# Appendix — McGee v. Bartow

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1896%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 953

## Text

INDEX

Appendix A— McGee v. Bartow,

593 F.3d 556 (7th Cis Bone .................... la-58a
Appendix B— McGee v. Bartow

No. 06-C-1151, Decision and Order

(August 23, 2007) ........... CS 09a-65a
Appendix C— McGee v. Bartow

No. 06-C-1151, Memorandum Decision

and Order Denying Motion to Dismiss

(April 3, S00F).ccccnusueene eer ea dense 66a-77a
Appendtx D~— Wis. Stat. Ann.

Ch. S80... .. 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.

Ra

Mr. McGee appeared pro se for most. of his
commitment 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 for the commitment.” R.85 at 11.
At his hearing on the motion, the nature of Mr.
McGee’s contentions was somewhat clarified by his
repeated interruptions of counsel for the State to
inquire what “not otherwise specified” meant as
related to his diagnosis. /d. at 14. Mr. McGee called
the diagnosis “bogus,” /d. at 15, and insisted that the
State “basically made [the diagnosis] up,” Jd. at 17.
The circuit court denied the motion for relief from
judgment.

Mr. McGee was represented by counsel on apneal.
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

Ga

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
burglary 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.

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, 168 Wis.2d 509, 484 N.W.2d 540
(1992),? challenging his commitment with a claim of
ineffective assistance of appellate counsel.? Although

2 State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (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 Anmight 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, 314 Wis.2d 112, 758 N.W.2d 806, 808 (2008)
(discussing the applicability of Anight 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, 168 Wis.2d 995, 485 N.W.2d 52, 54 (1992). Wisconsin

10a

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 proceeding. Mr.
McGee’s overarching contention to the Wisconsin
court was that his appellate counsel was 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
condition” 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 “nondemonstratable [sic] personality
disorder,” that it was a “tautology of an antisocial
perlsolnality disorder,” and that his diagnosis, by
definition, “does not cause any inability to control
behavior.” /d. at 3. He also contended 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).” Jd. at 4. His NOS diagnosis,
therefore, was not of an “actual mental condition”
that could support confinement. /d Finally, he
contended that his diagnosis was “literally made up”

applies the familiar deficiency and prejudice test of Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), for ineffective assistance claims based on a
statutory right to counsel. See State ex rel Schmelzer v.
Murphy, 201 Wis.2d 246, 548 N.W.2d 45, 48 (1996).

lla

and “only exist[s] in the minds of the chapter 980
evaluation team but nowhere else.” /d. at 6.

The Court of Appeals of Wisconsin denied Mr.
McGee’s petition. After recounting the procedural
history and confirming that a Anight petition was
the proper vehicle for his challenges, the court
turned to Mr. McGee’s substantive 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
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 retry” 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.” Jd. The court continued
without further explanation, that, “[t]herefore, even
if appellate counsel had made such arguments, they
would not have been successful.” Jd. 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Mr. McGee, again proceeding pro se, next petitioned
the Supreme Court of Wisconsin for discretionary
review of his Anight 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

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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. Feese, 541 U.S. 27, 32, 124 S.Ct. 13847, 158
L.Ed.2d 64 (2004) Gidentifying the petition and brief
as 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 ard
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. Jd. at 4;
see also Id. at 12 (stating that a personality 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. /d.

Mr. McGee also contended, at some length, that his
NOS diagnoses were lacking in validity and not
accepted within the psychiatric community. He noted

13a

the variance between the diagnosis accepted in
Wisconsin and the diagnostic criteria of related,
generally accepted disorders as identified by the
DSM.¢ Jd. 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 ‘Criminal”); R.11 at 4
(quoting Justice Kennedy’s concurring opinion in
Kansas v. Hendricks, 521 U.S. 346, 372, 117 S.Ct.
2072, 138 L.Ed.2d 501 (1997), for the proposition
that Hendricks’s disorder, pedophilia, “is at least
described in the DSMI]” (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).

Although Mr. McGce 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 (IT]his
petitioner does dispute whether
antisocial features alone is a legitimate
diagnosis.” (emphasis in original)).

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 (“(Tlhis petitioner does dispute whether antisocial
features alone is a legitimate diagnosis.” (emphasis in
original)).

14a

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 “incarceration 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, 122
S.Ct. 867, 151 L.Ed.2d 856 (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’ to his commitment
through one complete round of state court review.
R.10 at 3-4 (erting O'Sullivan v. Boerckel, 526 U.S.
838, 854, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)
(Stevens, J., dissenting)). The State further argued
that, although a claim for ineffective assistance of
counsel was preserved through the Anight 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

5 The State acknowledges that Mr. McGee took a direct appeal
and filed a subsequent Anight petition. R.10 at 2. In its
memorandum in support of the motion to dismiss, the State
vaguely refers to Mr. McGee’s “brief in the Wisconsin Court of
Appeals,” Jd. 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 later that
“no petition for review was filed,” /d, a fact only true with
respect to the direct appeal.

15a

default of his due process claim.

In ruling on the motion, the district court carefully
reviewed the history of Mr. McGee’s commitment
challenges 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
Anight petition alleging ineffective assistance as
raising a claim that counsel was ineffective for
failing to contend

that [his] diagnosis is essentially a
“bogus disorder” that was invented by
state psychologists to justify his
continued confinement after he
completed 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. vidlated his Fourteenth
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 Anzght petition, the
district court concluded that the State had a fair
opportunity “to consider the gist of [] McGee’s claim,

16a

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.” Jd. 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. §
22.43).

The court then stated that, in its view, Mr. “McGee’s
arpument is quite narrow”: that his particular
diagnoses do not “live up to the Supreme Court’s
requirements 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.... [Flor due process purposes, it matters
little whether the disorder is described as ‘antisocial
personality disorder’ or ‘personality disorder with
antisocial features.” Jd. at 38. 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

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, “[blecause 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.” /d.

l7a
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.” Jd. at 5.

D.

Mr. McGee, still pro se, petitioned the court for a
certificate 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 unrecognized 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
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

18a

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 requirements for involuntary incarceration.”
R.34 at 1. The district court continued, “liln essence,
he believes the State of Wisconsin manutactured a
bogus diagnosis, unrecognized out of the state’s own
corridors, in order to keep him locked up.” /d.

|
k
4e

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, 122 S.Ct. 867. 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 Crane.’ The State further
argues that this second element is not encompassed
within the certificate of appealability and was

7 Document1zzF00772021221226At 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 argument, 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.

19a
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 fundamental
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
obligation 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 appropriate 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
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

20a

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 opportunity, 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. Perruguet 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
courts summation of the state court proceedings
recognized that 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 (characterizing
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

2la

behavior .... [such] that his involuntary commitment

. violated his Fourteenth 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 Anight
proceeding 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 issue as a
request for expansion of the certificate.? Because we

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 /d. at 17-22. With the position of the State so
before us, we have determined that further briefing of this issue
is unnecessary.

