United States Court of Appeals
For the First Circuit
No. 09-1685
JOHN YOUNG,
Petitioner-Appellant,
v.
ROBERT MURPHY, JR., SUPERINTENDENT,
MASSACHUSETTS TREATMENT CENTER,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Barbadoro,* District Judge.
Michael A. Nam-Krane on brief for appellant.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, were on brief, for
appellee.
August 10, 2010
*
Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. John Young was civilly
committed to the Massachusetts Treatment Center pursuant to Chapter
123A of the Massachusetts General Laws after a state court jury
found that he was a “sexually dangerous person.” The jury’s
verdict was affirmed on appeal in state court and Young’s habeas
corpus petition was rejected by the district court. He argues in
this appeal that the jury’s verdict violates his Fourteenth
Amendment right to substantive due process because it authorizes
his commitment without proof that he suffers from a sufficiently
serious mental impairment.
I.
Shortly before Young completed a state prison sentence
for a 1997 indecent assault and battery, the Commonwealth filed a
petition to commit him as a sexually dangerous person pursuant to
Chapter 123A of the Massachusetts General Laws.
A. Chapter 123A
Massachusetts law allows for the civil commitment of a
person convicted of a sexual offense if the person “suffers from a
mental abnormality or personality disorder which makes the person
likely to engage in sexual offenses if not confined to a secure
facility.” Mass. Gen. Laws ch. 123A, § 1. The statute explains
that a “mental abnormality” is a “congenital or acquired condition
of a person that affects the emotional or volitional capacity of
the person in a manner that predisposes that person to the
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commission of criminal sexual acts to a degree that makes the
person a menace to the health and safety of other persons.” Id.
A “personality disorder” is defined as “a congenital or acquired
physical or mental condition that results in a general lack of
power to control sexual impulses.” Id.
Chapter 123A provides that the court must first conduct
a hearing to determine whether there is probable cause to believe
that an individual is a sexually dangerous person. Id. ch. 123A,
§ 12. If probable cause exists, the individual is committed to a
treatment center “for the purpose of examination and diagnosis
under the supervision of two qualified examiners,” who file written
reports with the court that include diagnoses and opinions as to
whether the individual is sexually dangerous. Id. ch. 123A, § 13.
The individual is tried before a jury unless he affirmatively
waives that right. Id. ch. 123A, § 14.
In Young’s case, the court followed the steps mandated by
the statute and the proceedings culminated in a jury trial.
B. The Trial
The parties stipulated that Young was eligible for civil
commitment based upon his conviction for rape in 1981 and for
indecent assault and battery in 1997, both of which qualify as
sexual offenses under Chapter 123A. To meet its burden with
respect to the other elements of its commitment petition, the
Commonwealth called three psychologists, Drs. Robert Joss, Barbara
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Quiñones, and J. Leonard Peebles, each of whom opined that (1)
Young suffers from antisocial personality disorder (“APD”),1 (2)
his APD results in a general lack of power to control his sexual
impulses, and (3) his APD makes him likely to engage in sexual
offenses if he is not confined to a secure facility.
1. Difficulty Controlling Non-Sexual Impulses
All three experts testified concerning Young’s
impulsivity, not only in order to justify their diagnoses of APD,
but also to explain how they had each reached the conclusion that
Young was a sexually dangerous person. The experts supported their
testimony by citing numerous examples drawn from reports and other
records that documented Young’s difficulty in controlling his
impulses.
A series of reports detailed Young’s history as a child
and adolescent. According to these documents, Young’s mother
1
According to the Diagnostic and Statistical Manual of Mental
Disorders (“DSM-IV”), the authoritative reference used in
diagnosing mental disorders, an individual suffers from APD if he
meets four criteria. First, he must pervasively disregard the
rights of others, as indicated by at least three of the following:
(1) “failure to conform to social norms with respect to lawful
behaviors,” (2) “deceitfulness,” (3) “impulsivity,” (4)
“irritability and aggressiveness,” (5) “reckless disregard for
[the] safety of self or others,” (6) “consistent irresponsibility,”
and (7) “lack of remorse.” Second, he must be at least eighteen
years old. Third, he must have exhibited symptoms of “conduct
disorder,” another DSM-IV disorder that is also characterized by a
failure to abide by social norms, beginning before the age of
fifteen. Finally, his antisocial behavior must not be caused
exclusively by schizophrenia or a manic episode. American
Psychiatric Association, Diagnostic and Statistic Manual of Mental
Disorders 706 (4th ed. text rev. 2000).
