Brown v. Watters

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1171

B RUCE N. B ROWN,

Petitioner-Appellant,

v.

S TEVE W ATTERS,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:06-cv-00753-LA—Lynn Adelman, Judge.

A RGUED D ECEMBER 5, 2008—D ECIDED M ARCH 19, 2010

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

R IPPLE, Circuit Judge. In 1998, a Wisconsin court ordered

that Bruce Brown be committed civilly as a “sexually

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

Wisconsin Statutes. In 2006, Mr. Brown filed a petition for

habeas corpus in the United States District Court for the

Eastern District of Wisconsin. He contended that his

continued state custody deprived him of his right to due

process of law. The district court denied the writ but

issued a certificate of appealability on that issue. For the

2 No. 08-1171

reasons set forth in this opinion, we affirm the judgment

of the district court.

I

BACKGROUND

A.

Since 1974, Mr. Brown has been incarcerated frequently

for crimes that are sexual in nature.1 Between 1974 and

1

The record of Mr. Brown’s commitment proceedings in

Wisconsin was not presented in the district court. It was

offered by counsel for the State, with the caveat that, because

“the sole claim in Brown’s petition is unexhausted and

does not state a constitutional violation, [the State] does not

believe that any of the transcripts are relevant to the resolu-

tion of Brown’s petition at this time.” R.11 at 5. The district

court declined to order preparation of the transcripts or

other state record evidence.

We determined that, in order to properly review the due

process challenges raised by Mr. Brown with regard to the

scientific evidence presented at his commitment trial, review

of the state court record was appropriate. Although we gen-

erally decline to supplement the record on appeal with

materials not before the district court, we have not applied

this position categorically. See, e.g., Ruvalcaba v. Chandler, 416

F.3d 555, 562 n.2 (7th Cir. 2005) (in habeas case, supplementing

the records with certain state court documents and otherwise

accepting the parties’ undisputed representations about the

content of unprovided records); accord Thompson v. Bell, 373 F.3d

688, 690-91 (6th Cir. 2004) (in habeas case, acknowledging

(continued...)

No. 08-1171 3

1978, his actions resulted in convictions for attempted

sexual perversion and several counts of first-degree

sexual assault. Three of his later offenses were com-

mitted while he was on parole in connection with the

1974 offense and involved serious threats to the victims’

safety. The charging document for a 1978 case, for

example, indicates that Mr. Brown committed the

offense while threatening the victim with a knife as she

lay in her bed with her young grandchild next to her. In

February 1984, just two months after his release from

custody in connection with his prior offenses, Mr. Brown

committed two other serious crimes against two

separate victims within the space of four days; the first

of these acts, committed on a juvenile with use of a knife,

resulted in another conviction for first-degree sexual

assault and a sentence of 20 years’ imprisonment. The

second offense of reckless endangerment resulted in a

sentence of three years’ imprisonment, to be served

consecutively.2

1

(...continued)

that “courts of appeals have the inherent equitable power to

supplement the record on appeal, where the interests of justice

require” and collecting cases), overruled on other grounds, 545

U.S. 794 (2005). “In the interest of completion,” Ruvalcaba, 416

F.3d at 562 n.2, we ordered sua sponte the parties to supple-

ment the record in this case with the record before the state

appellate court. The parties have done so, and we have con-

ducted a full review of Mr. Brown’s commitment record.

2

The records introduced at his Wisconsin commitment pro-

ceeding also reveal a significant history of other non-sexually-

(continued...)

4 No. 08-1171

As his mandatory release date approached in 1996, the

State declined, for reasons undisclosed by the record, to

file a petition to have Mr. Brown committed as a SVP

pursuant to Chapter 980. Consequently, Mr. Brown was

released on parole in 1996. Shortly thereafter, his parole

again was revoked, and he was returned to state custody.

According to the state court records, his parole revocation

violations included using alcohol, marijuana and cocaine

and staying overnight at an unapproved residence. He

again was released from custody, this time with an elec-

tronic monitoring device, but he cut it off and absconded.

He was out of custody for more than a year before he

again was apprehended.

In addition to his conduct while out of prison,

Mr. Brown’s custodial records reveal that he received

approximately 100 conduct reports, several of which

related to sexual conduct. The incidents included an

occasion where Mr. Brown made a sexually suggestive

comment to a nurse during a physical examination

and numerous incidents where he was disciplined for

conduct with a visitor, such as inappropriate touching,

“excessive kissing and hugging” or “fondling a visitor’s

breasts.” Wis. R.92 at 54.3

2

(...continued)

based offenses including, among other things, burglary, posses-

sion of a controlled substance, carrying a concealed weapon

and attempted armed robbery.

3

We shall use the abbreviation “Wis. R.” to refer to docket

entries in the state court commitment proceeding that were not

(continued...)

No. 08-1171 5

B.

In 1998, as Mr. Brown’s new release date neared, Wiscon-

sin began Chapter 980 proceedings, seeking to have him

committed civilly as a SVP. After extensive pretrial pro-

ceedings challenging various proposed experts, proffered

testimony and supporting documents, the matter was

tried to a jury. See Wis. Stat. § 980.05(2) (providing that

civil commitment may be tried to a jury at the request

of the State or the respondent).