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 1s misplaced. The district court attempted to
give fair treatment to a muddled pro se pleading
when it described, at various times, the gist or
essence of Mr. McGee’s submissions. 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 requirement to be on the same basic footing
as his challenge 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

% We acknowledge that the duc process challenges were
presented to the state courts as embedded within claims of

23a

extent they are at all separable, are inextricably

linked.

In sum, we conclude that Mr. McGee neither has
procedurally defaulted nor forfeited his claims, and,
therefore, we shall proceed to consideration on the
merits.

Il
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, commitment is a legitimate exercise of
the authority of the state and consistent with “our
understanding of ordered liberty.” Aansas vy.
Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138
L.Ed.2d 501 (1997). When the process is lacking in
either substance or procedure, however, the Court
has not hesitated to reject a commitment as violative
of due process.

ineffective assistance. We do not understand the State’s
argument, 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 Ma/one v. Walls, 538 F.3d
744, 755 (7th Cir.2008).

YdAa

A.

In Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780,
118 L.Ed.2d 437 (1992), the Court examined the
claim of a man who was detained indefinitely after
having been found not guilty by reason of insanity.
Specifically, a state statute provided for the
automatic commitment of an insanity acquittee ina
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. Jd. at 73, 112 S.Ct. 1780.

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 examination, 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. Jd. at 75, 112 S.Ct.
1780. As a result, the doctor was not “comfortable in
certifying” that Foucha was no longer dangerous. Jd.
The trial court determined that Foucha had not
carried the burden of proving that he was no longer
dangerous and ordered his recommitment. The
Louisiana Supreme Court affirmed.

25a

Before the Supreme Court of the United States,
consistent with the testimony of its expert, Louisiana
did not contend that Foucha was “mentally ill” at the
time that he sought release, 7d. at 78, 112 S.Ct. 1780,
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,” 7d. at 82,
112 S.Ct. 1780. The Court disagreed:

This rationale would permit the State to
hold indefinitely any other insanity
acquittee not mentally ill who could be
shown to have a personality disorder
that may lead to criminal conduct. 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
confinements for mental illness,
incarcerates only those who are proved
beyond reasonable doubt to have
violated a criminal law.

Id. at 82-83, 112 S.Ct. 1780. The Court ruled that the
basis for continued detention of Foucha as an
insanity acquittee had “disappeared,” zd. at 78, 112
S.Ct. 1780, and, therefore, his commitment no longer

26a

satisfied the requirement of due process that “the
nature of commitment bear some reasonable relation
to the purpose for which the individual is
committed,” zd. at 79, 112 S.Ct. 1780; see also id. at
88, 112 S.Ct. 1780 (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 “constitutionally adequate procedures
to establish the grounds for his confinement.” /d. at
79, 11° S.Ct. 1780. 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, 112 S.Ct. 1780.

B.

Several years later, in Kansas v. Hendricks, 521 U.S.
346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the
Court again examined the issue of civil confinement,
this time in the context of sex offenders. Petitioner
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

27a

engage in... predatory acts of sexual violence” were
eligible for civil commitment. /d. at 352, 117 S.Ct.
2072 (quoting Kan. Stat. § 59-29a02(a)). On appeal,
the 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. /d. at 356, 117
S.Ct. 2072.

The Supreme Court reversed. It concluded that
substantive due process was satisfied by the statute’s
requirement of a “mental abnormality.” /d. at 359,
117 S.Cs. 2072. The Court acknowledged, as it had in

‘oucha, tha: “freedom from physical restraint has
always been at the core of the liberty protected by
the Due Process Clause from arbitrary governmental
action.” /d. at 356, 117 S.Ct. 2072 (internal quotation
marks and citation omitted). That liberty interest,
the Court continued, “is not absolute,” 7@. at 356, 117
S.Ct. 2072; 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,” 7d. at 357, 117 S.Ct. 2072. The Court noted
that it has “consistently upheld such involuntary
commitment statutes provided the confinement takes
place pursuant to proper procedures and evidentiary
standards.” Jd. State statutes generally do not pass
constitutional muster premised on a “finding of
dangcrousness, standing alone,” but have been
deemed constitutionally adequate when they have
“coupled proof of dangerousness with the proof of

28a

some additional factor, such as a ‘mental illness’ or
‘mental abnormality.” Jd. at 358, 117 S.Ct. 2072.
This additional factor, the Court held, “servels] to
limit involuntary civil confinement to those who
suffer from a volitional impairment rendering them
dangerous beyond their control.” /d.

The Court was careful to note that the term “mental
illness,” used in Ffoucha to identify the required
“additional factor,’ was “devoid of any talismanic
significance.” Jd. at 358-59, 117 S.Ct. 2072. 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 illness.” /d.
(quoting Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985)). The Court continued:

[Wle have never’ required _ state
legislatures to adopt any particular
nomenclature in drafting civil
commitment statutes. Rather, we have
traditionally left to legislators the task
of defining terms of a medical nature
that have legal significance. Cf. Jones v.
United States, 463 U.S. 354, 365, nm. i232.
103 S.Ct. 3043, 77 L.Ed.2d 694 (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 community....

29a

Legal definitions ... which must “take
into account such issues as individual
responsibility ... and competency,” need
not mirror those advanced by the
medical profession. * American
Psychiatrie Association, Diagnostic and
Statistical Manual of Mental Disorders
XXlll, 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 sericus mental disorder.” /d at 360,
117 S.Ct. 2072. His diagnosis, together with his
admitted lack of volitional control and _ the
predictions relating to his future dangerousness,
“adequately distinguisheld] Hendricks from other
dangerous persons who are perhaps more properly
dealt with exclusively through criminal proceedings.”
Id. at 360, 117 S.Ct. 2072. 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
tradition of civil confinement.” /d at 372, 117 S.Ct.
2072 (Kennedy, J., concurring). He specifically noted
that the condition at issue, pedophilia, “is at least
described in the DSM[].” /@. Although fully joining
in the Court’s opinion, he concluded: “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

30a

to offer a solid basis for concluding that civil
detention is justified, our precedents would not

uffice to validate it.” Jd. at 373, 117 S.Ct. 2072.

Justice Breyer, writing in dissent, agreed with the
majority'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 commitment. Hendricks, 521
U.S. at 375, 117 S.Ct. 2072 (Breyer, J., dissenting).
Like Justice Kennedy, Justice Breyer also noted that
Hendricks’s disorder was a recognized disorder by
the psychiatric community, lsted in the DSM.
Justice Breyer continued:

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.

