Carl Gilbert, Jr. v. Deborah McCulloch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3460
CARL C. GILBERT, JR.,
Petitioner-Appellant,
v.
DEBORAH MCCULLOUGH,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13 CV 00048 — William C. Griesbach, Chief Judge.
____________________
ARGUED MAY 28, 2014 — DECIDED JANUARY 12, 2015
____________________
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. This petition for a writ of habeas
corpus involves an individual with a pending civil commit-
ment petition who violates his parole and receives a prison
sentence for that violation. Carl C. Gilbert, Jr. had his parole
revoked twice after he violated the conditions of his parole
on two separate occasions. These violations occurred while a
civil commitment petition was pending against him. At the
trial on that petition, a jury found Gilbert to be a sexually vi-
2 No. 13-3460
olent person, and the court entered a civil commitment or-
der. But because Gilbert was sentenced to prison after his
second parole revocation, he served that sentence before be-
ing transferred to a Wisconsin Department of Health Ser-
vices (“DHS”) facility as a civilly committed person. Gilbert
maintains that his commitment is contrary to the Supreme
Court’s decision in Foucha v. Louisiana, 504 U.S. 71 (1992), be-
cause, in his view, there was not a “current” determination
that he was a sexually violent person when he entered DHS
care. Although the delay between the commitment verdict
and Gilbert’s entry into DHS care concerns us, we do not
find the Wisconsin Supreme Court’s decision rejecting Gil-
bert’s due process argument to be contrary to or an unrea-
sonable application of clearly established United States Su-
preme Court precedent, particularly in light of the facts that
Gilbert’s own parole violation caused the delay and he has
continued to be evaluated without any indication that his
condition has improved. We therefore affirm the judgment
of the district court.
I. BACKGROUND
Gilbert was convicted of second-degree sexual assault in
Wisconsin state court on December 7, 1992 and sentenced to
ten years in prison. On December 4, 2006, shortly before he
completed his sentence (his sentence for sexual assault was
consecutive to another sentence), the State of Wisconsin filed
a petition seeking Gilbert’s commitment under Wisconsin
Statute § 980.02 as a “sexually violent person.” The state cir-
cuit court reviewed the petition that day and found probable
cause to believe that Gilbert was eligible for commitment.
Gilbert completed the prison portion of his sentence the next
day, but he was transferred to the Wisconsin Resource Cen-
No. 13-3460 3
ter, a facility operated by DHS, because of the pending
commitment proceeding. He was still on parole.
Less than ten days after his transfer to the Center, Gilbert
violated the conditions of his parole. As a result, he was re-
turned to a Wisconsin Department of Corrections (“DOC”)
facility on January 19, 2007 pending a decision as to whether
his parole would be revoked. The circuit court held a com-
mitment petition hearing on March 22, 2007 and found
probable cause to believe that Gilbert was a “sexually violent
person” within the meaning of chapter 980 of the Wisconsin
Statutes. The court then ordered Gilbert transferred for eval-
uation to the Center “or such other authorized institution as
may be determined by the [DHS].” However, on August 8,
2007, Gilbert’s parole was revoked, and he was reincarcer-
ated at a DOC-operated facility.
A few months later, on October 17, 2007, the DOC grant-
ed Gilbert parole for a second time. Gilbert was transferred
back to the Center pending resolution of the chapter 980
commitment petition. A little over a month after his transfer
back to the Center, on November 25, 2007, Gilbert violated
the terms of his second parole. He was reincarcerated at a
DOC-operated facility pending the resolution of a parole
revocation hearing. On December 28, 2007, his parole was
revoked, and he began serving the resulting sentence.
Gilbert’s chapter 980 civil commitment trial began on
February 4, 2008. At the end of a three-day trial, the jury
found beyond a reasonable doubt that Gilbert was a “sexual-
ly violent person” within the meaning of Wisconsin Statute
§ 980.06. The court entered a commitment order pursuant to
§ 980.06 ordering him committed to DHS for control, care,
and treatment until he was no longer a sexually violent per-
4 No. 13-3460
son, and it ordered that his commitment was to institutional
care in a secure facility.
Gilbert was not transferred to a DHS facility at that point,
however, because he was still serving his sentence for his
second parole violation. Instead, Gilbert remained in a DOC-
operated facility to serve out his sentence. He completed the
sentence in August 2010. He was then transferred to a DHS-
operated facility in light of the February 2008 commitment
order.1
On January 15, 2009, about eight months before he com-
pleted his sentence, Gilbert filed a post-conviction motion
asserting that his December 28, 2007 parole revocation meant
that the chapter 980 commitment petition must be dismissed.
