, the text examines a number of specific

disorders within the class. In the discussion of Antisocial

Personality Disorder, or APD, (with which Mr. McGee

was not diagnosed, but which bears the closest relation-

ship to his diagnosis of personality disorder NOS

with antisocial features), the first listed diagnostic

criterion is “a pervasive pattern of disregard for and

violation of the rights of others occurring since age 15

years.” Id. at 706.

In testimony at trial, the experts conceded that there

was no evidence demonstrating the onset of an antisocial

personality in Mr. McGee’s adolescence. R.16, Ex. 83 at 120-

21 (Dr. Roberts); Id., Ex. 84 at 35 (Dr. Marsh). It was for

that specific reason, according to one expert, that

Mr. McGee was given an NOS diagnosis with antisocial

features, rather than a diagnosis for the specific disorder

of APD. Mr. McGee objects that this approach was clini-

cally invalid because it failed to take account of the

general diagnostic criteria in the personality disorder

class, which also require onset in adolescence. Thus, his

argument goes, the expert testimony, while cloaked in

the authority of the DSM, was, in fact, invalid.

48 No. 07-3278

Mr. McGee essentially has asked us to rule that, in order

for a diagnosis to be considered as evidence of a mental

disorder, mental health professionals applying the

DSM must do more than the text itself requires. The

introductory materials to the DSM emphasize that:

[t]he specific diagnostic criteria included in [the]

DSM[] are meant to serve as guidelines to be

informed by clinical judgment and are not meant to be

used in a cookbook fashion. For example, the exercise

of clinical judgment may justify giving a certain

diagnosis to an individual even though the clinical

presentation falls just short of meeting the full criteria

for the diagnosis as long as the symptoms that are

present are persistent and severe.

DSM, xxxii (emphasis added). The DSM itself thus explic-

itly contemplates that trained professionals will apply it

with informed clinical judgment to reach a conclusion; it

cautions that it should “not be applied mechanically

by untrained individuals.” Id.

More fundamentally, however, our task is decidedly

different from the professionals who evaluated

Mr. McGee, reached a diagnosis and testified at his trial.

We must inquire only whether the diagnosis was so

patently lacking in credibility and validity that its con-

sideration by the factfinder in the Wisconsin courts re-

sulted in a denial of constitutional rights. Although we

acknowledge the variance between some of the clini-

cians’ factual statements and the specific criteria

in the DSM, we do not think, given the role assigned to

NOS diagnoses in the mental health profession, that the

No. 07-3278 49

state court was precluded from considering the per-

sonality disorder NOS diagnosis in making its decision

that Mr. McGee suffered from a mental disorder that

impaired his volitional capacity. The Supreme Court has

made it clear that the states have great flexibility in

the crafting of a definition of mental impairment.

The Wisconsin definition is clearly designed to identify

individuals who, unlike the typical recidivist, are unable

to exert full volitional control over their violent sexual

impulses. The NOS criteria, although not as specific

as the delineated categories of established psychiatric

diagnosis, can be useful tools, when employed with

prudence and caution, in making the legal determination

as to whether an individual falls within the ambit of the

statute.

b.

The diagnosis for paraphilia NOS (nonconsent or

rape), reached only by one of the two clinicians, presents

a more complicated picture. Even its most ardent advo-

cates acknowledge that the diagnosis is “probably . . . the

most controversial among the commonly diagnosed

conditions within the sex offender civil commitment

realm.” Dennis M. Doren, Evaluating Sex Offenders: A

Manual for Civil Commitments and Beyond 63 (2002). The

general class of disorders termed “paraphilias” refers

to conditions involving “recurrent, intense sexually

arousing fantasies, sexual urges, or behaviors generally in-

volving 1) nonhuman objects, 2) the suffering or humilia-

tion of oneself or one’s partner, or 3) children or other

50 No. 07-3278

nonconsenting persons that occur over a period of at least

6 months.” DSM, 566 (emphasis added). Listed

paraphilias include exhibitionism, fetishism, frotteurism,

pedophilia, sexual masochism, sexual sadism, transvestic

fetishism and voyeurism. Id. at 566-75. In addition, the

DSM includes a category of Paraphilia Not Otherwise

Specified, which is explained as the appropriate

diagnosis “for Paraphilias that do not meet the criteria

for any of the specific categories.” Id. at 576. The DSM

contains a non-exhaustive list of examples: “telephone

scatologia (obscene phone calls), necrophilia (corpses),

partialism (exclusive focus on part of body), zoophilia

(animals), coprophilia (feces), klismaphilia (enemas), and

urophilia (urine).” Id. at 573. Although the description

of sexual sadism includes a reference to rape as a

potential subject of fantasies or behaviors associated

with the disorder, rape is only consistent with a sadism

diagnosis when “it is the suffering of the victim that is

sexually arousing” to the person with the disorder. Id.