Td. Gnternal citations omitted). Moreover, the effect
of the disorder on Hendricks himself did “not consist
simply of a long course of antisocial behavior, but

3la

rather it includes a specific, serious, and highly
unusual inability to control his actions.” /d. 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,
122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the Court
egain took up a due process challenge to civil
commitment. Crane was a convicted sex offender
diagnosed with exhibitionism and _=§ antisocial
personality disorder. He was ordered committed
under the same Kansas statute at issue in
Hendricks. After Hendricks, the 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 Kansa:: sought review,
and the Supreme Court vacated the judgment.

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

32a

commitment from other dangerous persons who are
perhaps more properly dealt with exclusively
through criminal proceedings.” /d. at 412, 122 S.Ct.
867 Ginternal quotation marks and citations omitted).
That distinction was made in //endricks in part by
the “presence of what the psychiatric profession itself
classifield] ... as a serious mental disorder.” /d.
(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.” Jd. at 412-138, 122 S.Ct. 867.
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 diagnosis, and
the severity of the mental abnormality
itself, must be sufficient to distinguish
the dangerous sexual offender whose
serious mental illness, abnormality, or
disorder subjects him to = civil
commitment from the dangerous but
typical recidivist convicted in an
ordinary crimina: case.

Td. at 413, 122 S.Ct. 867. The Court acknowledged
the imprecision in its definition but noted that “the
Constitution’s safe:siards of human liberty in the
area of mental illness and the law are not aiways
best enforced through precise bright-line rules.” /d. It

33a

must be so, the Court reasoned, to respect the
“considerable leeway” of states in defining the
conditions that make individuals” eligible for
commitment. /d. Moreover, “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.” Jd.

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 ‘emotional’ sexually related mental
abnormality and the ‘volitional.” Jd. at 415, 122 S.Ct.
867. “Nor,” the Court continued, “when considering
civil commitment, have we ordinarily distinguished
for constitutional purposes among _ volitional,
emotional, and cognitive impairments. The Court in
Hendricks had no occasion to consider whether
confinement based solely on ‘emotional’ abnormality
would be constitutional, and we likewise have no
occasion to do so in the present case.” Jd. (internal
citations omitted).

In dissent, Justice Scalia contended that the
majority had “guttled]” Hendricks, and had
introduced significant uncertainties in precisely how
state courts could conduct 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

34a

instruct trial courts conducting commitment
proceedings. /d. at 422, 423, 122 S.Ct. 867 (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 undertake a limited review. /d. §
2254(d). We evaluate the record to discern only
whether the state court’s adjudication 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
unreasonable determination of the facts in lhght of
the evidence presented,” 7d. § 2254(d)(2).

Tese narrow and deferential standards of review do
not apply, however, where the relevant state courts
did not adjudicate the claims presented on a federal

habeas petition. Cheeks v. Gaetz, 571 F.8d 680, 684-

35a

85 (7th Cir.2009). In such cases, we apply the
general standard of review contained in 28 U.S.C. §
2243, which directs that we “dispose of the matter as
law and justice require.” Jad.!°

B.

We first address Mr. McGee’s challenges to the
Wisconsin 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, 122 S.Ct. 867. 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
Wisconsin 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. Jd. at 572.
We now take up the same question here, when our
review, for reasons explained above, is de novo.

We begin with the guidance provided by the

10 We have equated this standard with de novo review. See
Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir.2008).

36a

Supreme Court cases we have discussed. In Crane,
the Court held that the Constitution would not
permit civil confinement ordered “without any lack-
of-control determination.” 534 U.S. at 412, 122 S.Ct.
867 (emphasis in original). Such a determination was
necessary, the Court continued, to “distinguish[] a
dangerous sexual offender subject to civil
commitment from other dangerous persons who are
perhaps more properly dealt with exclusively
through criminal proceedings.” Jd. (nternal
quotation marks omitted). To satisfy this purpose,
the Constitution requires “proof of serious difficulty
in controlling behavior,” which, admittedly, “will not
be demonstrable with mathematical precision.” /d. at
413, 122 S.Ct. 867. This proof, when viewed in light
of the nature and severity of the diagnosis at issue,
the Court reiterated, limits civil commitment to the
subset of offenders whose “illness, abnormality, or
disorder,” renders them danyerous and thus forms a
constitutional basis for indefinite state custody. Jd.
As we have noted earlier, the explicitness of this
guidance, or at least the universality of its
application, 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.!!

11 Writing in dissent, Justice Scalia contended that the majority
had misread Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072,
138 L.Ed.2d 501 (1997), to “establish[] the requirement of a
finding of inability to control behavior.” Kansas v. Crane, 534
U.S. 407, 419, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (Scalia, J.,
dissenting) (emphasis in original). In the view of the dissenting
Justices, //endricks had ruled that the Kansas statute’s “causal
connection between the likelihood of repeat acts of sexual

37a

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
concluded 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
committing 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
committing court did make under the specific
provisions of the Wisconsin statute.

The Wisconsin statute applies only to sexually

violence and the existence of a ‘mental abnormality’ or
‘personality disorder’ necessarily establishes ‘difficulty if not
impossibility’ in controlling behavior.” /a (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.

38a

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 violence.” Jd. § 980.01(2)
(emphasis added). Unlike the Kansas statute at issue
in Flendricks 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, 223 Wis.2d 60, 588
N.W.2d 336, 340 (1998).

The requirement of some inability to control
behavior, which the Crane dissenters contended was
implicit in the Kansas scheme, has been made an

39a

explicit element of eligibility for civil confinement in
Wisconsin. The Wisconsin statute expressly requires
that, in order to 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 ZI/n re
Commitment of John Laxton, 254 Wis.2d 185, €47
N.W.2d 784, 792-93 (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 furctioning of the person’s emotional
or volitional capacity and his likehhood 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.” /d. 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
emotiona! or volitional capacity 1s 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 4138,
122 S.Ct. 867, is an existing requirement under
Wisconsin law.

40a
.

As we have noted, Mr. McGee was diagnosed with
two conditions that were offered to estabhsh 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 diagnosed 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 consideration 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.!2 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 demonstrates
that the consensus view in the profession does not

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 specified”
category, for which brief, non-exhaustive examples, but no
specific diagnostic criteria, are provided.

dia

find the disorders valid or reliable. Mr. McGee also
claims that, even if the use of “not otherwise
specified” 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.

i.

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 “laln
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. /d. 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

42a

guidelines for making’ 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 Classification of mental disorders
reflect a consensus of — current
formulations of evolving knowledge in
our field. They do not encompass,
however, all the conditions 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

43a

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, disability
determination, and competency.

DSM, xxxvii (emphasis added).