The state circuit court denied the petition. The Wisconsin
appellate court affirmed, finding Gilbert’s commitment au-
thorized by the Wisconsin statutory scheme. In re Commit-
ment of Gilbert, 798 N.W.2d 889, 891 (Wis. App. Ct. 2011)
(“Gilbert I”). The court concluded that Gilbert’s arguments
relied on statutory interpretation and did not raise any de-
veloped constitutional arguments. Id. at 893 n.9. The Wis-
consin Supreme Court affirmed the appellate court’s deci-
sion, with two justices dissenting. In re Commitment of Gilbert,
816 N.W.2d 215 (Wis. 2012) (“Gilbert II”). It agreed with the
appellate court that Gilbert’s arguments were centered on
the statutory interpretation of chapter 980. Id. at 220. The
Wisconsin Supreme Court concluded that chapter 980 did
not require dismissal of Gilbert’s commitment petition be-
cause the chapter does not contain language allowing for
1 The district court wrote that Gilbert was transferred to a DHS facili-
ty in 2009, but the parties agree that the correct date is August 2010.
No. 13-3460 5
dismissal in his circumstances, does not set a time period for
execution of a commitment order, and provides that an indi-
vidual may be simultaneously committed under chapter 980
and incarcerated at a DOC facility. Id. at 222. Regarding the
last point, the court pointed to § 980.07(6m), which states
that “[i]f a person committed under § 980.06 is incarcerated
at a county jail, state correctional institution, or federal cor-
rection institution for a new criminal charge or conviction or
because his or her parole was revoked, any reporting re-
quirement … does not apply during the incarceration peri-
od.” Id. at 226 (quoting Wis. Stat. § 980.07(6m)). Although
Gilbert had not yet been committed when his parole was re-
voked, the court found that the language in § 980.07(6m) of-
fered insight into how chapter 980 should be applied as a
whole, and it ruled that simultaneous incarceration at a DOC
facility and commitment under chapter 980 is permissible.
Id. at 226-27. 2
While finding Gilbert’s constitutional arguments “poorly
developed,” the Wisconsin Supreme Court nonetheless ad-
dressed them and found no constitutional infirmity in Gil-
bert’s commitment. Id. at 229-30. The court reasoned that
nothing in its decision suggested that the State could forgo
the statutory procedures for commitment set forth in chapter
980 and that these procedures adequately ensured that at the
issuance of the commitment order, the court has determined
2 Gilbert refers to August 2010 as the date of his commitment, while
the State notes that February 2008 is the date Gilbert was ordered com-
mitted. The Wisconsin Supreme Court ruled that simultaneous commit-
ment and incarceration were possible under state law, and indeed Wis-
consin Statute § 980.07(6m) refers to a “committed” person who is incar-
cerated.
6 No. 13-3460
that the committed person is at that moment a sexually vio-
lent person. Id. at 230. The court also stated that if a person
serves his prison sentence and is then transferred to DHS
custody, he will be subject to periodic reevaluation to de-
termine whether he remains a sexually violent person. Id.
(citing Wis. Stat. § 980.07). With these protections, the Wis-
consin Supreme Court found that sexually violent persons
would “continue to be ‘held as long as [they are] both men-
tally ill and dangerous, but no longer.’” Id. (quoting Foucha,
504 U.S. at 77). The court concluded that Gilbert’s commit-
ment was constitutionally permissible. Id.Gilbert filed an application for a writ of habeas corpus
with the federal district court under 28 U.S.C. § 2254. The
district court denied Gilbert’s request for habeas relief, and
Gilbert appeals.
II. ANALYSIS
A petitioner in custody pursuant to a state court judg-
ment may receive a writ of habeas corpus “only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A violation of state law is not sufficient. Wilson v. Corcoran,
562 U.S. 1, 16 (2010) (per curiam). Gilbert maintains he is en-
titled to habeas relief because, he contends, there was no
“current” finding that he was a sexually violent person
when he entered DHS care in August 2010. He argues that
his commitment therefore violates his right to due process
guaranteed by the United States Constitution, and he re-
quests his immediate release.
To receive a writ of habeas corpus, Gilbert must demon-
strate that the Wisconsin Supreme Court’s decision ruling
No. 13-3460 7
against him was “contrary to, or an unreasonable application
of, clearly established Federal law, as determined by the Su-
preme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Gilbert contends that the Wisconsin decision was contrary
to, or involved an unreasonable application of, the United
States Supreme Court’s decision in Foucha v. Louisana, 504
U.S. 71 (1992).
The Supreme Court has made clear that federal courts are
not to find lightly that a state court’s decision was “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” For purposes of 28 U.S.C. § 2254(d)(1),
“clearly established Federal law” “refers to the holdings, as
opposed to the dicta,” in Supreme Court decisions. Yar-
borough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quotation
omitted). In Carey v. Musladin, 549 U.S. 70 (2006), for exam-
ple, the Supreme Court overturned habeas relief granted on
the basis that courtroom spectators had worn buttons with
victim photographs. Id. at 72. The Court reasoned that “in
contrast to state-sponsored courtroom practices,” the effect
of spectator conduct on fair-trial rights “is an open question
in [the Court’s] jurisprudence” that the Court had never ad-
dressed. Id. at 76. “Given the lack of holdings from this
Court regarding the potentially prejudicial effect of specta-
tors’ courtroom conduct of the kind involved here,” the Su-
preme Court stated, ”it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Id. at 77 (quoting 28 U.S.C. § 2254(d)(1)); see also Wright v.