In support of its case, the State called Dennis Doren,

Ph.D., a clinical psychologist employed by the Wisconsin

Department of Corrections who had been working with

sex offenders since 1983. Dr. Doren testified that he

had reviewed approximately 1,500 pages of documents

from Mr. Brown’s corrections record, including presen-

tence investigation reports, social worker reports, social

history information, treatment behaviors, disciplinary

reports and other similar materials. Dr. Doren testified

that, after analyzing the documents available to him,

he had diagnosed Mr. Brown with two conditions that

he believed satisfied the Wisconsin standard of a

“mental disorder,” 4 namely, a paraphilia not otherwise

specified involving nonconsenting persons (“paraphilia

3

(...continued)

made a part of the record in the district court proceeding

and thus have no separate federal record number.

4

See Wis. Stat. § 980.01(2) (defining a “mental disorder” for

purposes of the SVP statute as “a congenital or acquired

condition affecting the emotional or volitional capacity that

predisposes a person to engage in acts of sexual violence”).

6 No. 08-1171

NOS nonconsent”) and Antisocial Personality Disorder

(“APD”).

With respect to the paraphilia diagnosis, Dr. Doren

began by noting that the term generally describes a condi-

tion that involves “recurrent, intense sexual fantasies,

sexual urges, and[/]or behaviors” involving “something

other than consenting adults.” Wis. R.94, Tr.Z at 6.

In reaching the specific paraphilia NOS nonconsent

diagnosis, Dr. Doren testified that he had relied upon a

number of facts in Mr. Brown’s record. First, Dr. Doren

noted that, at various times, Mr. Brown “effectively

acknowledged a sexual problem,” id. at 10, that he had

“given . . . to God,” id. at 11. Next, Dr. Doren found

significant that one of Mr. Brown’s offenses occurred after

“he had sex twice earlier in the day,” id. at 11; the behavior

pattern suggested that Mr. Brown was not simply looking

for a “sexual outlet,” since this was available to him with

consenting partners, id. at 18. This evidence, coupled with

Mr. Brown’s documented sexual arousal during the

attacks, was instead indicative of a specific interest in

nonconsensual sex. See id. at 13, 18. In addition, the speed

with which Mr. Brown returned to his criminal sexual

conduct after being released suggested to Dr. Doren that

Mr. Brown “is driven towards the behavior despite the fact

[that he] has had a consequence for it.” Id. at 13. Although

Mr. Brown’s offense pattern began as primarily non-sexual

in his youth, his later criminal history involved offenses

that were mostly sexual in nature, demonstrating a

“continued ambush toward . . . sex offending.” Id. at 18.

In addition to the record evidence that suggested that

Mr. Brown could be diagnosed with paraphilia NOS

No. 08-1171 7

nonconsent, Dr. Doren also testified about clinical indica-

tors that he believed were not particularly pronounced

in Mr. Brown’s case: no clear “script” from offense to

offense, no great diversity among victims and no

proclivity for offending in circumstances in which he was

likely to be caught. Id. at 19-21. Evaluating the records in

light of “general indicators” from his clinical experience,

however, Dr. Doren’s conclusion was that a diagnosis of

paraphilia NOS nonconsent was appropriate. Id. at 21. In

Mr. Brown’s case, according to Dr. Doren, his paraphilia

“impairs his decision-making process and makes it more

difficult for him to control his behavior” and further

impairs his ability “for having a degree of empathy or

degree of remorse with his potential victims.” Id. at 22.

With regard to the diagnosis of APD, Dr. Doren testified

that the condition was generally marked by “disregard for

and violation of the rights of others.” Id. at 24. Mr. Brown’s

criminal history, stretching back to age eighteen, both

sexual and non-sexual in nature, reflected a failure to

conform to social norms. His social, employment and

criminal history also reflected a characteristic impulsivity

such that his “life was about . . . . going from moment to

moment.” Id. at 27. His crimes manifested aggression, and

he had further admitted that “he hit women for purposes

of controlling them on a regular basis to enforce their

compliance . . . with his desires.” Id. at 29. In Dr. Doren’s

view, Mr. Brown exhibited five of the seven criteria

identified in the Diagnostic and Statistical Manual of

8 No. 08-1171

Mental Disorders (“DSM”) 5 as indicative of APD, although

the DSM only requires three of seven be satisfied for a

diagnosis. Dr. Doren also testified that APD affected both

Mr. Brown’s emotional and volitional capacity, causing a

lack of remorse and an impairment of “his ability to

control his behavior.” Id. at 34.

On cross-examination, Dr. Doren admitted that the

indicators used to reach a diagnosis of paraphilia NOS

nonconsent were not identified in the DSM; instead, they

were indicators Dr. Doren himself had identified to

“bridge the gap or deficiency [that] . . . exist[s] in the

DSM[]” that he had “offered to the field” in his own

book on the subject of civil commitment. Wis. R.95,

Tr.AA at 32, 34. When asked for a professional organiza-

tion that accepted his clinical indicators for the diagnosis

of paraphilia NOS nonconsent, Dr. Doren further

admitted that there “isn’t a single one.” Id. at 33.