With respect to the circumstances of forensic
evaluations, the DSM includes a specific response.
The editors note 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 lmitations.” /d. at xxxin. The
text exphcitly mentions that a DSM-based diagnosis
“does not carry any necessary implications regarding
the individual’s degree of control over [his]
behaviorl J.... 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.” /d.; see also
Barefoot v. Estelle, 4645 U.S. 880, 920, 103 S.Ct.
3383, 77 L.Ed.2d 1090 (1983) (Blackmun, J.,
dissenting) (quoting the Brief for the American
Psychiatric Association as Amicus Curiae for the
proposition that “[tlhe unreliability of psychiatric
predictions of long-term future dangerousness is by
now an established fact within the profession”).
Clearly, sowever, the APA is aware that its text is
used for forensic purposes, even though
standardization in that context was not a goal of the

44a

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 “enhancel] the value and
reliability” of legal determinations, inclding those
relevant to involuntary civil commitment. DSM,
XXXI111.

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, 122
S.Ct. 867; see also Hendricks, 521 U.S. at 372, 117
S.Ct. 2072 (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 mental health professionals
have advocated that a valid, DSM-recognized
diagnosis be a necessary, but not sufficient, condition
for 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 Courtroom: Science on Trial, 12 Psychol. Pub. Pol’y & L.
357, 364 (2006) (“The classification of a syndrome as a mental
disorder in the DSMI[] 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 DSMI] mental disorder is not
sufficient in and of itself to meet [the civil commitment]
standard, it nevertheless permits the evaluator to utilize

45a
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.

Not only has the Supreme Court cautioned that
bright-hine rules are often an ill-fit for this context,
see Crane, 534 U.S. at 413, 122 S.Ct. 867, 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.” Jd; see also Hendricks, 521
U.S. at 359, 117 S.Ct. 2072 (“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
involuntary commitment, the Court’s more recent
statements have reflected the need to provide states
with “leeway” in crafting legal standards reflecting

accepted diagnostic categories and thus go beyond mere opinion
or speculation.”).

46a

the available science. Crane, 534 U.S. at 413, 122
S.Ct. 867; Hendricks, 521 U.S. at 374, 117 S.Ct. 2072
(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, 122 S.Ct. 867 (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 classifield] ... as a serious mental]
disorder” (modification in original) (internal
quotation marks omitted)); Hendricks, 521 U.S. at
872, 117 S.Ct. 2072 (Kennedy, J., concurring)
(finding support for the conclusion that the
commitment was lawful in the fact that the diagnosis
at issue “is at least described in the DSMI ]”). Indeed,
reliance on such a_e respected source permits
reliability that should not be minimized when so
grave a restriction of individual hberty 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
diagnosis is on the legal question of the existence of a

47a

“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 _ professional
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, 117
S.Ct. 2072 (Kennedy, J., concurring) (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 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

48a

kind of standardized, clinical guidance found
elsewhere in the text, the DSM provides an explicit
explanation of its use of NOS diagnoses. 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
situations in which an NOS diagnosis may be
appropriate. They include situations in which,
although the presentation 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 atypical or mixed presentation.” Jd.
(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. /d.

Mr. McGee is generally critical of the use of NOS
categories because, in the view of some professionals,
they are “less of a real diagnostic category than a
receptacle 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

49a

diagnostic categories at all but merely catch-all
categories for symptoms 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-
employed professionals charged with — civil
commitment evaluations. We shall address the due
process challenges 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 of personality
disorders, that list includes six criteria, the first of
which states that the affected individual exhibits
“laln enduring pattern of inner experience and
behavior that deviates markedly from the
expectations of the individual’s culture.” DSM, 689.
Another criterion states that this pattern “is stable
and of long duration, and its onset can be traced back

50a

at least to adolescence or early adulthood.” Jd.
(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 relationship 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.” /d. 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); /d., Ex. 84 at 35
(Dr. Marsh). lt 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 clinically 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.

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:

5la

[tIhe specific diagnostic criteria
included in [the] DSMI[] 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
explicitly 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.” Jd.

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
consideration by the factfinder in the Wisconsin
courts resulted in a denial of constitutional rights.
Although we acknowledge the variance between
some of the clinicians’ 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 state court was precluded
from considering the personality disorder NOS

52a

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 advocates 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 involving 1) nonhuman objects, 2) the
suffering or humiliation of oneself or one’s partner,
or 3) children or other nonconsenting persons that
occur over a period of at least 6 months.” DSM, 566

53a

(emphasis added). Listed paraphilias include
exhibitionism, fetishism, frotteurism, pedophilia,
sexual masochism, sexual sadism, transvestic
fetishism and voyeurism. /d. 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 lst 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).” /d. 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. /d. Other than this reference (and
a companion reference in the description of sexual
masochism), rape is not otherwise included in the
described Paraphilias or in the exemplary hst 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 (erting DSM) revision Work Group

54a

documents). Significant opposition from interest
gro 5 surrounded the suggestion, and the diagnosis
uitimately was rejected for inclusion in the main text
of the DSM in 1986. /d. 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).” Jd. 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
invalid. His contention is not without support in the
professional literature.!4 A frequently cited difficulty
in accepting a rape-related paraphilia diagnosis is
that the lack of generally accepted standards results

14 See Thomas K. Zander, Civil Commitment Without
Psychosis: The Law’s Reliance on the Weakest Links in
Psychodiapnosis, 1 J. Sex. Offender Civ. Commitment 17, 41-47
(2005); Holly Miller et al., Sexually Vioient 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 amorphous 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 descrintion).”); Prentky et al., supra note 13, at 367
(noting the possibility that the category is “a wastebasket for
sex offenders,” and thus, “taxonomically useless”).

55a

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 in commitment proceedings. As Justice

i6 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).

56a

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, 117 S.Ct.
2072 (Breyer, J., dissenting). “The psychiatric
debate, therefore, helps to inform the law by setting
the bounds of what is reasonakle, but it cannot here
decide just how States must write their laws within
those bounds.” /d.1® We are mindful of Justice
Kennedy’s admonition that if a state’s mental health
predicate for civil commitment becomes “too
imprecise a category,” it may run afoul of the

‘6 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. Sce, e.g., Brock v. Seling, 390 F.3d 1088,
1091 (9th Cir.2004) (per curiam) (denying habeas relief); In re
Detention of Moore, 167 Wash.2d 113, 216 P.3d 1015, 1019
(2009) {en banc); Jn re Care and Treatment of Colt, 289 Kan.
234, 211 P.3d 797, 394 (2009); In re Crvil Commitment of
W.X.C., 407 N.J.Supe:. 619, 972 A.2d 462, 466, 467 (2009),
certification granted, 200 N.J. 475, 983 A.2d 201 (2009); Jn re
A.M, 766 N.W.2d 437, 441 (N.D.2009); Jn re Detention of
Hardin, 391 \W.App.3d 211, 330 N.Dec. 101, 907 N.E.2d 914,
917, 922 (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, 233 [I].2d 558, 335 Ill.Dec. 633, 919
N.E.2d 352 (Il. Sept. 30, 2009); In re R. Y¥., Jr., 957 A.2d 780,
732, 786 (2008); Dunivan v. State, 247 S.W.3d 77, 78
(Mo.Ct.App.2008); State v. Shaw, 929 So.2d 1145, 1147-48
(2006); People v. Williams, 31 Cal.4th 757, 3 Cal.Rptr.3d 684,
74 P.3d 779, 781-82 (2003).