Van Patten, 552 U.S. 120, 125 (2008) (per curiam) (reversing
grant of habeas relief where lawyer participated in plea
hearing by speakerphone because “[n]o decision of this
Court … squarely addresses the issue in this case”).
8 No. 13-3460
That said, the Supreme Court has also explained that
“the lack of a Supreme Court decision on nearly identical
facts does not by itself mean that there is no clearly estab-
lished federal law, since ‘a general standard’ from [the Su-
preme Court’s] cases can supply such law.” Marshall v. Rodg-
ers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting Al-
varado, 541 U.S. at 664). And state courts “must reasonably
apply the rules ‘squarely established’ by [the Supreme]
Court’s holdings to the facts of each case.” White v. Woodall,
134 S. Ct. 1697, 1706 (2014) (quoting Knowles v. Mirzayance,
556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law as deter-
mined by the United States Supreme Court on point, habeas
relief is only appropriate if the state court decision was “con-
trary to, or an unreasonable application of,” that federal law.
28 U.S.C. § 2254(d)(1). In this regard the Supreme Court has
made clear that “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fair-
minded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011) (quoting Alvarado, 541 U.S. at 664). Being merely
wrong is not sufficient, nor is “clear error” enough. White,
134 S. Ct. at 1702. Rather, “[a]s a condition for obtaining ha-
beas corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Har-
rington, 131 S. Ct. at 786-87. Moreover, “it is not an unrea-
sonable application of clearly established Federal law for a
state court to decline to apply a specific legal rule that has
No. 13-3460 9
not been squarely established by [the Supreme] Court.” Mir-
zayance, 556 U.S. at 122 (internal quotations omitted).
The Supreme Court has clearly established that a con-
victed felon has a liberty interest in not being civilly commit-
ted without appropriate procedures to prove that commit-
ment is warranted. Vitek v. Jones, 445 U.S. 480, 492-93 (1980).
“A criminal conviction and sentence of imprisonment extin-
guish an individual’s right to freedom from confinement for
the term of his sentence, but they do not authorize the State
to classify him as mentally ill and to subject him to involun-
tary psychiatric treatment without affording him additional
due process protections.” Id. at 493-94. The Supreme Court
has also clearly established that to satisfy due process guar-
antees, the State must be held to a burden of proof of at least
“clear and convincing” evidence when it pursues civil com-
mitment. Addington v. Texas, 441 U.S. 418, 433 (1979). Ordi-
narily, what must be proven is that the person sought to be
committed is dangerous to himself or others, along with
some additional factor such as “mental illness,” or “mental
abnormality,” Kansas v. Hendricks, 521 U.S. 346, 358 (1997), or
a personality disorder that results in “serious difficulty in
controlling behavior,” Kansas v. Crane, 534 U.S. 407, 411-12
(2002).
Gilbert does not challenge the February 2008 determina-
tion that he was a “sexually violent person,” nor does he
dispute that this determination meant Wisconsin could civil-
ly commit him. Wisconsin has a comprehensive statutory
scheme for the commitment of sexually violent persons, with
provisions for, among other things, notice, Wis. Stat.
§ 980.03(1); appointment of counsel for indigent persons,
Wis. Stat. § 980.03(2)(a); the right to remain silent, Wis. Stat.
10 No. 13-3460
§ 980.03(2)(b); the right to present and cross-examine wit-
nesses, Wis. Stat. § 980.03(2)(c); and the right to a jury trial,
Wis. Stat. § 980.03(3). Wisconsin also requires that the State
prove beyond a reasonable doubt that the subject of the peti-
tion is a sexually violent person. Wis. Stat. § 980.05(3)(a).
There is no dispute that the State followed all these proce-
dures in Gilbert’s case.
The jury found beyond a reasonable doubt at the com-
mitment trial that Gilbert was a sexually violent person. A
“sexually violent person” under Wisconsin law is
a person who has been convicted of a sexually violent
offense, has been adjudicated delinquent for a sexual-
ly violent offense, or has been found not guilty of or
not responsible for a sexually violent offense by rea-
son 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). A “mental disorder” under this provi-
sion means “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). Gil-
bert had been convicted of a sexually violent offense. The
jury also found beyond a reasonable doubt that Gilbert was
dangerous because he suffers from a mental disorder that
makes it likely that he will engage in one or more acts of
sexual violence.
So the burden of proof did not contravene Supreme
Court precedent. Nor did the requirements for finding that
Gilbert could be committed. The procedure by which Gilbert
No. 13-3460 11
was found to be a sexually violent person and therefore
could be committed was in line with Supreme Court deci-
sions, and Gilbert does not challenge it.
