United States Court of Appeals
For the First Circuit
No. 06-2292
DAVID M. DUTIL,
Petitioner, Appellant,
v.
ROBERT MURPHY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Boudin and Howard,
Circuit Judges.
David B. Hirsch for appellant.
Annette C. Benedetto, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief for appellee.
December 11, 2008
HOWARD, Circuit Judge. Petitioner David Dutil appeals
from a decision of the district court dismissing his petition for
a writ of habeas corpus. Dutil, adjudged a sexually dangerous
person (“SDP”) under Massachusetts law, has long since completed
the full term of his criminal sentence, and is now indefinitely
confined to the Massachusetts Treatment Center under the
Massachusetts SDP statute, Mass. Gen. Laws ch. 123A.1 His appeal
challenges the constitutionality of his ongoing civil commitment,
arguing that by failing to ensure regular and expeditious review of
his sexual dangerousness, the Commonwealth’s SDP statute deprives
him of his substantive due process rights and is therefore facially
invalid. Because we find that the text of the statute, as
interpreted by Massachusetts state courts, does not on its face
violate the due process protections heretofore afforded SDPs
subject to civil commitment, we affirm.
I. BACKGROUND
The relevant facts may be briefly summarized based on the
findings of the Massachusetts Supreme Judicial Court (“SJC”). See
1
The Massachusetts Legislature repealed portions of Chapter 123A in
1990, but in so doing specified that persons who were previously
committed were to be "maintained at said treatment center" subject
to the provisions of the original commitment order. Commonwealth
v. Tate, 675 N.E.2d 772, 774 n.3 (Mass. 1997). The Legislature
enacted a revised version of the statute in 1999. The portions of
Chapter 123A at issue here, those dealing with the availability of
a hearing to redetermine his sexual dangerousness, remain
materially unchanged since Dutil's commitment. See Mass. Gen. Laws
ch. 123A, § 9.
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In re Dutil, 768 N.E.2d 1055 (Mass. 2002). The factual findings of
the state court are presumed to be correct under 28 U.S.C. §
2254(e)(1). E.g., Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir.
2002) (citing Sanna v. DiPaolo, 265 F.3d 1, 7 (1st Cir. 2001)).
In the late 1980s, Dutil was sentenced for six criminal
charges of indecent assault and battery on a child under the age of
fourteen years. In 1986, he was sentenced to two years of
probation for the first two charges; two years later, he pled
guilty to the other four charges and received four concurrent ten-
year prison terms. At the latter sentencing, the judge also
determined Dutil to be a sexually dangerous person pursuant to the
then-current Massachusetts SDP statute and committed him to a
treatment center indefinitely. Dutil’s criminal sentence ended in
1997.
Pursuant to Mass. Gen. Laws ch. 123A, § 9, a provision
allowing SDPs to argue that their sexual dangerousness has ended,
Dutil filed petitions for discharge in 1996, 1997, and 1998.2 A
2
Mass. Gen. Laws ch. 123A, § 9 reads in relevant part:
Any person committed to the treatment center shall be
entitled to file a petition for examination and discharge
once in every twelve months. Such petition may be filed
by either the committed person, his parents, spouse,
issue, next of kin or any friend. The department of
correction may file a petition at any time if it believes
a person is no longer a sexually dangerous person. A
copy of any petition filed under this subsection shall be
sent within fourteen days after the filing thereof to the
department of the attorney general and to the district
attorney for the district where the original proceedings
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judge denied the 1996 petition in August 1997 after a hearing,
finding that Dutil remained an SDP. Dutil withdrew the 1997
petition before the scheduled hearing. Dutil’s 1998 petition
included a request for a jury trial, and in early February 2000, a
jury found beyond a reasonable doubt that Dutil remained sexually
dangerous.
While the third petition was pending, Dutil filed a state
habeas corpus petition arguing, inter alia, that Massachusetts’ SDP
statute violated the requirements of Kansas v. Hendricks, 521 U.S.
346 (1997), by failing to require annual review of commitments.
The Massachusetts Superior Court denied the habeas petition, and in
2002, the SJC affirmed the Superior Court's denial. In re Dutil,
768 N.E.2d at 1059. Neither court appears to have directly
addressed Dutil’s claim that he is entitled to annual review as a
matter of federal due process.
were commenced. Said petition shall be filed in the
district of the superior court department in which said
person was committed. The petitioner shall have a right
to a speedy hearing on a date set by the administrative
justice of the superior court department. Upon the
motion of the person or upon its own motion, the court
shall appoint counsel for the person. The hearing may be
held in any court or any place designated for such
purpose by the administrative justice of the superior
court department. In any hearing held pursuant to the
provisions of this section, either the petitioner or the
commonwealth may demand that the issue be tried by a
jury. If a jury trial is demanded, the matter shall
proceed according to the practice of trial in civil cases
in the superior court.