57a

Constitution. /d. at 373, 117 S.Ct. 2072 (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 consideration 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 1s 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

58a

condition impairs the offender’s ability to refrain
from sexually dangerous activity. In Mr. McGee’s
case, the Wisconsin committing court found that Mr.
McGee’s admitted sexual dangerousness 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.

AFFIRMED
C.A.7 (Wis.),2010.

McGee v. Bartow
593 F.3d 556

59a
Appendix B

United States District Court,
E..D. Wisconsin.
Michael McGEE, Petitioner
Vv.

Byran BARTOW, Respondent.
No. 06-C-1151.

Aug. 23, 2007.
Michael L. McGee, Winnebago, WI, pro se.

Warren D. Weinstein, Wisconsin Department of
Justice, Office of the Attorney General, Madison, WI,
for Respondent.

DECISION AND ORDER

WILLIAM C. GRIESBACH, United States District
Judge.

Michael L. McGee is, to use Wisconsin’s parlance, a
“sexually violent person.” Wis. Stat. § 980.01(7). He
committed a sexual assault in the midst of breaking
into a house he thought would be empty. Soon before
McGee was due to be released from a revoked
probation (drugs were the cause of the revocation),
the state petitioned to keep McGee locked up under
its Chapter 980 program because it believed he was
likely to commit another sex crime. ‘The state argued
that the burglary was a sexually motivated offense
and that McGee suffered from a mental disorder that

60a

made him likely to reoffend. After a trial in which
McGee represented himself, the judge found that
McGee met the state’s requirements for involuntary
incarceration under Chapter 980.

Earlier in these proceedings, the state moved to
dismiss on the ground that McGee had procedurally
defaulted the claim he now brings in this § 2254
petition. I disagreed, finding that McGee had
presented the essence of his claim to the state courts.
The petition is thus ready for evaluation on its
merits. For the reasons given below, the petition will
be dismissed.

As set forth in this court’s order denying the
respondent’s motion to dismiss, McGee’s claim is that
due process was violated because the state relied
upon a diagnosis not recognized in the field of mental
health as a basis to civilly confine an individual
indefinitely. In McGee’s case, the diagnosis was
personality disorder NOS (not otherwise specified)
with antisocial features, and McGee argues that this
is essentially a bogus, outcome-driven diagnosis
tailored to keep him locked up. He also incorporates
into this argument a claim that the state experts’ use
of actuarial instruments to predict his future
dangerousness violates due process.!

1 Although this is the essence of McGee’s claim, and the state
has briefed the claim in its own right, it seems that actually
McGee's claim-the one exhausted in the state courts-is that his
appellate lawyer was ineffective for failing to make this
argument. But because I find the claim ultimately fails, it
follows that his appellate counsel was not ineffective for failing
to raise it in McGee's appeal.

6la
That brings us to the standard of review. Typically a

federal court gives significant deference to the legal
and factual determinations of the state courts, a
practice based on comity, economy, and 28 U.S.C. §
2254(d). But when the state courts do not even reach
the question raised in the federal habeas petition,
there is no decision to which a federal court may
defer. Thus, the deference required by § 2254(d) only
applies to “any claim that was adjudicated on the
merits in State court proceedings.” Because McGee’s
claim was not adjudicated on the merits in state
court, the respondent concedes that the § 2254(d)
standard of review does not apply. Instead, courts in
such a case are required to “dispose of the matter as
law and justice require.” Guest v. McCann, 474 F .3d
926, 931 (7th Cir.2007); 28 U.S.C. § 2243.

As noted earlier in these proceedings, McGee's
argument is quite narrow. He is not challenging the
ability of the state to incarcerate anyone based on an
antisocial personality disorder; instead, he argues
that his own diagnosis (which he describes as
“features” of a personality disorder) does not live up
to the Supreme Court’s requirements for due process.
Essentially, his claim is that personality disorder
NOS, combined with reliance on _ actuarial
assessments that attempt to predict. his future
dangerousness, do not provide sufficient evidence
that he meets the Supreme Court’s requirements for
involuntary incarceration.

In Kansas v. Crane, the Supreme Court made clear

62a

that courts should be driven more by practical
considerations than the _ technical distinctions
underlying much of psychiatry.

we did not give to the phrase “lack of
control” a particularly narrow’ or
technical meaning. And we recognize
that in cases where lack of control is at
issue, “inability to control behavior” will
not be demonstrable with mathematical
precision. It is enough to say that there
must be proof of serious difficulty in
controlling behavior.

534 U.S. 407, 413 (2002). That is, there are no magic
words that a court or jury can use to determine if an
individual may be incarcerated because he lacks
control. And just as there are no magic words, there
are no magic diagnoses: the state defines a “mental
disorder” as “a congenital or acquired condition
affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual
violence.” Wis. Stat. § 980.01(2). Thus, all that is
required is a mental condition predisposing the
defendant to commit acts of sexual violence. In other
words, for due process purposes it matters little
whether the disorder is described as “antisocial
personality disorder” or “personality disorder with
antisocial features.”

The Seventh Circuit considered an argument similar
to the one McGee makes in Adams v. Bartow: “The
essence of Adams’ claim is that it is a violation of due

63a

process to civilly commit a person based solely on the
fact that he is a previously convicted sex offender
with APD [antisocial personality disorder].” 330 F.3d
957, 960 (7th Cir.2003). The court rejected this claim
for a number of reasons. Key among them was that
Adams-like McGee-had not been committed “solely”
on the basis that he had APD and had committed a
prior sexual offense. Indeed, because roughly half of
all prison inmates are likely diagnosable with APD,
an APD diagnosis on its own would not suffice to
distinguish dangerous, committable sex predators
from more common recidivists. In other words, if
APD plus a prior sex offense were enough, thousands
of inmates would be eligible for Chapter 980 and
similar programs, which would mean that “civil
commitment’ [would] become a ‘mechanism for
retribution or general deterrence’-functions properly
those of criminal law, not civil commitment.” Crane,
534 U.S. at 412 (quoting Hendricks, 521 U.S. at 372-
73 (Kennedy, J., concurring)).

Thus the Adams court seemed to suggest that it
would be impermissible to commit a defendant so/e/yv
because he had an APD diagnosis and a prior sex
offense. In that sense, McGee is correct that he may
not be incarcerated solely because he has a
personality disorder NOS, Yet, as noted in Adazsns,
the personality disorder was not the entire basis for
Adams’ confinement: as the Seventh Circuit
concluded: “I'he court [of appeals] found Adams
eligible for confinement under Chapter 980 not only
because he is a sex offender with APD but also
because there was enough evidence in the trial

64a

record to establish that Adams was “substantially
probable” to commit another’ sexually violent
offense.” 300 F.3d at 962. In particular, what
distinguished Adams from the typical recidivist was
his history of offenses, treatment failure, and the
opinion of both a psychologist and a psychiatrist that
there was a “substantial probability that [Adams]
will reoffend or recommit a sexually violent act.” Jd.
at 959.

