Brown v. Watters

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-1171

B RUCE N. B ROWN,
Petitioner-Appellant,
v.

S TEVE W ATTERS,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-00753-LA—Lynn Adelman, Judge.

A RGUED D ECEMBER 5, 2008—D ECIDED M ARCH 19, 2010

Before R IPPLE, K ANNE and T INDER, Circuit Judges.
R IPPLE, Circuit Judge. In 1998, a Wisconsin court ordered
that Bruce Brown be committed civilly as a “sexually
violent person” (“SVP”) pursuant to Chapter 980 of the
Wisconsin Statutes. In 2006, Mr. Brown filed a petition for
habeas corpus in the United States District Court for the
Eastern District of Wisconsin. He contended that his
continued state custody deprived him of his right to due
process of law. The district court denied the writ but
issued a certificate of appealability on that issue. For the
2 No. 08-1171

reasons set forth in this opinion, we affirm the judgment
of the district court.

I
BACKGROUND
A.
Since 1974, Mr. Brown has been incarcerated frequently
for crimes that are sexual in nature.1 Between 1974 and

1
The record of Mr. Brown’s commitment proceedings in
Wisconsin was not presented in the district court. It was
offered by counsel for the State, with the caveat that, because
“the sole claim in Brown’s petition is unexhausted and
does not state a constitutional violation, [the State] does not
believe that any of the transcripts are relevant to the resolu-
tion of Brown’s petition at this time.” R.11 at 5. The district
court declined to order preparation of the transcripts or
other state record evidence.
We determined that, in order to properly review the due
process challenges raised by Mr. Brown with regard to the
scientific evidence presented at his commitment trial, review
of the state court record was appropriate. Although we gen-
erally decline to supplement the record on appeal with
materials not before the district court, we have not applied
this position categorically. See, e.g., Ruvalcaba v. Chandler, 416
F.3d 555, 562 n.2 (7th Cir. 2005) (in habeas case, supplementing
the records with certain state court documents and otherwise
accepting the parties’ undisputed representations about the
content of unprovided records); accord Thompson v. Bell, 373 F.3d
688, 690-91 (6th Cir. 2004) (in habeas case, acknowledging
(continued...)
No. 08-1171 3

1978, his actions resulted in convictions for attempted
sexual perversion and several counts of first-degree
sexual assault. Three of his later offenses were com-
mitted while he was on parole in connection with the
1974 offense and involved serious threats to the victims’
safety. The charging document for a 1978 case, for
example, indicates that Mr. Brown committed the
offense while threatening the victim with a knife as she
lay in her bed with her young grandchild next to her. In
February 1984, just two months after his release from
custody in connection with his prior offenses, Mr. Brown
committed two other serious crimes against two
separate victims within the space of four days; the first
of these acts, committed on a juvenile with use of a knife,
resulted in another conviction for first-degree sexual
assault and a sentence of 20 years’ imprisonment. The
second offense of reckless endangerment resulted in a
sentence of three years’ imprisonment, to be served
consecutively.2

1
(...continued)
that “courts of appeals have the inherent equitable power to
supplement the record on appeal, where the interests of justice
require” and collecting cases), overruled on other grounds, 545
U.S. 794 (2005). “In the interest of completion,” Ruvalcaba, 416
F.3d at 562 n.2, we ordered sua sponte the parties to supple-
ment the record in this case with the record before the state
appellate court. The parties have done so, and we have con-
ducted a full review of Mr. Brown’s commitment record.
2
The records introduced at his Wisconsin commitment pro-
ceeding also reveal a significant history of other non-sexually-
(continued...)
4 No. 08-1171

As his mandatory release date approached in 1996, the
State declined, for reasons undisclosed by the record, to
file a petition to have Mr. Brown committed as a SVP
pursuant to Chapter 980. Consequently, Mr. Brown was
released on parole in 1996. Shortly thereafter, his parole
again was revoked, and he was returned to state custody.
According to the state court records, his parole revocation
violations included using alcohol, marijuana and cocaine
and staying overnight at an unapproved residence. He
again was released from custody, this time with an elec-
tronic monitoring device, but he cut it off and absconded.
He was out of custody for more than a year before he
again was apprehended.
In addition to his conduct while out of prison,
Mr. Brown’s custodial records reveal that he received
approximately 100 conduct reports, several of which
related to sexual conduct. The incidents included an
occasion where Mr. Brown made a sexually suggestive
comment to a nurse during a physical examination
and numerous incidents where he was disciplined for
conduct with a visitor, such as inappropriate touching,
“excessive kissing and hugging” or “fondling a visitor’s
breasts.” Wis. R.92 at 54.3