Finally, Dr. Doren testified that, in his view, each of

Mr. Brown’s conditions, that is, paraphilia NOS noncon-

sent and APD, “creates a substantial probability that he

will engage in a sexually violent offense in the future.” Id.

at 18. He acknowledged that, although he employed

actuarial risk assessment models, he also considered his

5

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

cal Manual of Mental Disorders, Fourth Edition, Text Revi-

sion, 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. 08-1171 9

own set of clinical considerations not recognized in the

literature. Based on these additional factors, he had

made upward adjustments to the results of reoffense

probabilities that resulted from use of the standardized

actuarial models.

In response, Mr. Brown presented significant contrary

expert testimony. First, he called Marc Goulet, who holds

a doctorate in mathematics. Dr. Goulet testified about

the limitations of the actuarial instruments Dr. Doren

had used to make predictions about Mr. Brown’s likeli-

hood of recidivism. Dr. Goulet also questioned specific

features of Dr. Doren’s own methodology in interpreting

an individual’s scores. He concluded that the tools used

were “fundamentally statistically flawed.” Wis. R.96,

Tr.BB at 39. Next, Mr. Brown called Lynn Maskel, M.D., a

private forensic psychiatrist. Dr. Maskel testified that,

because of its absence from the DSM, “psychiatrically the

disorder [of paraphilia NOS nonconsent] does not exist.”

Id. at 75. Moreover, she considers APD a “circular diagno-

sis” that is “descriptive of many criminals, but doesn’t

really tell [an evaluator] much.” Id. at 79. She further

testified that in her experience, she never has seen a case

of APD that she would identify as a “predisposing dis-

order within the operative definition in Wisconsin law,” id.

at 78; she noted that the psychiatric profession does not

generally view individuals with APD “as people who

have serious difficulty in controlling their behavior,” id.

at 83. Finally, the defense called Stephen Hart, Ph.D., a

professor of clinical and forensic psychology. He

had assisted in the development of one of the actuarial

tools employed by Dr. Doren, but testified that, in his

10 No. 08-1171

view, “it’s inappropriate to use actuarials to make

absolute probability assessments.” Wis. R.97, Tr.CC at 40.

He further testified about the ethical obligations for

psychologists and his view that Dr. Doren had “create[d]

[a] fictional mental disorder[]” in identifying paraphilia

NOS nonconsent. Id. at 56.

At the close of the evidence, the jury was instructed

that, to declare Mr. Brown a sexually violent person, it

must find that (1) he had been convicted of a sexually

violent offense, (2) he had a mental disorder and (3) his

disorder made him dangerous to others. See Wis. Stat.

§ 980.02(2). The court further instructed the jury that a

mental disorder is “a condition affecting the emotional or

volitional capacity that predisposes a person to engage

in acts of sexual violence and causes serious difficulty in

controlling behavior. Mental disorders do not include

merely deviant behaviors that conflict with prevailing

societal standards.” Wis. R.98, Tr.DD at 10. Mr. Brown

had requested a special verdict form identifying the

mental disorder with which the jury concluded Mr.

Brown was afflicted, laying out the elements of the

statute separately and requiring the jury to affirmatively

link the disorder to dangerousness, but the trial court

denied his request. During deliberations, the jury sent out

a note requesting a copy of the DSM, but the court

denied the request.

The jury returned a general verdict declaring Mr. Brown

a sexually violent person.

No. 08-1171 11

C.

Mr. Brown appealed his commitment to the Court of

Appeals of Wisconsin. In his direct appeal, Mr. Brown

contended that he was denied due process by the admis-

sion of the challenged actuarial evidence and by failing

to require proof of a recent overt act demonstrating

his current dangerousness. He also pressed his challenge

to the failure to provide his requested special verdict

form. The Court of Appeals affirmed his commitment,

and the Supreme Court of Wisconsin denied review.

D.

After his direct appeal, Mr. Brown filed a petition in the

district court seeking a writ of habeas corpus. R.1; see

28 U.S.C. § 2254. In his petition, Mr. Brown argued that

he was denied due process when the state court relied on

evidence that was not supported by scientific knowledge

or accepted in the medical community. Mr. Brown also

argued that his APD diagnosis was overly broad and

could not justify his confinement. The district court

concluded that Mr. Brown had failed to exhaust his

state court remedies and stayed the petition. R.24. The

court noted that, while dismissal is the ordinary fate

for unexhausted claims, where a petitioner had good

cause, the court had discretion to stay the federal pro-

ceeding. In its ruling granting a stay, the district court

acknowledged that states have “considerable leeway” in

defining mental abnormalities rendering an individual

eligible for civil commitment, but that it “ha[d] some

doubt” about the particular diagnosis in Mr. Brown’s

case. R.24 at 3.

12 No. 08-1171

Mr. Brown next apparently initiated a state habeas

proceeding in Wisconsin state courts.6 His petition was

denied on procedural grounds.

Mr. Brown returned to the district court, where the

stay was lifted and the proceedings reopened. After

various additional submissions from the parties, the

district court issued an order denying the federal writ. The

district court held the claims to have been defaulted and

found that Mr. Brown had not established cause and

prejudice to excuse the default. Finding the issue of how

to apply the fundamental miscarriage of justice exception

to the procedural default rule more complicated,

the district court determined that it need not be resolved

because Mr. Brown’s claims failed on the merits.