The same is true here. McGee was committed not
solely because he had a personality disorder with
antisocial features. As in Adams, two mental health
professionals, Drs. Roberts and Marsh, opined that
McGee had personality disorder NOS with antisocial
features; Dr. Marsh also diagnosed McGee with
paraphilia NOS. The trial judge found their
testimony credible, even “impressive.” (Tr. 58.2) The
experts concluded not only that McGee had a
personality disorder, but that he had _= serious
difficulty controlling his behavior. As Dr. Roberts
noted in his report, McGee had a disorder that
“predispose[d] him to commit future sexually violent
acts.” (Petitioner’s Br., Ex. F at 2.) McGee's
argument suggests that, because some of this
testimony was based on actuarial considerations, it
does not distinguish him from a substantial minority
or majority of prison inmates. Yet there is no
indication that the actuarial data at issue here would
have applied to most prison inmates: McGee's scores
on the various actuarial models were conditioned on

2 The transcript of the trial judge’s findings is found at Docket
No. 16, Ex. 84

65a

his own prior history. There is, in other words,
nothing inherently wrong in an expert's use of
actuarial‘type instruments that predict future
violence from past behavior: as the Seventh Circuit
has noted in another case, “[elven Laxton’s own
expert acknowledged that his prior sexually violent
acts could be a compelling predictor of future violent
sexual offenses.” Laxton v. Bartow, 421 F.3d 565, 572
(7th Cir.2005); see also, Carmony v. Hunter, No. C1V
S-03-0927 DFL JFM, 2006 WL 3762110, *15
(E.D.Ca .2006) (noting that actuarial tests are
comme §y used in SVP cases); Johnson v. Hunter,
No. € 3-3233 PJH, 2006 WL 2263932, *4 (N.
D.Cal.2006) (petitioner's confinement upheld when
RRASOR score showed a 49.8 percent risk of re
offending, and Static 99 showed a score of five).

In sum, McGee was not incarcerated merely because
he had “features” of a personality disorder: he was
found to be a SVP based on testimony that he had a
mental disorder that caused him to have serious
difficulty controlling his behavior. That is what due
process requires. Crane, 534 U.S. at 413.

Accordingly, the petition is DISMISSED.

E.D.Wis.,2007.

McGee v. Bartow

Not Reported in F.Supp.2d, 2007 WL 2442252
(E.D. Wis.)

66a

Appendix C

United States District Court,
E.D. Wisconsin.
Michael McGEHE, Petitioner,
Vv.

Byran BARTOW, Respondent.
No. 06-C-1151.

April 3, 2007.
Michael L. McGee, Winnebago, WI, pro se.

Warren D. Weinstein, Wisconsin Department of
Justice, Office of the Attorney General, Madison, WI,
for Respondent.

MEMORANDUM DECISION AND ORDER
DENYING MOTION TO DISMISS

WILLIAM C. GRIESBACH, United States District
Judge.

Petitioner Michael McGee seeks relief trem his civil
commitment as a “sexually violent person” pursuant
to Chapter 980 of the Wisconsin Statutes. The case is
presently before me on the motion of the respondent
to dismiss for procedural default. For the reasons
that follow, respondent's motion will be denied.

Chapter 980 sets forth Wisconsin's procedure for
civilly committing individuals previously convicted of
a sexually assaultive offense who are deemed likely

67a

to re-offend. Motivated by a desire to protect the
public, especially children, from the horror of sexual
abuse and assault, Wisconsin was one of the early
States to enact a law authorizing the indefinite
detention of individuals previously convicted of a
“sexually violent offense” upon completion of their
sentence. Sex offender civil commitment laws, such
as Wisconsin’s, strike many as irreconcilable with
the principles that underlie the traditional models of
both criminal incarceration and civil commitment.
Although reserved for individuals who have been
previously convicted cof a sexually violent offense, a
Chapter 980 commitment does not constitute
punishment fo: a crime. The double jeopardy clause
of the Fifth Amendment forbids a second punishment
for the same crime and, by its explicit terms, a
Chapter 980 commitment can only occur after a
person has already been punished for his crime and
is about to be released. Wis. Stat. § 980.015(2).

Nor does a Chapter 980 commitment rest on the
presence of a mental illness that renders an
individual legally incompetent and thus not
responsible for his actions. While a person found “not
guilty of or not responsible for a sexually violent
offense by reason of insanity, mental disease, defect,
or illness,” is eligible for commitment under Chapter
980, see Wis. Stat. § 980.01(7), few, if any, of the
individuals actually committed under Chapter 980
assert such a defense to their underlying crimes.
Most, if not all, are presumed to be free human
beings legally responsible for their crimes and thus
deserving of the punishment that was previcusly

68a

imposed.

This is not to say that there is no mental health
component to a Chapter 980 commitment. To be
committed as a _ sexually violent offender, an
individual must not only have previously committed
a sexually violent offense, but he must have a mental
disorder, meaning “a congenital or acquired condition
affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual
violence.” Wis. Stat. § 980.01(2). The mental health
condition required for a Chapter 980 commitment,
however, is not of the kind or severity that was
traditionally thought necessary for the state to
deprive an individual of his liberty. See, e.g., Foucha
v. Louisiana, 504 U.S. 71 (1992) (plurality opinion)
(holding that continued commitment of insanity
acquittee on the basis of personality disorder without
evidence of mental illness violates due process);
Simpson vy. State, 215 N.W.2d 435, (Wis.1974)
(rejecting argument that antisocial personality
disorder constitutes a mental illness for purpose of
insanity defense). To justify the commitment of a
person previously convicted of a sex offense, the
Supreme Court has ruled that it is enough to satisfy
due process that the state demonstrate that as a
result of the metal disorder the individual has
“serious difficulty in controlling [his] behavior.”
Kansas v. Crane, 534 U.S. 407, 413 (2002). The
Wisconsin Supreme Court has construed this
element as implicit in Chapter 980’s requirement
that the individual be proven “dangerous to others
because the person’s mental disorder makes it likely

69a

that he or she will engage acts of sexual violence.”
Wis. Stat. § 980.02(2)(c); see State v. Laxton, 647
N.W.2d 784, 793 (Wis.2002); see also Laxton v.
Bartow, 421 F.3d 565, 571 (7th Cir.2005) (affirming
denial of habeas corpus relief). This element is
typically established through the use of so-called
“actuarial instruments” which are based on
statistical profiles of other sexual offenders. See, e.g.,
In re Tainter, 2002 WI App 296, 4/4] 4-5, 259 Wis.2d
387, 392-93, 655 N.W.2d 538, 541; Jn re Brown, 2005
WL 3201267 *2 (Wis.App. Dec. 1, 2005). In this case,
for example, the experts reported McGee’s likelihood
of re-conviction for a sexual offense within ten years
at 48.6% based on the Rapid Risk Assessment for
Sex Offense Recidivism (RRASOR) and 52% within
fifteen years based on the Static-99. (Mot. to Dismiss,
Ex. D, State Pet. for Habeas Corpus, Ex. F at 3.) Of
course, a statistical profile based on other individuals
says nothing about whether the specific individual
who is then before the court will re-offend, since each
individual is a free human being capable of choosing
right or wrong. Moreover, even under the statistical
model used by the State, roughly half of the
individuals matching McGee’s profile would not re-
offend within the stated period of time but would
nevertheless be eligible for indefinite confinement.