2
(...continued)
based offenses including, among other things, burglary, posses-
sion of a controlled substance, carrying a concealed weapon
and attempted armed robbery.
3
We shall use the abbreviation “Wis. R.” to refer to docket
entries in the state court commitment proceeding that were not
(continued...)
No. 08-1171 5

B.
In 1998, as Mr. Brown’s new release date neared, Wiscon-
sin began Chapter 980 proceedings, seeking to have him
committed civilly as a SVP. After extensive pretrial pro-
ceedings challenging various proposed experts, proffered
testimony and supporting documents, the matter was
tried to a jury. See Wis. Stat. § 980.05(2) (providing that
civil commitment may be tried to a jury at the request
of the State or the respondent).
In support of its case, the State called Dennis Doren,
Ph.D., a clinical psychologist employed by the Wisconsin
Department of Corrections who had been working with
sex offenders since 1983. Dr. Doren testified that he
had reviewed approximately 1,500 pages of documents
from Mr. Brown’s corrections record, including presen-
tence investigation reports, social worker reports, social
history information, treatment behaviors, disciplinary
reports and other similar materials. Dr. Doren testified
that, after analyzing the documents available to him,
he had diagnosed Mr. Brown with two conditions that
he believed satisfied the Wisconsin standard of a
“mental disorder,” 4 namely, a paraphilia not otherwise
specified involving nonconsenting persons (“paraphilia

3
(...continued)
made a part of the record in the district court proceeding
and thus have no separate federal record number.
4
See Wis. Stat. § 980.01(2) (defining a “mental disorder” for
purposes of the SVP statute as “a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence”).
6 No. 08-1171

NOS nonconsent”) and Antisocial Personality Disorder
(“APD”).
With respect to the paraphilia diagnosis, Dr. Doren
began by noting that the term generally describes a condi-
tion that involves “recurrent, intense sexual fantasies,
sexual urges, and[/]or behaviors” involving “something
other than consenting adults.” Wis. R.94, Tr.Z at 6.
In reaching the specific paraphilia NOS nonconsent
diagnosis, Dr. Doren testified that he had relied upon a
number of facts in Mr. Brown’s record. First, Dr. Doren
noted that, at various times, Mr. Brown “effectively
acknowledged a sexual problem,” id. at 10, that he had
“given . . . to God,” id. at 11. Next, Dr. Doren found
significant that one of Mr. Brown’s offenses occurred after
“he had sex twice earlier in the day,” id. at 11; the behavior
pattern suggested that Mr. Brown was not simply looking
for a “sexual outlet,” since this was available to him with
consenting partners, id. at 18. This evidence, coupled with
Mr. Brown’s documented sexual arousal during the
attacks, was instead indicative of a specific interest in
nonconsensual sex. See id. at 13, 18. In addition, the speed
with which Mr. Brown returned to his criminal sexual
conduct after being released suggested to Dr. Doren that
Mr. Brown “is driven towards the behavior despite the fact
[that he] has had a consequence for it.” Id. at 13. Although
Mr. Brown’s offense pattern began as primarily non-sexual
in his youth, his later criminal history involved offenses
that were mostly sexual in nature, demonstrating a
“continued ambush toward . . . sex offending.” Id. at 18.
In addition to the record evidence that suggested that
Mr. Brown could be diagnosed with paraphilia NOS
No. 08-1171 7