At the outset of its analysis, the court again noted that

states have wide latitude in defining the relevant condi-

tions for civil confinement and that the State’s chosen

criteria need not reflect the prevailing views in the

mental health community. R.38 at 6. That he had a disor-

der, and that his disorder caused an inability to control

behavior, the court ruled, was an issue sufficiently

resolved against Mr. Brown by the jury. The court con-

tinued:

This is not to say anything goes. I presume that

a psychologist could render an opinion that an

individual has a disorder characterized by an

inability to avoid criminal behavior that is so

6

The record of the Wisconsin collateral review proceeding

is not before us.

No. 08-1171 13

irrational or unpersuasive that it would not sup-

port indefinite confinement consistent with the

Due Process Clause. However, this case does not

present such a diagnosis.

Id. at 7. The court held that, despite the contrary evidence

presented and despite its “novel[ty],” paraphilia NOS

nonconsent was “consistent with recognized diagnostic

principles.” Id. It further noted that NOS categories are

listed in the DSM and that courts in Wisconsin and other

states have upheld commitments on the basis of such

diagnoses. The court found the challenge to the diagnosis

of APD similarly insufficient.

Mr. Brown, again proceeding pro se, filed a motion for

a certificate of appealability. The district court granted

the motion as to both the procedural and substantive

questions Mr. Brown presents to this court. In its order,

the court noted that its decision had been based on a

reading of the relevant precedent “as giving states a

tremendous amount of freedom in creating categories

of mental disorders so long as states define disorders

with reference to difficulty controlling behavior.” R.47 at 4.

However, the court continued, “there must be some line

to be drawn.” Id. The precise boundaries, the court con-

cluded, were matters about which reasonable jurists

could disagree.

II

PROCEDURAL DEFAULT

Mr. Brown challenges the diagnoses underlying his

14 No. 08-1171

commitment as a SVP. Mr. Brown concedes that he

did not pursue this issue before the state courts.

The parties are in agreement, at this stage in the pro-

ceedings, that there is no remaining state court remedy,

and that, accordingly, Mr. Brown’s claims are procedurally

defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th

Cir. 2004) (“A habeas petitioner who has exhausted his

state court remedies without properly asserting his

federal claim at each level of state court review has pro-

cedurally defaulted that claim.”).

We are barred from considering procedurally defaulted

claims unless the petitioner “can establish cause and

prejudice for the default or that the failure to consider the

claim would result in a fundamental miscarriage of

justice.” Johnson v. Hulett, 574 F.3d 428, 430 (7th Cir.

2009) (internal quotation marks omitted). Mr. Brown

argues that he has satisfied both of these exceptions to

the procedural default bar.

A.

Mr. Brown first asserts that appellate counsel was

ineffective for failure to raise his due process claims on

direct appeal and that counsel’s performance amounts

to cause for any default. When preserved, meritorious

claims of ineffective assistance can excuse default. Murray

v. Carrier, 477 U.S. 478, 488-89 (1986). A constitutional right

to effective assistance must be the predicate to any such

claim. See Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Mr. Brown provides no authority establishing a constitu-

No. 08-1171 15

tional right to appellate counsel to challenge a civil com-

mitment. Where, as here, the right to counsel is a creation

of state statute only, see Wis. Stat. § 980.03(2)(a), it

follows that denial of that right does not establish the

necessary cause to excuse the default of any underlying

claims. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)

(per curiam) (holding that, where there is no constitu-

tional right to counsel, there can be no deprivation of

effective assistance); Coleman, 501 U.S. at 752-54 (rejecting

a claim that procedural default is excused by “inef-

fective assistance” when the proceedings in question did

not entail a constitutional right to counsel).7

7

Because we do not recognize a constitutional right to counsel

in these circumstances, we cannot accept the cause-and-preju-

dice analysis urged by Mr. Brown, in which ineffective assis-

tance provides the requisite cause. Accordingly, we also

do not address whether the failure to raise attorney ineffec-

tiveness in the petition procedure outlined by the Supreme

Court of Wisconsin in State v. Knight, 484 N.W.2d 540 (Wis.

1992), is a sufficiently “firmly established” procedure that the

failure to make use of it defaults the ineffectiveness claim.

See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly a firmly

established and regularly followed state practice may be

interposed by a State to prevent subsequent review by this

Court of a federal constitutional claim.” (internal quotation

marks omitted)); Murray v. Carrier, 477 U.S. 478, 488-89 (1986)

(holding that attorney effectiveness generally must be raised

in state proceedings before it can serve as cause to excuse

default of another claim).

16 No. 08-1171

B.

Mr. Brown further contends that he is actually

innocent of SVP status, and thus that failure to excuse

his default works a fundamental miscarriage of justice. We

need not resolve squarely in this case whether the

actual innocence exception to the general rule of proce-

dural default applies in the context of civil commitment

proceedings. In Lambrix v. Singletary, 520 U.S. 518, 524

(1997), the Supreme Court noted that its cases have

“suggest[ed] that the procedural-bar issue should ordi-

narily be considered first.” Nevertheless, added the

Court, it did “not mean to suggest that the procedural-bar

issue must invariably be resolved first; only that it ordi-

narily should be.” Id. at 525. We believe that the situation

before us counsels that we follow the latter course. The

correct application of the actual innocence exception to

civil commitment cases is a difficult one. We have no

explicit guidance from the Supreme Court or from our

sister circuits.8 Moreover, because the parties are in

agreement that the actual innocence exception applies

(although they disagree on how it applies to the facts of

this case), they have not briefed extensively all the nuances

involved in the migration of this exception from the

8

In Levine v. Torvik, 986 F.2d 1506, 1517 n.9 (6th Cir. 1993),

abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99

(1995), the Sixth Circuit expressed, in dictum in a footnote,

that the exception could apply “where the constitutional

violation demonstrated by [the petitioner] has resulted in

the confinement of one who is actually not mentally ill.”