In any event, notwithstanding their seeming clash
with traditional principles limiting the authority of
the state to deprive individuals of their liberty, and
even doubts as to their effectiveness, see Monica
Davey and Abby Goodnough, Doubts Rise as States
Hold Sex Offenders After Prison, The New York

70a

Times, March 4, 2007, sex offender civil commitment
statutes have been upheld by the Supreme Court and
are inereasing across the country. Kansas v.
Hendricks, 521 U.S. 346 (1997); Kansas v. Crane,
534 U.S. 407. Thus, to the extent McGee’s challenge
to his confinement is directed at the authority of the
State generally to confine an individual upon a
determination that he is a sexually violent person,
his challenge must fail. But McGee’s challenge is
more specific. McGee claims his incarceration under
Chapter 980 violates the Constitution because it is
based on a diagnosis of personality disorder that does
not comport with the requirements of due process.
The particular argument framed by the petitioner is
that it would be unconstitutional to confine him
based on “mere features of an antisocial personality
disorder” as opposed to an “actual” diagnosis of
antisocial personality disorder. (Reply Br. at 3.) The
distinction he draws is a narrow one: he asserts that
he is not challenging the state’s general authority to
commit an individual under Chapter 980 on the basis
of a diagnosis of antisocial personality disorder,
authority that the Seventh Circuit’ explicitly
recognized in Adams v. Bartow, 330 F.3d 957 (7th
Cir.2003); instead, McGee is challenging the state’s
authority to commit someone (him) when that
individual has not actually been diagnosed with such
a disorder.' His argument brings to mind Justice

1 McGee’s argument is not without merit. For a more scholarly
discussion of the issue he raises, see Zander, Thomas K., Civil
Commitment Without Psychosis: The Law’s Reliance on the
Weakest Links in Psy-chodiagnosis, Journal of Sexual Offender
Civil Commitment: Science and the Law 1 (2005)

dla

Kennedy's caution in Hendricks that “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 justify it.” 521 U.S. at 373 (Kennedy, J.,
concurring).

The merits of McGee’s petition, however, are not
presently before me. In response to McGee’s petition,
the respondent has filed a motion to dismiss in which
he argues I cannot reach the merits of McGee’s
petition because McGee procedurally defaulted the
claim by failing to properly raise it in the state courts
so that those courts would have a full and fair
opportunity to address it before he sought federal
relief. Exhaustion of state court remedies is a
prerequisite to seeking federal habeas corpus. See 28
U.S.C. § 2254(b)(1)(A); Kurzawa v. Jordan, 146 F.3d
435, 441 (7th Cir.1998) (“Initially, the state courts
must have had a ‘fair opportunity’ to consider a
question of constitutional import before federal
collateral review on that question is appropriate.”)
(citing Burgin v. Broglin, 900 F.2d 990, 996 (7th
Cir.1990)). Thus, if respondent is correct that McGee
has not exhausted his state court remedies and he
cannot show cause for his default and prejudice
resulting therefrom, Archardson v. Briley, 401 F.3d
794, 801 (7th Cir.2005), McGee’s petition must be
dismissed regardless of the merits. To address that
issue, it is necessary to recount the procedural
history of the case in some detail.

On November 23, 1987, McGee was convicted of

T2a

burglary and second degree sexual assault in the
Circuit Court for Racine County, Wisconsin.
According to the complaint, McGee entered an
apartment through a window and awakened a
woman who had been sleeping on a couch with her
two-year-old child. Stating something to the effect of
“there isn’t supposed to be anyone here,” McGee
ordered the woman who had just moved into the
apartment not to awaken any of her children and
then proceeded to rape her. (Mot. to Dismiss, Ex. B..,
ex. 4.) For this rape, the court sentenced McGee to
eight years 1n prison, and for the burglary, the court
imposed and stayed a sentence to prison and placed
him on probation for six years consecutive to his
prison sentence for the rape. When McGee was
nearing the end of his sentence for the sexual
assault, a petition to involuntarily commit him under
Chapter 980 was filed. Although he was committed
at that time, the commitment order was _ later
vacated after the Wisconsin Court of Appeals
remanded that case to the circuit court for a post-
commitment hearing. Having completed his sentence
for the sexual assault, McGee was then released to
begin the probationary term imposed for the
burglary. (Mot. to Dismiss, Ex. B., at 7-8.)

Sometime thereafter, McGee’s probation was revoked
for a “dirty drug test,” and he was returned to prison
on the previously imposed but stayed sentence for
the burglary. (Pet.’s Br. in Supp. of Habeas Corpus at
2.) In 2003, as he was again nearing the end of his
sentence, this time for the burglary, the State filed a
petition seeking his commitment under Chapter 980.

T3a

(Mot. to Dismiss, Ex. B at 101.) Following a trial to
the court in which McGee represented himself, he
was found to be “a sexually violent person” as
defined by Wis. Stat. § 980.01(7) and committed to
the custody of the Wisconsin Department of Health
and Family Services until cured.

McGee, now represented by counsel, appealed his
commitment to the Wisconsin Court of Appeals.
However, McGee’s attorney raised only two issues on
his direct appeal. He claimed (1) that the evidence
was insufficient to prove that the predicate offense
alleged in the petition, namely the burglary, was
sexually motivated as required by § 980.01(6)(b); and
(2) that a new trial was warranted in the interest of
justice. (Mot. to Dismiss, Ex. B at i-ii.) The Wisconsin
Court of Appeals rejected both claims and affirmed
the commitment. (Mot. to Dismiss, Ex. C.) McGee
then filed a petition for state habeas corpus pursuant
to State v. Knight, 484 N.W.2d 540 (1992), alleging
that his appellate attorney was ineffective in failing
to challenge his commitment on due process grounds.
More specifically, McGee claimed, as he does in this
case, that he was committed based on a diagnosis of
personality disorder, not otherwise specified, with
antisocial features. McGee argued that this diagnosis
is essentially a “bogus disorder” that was invented by
state psychologists to justify his continued
confinement after he completed his sentence. (Mot. to
Dismiss, Ex. D. at 3.) Citing the Wisconsin Supreme
Court’s decision in Simpson v. State, 62 Wis.2d 605,
611-12, 215 N.W.2d 435, 439 (Wis.1974), McGee also
argued that an antisocial personality disorder, by

T4a

definition, does not cause inability to control one’s
behavior. Ud. at 4.) Thus, he claimed that his
involuntary commitment on the basis of such a
diagnosis violated his Fourteenth Amendment right
to due process of law as set forth by the United
Supreme Court in Kansas v. Crane, 534 U.S. 407
(2002), and that his appellate attorney had provided
constitutionally deficient performance in failing to
raise the issue in his direct appeal.