nonconsent, Dr. Doren also testified about clinical indica-
tors that he believed were not particularly pronounced
in Mr. Brown’s case: no clear “script” from offense to
offense, no great diversity among victims and no
proclivity for offending in circumstances in which he was
likely to be caught. Id. at 19-21. Evaluating the records in
light of “general indicators” from his clinical experience,
however, Dr. Doren’s conclusion was that a diagnosis of
paraphilia NOS nonconsent was appropriate. Id. at 21. In
Mr. Brown’s case, according to Dr. Doren, his paraphilia
“impairs his decision-making process and makes it more
difficult for him to control his behavior” and further
impairs his ability “for having a degree of empathy or
degree of remorse with his potential victims.” Id. at 22.
With regard to the diagnosis of APD, Dr. Doren testified
that the condition was generally marked by “disregard for
and violation of the rights of others.” Id. at 24. Mr. Brown’s
criminal history, stretching back to age eighteen, both
sexual and non-sexual in nature, reflected a failure to
conform to social norms. His social, employment and
criminal history also reflected a characteristic impulsivity
such that his “life was about . . . . going from moment to
moment.” Id. at 27. His crimes manifested aggression, and
he had further admitted that “he hit women for purposes
of controlling them on a regular basis to enforce their
compliance . . . with his desires.” Id. at 29. In Dr. Doren’s
view, Mr. Brown exhibited five of the seven criteria
identified in the Diagnostic and Statistical Manual of
8 No. 08-1171

Mental Disorders (“DSM”) 5 as indicative of APD, although
the DSM only requires three of seven be satisfied for a
diagnosis. Dr. Doren also testified that APD affected both
Mr. Brown’s emotional and volitional capacity, causing a
lack of remorse and an impairment of “his ability to
control his behavior.” Id. at 34.
On cross-examination, Dr. Doren admitted that the
indicators used to reach a diagnosis of paraphilia NOS
nonconsent were not identified in the DSM; instead, they
were indicators Dr. Doren himself had identified to
“bridge the gap or deficiency [that] . . . exist[s] in the
DSM[]” that he had “offered to the field” in his own
book on the subject of civil commitment. Wis. R.95,
Tr.AA at 32, 34. When asked for a professional organiza-
tion that accepted his clinical indicators for the diagnosis
of paraphilia NOS nonconsent, Dr. Doren further
admitted that there “isn’t a single one.” Id. at 33.
Finally, Dr. Doren testified that, in his view, each of
Mr. Brown’s conditions, that is, paraphilia NOS noncon-
sent and APD, “creates a substantial probability that he
will engage in a sexually violent offense in the future.” Id.
at 18. He acknowledged that, although he employed
actuarial risk assessment models, he also considered his

5
All references to the DSM refer to the Diagnostic and Statisti-
cal Manual of Mental Disorders, Fourth Edition, Text Revi-
sion, published by the American Psychiatric Association in
2000. In the profession, the text is sometimes referred to as the
DSM-IV-TR. For the sake of simplicity, we use the shorthand
“DSM.”
No. 08-1171 9

own set of clinical considerations not recognized in the
literature. Based on these additional factors, he had
made upward adjustments to the results of reoffense
probabilities that resulted from use of the standardized
actuarial models.
In response, Mr. Brown presented significant contrary
expert testimony. First, he called Marc Goulet, who holds
a doctorate in mathematics. Dr. Goulet testified about
the limitations of the actuarial instruments Dr. Doren
had used to make predictions about Mr. Brown’s likeli-
hood of recidivism. Dr. Goulet also questioned specific
features of Dr. Doren’s own methodology in interpreting
an individual’s scores. He concluded that the tools used
were “fundamentally statistically flawed.” Wis. R.96,
Tr.BB at 39. Next, Mr. Brown called Lynn Maskel, M.D., a
private forensic psychiatrist. Dr. Maskel testified that,
because of its absence from the DSM, “psychiatrically the
disorder [of paraphilia NOS nonconsent] does not exist.”
Id. at 75. Moreover, she considers APD a “circular diagno-
sis” that is “descriptive of many criminals, but doesn’t
really tell [an evaluator] much.” Id. at 79. She further
testified that in her experience, she never has seen a case
of APD that she would identify as a “predisposing dis-
order within the operative definition in Wisconsin law,” id.
at 78; she noted that the psychiatric profession does not
generally view individuals with APD “as people who
have serious difficulty in controlling their behavior,” id.
at 83. Finally, the defense called Stephen Hart, Ph.D., a
professor of clinical and forensic psychology. He
had assisted in the development of one of the actuarial
tools employed by Dr. Doren, but testified that, in his
10 No. 08-1171