Other than this reference (and a companion reference in

the description of sexual masochism), rape is not other-

wise included in the described Paraphilias or in the

exemplary list of NOS Paraphilias.

In preparation for the DSM-III revision, a rape-related

paraphilia (“paraphilic rapism”) was considered for

inclusion. Zander, supra, at 45. It was suggested as a

distinct diagnosis because, for an afflicted individual, it

is “the coercive nature of the sexual act that is sexually

exciting, and not signs of . . . suffering of the victim,” as is

the case in sadism. Id. at 46 (citing DSM revision Work

Group documents). Significant opposition from interest

No. 07-3278 51

groups surrounded the suggestion, and the diagnosis

ultimately was rejected for inclusion in the main text of

the DSM in 1986. Id. At the conclusion of the main text,

the DSM sets forth a list of “Other Conditions that May Be

a Focus of Clinical Attention,” although they are not

considered “mental disorders” sufficient to merit inclusion

in the main text. DSM, 731. Within this listing appears a

category called “Sexual Abuse of Adult,” which, according

to the text, “should be used when the focus of clinical

attention is sexual abuse of an adult (e.g., sexual coercion,

rape).” Id. at 738.

Mr. McGee contends that this rejection by the DSM

demonstrates the consensus professional view that a

paraphilia NOS (nonconsent or rape) diagnosis is in-

valid. His contention is not without support in the profes-

sional literature.14 A frequently cited difficulty in accepting

a rape-related paraphilia diagnosis is that the lack of

14

See Thomas K. Zander, Civil Commitment Without Psychosis:

The Law’s Reliance on the Weakest Links in Psychodiagnosis, 1 J. Sex.

Offender Civ. Commitment 17, 41-47 (2005); Holly Miller et al.,

Sexually Violent Predator Evaluations: Empirical Evidence,

Strategies for Professionals, and Research Directions, 29 L. & Hum.

Behavior 29, 39 (2005) (“Numerous evaluators have utilized

the diagnosis ‘paraphilia not otherwise specified’ to apply to

rapists. However, the definition of this appellation is so amor-

phous that no research has ever been conducted to establish

its validity (in fact the word rape is not even mentioned in

the Paraphilia NOS diagnostic description).”); Prentky et al.,

supra note 13, at 367 (noting the possibility that the category

is “a wastebasket for sex offenders,” and thus, “taxonomically

useless”).

52 No. 07-3278

generally accepted standards results in poor diagnostic

reliability; that is, different evaluators may be likely to

reach different conclusions with respect to the same

individual at unacceptably high rates. See, e.g., Trowbridge

& Adams, supra, at 44 (“NOS diagnoses have the worst

levels of inter-rater reliability. . . . [T]he diagnosis of

paraphilia NOS had an inter-rater reliability so low . . . that

it fell well into the poor category.”). The converse view,

and the one adopted by one of clinicians in Mr. McGee’s

proceedings and accepted by the committing court, also

has support in the literature.1 5

Given these admittedly conflicting professional views,

we must conclude, on the basis of present Supreme Court

precedent, that the diagnosis of a paraphilic disorder

related to rape is not so unsupported by science that

it should be excluded absolutely from consideration by

the trier of fact. We reach this conclusion primarily

because of the Supreme Court’s repeated statements that

states must have appropriate room to make practical,

common-sense judgments about the evidence presented

15

See, e.g., Dennis M. Doren, Evaluating Sex Offenders: A

Manual for Civil Commitments and Beyond 63 (2002); Gregory

DeClue, Paraphilia NOS (Nonconsenting) and Antisocial

Personality Disorder, 34 J. Psychiatry & L. 495, 511-12 (2006); Jack

Vognsen & Amy Phenix, Antisocial Personality Disorder is Not

Enough: A Reply to Sreenivasan, Weinberger, and Garrick, 32 J.

