In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1447
JOHN W. S WEENEY,
Petitioner-Appellant,
v.
B YRAN B ARTOW,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-61—Rudolph T. Randa, Judge.
S UBMITTED A PRIL 16, 2010—D ECIDED JULY 8, 2010
Before B AUER, P OSNER, and E VANS, Circuit Judges.
P OSNER, Circuit Judge. The appellant pleaded guilty
in 1995 to two counts of third-degree sexual assault, see
Wis. Stat. § 940.225(3), was sentenced to prison, and
completed his prison sentence in November 2007. But
before he was released, the state sought an order from
a Wisconsin state court to detain him as a “sexually
violent person.” See Wis. Stat. §§ 980.01(7), 980.02. He
moved to dismiss the state’s case. He argued that the
2 No. 10-1447
use of his assault convictions as the basis for civil deten-
tion as a sexually violent person would infringe the ex
post facto clause of the federal Constitution because third-
degree sexual assault had been added to the list of sexually
violent offenses after he had committed the assaults and
indeed after he had been prosecuted, convicted, and
sentenced for them. His motion was denied, and after
exhausting his state remedies (Wisconsin allows a party
to seek permission to appeal an interlocutory order,
such as the denial of a motion to dismiss, Wis. Stat.
§ 808.03(2); State v. Webb, 467 N.W.2d 108, 112 (Wis. 1991)),
he sought federal habeas corpus, lost, and now seeks a
certificate of appealability, as he had to do because he
is detained pursuant to a judicial rather than an execu-
tive order. Evans v. Circuit Court of Cook County, 569 F.3d
665, 666 (7th Cir. 2009).
The district court dismissed the habeas corpus petition
on the authority of Younger v. Harris, 401 U.S. 37 (1971),
which (with irrelevant exceptions) requires federal
courts to abstain from interfering with pending state
proceedings to enforce a state’s criminal laws and certain
other types of law as well. Although the petitioner’s
attempt to get the state courts to drop the proceeding to
commit him civilly as a sexually violent person failed,
he has not yet been ordered civilly committed; he is
awaiting a hearing in the commitment proceeding.
The Supreme Court has applied the Younger doctrine
to state proceedings that though not criminal enforce
other important state interests, such as prohibiting em-
ployment discrimination, Ohio Civil Rights Comm’n v.
No. 10-1447 3
Dayton Christian Schools, Inc., 477 U.S. 619, 627-28 (1986),
disciplining lawyers, Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982), and abating
nuisances. Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975).
Civil commitment proceedings, often directed at sex
offenders who have completed their prison sentences but
are regarded as still dangerous, e.g., Kansas v. Hendricks,
521 U.S. 346 (1997), are just as worthy of protection
against being enjoined by federal judges as the other
types of noncriminal proceeding to which Younger has
been applied. Coley v. Clinton, 635 F.2d 1364, 1370-71
(8th Cir. 1980); cf. Addington v. Texas, 441 U.S. 418, 426-28
(1979).
It makes no difference that although the state
proceeding is pending, the petitioner has exhausted
the state remedies that he could invoke to block the
proceeding by moving to dismiss it. If all a defendant in
a state proceeding had to do in order to obtain federal
court review of his federal claims before the proceeding
was over was to move to dismiss and exhaust the
remedies the state provided for a challenge to the
denial of such a motion, Younger would be a dead letter.
So the maneuver has been rejected, Neville v. Cavanagh,
611 F.2d 673, 675-76 (7th Cir. 1979); In re Justices of
Superior Court, 218 F.3d 11, 17-19 (1st Cir. 2000), and
must be in this case as well.
What is true is that a person who is in state custody
awaiting a determination by the state courts of the
legality of his custody may seek federal habeas corpus
to challenge that custody without being barred by the
4 No. 10-1447
Younger doctrine if immediate federal intervention is
necessary to prevent the challenge from becoming
moot. That would be the case if the petitioner were com-
plaining that the state proceeding had violated his right
to a speedy trial or had placed him in double jeopardy.
Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-92
(1973); Walck v. Edmondson, 472 F.3d 1227, 1232-34 (10th
Cir. 2007); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.
1998). For then the eventual decision by the state court
would come too late to secure his rights. That is not true
of the petitioner’s right not to be subjected to an ex post
facto law.
The petitioner’s request for a certificate of appeal-
ability is therefore
D ENIED.
7-8-10