view, “it’s inappropriate to use actuarials to make
absolute probability assessments.” Wis. R.97, Tr.CC at 40.
He further testified about the ethical obligations for
psychologists and his view that Dr. Doren had “create[d]
[a] fictional mental disorder[]” in identifying paraphilia
NOS nonconsent. Id. at 56.
At the close of the evidence, the jury was instructed
that, to declare Mr. Brown a sexually violent person, it
must find that (1) he had been convicted of a sexually
violent offense, (2) he had a mental disorder and (3) his
disorder made him dangerous to others. See Wis. Stat.
§ 980.02(2). The court further instructed the jury that a
mental disorder is “a condition affecting the emotional or
volitional capacity that predisposes a person to engage
in acts of sexual violence and causes serious difficulty in
controlling behavior. Mental disorders do not include
merely deviant behaviors that conflict with prevailing
societal standards.” Wis. R.98, Tr.DD at 10. Mr. Brown
had requested a special verdict form identifying the
mental disorder with which the jury concluded Mr.
Brown was afflicted, laying out the elements of the
statute separately and requiring the jury to affirmatively
link the disorder to dangerousness, but the trial court
denied his request. During deliberations, the jury sent out
a note requesting a copy of the DSM, but the court
denied the request.
The jury returned a general verdict declaring Mr. Brown
a sexually violent person.
No. 08-1171 11

C.
Mr. Brown appealed his commitment to the Court of
Appeals of Wisconsin. In his direct appeal, Mr. Brown
contended that he was denied due process by the admis-
sion of the challenged actuarial evidence and by failing
to require proof of a recent overt act demonstrating
his current dangerousness. He also pressed his challenge
to the failure to provide his requested special verdict
form. The Court of Appeals affirmed his commitment,
and the Supreme Court of Wisconsin denied review.

D.
After his direct appeal, Mr. Brown filed a petition in the
district court seeking a writ of habeas corpus. R.1; see
28 U.S.C. § 2254. In his petition, Mr. Brown argued that
he was denied due process when the state court relied on
evidence that was not supported by scientific knowledge
or accepted in the medical community. Mr. Brown also
argued that his APD diagnosis was overly broad and
could not justify his confinement. The district court
concluded that Mr. Brown had failed to exhaust his
state court remedies and stayed the petition. R.24. The
court noted that, while dismissal is the ordinary fate
for unexhausted claims, where a petitioner had good
cause, the court had discretion to stay the federal pro-
ceeding. In its ruling granting a stay, the district court
acknowledged that states have “considerable leeway” in
defining mental abnormalities rendering an individual
eligible for civil commitment, but that it “ha[d] some
doubt” about the particular diagnosis in Mr. Brown’s
case. R.24 at 3.
12 No. 08-1171

Mr. Brown next apparently initiated a state habeas
proceeding in Wisconsin state courts.6 His petition was
denied on procedural grounds.
Mr. Brown returned to the district court, where the
stay was lifted and the proceedings reopened. After
various additional submissions from the parties, the
district court issued an order denying the federal writ. The
district court held the claims to have been defaulted and
found that Mr. Brown had not established cause and
prejudice to excuse the default. Finding the issue of how
to apply the fundamental miscarriage of justice exception
to the procedural default rule more complicated,
the district court determined that it need not be resolved
because Mr. Brown’s claims failed on the merits.
At the outset of its analysis, the court again noted that
states have wide latitude in defining the relevant condi-
tions for civil confinement and that the State’s chosen
criteria need not reflect the prevailing views in the
mental health community. R.38 at 6. That he had a disor-
der, and that his disorder caused an inability to control
behavior, the court ruled, was an issue sufficiently
resolved against Mr. Brown by the jury. The court con-
tinued:
This is not to say anything goes. I presume that
a psychologist could render an opinion that an
individual has a disorder characterized by an
inability to avoid criminal behavior that is so

6
The record of the Wisconsin collateral review proceeding
is not before us.
No. 08-1171 13

irrational or unpersuasive that it would not sup-
port indefinite confinement consistent with the
Due Process Clause. However, this case does not
present such a diagnosis.
Id. at 7. The court held that, despite the contrary evidence
presented and despite its “novel[ty],” paraphilia NOS
nonconsent was “consistent with recognized diagnostic
principles.” Id. It further noted that NOS categories are
listed in the DSM and that courts in Wisconsin and other
states have upheld commitments on the basis of such
diagnoses. The court found the challenge to the diagnosis
of APD similarly insufficient.
Mr. Brown, again proceeding pro se, filed a motion for
a certificate of appealability. The district court granted
the motion as to both the procedural and substantive
questions Mr. Brown presents to this court. In its order,
the court noted that its decision had been based on a
reading of the relevant precedent “as giving states a
tremendous amount of freedom in creating categories
of mental disorders so long as states define disorders
with reference to difficulty controlling behavior.” R.47 at 4.
However, the court continued, “there must be some line
to be drawn.” Id. The precise boundaries, the court con-
cluded, were matters about which reasonable jurists
could disagree.