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reported that he had always lacked an inner control mechanism.
Young briefly attended a Head Start program, but his behavior could
not be controlled there. From approximately the age of seven until
the age of eleven, Young attended an alternative school in Lowell.
Because of his educational needs and his aggressive outbursts, the
Department of Public Welfare then placed Young at St. Ann’s Home,
a residential treatment facility in Methuen, Massachusetts, where
he lived for approximately three years. At St. Ann’s, Young pushed
and shoved female staff members, frequently attacked younger
children, assaulted a staff member with a pool cue, threatened an
elderly man with a knife, and was involved in a breaking and
entering. When Young visited his family, he physically assaulted
his mother and sister; his mother even reported that she feared for
her life during one attack. Eventually, the staff at St. Ann’s
concluded that they, like the staff at Head Start, could not
contain Young’s behavior. Young was next placed in a program at
the Hayden Inn in Dorchester, Massachusetts. There, he frequently
ran away, but he did not display aggressive behavior, as most of
the other residents were larger than he was. Because officials
eventually determined that even the Hayden Inn program could not
meet his needs, Young was sent to the Danvers State Hospital in
Danvers, Massachusetts for a ten-day observation and ultimately
enrolled in the Centerpoint Residential Adolescent Program in
Tewksbury, Massachusetts. At Centerpoint, Young continued his
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violent behavior and was involved in numerous criminal activities,
including theft and assault.
Unsurprisingly, the three experts testified that Young’s
difficulties as a child and adolescent were significant because
they demonstrated his long-standing inability to control his
impulses. Joss specifically noted that Young “had a great deal of
difficulty controlling his behavior[,] even while [he was at St.
Ann’s Home,] a residential facility.” Peebles emphasized the
significance of the fact that multiple previous clinicians had
concluded that Young had a severe impulse control problem.
Young fared no better while incarcerated than he had in
the residential placements of his youth. Documents relied on by
Joss revealed that Young received at least 240 disciplinary reports
during the approximately seventeen years in which he was
incarcerated in state prison between 1981 and February 2002. In
one particularly vicious incident, Young got into a verbal argument
with corrections officers, attempted to bite one officer’s fingers,
bit another officer on the forearm, causing deep puncture wounds,
and told that officer, “Now you got AIDS, [be]cause I do.” Joss
and Quiñones observed that this institutional history reflected a
significant lack of impulse control; Joss emphasized that even when
he was being watched constantly, Young could not control himself.
Young’s behavior at the Massachusetts Treatment Center in
Bridgewater, Massachusetts, where he was housed and treated while
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he awaited his civil commitment trial, also supported the experts’
opinion testimony. According to reports, in December 2002, Young
disrupted his unit by yelling to staff members, “Why don’t you
pieces of shit come in here so I can fuck you all up?” On January
9, 2003, while awaiting a disciplinary hearing, Young yelled, “If
you fucking people give me more time up here, just watch and see
how I act,” and he told officers he would “rip out and destroy this
fucking place.” That afternoon, he flooded his cell and told an
officer, “This [has just] begun[;] I’m going to break your neck.”
The next day, Young again flooded his cell and, when confronted by
an officer, said, “This has just begun[;] I’m going to smear shit
all over the walls.” Joss and Peebles emphasized that the fact
that Young’s disruptive behavior continued even at the
Massachusetts Treatment Center, and in the presence of corrections
officers, demonstrated that he had substantial difficulty in
controlling his impulses.
2. Difficulty Controlling Sexual Impulses
All three experts also testified specifically about
Young’s difficulty in controlling his sexual impulses.