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In 2003, Dutil filed the instant federal habeas petition
pursuant to 28 U.S.C. § 2254. The memorandum filed in support of
his petition again alleged, inter alia, that he was entitled to
annual review under Hendricks. A magistrate judge’s report and
recommendation found Dutil’s argument without merit, concluding in
a footnote that the statute's provision for "annual retrial through
the . . . filing [of] a petition" comports with due process.3 The
district court adopted the magistrate’s report and dismissed the
petition without commenting on this footnote.
Dutil subsequently filed an Application for a Certificate
of Appealability with the district court requesting permission to
appeal on five distinct grounds. After citing In re Trimmer, 378
N.E.2d 59, 60 (Mass. 1978), for the proposition that the
Massachusetts SDP statute "clearly does not set an express time
limitation within which the court must hold a reexamination
hearing," and after speculating that "it might plausibly be
thought" that SDPs are entitled to "something more in the nature of
a speedy trial rather than simply the right to file a (non-
duplicative) petition on the anniversary of a civil commitment,"
3
The relevant passage of the footnote reads, "The failure to
provide an automatic annual retrial and, instead, only providing an
annual retrial through the relatively simple and effective
expediency of filing a petition does not violate due process."
This passage may not squarely address Dutil's current due process
challenge: as certified by the district court, the issue on appeal
is Dutil's claim that the statute fails to ensure a timely hearing
on a petition.
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the district court granted the certificate as to one issue:
whether due process is denied by the statute’s failure to provide
an express outward time limit within which the responsible court
must hold a reexamination hearing when requested by a person
civilly committed as an SDP.4 Massachusetts argues that Dutil
failed to exhaust this claim in state court, and that in any event
the statute comports with due process requirements.
II. EXHAUSTION OF STATE REMEDIES
“Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thus giving the state the first ‘opportunity to pass
upon and correct alleged violations of its prisoners' federal
rights.’” Josselyn v. Dennehy, 475 F.3d 1, 2-3 (1st Cir. 2007)
(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)); see also id.
4
In so doing, the district court also noted, in a footnote, that
"there is no particular magic in the phrase 'annual review,'" and
he indicated his intention to frame the issue for appeal to include
a challenge to the "indefinite delay of such reviews."
We further note that the issue as framed by the district court also
excludes Dutil's argument, urged in his appellate briefs, that the
requirement of filing a petition to receive a redetermination
hearing is itself a violation of substantive due process. Dutil
previously advanced this argument in front of the district court as
an equal protection challenge, to no avail. He again advanced this
argument, still as an equal protection challenge, in his
Application for an Expanded Certificate of Appealability and in his
Motion to Reconsider that decision, but we denied both motions.
Therefore, the question of whether the petition requirement itself
is a violation of either substantive due process or of equal
protection is not properly before us on appeal, and we decline to
reach it.
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at 3 ("Where, as here, a state's highest court offers discretionary
review, a petitioner must present that court with the opportunity
to review the federal claim to have exhausted available state
remedies." (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004))).
Appellee argues that Dutil has failed to meet this exhaustion
requirement, taking the position that the SJC was never fairly
presented with the question of whether the Massachusetts SDP
statute violates the Due Process Clause by failing to set an
express time limit within which the court must hold a reexamination
hearing. We disagree.
A. Standards
The exhaustion requirement, while at times technical and
arcane, is straightforward in this context. A claim for habeas
corpus relief has been exhausted where the claim has been “fairly
presented” to the state courts. Id. (quoting Baldwin, 541 U.S. at
29) (internal quotation marks omitted). Fair presentation means
that the petitioner “must show that he tendered his federal claim
'in such a way as to make it probable that a reasonable jurist
would have been alerted to the existence of the federal question.'”
Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (quoting
Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)). This does
not mean, however, that the pleadings in the state and federal
courts must be identical, but only that “the legal theory
[articulated] in the state and federal courts must be the same.”
-7-
Id. (quoting Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987))
(alteration in original, internal quotation marks omitted).
We have previously held that a habeas petitioner fairly
presents a claim by doing any of the following: “(1) citing a
provision of the federal constitution; (2) presenting a federal
constitutional claim in a manner that fairly alerts the state court
to the federal nature of the claim; (3) citing federal
constitutional precedents; or (4) claiming violation of a right
specifically protected in the federal constitution.” Id. (citing
Gagne, 835 F.2d at 7).