II
PROCEDURAL DEFAULT
Mr. Brown challenges the diagnoses underlying his
14 No. 08-1171

commitment as a SVP. Mr. Brown concedes that he
did not pursue this issue before the state courts.
The parties are in agreement, at this stage in the pro-
ceedings, that there is no remaining state court remedy,
and that, accordingly, Mr. Brown’s claims are procedurally
defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th
Cir. 2004) (“A habeas petitioner who has exhausted his
state court remedies without properly asserting his
federal claim at each level of state court review has pro-
cedurally defaulted that claim.”).
We are barred from considering procedurally defaulted
claims unless the petitioner “can establish cause and
prejudice for the default or that the failure to consider the
claim would result in a fundamental miscarriage of
justice.” Johnson v. Hulett, 574 F.3d 428, 430 (7th Cir.
2009) (internal quotation marks omitted). Mr. Brown
argues that he has satisfied both of these exceptions to
the procedural default bar.

A.
Mr. Brown first asserts that appellate counsel was
ineffective for failure to raise his due process claims on
direct appeal and that counsel’s performance amounts
to cause for any default. When preserved, meritorious
claims of ineffective assistance can excuse default. Murray
v. Carrier, 477 U.S. 478, 488-89 (1986). A constitutional right
to effective assistance must be the predicate to any such
claim. See Coleman v. Thompson, 501 U.S. 722, 752 (1991).
Mr. Brown provides no authority establishing a constitu-
No. 08-1171 15

tional right to appellate counsel to challenge a civil com-
mitment. Where, as here, the right to counsel is a creation
of state statute only, see Wis. Stat. § 980.03(2)(a), it
follows that denial of that right does not establish the
necessary cause to excuse the default of any underlying
claims. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)
(per curiam) (holding that, where there is no constitu-
tional right to counsel, there can be no deprivation of
effective assistance); Coleman, 501 U.S. at 752-54 (rejecting
a claim that procedural default is excused by “inef-
fective assistance” when the proceedings in question did
not entail a constitutional right to counsel).7

7
Because we do not recognize a constitutional right to counsel
in these circumstances, we cannot accept the cause-and-preju-
dice analysis urged by Mr. Brown, in which ineffective assis-
tance provides the requisite cause. Accordingly, we also
do not address whether the failure to raise attorney ineffec-
tiveness in the petition procedure outlined by the Supreme
Court of Wisconsin in State v. Knight, 484 N.W.2d 540 (Wis.
1992), is a sufficiently “firmly established” procedure that the
failure to make use of it defaults the ineffectiveness claim.
See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly a firmly
established and regularly followed state practice may be
interposed by a State to prevent subsequent review by this
Court of a federal constitutional claim.” (internal quotation
marks omitted)); Murray v. Carrier, 477 U.S. 478, 488-89 (1986)
(holding that attorney effectiveness generally must be raised
in state proceedings before it can serve as cause to excuse
default of another claim).
16 No. 08-1171

B.
Mr. Brown further contends that he is actually
innocent of SVP status, and thus that failure to excuse
his default works a fundamental miscarriage of justice. We
need not resolve squarely in this case whether the
actual innocence exception to the general rule of proce-
dural default applies in the context of civil commitment
proceedings. In Lambrix v. Singletary, 520 U.S. 518, 524
(1997), the Supreme Court noted that its cases have
“suggest[ed] that the procedural-bar issue should ordi-
narily be considered first.” Nevertheless, added the
Court, it did “not mean to suggest that the procedural-bar
issue must invariably be resolved first; only that it ordi-
narily should be.” Id. at 525. We believe that the situation
before us counsels that we follow the latter course. The
correct application of the actual innocence exception to
civil commitment cases is a difficult one. We have no
explicit guidance from the Supreme Court or from our
sister circuits.8 Moreover, because the parties are in
agreement that the actual innocence exception applies
(although they disagree on how it applies to the facts of
this case), they have not briefed extensively all the nuances
involved in the migration of this exception from the