Police reports that the experts examined revealed that in
1981, at the age of nineteen, Young raped a woman he had met at a
bar. After asking his victim for a ride home and directing her to
a secluded area, he pushed her out of her car, tore off her blouse
and bra, and demanded that she remove her pants while threatening
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her with a “magnum.” During intercourse, the woman struggled and
screamed; Young responded by hitting her and biting her breast. In
1997, while Young was on probation for armed robbery, he approached
a fifteen-year-old girl on the street, grabbed her shoulder to turn
her around, and asked her if she wanted to party as he touched her
breasts. All three experts concluded that Young’s two prior sexual
offenses were evidence of his difficulty in controlling his sexual
impulses. Joss explained that the fact that Young committed the
1997 offense while on probation, and committed the 1981 and 1997
crimes against people unfamiliar to him, demonstrated
impulsiveness. In addition, Joss and Quiñones agreed that the
public location of Young’s 1997 attack underscored his lack of
impulse control.
Another set of reports from the early 1990s noted that
Young had made obscene phone calls to the wife of a corrections
officer and a J.C. Penney store while he was incarcerated. Joss
and Quiñones both testified that the phone calls demonstrated
Young’s difficulty in controlling his sexual impulses.
Finally, a March 2002 incident report from the
Massachusetts Treatment Center stated that Young was found to be in
possession of internet-generated, sexually explicit poems with a
pornographic picture on the bottom of each page, a magazine cut-out
depicting female frontal nudity, and a book with several pages
depicting male and female nudity. Joss and Quiñones emphasized
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that the fact that Young had acquired sexually explicit contraband
even while he was receiving sex offender treatment and awaiting his
civil commitment trial demonstrated his extreme difficulty in
controlling his sexual impulses.
3. The Jury Instructions and Verdict
At the conclusion of Young’s civil commitment trial, the
judge instructed the jury that it could only find Young to be a
sexually dangerous person if the Commonwealth had proven beyond a
reasonable doubt that (1) Young had been convicted of a sexual
offense as defined by the relevant statute, (2) Young suffered from
a mental abnormality or personality disorder, and (3) as a result
of that abnormality or disorder, Young was likely to engage in
sexual offenses in the future if not confined to a secure facility.
The judge made clear that the Commonwealth was proceeding under the
theory that Young suffered from a personality disorder, and defined
“personality disorder” as “a congenital or acquired physical or
mental condition . . . that results in a general lack of power to
control sexual impulse[s].”
After deliberating, the jury found that Young was a
sexually dangerous person.
C. The Appeals
Young unsuccessfully challenged the jury’s verdict in the
Massachusetts Court of Appeals. See Commonwealth v. Young, No. 05-
P-728, 2006 WL 1042916, at *2 (Mass. App. Ct. Apr. 20, 2006). He
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then filed a petition for a writ of habeas corpus in federal
district court after he was denied leave to obtain further review
in the Massachusetts Supreme Judicial Court. The district court
rejected Young’s petition in a thoughtful decision but later issued
a certificate of appealability.
II.
Young bases his appeal on a series of Supreme Court
decisions that address the circumstances under which the due
process clause permits a person to be civilly committed based in
part upon a determination of future dangerousness. See Addington
v. Texas, 441 U.S. 418 (1979); Foucha v. Louisiana, 504 U.S. 71
(1992); Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane,
534 U.S. 407 (2002). These decisions make clear that while a state
may civilly commit a dangerous individual to protect the public in
certain circumstances, it may not use civil commitment to punish
past criminal conduct, Crane, 534 U.S. at 412, to deter others from
engaging in criminal behavior, id., or to confine an individual
whose dangerousness is not the product of “some additional factor,
such as a ‘mental illness,’” Hendricks, 521 U.S. at 358; Foucha,
504 U.S. at 77-79. When a commitment decision is premised upon an
individual’s impaired volition, the court has also held that a
mental impairment will be sufficient to distinguish ordinary
recidivists from the dangerously mentally ill when the evidence
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demonstrates that the impairment results in “serious difficulty in
controlling behavior.” Crane, 534 U.S. at 413.