Finally, as a general rule, we are solicitous of the
obstacles that pro se litigants face, and while such litigants are
not exempt from procedural rules, we hold pro se pleadings to less
demanding standards than those drafted by lawyers and endeavor,
within reasonable limits, to guard against the loss of pro se
claims due to technical defects. Boivin v. Black, 225 F.3d 36, 43
(1st Cir. 2000) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972);
Instituto de Educacion Universal Corp. v. U.S. Dep't of Educ., 209
F.3d 18, 23 (1st Cir. 2000)).
B. Analysis
While we agree with the appellee that the precise issue
before us as framed by the district court was not clearly presented
to the SJC, we think that Dutil's due process arguments were
sufficiently presented to that court for exhaustion purposes.
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Dutil's state habeas petition, which he filed pro se, specifically
identified "substantive due process" as a ground for his complaint,
and it made the claim that "he is being confined absent a finding
or requirement of mental illness and dangerousness." This broad
statement was then sharpened in his brief to the SJC, again filed
pro se. In that brief, under a heading on the first page reading,
"ON ITS FACE, G.L. c 123A VIOLATES . . . THE DUE PROCESS CLAUSE OF
THE UNITED STATES CONSTITUTION," Dutil wrote, "Chapter 123A is not
sufficiently narrowly tailored to survive scrutiny, for the
following reasons . . . (2) the statute fails to require judicial
review annually in order to determine whether the involuntarily
confined individual requires further confinement." Later, in a
section entitled "THE STATUTE FAILS TO REQUIRE JUDICIAL REVIEW
ANNUALLY IN ORDER TO DETERMINE WHETHER THE INVOLUNTAIRLLY [sic]
COMMITTED INDIVIDUAL REQUIRES FURTHER CONFINEMENT," Dutil quoted
Hendricks as support for his contention that "[w]ithout annual
judicial review, there is no assurance the '[Commonwealth] does not
intend an individual committed under the Act to remain confined any
longer than he suffers from the mental abnormality rendering him
dangerous'" (second alteration in original). Dutil concluded this
section with a short paragraph that included the sentence, "Dutil's
inability to receive annual judicial review is a serious violation
of substantive due process."
-9-
Dutil's state habeas petition is explicit in its
invocation of due process and broad enough to encompass a challenge
to the statute's alleged failure to provide for a timely
reexamination hearing. The brief is overt in its reference to the
federal due process clause, it cites Hendricks as an arguably on-
point federal constitutional precedent, and, in both the
introduction and in the later argument, it sufficiently states the
relevant legal theory upon which Dutil proceeds. Moreover, while
the details of Dutil's legal argument have evolved slightly since
the filing of his pro se state habeas petition, having transformed
from a request for annual judicial review to a request for periodic
reexamination, the legal theory on which Dutil proceeds -- that the
failure to provide timely reexamination violates the federal due
process clause as interpreted in Hendricks -- has remained the
same. That the SJC decided not to address this theory specifically
in its denial of Dutil's state court habeas appeal is beside the
point; the argument was fairly presented to that court, and we
therefore find Dutil has satisfied the exhaustion requirement for
his federal habeas petition.5
5
We also note that the magistrate judge implied that Dutil's due
process claim was fairly presented when she decided the claim on
its merits, and the district court adopted that finding both
explicitly and implicitly in its order granting Dutil's Certificate
of Appealability.
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III. CONSTITUTIONALITY OF THE STATUTE
The merits of Dutil's federal habeas corpus claim are
another matter entirely. As explained below, Dutil's argument that
the Massachusetts SDP statute is invalid on its face due to its
alleged failure to provide for an express outward time limit for
reviews of his sexual dangerousness is unpersuasive. In
particular, Dutil extrapolates too freely from the two cases upon
which he chiefly relies: Hendricks and Petition of Lund, 617 N.E.2d
1013 (Mass. App. Ct. 1993). Fairly read, Lund does not authorize
the thirty month delay that Dutil reads into the challenged
statute, and Hendricks does not impose a deadline for
redetermination hearings that is more exacting than the
Massachusetts statute.
A. Standards
Because the SJC did not decide Dutil's substantive due
process claim, our review is de novo. Teti v. Bender, 507 F.3d 50,
56 (1st Cir. 2007) (citing DiBenedetto v. Hall, 272 F.3d 1, 6-7 &
n.1 (1st Cir. 2001); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.
2001)).