8
In Levine v. Torvik, 986 F.2d 1506, 1517 n.9 (6th Cir. 1993),
abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99
(1995), the Sixth Circuit expressed, in dictum in a footnote,
that the exception could apply “where the constitutional
violation demonstrated by [the petitioner] has resulted in
the confinement of one who is actually not mentally ill.”
No. 08-1171 17

criminal context to the civil commitment context.9 We also
believe that, given our recent decision in McGee v.
Bartow, 593 F.3d 556 (7th Cir. 2010), the constitutional
norms applicable to a merits decision are clear and
warrant affirmance. Therefore, as we did in Johnson v.
Pollard, 559 F.3d 746, 752 (7th Cir. 2009), we shall
pretermit a discussion of this aspect of the procedural
default analysis and proceed to adjudicate the merits.1 0

9
For instance, they have not addressed squarely the problem
noted by our colleague in the district court as to whether the
“new evidence” language of Schlup v. Delo, 513 U.S. 298,
327 (1995), is necessarily portable to the civil commitment
context.
10
Our course of proceeding here is not only in accordance with
Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997), but in accor-
dance with the established practice in the other circuits. See
Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (“In the
interest of judicial economy, [w]e need not and do not address
these issues, however, because the case may be more easily
and succinctly affirmed on the merits.” (internal quotation
marks omitted; modification in original)); Wilson v. Ozmint,
352 F.3d 847, 868 (4th Cir. 2003) (declining to decide the case
on the basis of a procedural bar never raised by the state
when the merits could be easily disposed of against the peti-
tioner); Hudson v. Jones, 351 F.3d 212 (6th Cir. 2003) (bypassing
a “complicated question” of state law in a procedural default
inquiry to resolve the case against the petitioner on the merits);
Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)
(“[A]ppeals courts are empowered to, and in some cases
should, reach the merits of habeas petitions if they are, on their
(continued...)
18 No. 08-1171

III
ANALYSIS
As briefed to this court, Mr. Brown’s due process chal-
lenge has three elements. First, he challenges the diag-
noses themselves. Mr. Brown claims that the diagnosis of
paraphilia NOS nonconsent is lacking in scientific founda-
tion and that the diagnosis of APD is overbroad and
imprecise; in his view, the use of either diagnosis, alone
or in combination, as the basis for a civil commitment,
violates due process. He further contends that the diag-
nosis of APD cannot be used by the State of Wisconsin
as a basis for confinement because the State does not
allow a defendant to invoke the disorder as part of an
insanity plea. Finally, he contends that Wisconsin’s per-
missive standards for the admissibility of expert testi-
mony should be replaced, in the context of civil commit-
ment, with a Daubert-like test. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 593-94 (1993). We address
these contentions in turn.
In our recent opinion in McGee, we set forth the con-
trolling precedent in detail. 593 F.3d at 567-72. For the
sake of brevity, we assume familiarity with McGee’s

10
(...continued)
face and without regard to any facts that could be developed
below, clearly not meritorious despite an asserted procedural
bar.”); Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999)
(seeing no need to “belabor” the “difficult question” of a
procedural bar when the claim was easily resolvable against
the petitioner on the merits).
No. 08-1171 19

discussion of the state of the law as it concerns the
due process requirements for civil commitment.

A.
As in all habeas corpus proceedings under 28 U.S.C.
§ 2254, the successful petitioner must demonstrate that
he “is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). For
claims actually “adjudicated on the merits in State
court proceedings,” the statute commands that we under-
take a limited review. Id. § 2254(d). We evaluate the
record to discern only whether the state court’s adjudica-
tion of the claim (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” id. § 2254(d)(1), or (2) “was based on an unrea-
sonable determination of the facts in light of the
evidence presented,” id. § 2254(d)(2).
These narrow and deferential standards of review
do not apply here, however, because the relevant state
courts did not adjudicate the claims presented on a federal
habeas petition. Cheeks v. Gaetz, 571 F.3d 680, 684-85
(7th Cir. 2009). In such cases, we apply the general stan-
dard of review contained in 28 U.S.C. § 2243, which
directs that we “dispose of the matter as law and justice
require.” Id.;11 see McGee, 593 F.3d at 564.