No. 08-1171 17

criminal context to the civil commitment context.9 We also

believe that, given our recent decision in McGee v.

Bartow, 593 F.3d 556 (7th Cir. 2010), the constitutional

norms applicable to a merits decision are clear and

warrant affirmance. Therefore, as we did in Johnson v.

Pollard, 559 F.3d 746, 752 (7th Cir. 2009), we shall

pretermit a discussion of this aspect of the procedural

default analysis and proceed to adjudicate the merits.1 0

9

For instance, they have not addressed squarely the problem

noted by our colleague in the district court as to whether the

“new evidence” language of Schlup v. Delo, 513 U.S. 298,

327 (1995), is necessarily portable to the civil commitment

context.

10

Our course of proceeding here is not only in accordance with

Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997), but in accor-

dance with the established practice in the other circuits. See

Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (“In the

interest of judicial economy, [w]e need not and do not address

these issues, however, because the case may be more easily

and succinctly affirmed on the merits.” (internal quotation

marks omitted; modification in original)); Wilson v. Ozmint,

352 F.3d 847, 868 (4th Cir. 2003) (declining to decide the case

on the basis of a procedural bar never raised by the state

when the merits could be easily disposed of against the peti-

tioner); Hudson v. Jones, 351 F.3d 212 (6th Cir. 2003) (bypassing

a “complicated question” of state law in a procedural default

inquiry to resolve the case against the petitioner on the merits);

Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)

(“[A]ppeals courts are empowered to, and in some cases

should, reach the merits of habeas petitions if they are, on their

(continued...)

18 No. 08-1171

III

ANALYSIS

As briefed to this court, Mr. Brown’s due process chal-

lenge has three elements. First, he challenges the diag-

noses themselves. Mr. Brown claims that the diagnosis of

paraphilia NOS nonconsent is lacking in scientific founda-

tion and that the diagnosis of APD is overbroad and

imprecise; in his view, the use of either diagnosis, alone

or in combination, as the basis for a civil commitment,

violates due process. He further contends that the diag-

nosis of APD cannot be used by the State of Wisconsin

as a basis for confinement because the State does not

allow a defendant to invoke the disorder as part of an

insanity plea. Finally, he contends that Wisconsin’s per-

missive standards for the admissibility of expert testi-

mony should be replaced, in the context of civil commit-

ment, with a Daubert-like test. See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 593-94 (1993). We address

these contentions in turn.

In our recent opinion in McGee, we set forth the con-

trolling precedent in detail. 593 F.3d at 567-72. For the

sake of brevity, we assume familiarity with McGee’s

10

(...continued)

face and without regard to any facts that could be developed

below, clearly not meritorious despite an asserted procedural

bar.”); Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999)

(seeing no need to “belabor” the “difficult question” of a

procedural bar when the claim was easily resolvable against

the petitioner on the merits).

No. 08-1171 19

discussion of the state of the law as it concerns the

due process requirements for civil commitment.

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 here, however, because the relevant state

courts did not adjudicate the claims presented on a federal

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.;11 see McGee, 593 F.3d at 564.

11

We have equated this standard with de novo review.

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

20 No. 08-1171

B.

We begin with Mr. Brown’s challenge to the suffi-

ciency of his paraphilia NOS nonconsent diagnosis for

due process purposes. His argument is, in all material

respects, identical to the challenge raised by the peti-

tioner in McGee. In that case, we rejected the claim,

McGee, 593 F.3d at 579-81, concluding that the Supreme

Court has directed “that states must have appropriate

room to make practical, common-sense judgments” in

the arena of civil commitment, particularly as regards

qualifying mental conditions, id. at 580. We reviewed the

professional literature, and acknowledged the existence

of a significant debate about the validity, from a

psychiatric standpoint, of a paraphilia NOS nonconsent

diagnosis. We further noted, however, that “ ‘the 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. at 571 (quoting Kansas v.

Crane, 534 U.S. 407, 413 (2002)); see also Kansas v. Hendricks,

521 U.S. 346, 359 (1997) (“Legal definitions . . . which

must take into account such issues as individual respon-

sibility . . . and competency, need not mirror those ad-

vanced by the medical profession.” (internal quotation

marks omitted; second modification in original)).

Despite the considerable leeway afforded to states in

this context, we acknowledged that:

a medical diagnosis can be based on so little evi-

dence that bears on the controlling legal criteria

that any reliance upon it would be a violation of

No. 08-1171 21

due process. 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 disor-

der” prong of the statutory requirements for

commitment would violate due process.

McGee, 593 F.3d at 577 (internal citation omitted). We

concluded that the diagnosis of paraphilia NOS

nonconsent did not cross this line. Id. at 580.