Am. Acad. Psychiatry & L. 440, 442 (2004) (contending that

forensic experts “must diagnose paraphilia” when an

individual suffers more than a personality disorder because

of a sexual deviance involving rape).

No. 07-3278 53

in commitment proceedings. As Justice Breyer wrote in

considering the diagnosis of pedophilia in Hendricks, the

“presence and vigor” of professional debate on the

subject of whether a particular condition qualifies as an

illness is important, because “[t]he Constitution permits

a State to follow one reasonable professional view, while

rejecting another.” 521 U.S. at 375 (Breyer, J., dissenting).

“The psychiatric debate, therefore, helps to inform the

law by setting the bounds of what is reasonable, but it

cannot here decide just how States must write their laws

within those bounds.” Id.1 6 We are mindful of Justice

Kennedy’s admonition that if a state’s mental health

predicate for civil commitment becomes “too imprecise

16

The State of Wisconsin is not alone, among jurisdictions

providing for civil commitment, in concluding that a paraphilic

rape disorder can be the predicate diagnosis, or one piece of

predicate diagnoses. See, e.g., Brock v. Seling, 390 F.3d 1088, 1091

(9th Cir. 2004) (per curiam) (denying habeas relief); In re

Detention of Moore, 216 P.3d 1015, 1019 (Wash. 2009) (en banc);

In re Care and Treatment of Colt, 211 P.3d 797, 804 (Kan. 2009); In

re Civil Commitment of W.X.C., 972 A.2d 462, 466, 467 (N.J. Super.

Ct. App. Div. 2009), certification granted, 983 A.2d 201 (N.J. 2009);

In re A.M., 766 N.W.2d 437, 441 (N.D. 2009); In re Detention of

Hardin, 907 N.E.2d 914, 917, 922 (Ill. App. Ct. 2009) (reversing

the trial court’s determination that a petition for commitment

based in part on a diagnosis of paraphilia NOS-nonconsent did

not demonstrate probable cause), appeal allowed, ___ N.E.2d ___,

233 Ill.2d 558 (Ill. Sept. 30, 2009); In re R.Y., Jr., 957 A.2d 780, 782,

786 (Pa. Super. Ct. 2008); Dunivan v. State, 247 S.W.3d 77, 78 (Mo.

Ct. App. 2008); State v. Shaw, 929 So.2d 1145, 1147-48 (Fla. Dt. Ct.

App. 2006); People v. Williams, 74 P.3d 779, 781-82 (Cal. 2003).

54 No. 07-3278

a category,” it may run afoul of the Constitution. Id. at 373

(Kennedy, J., concurring). The existence of a heated

professional debate over a particular diagnosis does not

indicate that such a line has been crossed here.

The professional objections to the diagnosis of paraphilia

NOS (nonconsent or rape) are not without persuasive

value. The existence of the debate is a relevant issue in

commitment proceedings and a proper considera-

tion for the factfinder in weighing the evidence that the

defendant has the “mental disorder” required by statute.

Given the present state of Supreme Court precedent,

however, we cannot conclude that the diagnosis of a rape-

related paraphilia is so empty of scientific pedigree or

so near-universal in its rejection by the mental health

profession that civil commitment cannot be upheld as

constitutional when this diagnosis serves as a predicate.

Conclusion

The primary due process concern of the Supreme

Court in the area of civil commitment is the necessity of

distinguishing between the typical dangerous recidivist

and the offender whose dangerousness is caused by some

identifiable mental condition that impairs his ability to

refrain from activity dangerous to others. The Wisconsin

SVP statute, by its very language, accomplishes this

result. Limited to the sexually dangerous, it narrows the

class of offender eligible for commitment by requiring a

judicial determination that a mental condition impairs

the offender’s ability to refrain from sexually dangerous

activity. In Mr. McGee’s case, the Wisconsin committing

No. 07-3278 55

court found that Mr. McGee’s admitted sexual danger-

ousness was caused by a mental condition. In reaching

that conclusion, it relied upon the assessments of two

mental health professionals who concluded that

Mr. McGee was afflicted with conditions that satisfied the

Wisconsin legal criteria for a “mental disorder.” These

diagnoses, which were constitutionally adequate under

existing Supreme Court precedent, and the evidence

upon which the diagnoses were based, afforded the

Wisconsin committing court an adequate basis, under

the Due Process Clause, to order his commitment.

Accordingly, the judgment of the district court denying

the writ of habeas corpus must be affirmed.

A FFIRMED

1-27-10