11
We have equated this standard with de novo review.
See Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).
20 No. 08-1171

B.
We begin with Mr. Brown’s challenge to the suffi-
ciency of his paraphilia NOS nonconsent diagnosis for
due process purposes. His argument is, in all material
respects, identical to the challenge raised by the peti-
tioner in McGee. In that case, we rejected the claim,
McGee, 593 F.3d at 579-81, concluding that the Supreme
Court has directed “that states must have appropriate
room to make practical, common-sense judgments” in
the arena of civil commitment, particularly as regards
qualifying mental conditions, id. at 580. We reviewed the
professional literature, and acknowledged the existence
of a significant debate about the validity, from a
psychiatric standpoint, of a paraphilia NOS nonconsent
diagnosis. We further noted, however, that “ ‘the science
of psychiatry, which informs but does not control
ultimate legal determinations, is an ever-advancing
science, whose distinctions do not seek precisely to
mirror those of the law.’ ” Id. at 571 (quoting Kansas v.
Crane, 534 U.S. 407, 413 (2002)); see also Kansas v. Hendricks,
521 U.S. 346, 359 (1997) (“Legal definitions . . . which
must take into account such issues as individual respon-
sibility . . . and competency, need not mirror those ad-
vanced by the medical profession.” (internal quotation
marks omitted; second modification in original)).
Despite the considerable leeway afforded to states in
this context, we acknowledged that:
a medical diagnosis can be based on so little evi-
dence that bears on the controlling legal criteria
that any reliance upon it would be a violation of
No. 08-1171 21

due process. Therefore, a particular diagnosis may
be so devoid of content, or so near-universal in its
rejection by mental health professionals, that a
court’s reliance on it to satisfy the “mental disor-
der” prong of the statutory requirements for
commitment would violate due process.
McGee, 593 F.3d at 577 (internal citation omitted). We
concluded that the diagnosis of paraphilia NOS
nonconsent did not cross this line. Id. at 580.
Although we accepted the diagnosis as minimally
sufficient for due process purposes, we noted that the
existence of a psychiatric debate about its validity “is a
relevant issue in commitment proceedings and a proper
consideration for the factfinder in weighing the evidence
that the defendant has the ‘mental disorder’ required
by statute.” Id. at 581. We also noted that the “methodology
and the outcome of any mental health evaluation offered
as evidence is a proper subject for cross-examination,
and we would expect that, in the ordinary case, such
efforts would expose the strengths and weaknesses of
the professional medical opinions offered.” Id. at 577.
We again reject the challenge to the paraphilia NOS
nonconsent diagnosis as so lacking in scientific validity
that to rely upon it for civil commitment amounts to a
denial of due process. Our conclusion is strengthened
where, as here, able assistance of counsel actually did
expose the professional debate to the jury and substantial
contrary professional opinions were offered.
22 No. 08-1171

C.
Mr. Brown next challenges the diagnosis of APD as
constitutionally insufficient to support civil commitment.
He claims the diagnosis is too imprecise and overbroad
to provide meaningful evidence of a qualifying mental
disorder. He also claims that the State of Wisconsin is
judicially estopped from petitioning for commitment on
the basis of APD when it has concluded that APD is not
a permissible basis for a defendant to raise in an
insanity plea.

1.
Chapter 980 of the Wisconsin statutes defines a SVP as:
a person who has been convicted of a sexually
violent offense, has been adjudicated delinquent
for a sexually violent offense, or has been found
not guilty of or not responsible for a sexually
violent offense by reason of insanity or mental
disease, defect, or illness, and who is dangerous
because he or she suffers from a mental disorder that
makes it likely that the person will engage in one or
more acts of sexual violence.
Id. § 980.01(7) (emphasis added). In a prior challenge, the
State of Wisconsin determined that APD can serve as the
“mental disorder” that supports civil commitment consis-
tent with due process. See In re Commitment of Adams,
588 N.W.2d 336, 341 (Wis. Ct. App. 1998). Furthermore,
we upheld that conclusion in a federal habeas chal-
lenge, governed by the deferential standards in 28 U.S.C.
No. 08-1171 23