Although we accepted the diagnosis as minimally

sufficient for due process purposes, we noted that the

existence of a psychiatric debate about its validity “is a

relevant issue in commitment proceedings and a proper

consideration for the factfinder in weighing the evidence

that the defendant has the ‘mental disorder’ required

by statute.” Id. at 581. We also noted that 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 professional medical opinions offered.” Id. at 577.

We again reject the challenge to the paraphilia NOS

nonconsent diagnosis as so lacking in scientific validity

that to rely upon it for civil commitment amounts to a

denial of due process. Our conclusion is strengthened

where, as here, able assistance of counsel actually did

expose the professional debate to the jury and substantial

contrary professional opinions were offered.

22 No. 08-1171

C.

Mr. Brown next challenges the diagnosis of APD as

constitutionally insufficient to support civil commitment.

He claims the diagnosis is too imprecise and overbroad

to provide meaningful evidence of a qualifying mental

disorder. He also claims that the State of Wisconsin is

judicially estopped from petitioning for commitment on

the basis of APD when it has concluded that APD is not

a permissible basis for a defendant to raise in an

insanity plea.

1.

Chapter 980 of the Wisconsin statutes defines a SVP 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.

Id. § 980.01(7) (emphasis added). In a prior challenge, the

State of Wisconsin determined that APD can serve as the

“mental disorder” that supports civil commitment consis-

tent with due process. See In re Commitment of Adams,

588 N.W.2d 336, 341 (Wis. Ct. App. 1998). Furthermore,

we upheld that conclusion in a federal habeas chal-

lenge, governed by the deferential standards in 28 U.S.C.

No. 08-1171 23

§ 2254(d)(1), as a reasonable interpretation of Kansas v.

Hendricks, 521 U.S. 346 (1997), and Foucha v. Louisiana, 504

U.S. 71 (1992). See Adams v. Bartow, 330 F.3d 957, 963 (7th

Cir. 2003). We reexamine the question now, when, for

reasons explained above, our review is de novo.1 2

Like the petitioner in Adams, Mr. Brown contends that

the Supreme Court’s decision in Foucha suggests that APD

is an invalid basis for civil commitment. See 504 U.S. at 78-

79 (noting that Foucha had an antisocial personality, but

ordering that his commitment be overturned as he was

“not suffering from a mental disease or illness”). As we

noted in Adams, we disagree that Foucha should be so

read. In Foucha, the State of Louisiana had conceded that

Foucha was not mentally ill, id. at 78; the Supreme Court

was asked to decide whether, given a lack of mental

illness, the state scheme that permitted his continued

confinement on the basis of dangerousness alone was

constitutional, id. at 82. In the case now before us, the

State sought to prove—indeed, it elicited testimony from

Dr. Doren stating directly—that APD did satisfy the

12

We note that in Adams v. Bartow, 330 F.3d 957, 962 (7th Cir.

2003), because of the applicable standard of review, we

were concerned only with the law that was “clearly estab-

lished” at the time the Wisconsin courts decided the matter.

For that reason, our consideration of Kansas v. Crane, 534 U.S.

407 (2002), was limited to its usefulness to “inform our under-

standing of” Kansas v. Hendricks, 521 U.S. 346 (1997). Adams,

330 F.3d at 962. Because we are not engaged in a deferential

review in this case, we consider Crane and its development

of the issues before us in full.

24 No. 08-1171

criteria under Wisconsin Chapter 980 of a qualifying

“mental disorder.”

Moreover, since Foucha, the Supreme Court has decided

Crane, in which APD was one of two diagnoses sup-

porting commitment. See Crane, 534 U.S. at 411. Although

the Court remanded Crane’s commitment, it did so on

the basis of its conclusion that the Kansas commitment

scheme had failed to require a finding of some inability

to control behavior. Id. at 412-13. In the case before us,

Dr. Doren testified that Mr. Brown’s APD caused both

emotional and volitional impairments, and the jury

was instructed that in order to find him eligible for com-

mitment, it must find that he suffered from a disorder,

as defined by statute, that caused such an impairment.

Mr. Brown further contends that, even if the Supreme

Court’s treatment of APD itself does not indicate that it

is an impermissible basis for civil commitment, the diag-

nosis fails to satisfy the due process requirements for

civil commitment. By virtue of its over-inclusiveness,

he contends, it is not “sufficient to distinguish the danger-

ous sexual offender whose serious mental illness, abnor-

mality, or disorder subjects him to civil commitment

from the dangerous but typical recidivist convicted in an

ordinary criminal case.” Crane, 534 U.S. at 413.

Like the diagnosis of paraphilia NOS nonconsent, the

diagnosis of APD is the subject of some significant profes-

sional debate. The existence of the disorder is not

debated; indeed, it is a listed disorder with diagnostic

criteria identified in the DSM. See DSM at 701. The

subject of the professional debate as it has been

No. 08-1171 25

presented to us is not, therefore, whether it is a real or

imagined diagnosis, but whether the diagnosis can bear

the weight of a civil commitment. 1 3 As we noted in

McGee and already have repeated here, however, the

existence of a professional debate about a diagnosis or

its use in the civil commitment context does not signify

its insufficiency for due process purposes, particularly

where, as here, that debate has been evaluated by the

factfinder. McGee, 593 F.3d at 580-81. Mr. Brown intro-

duced his own expert who testified that, in her profes-

sional view, APD did not satisfy the Wisconsin statutory

requirement of a “mental disorder” that could serve as the

predicate for civil commitment. See id. at 577 (“The meth-

13

See Brett Trowbridge & Jay Adams, Sexually Violent Predator

Assessment Issues, 26 Am. J. Forensic Psychol. 29, 46-47 (2008)

(noting the considerable controversy about the diagnosis as a

basis for commitment, the potential that it is “over-inclusive”

and the studies showing poor inter-rater reliability); Shoba

Sreenivasan et al., Expert Testimony in Sexually Violent Predator

Commitments: Conceptualizing Legal Standards of “Mental Disor-

der” and “Likely to Reoffend,” 31 J. Am. Acad. Psychiatry & L.