Instead, Gilbert’s position is that his commitment violates
his federal right to due process because there was no “cur-
rent” finding that he was a sexually violent person when he
completed his prison sentence in August 2010 for his second
parole revocation and was transferred to a DHS-operated
facility. The Wisconsin Supreme Court rejected this argu-
ment, and Gilbert maintains that decision is contrary to or an
unreasonable application of the United States Supreme
Court’s decision in Foucha.
Foucha involved a challenge by a person civilly commit-
ted under the then-Louisiana state process that “allow[ed] a
person acquitted by reason of insanity to be committed to a
mental institution until he is able to demonstrate that he is
not dangerous to himself and others, even though he does
not suffer from any mental illness.” 504 U.S. at 73. The Su-
preme Court held that Terry Foucha’s due process rights
were violated. Id.Foucha had been found not guilty by reason of insanity
of aggravated burglary and illegal discharge of a firearm. Id.
at 74. He was then committed. Several years later, the super-
intendent of Foucha’s facility recommended release. A three-
member panel convened at the facility reported that there
had been no evidence of mental illness in Foucha since his
admission and recommended his conditional discharge. The
state court trial judge then appointed a two-member com-
mission consisting of the same two doctors who had exam-
ined Foucha before trial. The doctors’ written report stated
that Foucha was presently in remission from mental illness
12 No. 13-3460
but that they could not say he would not be a danger to him-
self or others if released. Id. at 74-75. The doctor who testi-
fied at the hearing said that Foucha had probably suffered
from a drug-induced psychosis at the time of the crime but
had since recovered. Id. at 75. The doctor also testified that
Foucha evidenced no present signs of psychosis or neurosis
and was in “good shape” mentally, but that Foucha had an
antisocial personality, a condition that is not a mental dis-
ease. The doctor recounted that Foucha had been involved in
several altercations at the facility, and the doctor stated he
would not feel comfortable certifying that Foucha would not
be a danger to himself or others. The trial court ruled that
Foucha was dangerous to himself and others, and, based on
this determination, ordered Foucha’s commitment to con-
tinue. The Louisiana state appellate courts rejected Foucha’s
argument that his federal due process and equal protection
rights were violated by the statutory scheme that allowed
confinement of an insanity acquittee based on dangerous-
ness alone. Id.The United States Supreme Court reversed. The Court
explained that it had held in Addington that to civilly commit
a person, the State must prove two things by clear and con-
vincing evidence: first, that the person is mentally ill, and
next, that he requires hospitalization for the protection of
himself and others. Id., 504 U.S. at 76 (citing Addington, 441
U.S. 418). But, it explained, when a person is found not
guilty by reason of insanity (as Foucha had been), that de-
termination establishes that the defendant committed an act
constituting a criminal offense, and that he did so because of
mental illness. Id. (citing Jones v. United States, 463 U.S. 354,
363 (1983)). As a result, the State in such a case need not go
through the steps of making the Addington proof because it
No. 13-3460 13
can be inferred from the not guilty by reason of insanity
verdict that the defendant was mentally ill and dangerous at
the time of the verdict and therefore could be committed. Id.The Supreme Court emphasized, however, that it had al-
ready held that a person committed because of an insanity
verdict is entitled to release when he recovers his sanity or is
no longer dangerous. Id. at 77 (citing Jones, 463 U.S. at 368);
see also O’Connor v. Donaldson, 422 U.S. 563, 574-75 (1975)
(unconstitutional to continue to confine a harmless, mentally
ill person, even if original confinement was permissible,
where initial basis no longer exists). The Court then stated:
“In this case, Louisiana does not contend that Foucha was
mentally ill at the time of the trial court’s hearing.” Foucha,
504 U.S. at 78. As a result, “the basis for holding Foucha in a
psychiatric facility as an insanity acquittee has disappeared,
and the State is no longer entitled to hold him on that basis.”
Id.The Court next refuted the State’s argument that it could
continue to confine Foucha on the basis of his antisocial per-
sonality, which the trial court had found made him a danger
to himself or others. Id. at 78. For one, the Court said, in a
statement Gilbert emphasizes, “even if his continued con-
finement were constitutionally permissible, keeping Foucha
against his will in a mental institution is improper absent a
determination in civil commitment proceedings of current
mental illness and dangerousness.” Id. at 79. The Court stat-
ed that due process requires that the nature of the commit-
ment bear some reasonable relation to the purpose for which
the individual is committed. Yet in the case before it, accord-
ing to the testimony given at the hearing, “Foucha is not suf-
fering from a mental disease or illness.” Id. That meant, said
14 No. 13-3460
the Court, that “[i]f he is to be held, he should not be held as
a mentally ill person.” Id. The Court next stated that if
Foucha could no longer be held simply by virtue of being an
insanity acquittee, he is entitled to constitutionally adequate
procedures to establish the grounds for his confinement. Id.The Court recognized that in certain narrow circumstances
persons may be subject to limited confinement on the sole
basis that they pose a danger to themselves or others, but it
found that principle inapplicable in Foucha’s case. Id. at 80-
81.