Relying on these decisions, Young presents two related
substantive due process claims. First, he broadly argues that the
jury’s verdict cannot stand because it was based on a diagnosis of
APD, which Young claims can never serve as a sufficiently serious
mental disorder to justify a civil commitment decision.
Alternatively, Young argues that the verdict is invalid even if APD
cannot be categorically excluded as a predicate for civil
commitment because the Commonwealth failed to prove that APD
manifests itself in his case in a way that seriously impairs his
ability to control his sexual impulses. We address both arguments
after identifying the standard of review that we employ in
adjudicating Young’s claim.
A. AEDPA
Under the Anti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), “the level of deference owed to a state court
decision hinges on whether the state court ever adjudicated the
relevant claim on the merits or not.” Clements v. Clarke, 592 F.3d
45, 52 (1st Cir. 2010), cert. denied, 78 U.S.L.W. 3743 (U.S. June
21, 2010). Unadjudicated claims are reviewed de novo. Id.
Deference to the state court’s determination is warranted, however,
if the court either expressly resolved the federal claim on its
merits or adjudicated it under a state law standard that “is at
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least as protective of the defendant’s rights as its federal
counterpart.” Foxworth v. St. Amand, 570 F.3d 414, 426 (1st Cir.
2009), cert. denied, 130 S. Ct. 1710 (Mar. 1, 2010). Where
deferential review is employed, a writ of habeas corpus may not
issue unless the adjudication either (1) “resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established [f]ederal law as determined by the Supreme
Court of the United States,” or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the [s]tate court proceeding.” 28 U.S.C.
§ 2254(d).
Although Young acknowledged in his appellate brief that
the state court’s rulings on both of his substantive due process
claims are subject to AEDPA’s deferential standard of review, he
claimed for the first time at oral argument that his categorical
claim should be reviewed de novo because the court addressed it
only under state law. Delayed arguments such as these are
ordinarily deemed to have been waived. See, e.g., Shell Co.
(P.R.), Ltd. v. Los Frailles Serv. Station, Inc., 605 F.3d 10, 19
(1st Cir. 2010); United States v. Pizarro-Berrios, 448 F.3d 1, 5
(1st Cir. 2006); Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir.
1990). Young presents no persuasive argument as to why we should
deviate from our established practice. Thus, we apply AEDPA’s
deferential standard of review to both of Young’s claims.
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B. Categorical Claim
Young first argues that a diagnosis of APD can never
serve as a sufficient basis for civil commitment because the
disorder does not affect volition and is so prevalent among
criminal offenders that it cannot be used to distinguish ordinary
recidivists from the dangerously mentally ill. The Massachusetts
Court of Appeals declined to adopt this argument in the abstract
way in which Young presented it and instead disposed of the case by
examining the evidentiary record to determine whether sufficient
evidence was produced at trial to demonstrate that Young’s APD
seriously impairs his ability to control his sexual impulses.
Young, 2006 WL 1042916, at *2. We hold that the state court’s
analytical choice represents a reasonable application of Supreme
Court precedent.
The Supreme Court has not decided whether a diagnosis of
APD can qualify by itself as a sufficiently serious impairment to
support the civil commitment of a dangerous individual.2 The
Court’s decisions in Hendricks and Crane, however, suggest that the
2
In Foucha, the court invalidated the civil commitment of a
person who had been diagnosed with APD in part because the statute
under which the commitment was ordered did not require a finding of
present mental illness. 504 U.S. at 78-79. As other courts have
noted, however, the court did not have to consider whether a
diagnosis of APD can ever qualify as a sufficiently serious mental
impairment to justify a civil commitment determination because the
state stipulated that Foucha was not mentally ill. See Brown v.
Watters, 599 F.3d 602, 613 (7th Cir. 2010); Adams v. Bartow, 330
F.3d 957, 961 (7th Cir. 2003).