The Wisconsin Court of Appeals denied McGee’s pro
se petition without really addressing the substantive
due process issue he sought to raise. Finding
McGee’s argument “difficult to understand,” the
Court of Appeals construed his claim as a criticism of
his attorney for failing to challenge the state’s use of
actuarial instruments to diagnose his’ mental
disorder. (Mot. to Dismiss, Ex. E at 4.) The state
court ignored McGee’s claim that he could not be
constitutionally committed based on a diagnosis of
personality disorder, not otherwise specified, with
antisocial features. It stated that McGee's petition
was simply an attempt to retry the Chapter 980
proceeding and noted that its previous opinion
affirming his commitment had focused on his intent
in committing the underlying burglary and not the
expert testimony. In an unexplained leap of logic, the
Court then concluded: “Therefore, even if appellate
counsel had made such arguments, they would not
have been successful.” (Uad.) The Court thereupon
denied the petition “on the grounds that McGee was
not prejudiced by his’~ appellate counsel’s
performance.” (/d.) On October 10, 2006, McGee’s

(da
petition for review was denied by the Wisconsin
S a} & & ; ‘O 3
Supreme Court

In order to exhaust state court remedies, a state
prisoner must “establish that he fully and fairly
presented his claims to the state appellate courts,
thus giving the’ state courts a meaningfu!
opportunity to consider the substance of the claims
that he later presents in his federal challenge.” Bintz
v. Bertrand, 403 F.3d 859, 863 (7th Cir.2005) (erting
Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.2003)).
“Fair presentment in turn requires the petitioner to
assert his federal claim through one complete round
of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings.” Lewis
v. Sternes, 390 F.3d 1019, 1025 (7th Cir.2004) (eiting
O'Sullivan v. Boerckel 526 U.S. 838, 845 (1999)). To
do so requires a petitioner to “put forward operative
facts and controlling legal principles.” Sweeney v.
Carter, 361 F.3d 327, 332 (7th Cir.2004).

In hght of the procedural history recounted above, I
conclude that McGee has exhausted his state court
remedies on the issue he seeks to raise here. It is
true that the substantive due process issue was not
raised on the direct appeal of his commitment, but
that was hardly McGee’s fault. McGee did raise the
issue in his pro se notice of intent to appeal that he
filed on his own behalf before counsel was appointed.
(Pet. for Habeas Corpus, Ex. D.) His court-appointed
attorney elected not to pursue the issue, however,
and instead concentrated on the issue of whether the
burglary which was alleged as the predicate offense

‘ate
ia

was sexually motivated. When his’ appellate

attorney's effort failed, McGee filed his Anight
petition alleging the his appellate counsel was
ineffective in failing to press the issue on his appeal.
Although McGee's presentation of the issue was not
pristine (few pro se petitions are), 1 conclude the
state courts had a fair opportunity to consider the
sist of the 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. (Pet. to Dismiss, Ex. D. at 6.) The fact
that McGee’s attorney did not raise the issue on
direct appeal is of no consequence since McGee
presented the issue to the Wisconsin courts in the
context of an ineffective assistance of counsel claim.
McGee’s state petition for habeas corpus, along with
his petition for review of the Court of Appeal’s
decision denying his petition, afforded the Wisconsin
courts a full and fair opportunity to address his claim
that a commitment based on a diagnosis of
“personality disorder, not otherwise specified, with
antisocial features” does not comport with due
process.

I therefore conclude that McGee has exhausted his
state court remedies and respondent’s motion to
dismiss (Doc. # 10) is DENIED. Within 30 days of the
date of this order respondent is directed to answer
the petition, complying with Rule 5 of the Rules
Governing § 2254 Cases, and showing cause, if any,
why the writ should not issue. Respondent’s brief on
the merits of the petition, including the question of

Vda
whether the petitioner’s claim was “adjudicated on
the merits in State court proceedings,” 28 U.S.C. §
2254(d), is due by June 1, 2007. Petitioner may file a

reply, if any, by June 20, 2007.

Respondent's motion to dismiss Steve Watters as a
respondent in this matter on the ground that he is
not McGee's custodian and thus not a proper party
(Doc. # 9) is unopposed and will theretore be
GRANTED. Petitioner’s motion to amend his petition
(Doc. # 6) is DENIED as moot: the case will proceed
on the merits of the petitioner's claim, meaning that
the form of the petition is no longer relevant.

SO ORDERED

E.D.Wis.,2007.

McGee v. Bartow

Not Reported in F.Supp.2d, 2007 WL 1062175
(E.D.Wis.)

78a

Appendix D

West’s Wisconsin Statutes Annotated
Chapter 980. Sexually Violent Person Commitments.
980.01. Definitions

[n this chapter:

(2) “Mental disorder” means a congenital or acquired
condition affecting the emotional or volitional
capacity that predisposes a person to engage in acts
of sexual violence.

(7) “Sexually violent person” means 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 1n one or more acts of sexual violence.

zk*x**ke*

79a

Appendix E
U.S. Const. Amend. XIV

Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, 01
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.

Section 2. Representatives shall be apportioned
among the _ several states according to. their
respective numbers, counting the whole number of
persons in each state, excluding Indians not taxed.
But when the right to vote at any election for the
choice of electors for President and Vice President of
the United States, Representatives in Congress, the
executive and judicial officers of a state, or the
members of the legislature thereof, is denied to any
of the male inhabitants of such state, being twenty-
one years of age, and citizens of the United States, or
in any way abridged, except for participation in
rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in
such state.

ROa

Section 3. No person shall be a Senator or
Representative in Congress, or elector of President
and Vice President, or hold any office, civil or
mihtary, under the United States, or under any
state, who, having previously taken an oath, as a
member of Congress, or as an officer of the United
States, or as a member of any state legislature, or as
an executive or judicial officer of any state, to
support the Constitution of the United States, shall
have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each
Llouse, remove such disability.

Section 4. The validity of the public debt of the
United States, authorized by law, including debts
incurred for payment of pensions and bounties tor
services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United
States nor any state shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss
or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this

article.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1896%3A2. Public record. Not legal advice.