471, 477 (2003) (noting that, although based on a “misinter-

pret[ation] [of] the law” as it currently stands, “[t]he use of

[APD] to justify civil commitment is unlikely to find general

acceptance among mental health professional groups”); 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) (noting that while

reliance on APD for a SVP determination is not precluded

by law, neither is a “caffeine-related disorder[],” but that

neither is “clinically appropriate”).

26 No. 08-1171

odology and the outcome of any mental health evaluation

offered as evidence is a proper subject for cross-examina-

tion, and we would expect that, in the ordinary case,

such efforts would expose the strengths and weaknesses

of the professional medical opinions offered.”).

We acknowledge the studies demonstrating that a

significant percentage of the male prison population is

diagnosable with this condition. See Crane, 534 U.S. at 412

(citing statistics of forty to sixty percent).1 4 Mr. Brown

focuses on the prevalence of the disorder among those

incarcerated as evidence that it does not distinguish a

subgroup of offenders for whom preventive detention

is appropriate. We believe his contention misses the

mark. As the Supreme Court emphasized in Crane:

[T]here must be 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 diagnosis, and the severity of the

mental abnormality itself, must be sufficient to

distinguish between the dangerous sexual offender

whose serious mental illness, abnormality, or

14

Mr. Brown suggests that, with this brief reference, the Court

“suggested, albeit obliquely, that a diagnosis of APD alone

might be too imprecise and overbroad to survive constitutional

scrutiny.” Appellant’s Br. 30. We need not resolve that

question, as the case before us does not involve a diagnosis of

APD alone, but a diagnosis that couples APD with a sexually-

related disorder. See Crane, 534 U.S. at 411 (noting the

diagnoses of APD and exhibitionism).

No. 08-1171 27

disorder subjects him to civil commitment from

the dangerous but typical recidivist convicted in

an ordinary criminal case.

Id. at 413. That is, it is not the diagnosis alone, in the

abstract, that is the focus in assessing the constitu-

tionality of a civil commitment. Instead, we are concerned

with how the mental disorder manifests itself in the

individual, particularly as regards its effect on his ability

to control his behavior. As we stated in McGee, “the

factfinder has the ultimate responsibility to assess how

probative a particular diagnosis 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.”

McGee, 593 F.3d at 577 (emphasis in original). Although a

clinical diagnosis by a professional plays a significant

role in civil commitment, it is not the end of the matter. If

for the offender in question, the condition of APD is

serious enough to cause an inability to control sexually

violent behavior,15 the standards set by the Supreme

15

As the Court of Appeals of Wisconsin noted:

[H]e brings his challenges in large part because the

disorder affects so many who are not sexually violent.

But, even assuming that the diagnosis of “antisocial

personality disorder” is relatively common, the count-

less citizens who suffer from it are not ipso facto vulner-

able to commitment under ch. 980, stats. Only the

relatively few who also satisfy the remaining criteria of

§ 980.01(7), stats., may be found to be “sexually violent

persons.”

(continued...)

28 No. 08-1171

Court would be satisfied. Although the statistics that

indicate that APD is a common condition in prison cer-

tainly warrant attention in light of Crane’s admonition,

those figures do not demonstrate that the diagnosis

never can bear the weight of a civil commitment con-

sistent with due process.

Finally, we need not decide whether a diagnosis of APD

alone suffices for due process purposes: Mr. Brown was

diagnosed with a paraphilic disorder as well, and testi-

mony at his commitment trial supported the view that

both diagnoses caused, in Mr. Brown, significant emotional

and volitional impairments. Cf. Crane, 534 U.S. at 411, 413

(noting the dual diagnoses of APD and exhibitionism,

although citing the statistics about the prevalence of

APD in the male prison population).

2.

Mr. Brown next contends that the State of Wisconsin is

judicially estopped from asserting APD as the basis for

civil commitment when it has refused to allow criminal

defendants to raise the disorder as part of an insanity

plea. See Appellant’s Br. 33 (citing State v. Lindh, 457

N.W.2d 564, 568 (Wis. Ct. App. 1990), rev’d on other grounds,

468 N.W.2d 168 (Wis. 2001)). Judicial estoppel prevents a

party from an “about-face,” Butler v. Village of Round Lake,

15

(...continued)

In re Commitment of Adams, 588 N.W.2d 336, 341 (Wis. Ct. App.

1998) (emphasis in original).