A federal habeas court has jurisdiction over any claim
that a prisoner is "in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3),
2254(a). A violation of substantive due process is found when the
government's conduct is so "egregiously unacceptable, outrageous,
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or conscience-shocking" that "the constitutional line has been
crossed." Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990)
(citations omitted) (declining to narrow the "wide . . . variety of
labels" used to describe the standard for finding violations of
substantive due process).
To mount a successful facial challenge to a statute, the
challenger "must establish that no set of circumstances exists
under which the Act would be valid. The fact that [an Act] might
operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid . . . ."
United States v. Salerno, 481 U.S. 739, 745 (1987); see also Cook
v. Gates, 528 F.3d 42, 56 (1st Cir. 2008); Comfort v. Lynn Sch.
Comm., 418 F.3d 1, 12 (1st Cir. 2005) (en banc), abrogated on other
grounds, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.
1, ___ U.S. ___, 127 S. Ct. 2738 (2007).
B. Massachusetts Courts' Interpretation of the SDP Statute
The essence of Dutil's complaint is that, while the
Massachusetts SDP statute nominally requires a "speedy hearing" on
an SDP's petition for release, it has been interpreted by the
Massachusetts courts to allow for unconstitutional delays. For
support, he points to Lund, in which the Appeals Court of
Massachusetts held that an SDP was not denied his right to a speedy
hearing when he received a hearing more than thirty months after
filing his petition for release. 617 N.E.2d at 1014-15. Dutil
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argues that this state court decision represents a binding
interpretation of the "speedy hearing" language. See Royal v.
Superior Court, 531 F.2d 1084, 1088 n.14 (1st Cir. 1976) (citing
Pollard v. Dwight, 8 U.S. (4 Cranch) 421, 429 (1808)); see also
Chicago, Milwaukee, & St. Paul Ry. Co. v. Risty, 276 U.S. 567, 570
(1928). It is this interpretation that gives rise to Dutil's claim
that the statute allows for unconstitutional delay.
A closer reading of Lund, however, reveals that the case
does not stand for so broad a proposition as Dutil suggests. While
it is true that the petitioner in Lund waited more than thirty
months for a hearing on his § 9 petition, the state appellate court
took pains to explain that the delay was largely of the
petitioner's own making:
Although [the petitioner] was appointed counsel on August
4, 1989, no complaint or other action on the petition was
taken until March 19, 1991. There is nothing in the
record before us which shows that the attorney general or
the district attorney were even sent a copy of the
petition under § 9, and, therefore, that the Commonwealth
was aware of it prior to the motion seeking an immediate
discharge.
617 N.E.2d at 1014-15. After adjusting for the petitioner's
dilatory prosecution of his petition, the Lund court made clear its
opinion that the actual delay not attributable to the petitioner
was seven months, not thirty. Id. at 1015.
In light of the Lund court's explicit discussion of the
exceptional circumstance of a represented petitioner's lengthy
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delay, Dutil's reliance on Lund for the proposition that the
Massachusetts state courts have interpreted the SDP "speedy
hearing" language to allow for a thirty month delay is unavailing.
The most we can fairly infer from Lund is that the Massachusetts
courts have allowed something closer to a seven month delay under
circumstances where the state attempts an earlier hearing, as it
did in Lund. Id. But what delay, precisely, Massachusetts would
allow under its SDP statute is speculation in which we need not,
and explicitly do not, engage: it is enough to ascertain that
neither Lund nor any other Massachusetts case of which we are aware
interprets the "speedy hearing" language to encompass any delay
approaching the thirty months that Dutil protests.
C. Substantive Due Process Protections for SDPs Under Hendricks
Bearing in mind this less-rigid understanding of the
Massachusetts SDP statute and state court interpretations thereof,
we turn to the question of whether Hendricks requires a finding of
facial invalidity. In Hendricks, the Supreme Court held
constitutional an SDP statute that, unlike the Massachusetts
statute at issue in this case, provided for automatic annual
judicial redetermination of sexual dangerousness. Dutil relies on
Hendricks for the proposition that SDPs have a right to more
expeditious hearings to redetermine their sexual dangerousness than
they are currently afforded, and he argues that the Massachusetts
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SDP statute must be invalidated as a matter of substantive due
process. We disagree.
To support his reading of Hendricks, Dutil adverts to
language in that case discussing Kansas' then-current SDP statute,
which provided for automatic annual judicial redetermination of
sexual dangerousness. Specifically, the Supreme Court wrote:
[C]ommitment under the Act is only potentially
indefinite. The maximum amount of time an individual can
be incapacitated pursuant to a single judicial proceeding
is one year. If Kansas seeks to continue the detention
beyond that year, a court must once again determine
beyond a reasonable doubt that the detainee satisfies the
same standards as required for the initial confinement.