Justice O’Connor, the fifth vote in favor of finding that
the Louisiana scheme violated Foucha’s right to due process,
wrote separately “to emphasize that the Court’s opinion ad-
dresses only the specific statutory scheme before us, which
broadly permits indefinite confinement of sane insanity ac-
quittees in psychiatric facilities.” Id. at 86-87 (O’Connor, J.,
concurring). She continued: “This case does not require us to
pass judgment on more narrowly drawn laws that provide
for detention of insanity acquittees, or on statutes that pro-
vide for punishment of persons who commit crimes while
mentally ill.” Id. at 87. She further stated that she did “not
understand the Court to hold that [a state] may never con-
fine dangerous insanity acquittees after they regain mental
health.” Id.In arguing that his commitment is contrary to or an un-
reasonable application of Foucha, Gilbert stresses one of the
statements we quoted from that case—“keeping Foucha
against his will in a mental institution is improper absent a
determination in civil commitment proceedings of current
mental illness and dangerousness.” Id. at 78. Gilbert con-
tends that he must be released because, according to him,
No. 13-3460 15
there was not a “current” showing that he was a sexually vi-
olent person in August 2010 when he was transferred to a
DHS facility. The Wisconsin Supreme Court rejected the ar-
gument that Foucha’s “current mental illness and danger-
ousness” language meant Gilbert was entitled to release, and
our question is whether that decision “was so lacking in jus-
tification that there was an error well understood and com-
prehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington, 131 S. Ct. at 786-87.
Were the question presented to us an initial question of
federal constitutional law, we might reach a different result.
The two-and-a-half year delay between the order of com-
mitment and Gilbert’s entry into DHS care is certainly a con-
cern for us. We are constrained, though, by the posture of
this case and by the narrow scope of our habeas review. The
Wisconsin Supreme Court concluded that its statutory
scheme allowed the simultaneous commitment and incar-
ceration of a sexually violent person, and that Foucha did not
preclude such an interpretation. Gilbert II, 816 N.W.2d at
229-30. The Wisconsin court emphasized that the State was
still required to follow the commitment procedures in chap-
ter 980 of the Wisconsin statutes, which it said ensured that
the committed person was at the moment that determination
was made a sexually violent person. Id. at 230. The court also
stated that a person who serves a sentence of incarceration
and is then transferred to DHS custody will be subject to pe-
riodic reevaluation once in DHS care to determine whether
he remains a sexually violent person. Id. (citing Wis. Stat.
§ 980.07). The Wisconsin Supreme Court concluded that
these protections meant that sexually violent persons will
continue to be “’held as long as [they are] both mentally ill
16 No. 13-3460
and dangerous, but no longer.’” Id. (quoting Foucha, 504 U.S.
at 77).
Applying the 28 U.S.C. § 2254 standard of review as we
must, we do not find the Wisconsin decision denying Gilbert
relief to be contrary to or an unreasonable application of
clearly established United States Supreme Court law. For
one, unlike in Foucha, there is no suggestion that Gilbert no
longer suffers from a mental disorder. That is significant.
The State in Foucha conceded that the petitioner was no
longer mentally ill yet it still wanted to hold him committed,
and it wanted to do so even without assuming the burden of
showing he is dangerous by clear and convincing evidence.
Foucha, 504 U.S. at 86. The State of Wisconsin, in contrast,
makes no concession that Gilbert no longer suffers from a
mental disorder. Gilbert also does not argue that he no long-
er has a mental disorder. A jury found beyond a reasonable
doubt that Gilbert had a mental disorder that made it likely
he would engage in sexual violence. There is no indication
he longer has such a disorder, unlike the evidence from doc-
tors and others in Foucha that the petitioner there was not
suffering from a mental illness. 3
3 Another difference between this case and Foucha is that a mental
disorder and dangerousness were not inferred in Gilbert’s case. That
Foucha was found not guilty by reason of insanity meant that it could be
“inferred that at the time of the verdict, the defendant was still mentally
ill and dangerous and hence could be committed.” Foucha, 504 U.S. at 76.
In Gilbert’s case, in contrast, mental illness and dangerousness were not
inferred. Rather, a jury found beyond a reasonable doubt that he had a
mental disorder and was dangerous.
No. 13-3460 17
And the Supreme Court of Wisconsin did not rule or in-
timate that Gilbert could be committed, or that his commit-
ment could continue, if he no longer had a mental disorder.
Cf. Foucha, 504 U.S. at 77 (stating that a civilly committed
person could “be held as long as he is both mentally ill and
dangerous, but no longer”). Indeed, unlike the Louisiana
statutory scheme in Foucha, Wisconsin’s statute only allows a
person to be committed “until such time as the person is no
longer a sexually violent person.” Wis. Stat. § 980.06. Recall
that a “sexually violent person” requires that a person be
“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). In the
Louisiana scheme before the Court, whether a person was
currently mentally ill was irrelevant; that is not true in Wis-
consin because in Wisconsin a person cannot be held if he no
longer suffers from a mental disorder making it likely the
person will engage in sexual violence.