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general issue as to whether a particular mental disorder can serve
as a sufficient basis for civil commitment ordinarily is not
susceptible to categorical analysis. In Hendricks, the court
declined to give “talismanic significance” to the terminology used
by the psychiatric community when evaluating the constitutionality
of a state statute that based commitment on a finding of “mental
abnormality” rather than “mental illness.” 521 U.S. at 359.
Instead, recognizing that civil commitment ultimately turns on law
rather than psychiatry, the court gave state legislatures
significant latitude in specifying the circumstances under which
civil commitment will be warranted. Id. More recently, in Crane,
the Court endorsed a contextual approach to the determination of
whether an impairment results in serious difficulty in controlling
behavior by stating that the determination should be made “in light
of such features of the case as the nature of the psychiatric
diagnosis, and the severity of the mental abnormality itself
. . . .” 534 U.S. at 413. When read together, these decisions
suggest that a diagnostic label such as APD, while relevant, will
rarely be dispositive in determining whether an impairment is
sufficiently substantial to seriously impair volition. Instead, it
is the manner in which the condition “manifests itself in the
individual” that will determine whether a particular commitment
decision meets the requirements of the due process clause. Brown
v. Watters, 599 F.3d 602, 614 (7th Cir. 2010). Because the state
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court followed this approach, it did not unreasonably apply Supreme
Court precedent when it refused to credit Young’s categorical
claim.
C. Contextual Claim
Young alternatively challenges the jury’s verdict by
claiming that the record does not establish that APD causes him
serious difficulty in controlling his sexual impulses. He supports
this argument by (1) noting that he was not found to have a
paraphilia3 such as exhibitionism or pedophilia in addition to APD
and (2) citing excerpts from the cross-examinations of the three
experts who testified for the Commonwealth, which arguably could be
read to suggest that Young retains the capacity to control his
sexual impulses in certain circumstances. We hold that the
Massachusetts Court of Appeals did not unreasonably apply Supreme
Court precedent in rejecting this argument.
Like all questions of evidentiary sufficiency, this one
must be analyzed on the basis of the record. Although Young claims
that APD cannot affect volition when it is unaccompanied by
paraphilia, he fails to identify any evidence in the record to
support this assertion. Instead, he cites United States v.
3
The DSM-IV lists several types of paraphilias and explains
that “the essential features of a [p]araphilia are 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
non[-]consenting persons that occur over a period of at least 6
months . . . .” DSM-IV at 566.
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Wilkinson, 646 F. Supp. 2d 194, 205 (D. Mass. 2009), which
recognizes that the psychiatric community is divided on the
subject. See also Brown, 599 F.3d at 613 & n.13 (describing the
debate concerning whether APD is an appropriate predicate for civil
commitment). Even if it were appropriate to consider judicial
decisions recognizing the current controversy in examining the
state court’s sufficiency determination — an issue we need not
decide — these cases at most suggest that experts disagree, and
such reasonable disagreements simply are not dispositive. Id. at
613-14. What matters here is that all three of the experts who
testified in this case were in agreement that Young’s APD causes
him serious difficulty in controlling his sexual impulses.
Young’s effort to cast doubt on the experts’ opinions by
pointing to selected excerpts drawn from their cross-examinations
is also unpersuasive. As the record demonstrates, Young’s impulse
control problems date back to childhood and have continued
throughout his incarceration. His two sexual offense convictions,
as well as the evidence that he placed obscene phone calls from
prison and possessed sexually explicit contraband while he was
awaiting trial in the current matter, also provide substantial
support for the experts’ opinions that Young continues to
experience substantial difficulty in controlling his sexual
impulses. Although the record could be read to suggest that Young
is able to control those impulses in certain circumstances, the
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Supreme Court has held that a total lack of volitional control is
not required to justify the commitment of a dangerous sex offender.
Crane, 534 U.S. at 411, 413. Accordingly, the state court did not
unreasonably apply Supreme Court precedent when it determined that
Young suffered from a sufficiently serious mental impairment to
warrant his civil commitment.
III.
The district court’s decision denying Young’s petition
for habeas corpus is affirmed.
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