This requirement . . . demonstrates that Kansas does not
intend an individual committed pursuant to the Act to
remain confined any longer than he suffers from a mental
abnormality rendering him unable to control his
dangerousness.
521 U.S. at 364. This passage certainly can be read to articulate
a right not to be confined past the point of dangerousness.
Hendricks does not, however, establish that a statute's
failure to provide an unambiguous timeline for a redetermination of
an SDP's sexual dangerousness renders the statute unconstitutional.
This is so for at least two reasons. First, the explicit language
of Hendricks does not support the proposition Dutil advances. The
passage quoted above does not specify how often the state must
reassess an SDP's dangerousness. Rather, it indicates that an SDP
statute providing for automatic annual judicial redetermination can
be constitutionally acceptable. Additionally, Hendricks analyzes
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Kansas' SDP statute in a context meaningfully different from this
case. The quoted passage from Hendricks supported the Court's
conclusions that, for purposes of the double jeopardy and ex post
facto clauses of the Constitution, the State of Kansas had
established civil, not criminal, proceedings, and that
incarceration under that act was not punitive. See id. at 360-69;
accord Seling v. Young, 531 U.S. 250, 261 (2001) (discussing
Hendricks). The Court thus focused on Kansas' redetermination
provision as evidence of the state's non-punitive intent, not as a
necessary element for an SDP statute to pass muster under the due
process clause.6
Moreover, even assuming, arguendo, that Hendricks did
announce a substantive due process right to periodic
redetermination hearings, Dutil has failed to show that "no set of
circumstances exists under which the [‘speedy trial’ language of
the Massachusetts SDP statute] would be valid." Salerno, 481 U.S.
at 745. Despite the obvious ambiguity in the phrase "speedy
trial," those words permit interpretations that would be consistent
with even an exacting due process requirement for redetermination
hearings.
6
In fact, the Supreme Court in Hendricks did not even address the
issue of redetermination in its discussion of whether Kansas' SDP
statute violated the due process clause. 521 U.S. at 356-60. That
discussion instead focused exclusively on whether the statute
required sufficient proof of dangerousness plus "some additional
factor," id. at 358-59, and whether such proof had been made as to
Hendricks himself, id. at 360.
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IV. CONCLUSION
In assessing the Massachusetts statute for facial
validity, we are therefore left with a statutory guarantee of a
"speedy hearing"; a state court interpretation that sanctions a
thirty month delay where twenty-three of those months are the
result of the exceptional circumstance of dilatory prosecution by
a represented petitioner; and a Supreme Court case that, in a
different constitutional context, upholds an SDP statute providing
for automatic annual judicial review but is silent as to what
redetermination procedures are necessary for purposes of due
process. This authority does not support a collateral facial
challenge to the state statute: in light of the statute's "speedy
hearing" provision and judicial interpretations thereof, it is not
apparent that "no set of circumstances exists under which the Act
would be valid," Salerno, 481 U.S. at 745, nor that the statute is
so "outrageous" as to constitute a violation of substantive due
process, see Amsden, 904 F.2d at 754. Should some aspect of the
legal background change -- the statute is revised, the state courts
further interpret the phrase "speedy hearing," or a relevant
constitutional precedent intervenes -- perhaps a facial challenge
will lie. But the text of the statute does not now on its face
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violate the due process protections heretofore afforded SDPs
subject to civil commitment.7
Affirmed.
7
It bears mention that, if any person incarcerated under the
Massachusetts SDP statute is truly aggrieved by the state's failure
to hear a petition for release, that person is not without
recourse. For instance, the aggrieved person may be able to bring
an action in the nature of mandamus to force a speedy hearing. See
Mass. Gen. Laws ch. 249, § 5. Alternatively, a petitioner who
suffers a significant delay in receiving a hearing may have an as-
applied due process challenge to the statute, as such a delay could
conceivably stress the petitioner's right to avoid incarceration
past the point of his or her dangerousness. We emphasize, however,
that Dutil's case does not present this scenario: according to the
record, Dutil does not have a petition for release pending, nor has
he at any point since February 2000. Moreover, and as explained
above, Dutil's prior petitions all appear to have been handled
appropriately. His first petition was heard in a timely manner,
and his second was withdrawn. While his third petition was not
heard until sometime in the second year after its filing, it
contained a request for a jury finding and ultimately resulted in
a jury trial. We cannot conclude from the record -- nor has Dutil
argued -- that any delay in hearing any of Dutil's three prior
petitions violated his due process rights.
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