In addition to the absence of a suggestion that Gilbert is
not currently suffering from a mental illness, Gilbert’s parole
revocations and resulting sentences make his circumstances
unique. He was ordered committed after a jury found him to
be a sexually violent person, and no one questions that he
could be committed then. But Gilbert violated the conditions
of his parole twice after the commitment petition had been
filed. Only because he violated his parole did he stay in
DOC custody as long as he did after the jury ruled he should
be civilly committed. Neither Foucha nor any other United
States Supreme Court decision speaks to this or an analo-
gous situation. Cf. Francis S. v. Stone, 221 F.3d 100, 113 (2d
Cir. 2000) (“It is arguable that the Supreme Court would
have ruled in favor of Foucha if he had been mentally ill but
18 No. 13-3460
no longer dangerous, but the holding is only that civil com-
mitment procedures are required for an insanity acquittee
who is no longer mentally ill.”). No United States Supreme
Court case has considered a delay between a commitment
order and transfer of custody to a mental health facility, or a
time period between examinations. Nor did Foucha or any
other Supreme Court decision consider the effect of a new
conviction or parole revocation on a civil commitment pro-
ceeding. 4
We turn next to the fact that Gilbert did not receive
treatment or annual reexaminations of his status while he
was in the DOC serving his sentence for the second parole
violation. After examining chapter 980 in detail, we are satis-
fied that Wisconsin’s statutory scheme means that Gilbert
“has prompt opportunity to obtain release if he has recov-
ered.” Jones, 463 U.S. at 366. We say that recognizing that
serving the parole revocation sentence meant there was a
two-and-a-half year delay between Gilbert’s commitment
4 While not directly relevant to our constitutional analysis, we also
note that under Wisconsin law, a petition for civil commitment on the
basis that the person is a sexually violent person must be filed before the
person is released or discharged from custody for the sexually violent
offense. Wis. Stat. § 980.02(1m); In re Commitment of Spaeth, 850 N.W.2d
93, 98 (Wis. 2014). The State argues that means that if a person commits a
crime that is not a sexually violent offense while in a DHS institution as a
civilly committed person, is prosecuted, and serves a sentence, the State
cannot file a petition again to have the person re-committed as a sexually
violent person. That is a difficult proposition because it means that a per-
son who would have otherwise remained civilly committed would in-
stead be released as a result of his criminal conduct. That is, a person’s
criminal acts would end an otherwise valid commitment even though no
determination was made that the person was no longer a sexually violent
person.
No. 13-3460 19
order and when he began receiving treatment. See Spaeth,
850 N.W.2d at 101 (recognizing that primary goals of chapter
980 are the treatment of sexually violent persons and protec-
tion of society).
Pursuant to Wisconsin law, a committed person is to be
reexamined by a mental health professional at least every
twelve months “to determine whether the patient has made
sufficient progress for the court to consider whether the per-
son should be placed on supervised released or discharged.”
Wis. Stat. § 980.07(1). The person has the right at that time to
also be examined by an independent examiner. Id.; In re
Commitment of Arends, 784 N.W.2d 513, 518 (Wis. 2010). Con-
sistent with Wisconsin state law, Gilbert did not receive an-
nual reexaminations of his mental condition while he served
his sentence in the DOC from February 2008 to August 2010.
See Wis. Stat. § 980.07(6m) (“If a person committed … is in-
carcerated … for a new criminal charge or conviction or be-
cause his or her parole was revoked,” annual reexamination
requirement does not apply during the incarceration peri-
od.). Gilbert does not contest, however, that he has been re-
ceiving the requisite reexaminations since his entry into DHS
care. Cf. Wis. Stat. § 980.07(6m) (providing that reeexamina-
tion requirement resumes upon release from incarceration). 5
In addition to the required annual reexaminations, the
Wisconsin statutory scheme also allows a person civilly
5 We note that many, but not all, of the states that allow civil com-
mitment of sexually violent persons require an annual reexamination.
See, e.g., 725 Ill. Comp. Stat. 207/55. Virginia, for example, requires a
yearly hearing regarding the continued need for secure inpatient treat-
ment for the first five years, then only at biennial intervals thereafter. Va.
Code. Ann. § 37.2-910(A).
20 No. 13-3460
committed as a sexually violent person to “petition the
committing court for discharge at any time.” Wis. Stat.
§ 980.09(1). Wisconsin requires the court to refer a petition
for discharge filed without counsel “as soon as circumstanc-
es permit” for indigency and appointment of counsel deter-
minations. Wis. Stat. § 980.09(1m)(b) (citing Wis. Stat.