No. 08-1171 29

585 F.3d 1020, 1023 (7th Cir. 2009); it is “an equitable

concept providing that a party who prevails on one

ground in a lawsuit may not . . . in another lawsuit repudi-

ate that ground,” Johnson v. ExxonMobil Corp., 426 F.3d

887, 891 (7th Cir. 2005) (internal quotation marks

omitted; modification in original). Among other require-

ments, however, in order for judicial estoppel to apply,

“the latter position must be clearly inconsistent with

the earlier position.” Urbania v. Cent. States, SE & SW

Areas Pension Fund, 421 F.3d 580, 589 (7th Cir. 2005). We do

not believe this to be the case here, where the statutory

standards for insanity and SVP status are different in

material respects. In particular, the definition of mental

disease or defect in the insanity statute excludes

“abnormalit[ies] manifested only by criminal or other-

wise antisocial conduct.” Wis. Stat. § 971.15(2) (emphasis

added). That different substantive standards apply is not

surprising in view of the different purposes of the two

types of proceedings in which the question of a “mental

disease or defect” or a “mental disorder” arise. A

criminal proceeding adjudicates guilt and metes out

punishment for prior offenses. A civil commitment pro-

ceeding instead invokes the police power of the state to

protect the community from potentially dangerous

persons who are mentally ill and, by reason of their

disorders, may commit future harmful acts; it also

asserts the state’s parens patriae powers to provide critical

services to those with mental illnesses. See Addington v.

Texas, 441 U.S. 418, 425-29 (1979). The questions of “mental

disease or defect” and “mental disorder,” therefore, also

aim at different ends. The first is a mechanism for avoid-

30 No. 08-1171

ance of criminal liability; while the second is primarily

aimed at protection of both the individual and the

public at large. A person whose mental disease or defect

results in a successful insanity plea is relieved of criminal

responsibility if he was afflicted with the mental disease

or defect at the time of the commission of the offense. That

same person may be a candidate for commitment if the

commitment criteria of a mental disorder and dangerous-

ness at the time of commitment are satisfied. This decision

is subject to reevaluation periodically. See Wis. Stat.

§ 980.07. The statutory schemes therefore perform very

different functions and understandably employ dif-

ferent standards.

In an attempt to cast an estoppel argument in a light

appropriate to our task in this habeas proceeding, without

arguing that judicial estoppel is itself an element of due

process, Mr. Brown asserts that the State’s “inconsistent”

positions “further undermine[] the diagnosis’s scientific

validity.” Appellant’s Br. 34. For the reasons stated in

the previous section, we are not persuaded that the scien-

tific validity of APD is so patently lacking that consider-

ation of it in a civil commitment proceeding violates

due process.

D.

Finally, Mr. Brown contends that Dr. Doren’s testimony

was so unreliable that it would have been inadmissible

in a federal proceeding under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). He urges us to

No. 08-1171 31

view Daubert’s standards for the admission of expert

testimony as “a practical and appropriate proxy” for

due process in this context. Appellant’s Br. 38-39.

We are not persuaded by this argument. Mr. Brown

points to no authority in which the Daubert standard has

been imposed on states as a requirement of due process

in any context, including criminal trials. Indeed, as we

have stated on habeas review of a criminal conviction:

Absent a showing that the admission of the evi-

dence violated a specific constitutional guarantee,

a federal court can issue a writ of habeas corpus on

the basis of a state court evidentiary ruling only

when that ruling violated the defendant’s right to

due process by denying him a fundamentally fair

trial. The standard, then, is not whether the testi-

mony satisfied the Frye [v. United States, 293 F. 1013

(D.C. Cir. 1923),] or Daubert tests—neither of which

purports to set a constitutional floor on the admissibility

of scientific evidence—but rather is whether the

probative value of the state’s evidence was so

greatly outweighed by its prejudice to [the defen-

dant] that its admission denied him a fundamen-

tally fair trial.

Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994) (citation

omitted; emphasis added).

In our view, the real substance of Mr. Brown’s request

that this court view Daubert as the due process floor in this

context merely echoes his claim that the diagnoses at

issue are so lacking in scientific pedigree or so over-

32 No. 08-1171

inclusive that their use in his commitment proceedings

violated due process. Having concluded that the diag-

noses, as implemented in this case, satisfy the require-

ments set forth by the Supreme Court, the disposition of

his secondary argument, cast as an evidentiary chal-

lenge, necessarily follows.

Conclusion

As we have stated, “[t]he 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 dangerous-

ness is caused by some identifiable mental condition

that impairs his ability to refrain from activity dangerous

to others.” McGee, 593 F.3d at 581. The State of Wisconsin

acted within these bounds when it ordered the commit-

ment of Mr. Brown as a SVP based on his diagnoses of

paraphilia NOS nonconsent and APD. At his commitment

trial, expert testimony supported the conclusion that he

suffered from two “mental disorders” as defined by the

Wisconsin statute, and that each of these disorders caused

him to have an inability to control his sexually violent

behavior. The diagnoses, although subject to some profes-

sional controversy, and the evidence upon which the

diagnoses were based, provided constitutionally adequate

bases under existing Supreme Court precedent to sup-

port Mr. Brown’s commitment. Because Mr. Brown

has not demonstrated that he is “actually innocent” of

being a SVP, the default of his claims cannot be ex-

cused and, in any event, the claims fail on the merits.

No. 08-1171 33

Accordingly, the judgment of the district court denying

the writ of habeas corpus must be affirmed.

A FFIRMED

3-19-10