§ 977.01(1) and § 977.05(4)(j)). Under Wisconsin Statute
§ 980.09(1), a committed person who files a petition for dis-
charge has the initial burden of alleging facts that would al-
low a reasonable trier of fact to conclude that he does not
meet the criteria for commitment as a sexually violent per-
son. Id.; Martin v. Bartow, 628 F.3d 871, 875 (7th Cir. 2010);
Arends, 784 N.W.2d at 514, 519. The court’s review of the pe-
tition at this point is only a “limited review,” where the
“standard is similar to that used in civil cases to decide a
motion to dismiss for failure to state a claim upon which re-
lief can be granted under [the Wisconsin code].” Arends, 784
N.W.2d at 520.
If the petitioner alleges sufficient facts, the court will ap-
point an examiner upon request, unless one was already ap-
pointed for the current reexamination period. Wis. Stat.
§ 980.09(1m)(d). The court will later conduct another “lim-
ited” review to determine whether the record contains any
facts that would allow a factfinder to grant relief at a dis-
charge hearing; if so, then the court must set the matter for
trial. Id. § 980.09(2); Arends, 784 N.W.2d at 521-23. The court
may hold a hearing as it makes this determination, Wis. Stat.
§ 980.09(2), but the Wisconsin Supreme Court has empha-
sized that “the standard is not whether the evidence more
heavily favors the petitioner,” and that the petitioner “does
not need to prove a change in status in order to be entitled to
a discharge hearing.” Arends, 784 N.W.2d at 522. Rather, “If
No. 13-3460 21
any facts support a finding in favor of the petitioner, the
court must order a discharge hearing on the petition.” Id. at
523.
At trial, it is the State that has the burden of proving by
clear and convincing evidence that the person meets the cri-
teria for commitment as a sexually violent person. Wis. Stat.
§ 980.09(3). If the State does not do so, the petitioner must be
discharged. Id. § 980.09(4). This procedure that allows a per-
son to petition for discharge at any time is in addition to the
statutory requirement of a yearly reexamination, where the
examiner is to use the criteria set forth in Wisconsin Statute
§ 980.09(3) when determining whether a person should be
discharged. See Wis. Stat. § 980.07(1). 6
In addition, the difference in the standard of proof be-
tween the initial commitment hearing and the discharge
hearing does not mean a clearly established constitutional
infirmity. Wisconsin has set the State’s burden of proof at a
§ 980.09(3) discharge trial as a showing by clear and convinc-
ing evidence, while the State’s burden of proof at the initial
commitment hearing is proof beyond a reasonable doubt. See
Wis. Stat. § 980.05(3)(a). The United States Supreme Court
has not spoken to the level of proof required at a release
hearing for a civilly committed person. Addington only re-
quires the State to assume the burden at the initial commit-
ment determination, and it only requires it to assume a bur-
den of proof standard of clear and convincing evidence. 441
6 Wisconsin also allows a committed person, or the director of the fa-
cility where the person is placed, to petition the court for supervised re-
lease. Wis. Stat. § 980.08(1). That procedure is discussed in detail in Wis-
consin Statute § 980.08. We do not do so here in light of Gilbert’s re-
quested relief of immediate release.
22 No. 13-3460
U.S. at 443. That is the same burden that Wisconsin requires
the State to assume at the discharge hearing, so even if Ad-
dington applied at discharge proceedings, the Wisconsin
scheme would comply. See Milinich v. Ahlin, No. 09-2612,
2014 WL 5793959, at *6 (N.D. Cal. Nov. 6, 2014) (denying ha-
beas petition and stating Supreme Court has never held that
prosecution must bear burden of proof at release hearing
where person was initially civilly commitment at hearing
where prosecution bore burden beyond a reasonable doubt).
We are satisfied that Wisconsin’s statutory procedures mean
that Gilbert has the opportunity to obtain release if he has
recovered, Jones, 463 U.S. at 366, and that the Wisconsin
scheme only condones his commitment as long as he re-
mains a sexually violent person, Wis. Stat. § 980.06.
Again, Gilbert does not contest that he has been receiving
annual reexaminations since his entry into DHS care in Au-
gust 2010. Those reexaminations have not resulted in a de-
termination that he is no longer a sexually violent person. In
this regard there are similarities between the circumstances
here and those in another Wisconsin Supreme Court case,
State ex rel. Marberry v. Macht, 665 N.W.2d 155 (Wis. 2003),
which we note while recognizing it is not controlling here.
There a person civilly committed as a sexually violent per-
son filed suit after he had not received a reexamination of his
mental condition within the six months of his initial com-
mitment, as was then required by Wisconsin statute. Id. at
158 (citing Wis. Stat. § 980.07(1) (1998)). Although he re-
ceived a court order directing reexamination, he did not re-
ceive his first reexamination until almost two years after his
initial commitment. Id. at 158. Nonetheless, the Wisconsin
Supreme Court unanimously declined his request for imme-
diate release. See id. at 157; id. at 165 (Bradley, J., concurring).
No. 13-3460 23
The lead opinion ruled that while conducting timely reexam-
inations was mandatory, adequate remedies other than dis-
charge existed including mandamus directing a reexamina-
tion, backed by contempt. Id. at 163. The opinion explained
that release and discharge from commitment for failure to
conduct a timely reexamination, without a determination
that the person is no longer a sexually violent person,
“would compromise both of Chapter 980’s principal purpos-
es—treatment and public protection—because, until a circuit
court finds otherwise, the committed person remains in need
of treatment and at high risk to reoffend.” Id. at 164. The
court also emphasized that at the time of the opinion, the pe-
titioner had been reexamined three times, and according to
each, he remained a sexually violent person. Id. at 158 n.2,
165 n.11.
We emphasize that our decision is a narrow one. We
need not get into the potential federal due process implica-
tions of Wisconsin Supreme Court statements that Gilbert
emphasizes—that the Wisconsin statute “does not specify
when the commitment must commence” and so the State
could seek a civil commitment “at any time” after a person
has been convicted of a sexually violent offense. Gilbert II,
816 N.W.2d at 224-25 (construing Wis. Stat. § 980.06). Gilbert
worries that this language means the State might seek and
obtain a commitment order early into a person’s ten- or
twenty-year sentence, and then a person would be commit-
ted based on a mental disorder determination made ten or
twenty years earlier. 7 But that is not what happened here.
7 The Wisconsin Supreme Court noted in another case that because
Wisconsin Statute § 980.15 requires the agency with custody over a sex-
ually violent offender to notify the State within ninety days of the pris-
24 No. 13-3460
Days before his release on parole for his second-degree sex-
ual assault sentence, the State petitioned for Gilbert’s com-
mitment. Only because Gilbert later violated his parole did
the delay between the commitment order and Gilbert’s entry
into a DHS facility occur. We decide today Gilbert’s case,
and not any theoretical possibilities that he contemplates.
Perhaps the Wisconsin Supreme Court would find a due
process violation in his scenarios, making our review unnec-
essary; we do not know.
Concluding that habeas relief is not available to Gilbert is
consistent with one of the few cases to have considered an
analogous situation, Smith v. Richards, 569 F.3d 991 (9th Cir.
2009). There, Smith was released on parole in Alaska after
serving a rape sentence but failed to report as directed. Id. at
992. After his arrest in Washington for another rape, Alaska
authorities filed a detainer and parole warrant. Smith was
convicted in Washington. The day before his Washington
sentence was to end, the State of Washington filed a petition
to have him civilly committed as a sexually violent predator.
A jury found Smith to be a sexually violent person, and the
court entered an order of commitment. Smith filed a petition
in federal court for a writ of habeas corpus, arguing that his
commitment order was unconstitutional because he would
be transferred to prison in Alaska after his Washington sen-
tence ended rather than being immediately committed. The
Ninth Circuit rejected his argument, explaining that the state
court reasonably concluded that Smith remained dangerous
oner’s impending discharge or release, “the practical effect” is that the
State will generally have a ninety-day window before release to file a
commitment petition. Spaeth, 850 N.W.2d at 101 (citing Wis. Stat.
§ 980.015(2)(a)).
No. 13-3460 25
because he might go to Alaska and serve his time but could
return to Washington and reoffend. Id. at 994. In upholding
the commitment order, the court reasoned that “[t]he Su-
preme Court has not clearly spoken on the question of how,
if at all, one state’s detainer affects another state’s applica-
tion of its laws in this context. This silence alone is sufficient
to uphold the Washington Court of Appeals decision under
AEDPA.” Id. The court concluded that the state court rea-
sonably applied federal law and that the civil commitment
was constitutional, which meant that Smith could serve a
scheduled 215-day prison sentence and then be civilly com-
mitted. Id. at 994-95.
We do not believe the Supreme Court has spoken to Gil-
bert’s circumstances either. There is no question that “civil
commitment for any purpose constitutes a significant depri-
vation of liberty that requires due process protection.” Ad-
dington, 441 U.S. at 425. This is especially true for Gilbert be-
cause his civil commitment as a sexually violent person in
Wisconsin is indeterminate. The delay between his commit-
ment order and entry into DHS care concerns us, but our
posture on habeas review constrains our inquiry. Significant
in this regard is that Foucha involved a person who was no
longer mentally ill. The Court also did not have to consider
the effect of any new conviction or parole revocation on a
civil commitment. Cf. Musladin, 549 U.S. at 76 (finding open
question in Supreme Court jurisprudence did not warrant
habeas relief). In the circumstances here, we find that at the
least “fairminded jurists could disagree” as to whether the
Wisconsin decision was correct. See Harrington, 131 S. Ct. at
786. Therefore, we do not find the Wisconsin Supreme
Court’s decision to be contrary to or an unreasonable appli-
26 No. 13-3460
cation of clearly established United States Supreme Court
law.
III. CONCLUSION
The judgment of the district court is AFFIRMED.