§ 2254(d)(1), as a reasonable interpretation of Kansas v.
Hendricks, 521 U.S. 346 (1997), and Foucha v. Louisiana, 504
U.S. 71 (1992). See Adams v. Bartow, 330 F.3d 957, 963 (7th
Cir. 2003). We reexamine the question now, when, for
reasons explained above, our review is de novo.1 2
Like the petitioner in Adams, Mr. Brown contends that
the Supreme Court’s decision in Foucha suggests that APD
is an invalid basis for civil commitment. See 504 U.S. at 78-
79 (noting that Foucha had an antisocial personality, but
ordering that his commitment be overturned as he was
“not suffering from a mental disease or illness”). As we
noted in Adams, we disagree that Foucha should be so
read. In Foucha, the State of Louisiana had conceded that
Foucha was not mentally ill, id. at 78; the Supreme Court
was asked to decide whether, given a lack of mental
illness, the state scheme that permitted his continued
confinement on the basis of dangerousness alone was
constitutional, id. at 82. In the case now before us, the
State sought to prove—indeed, it elicited testimony from
Dr. Doren stating directly—that APD did satisfy the

12
We note that in Adams v. Bartow, 330 F.3d 957, 962 (7th Cir.
2003), because of the applicable standard of review, we
were concerned only with the law that was “clearly estab-
lished” at the time the Wisconsin courts decided the matter.
For that reason, our consideration of Kansas v. Crane, 534 U.S.
407 (2002), was limited to its usefulness to “inform our under-
standing of” Kansas v. Hendricks, 521 U.S. 346 (1997). Adams,
330 F.3d at 962. Because we are not engaged in a deferential
review in this case, we consider Crane and its development
of the issues before us in full.
24 No. 08-1171

criteria under Wisconsin Chapter 980 of a qualifying
“mental disorder.”
Moreover, since Foucha, the Supreme Court has decided
Crane, in which APD was one of two diagnoses sup-
porting commitment. See Crane, 534 U.S. at 411. Although
the Court remanded Crane’s commitment, it did so on
the basis of its conclusion that the Kansas commitment
scheme had failed to require a finding of some inability
to control behavior. Id. at 412-13. In the case before us,
Dr. Doren testified that Mr. Brown’s APD caused both
emotional and volitional impairments, and the jury
was instructed that in order to find him eligible for com-
mitment, it must find that he suffered from a disorder,
as defined by statute, that caused such an impairment.
Mr. Brown further contends that, even if the Supreme
Court’s treatment of APD itself does not indicate that it
is an impermissible basis for civil commitment, the diag-
nosis fails to satisfy the due process requirements for
civil commitment. By virtue of its over-inclusiveness,
he contends, it is not “sufficient to distinguish the danger-
ous sexual offender whose serious mental illness, abnor-
mality, or disorder subjects him to civil commitment
from the dangerous but typical recidivist convicted in an
ordinary criminal case.” Crane, 534 U.S. at 413.
Like the diagnosis of paraphilia NOS nonconsent, the
diagnosis of APD is the subject of some significant profes-
sional debate. The existence of the disorder is not
debated; indeed, it is a listed disorder with diagnostic
criteria identified in the DSM. See DSM at 701. The
subject of the professional debate as it has been
No. 08-1171 25

presented to us is not, therefore, whether it is a real or
imagined diagnosis, but whether the diagnosis can bear
the weight of a civil commitment. 1 3 As we noted in
McGee and already have repeated here, however, the
existence of a professional debate about a diagnosis or
its use in the civil commitment context does not signify
its insufficiency for due process purposes, particularly
where, as here, that debate has been evaluated by the
factfinder. McGee, 593 F.3d at 580-81. Mr. Brown intro-
duced his own expert who testified that, in her profes-
sional view, APD did not satisfy the Wisconsin statutory
requirement of a “mental disorder” that could serve as the
predicate for civil commitment. See id. at 577 (“The meth-

13
See Brett Trowbridge & Jay Adams, Sexually Violent Predator
Assessment Issues, 26 Am. J. Forensic Psychol. 29, 46-47 (2008)
(noting the considerable controversy about the diagnosis as a
basis for commitment, the potential that it is “over-inclusive”
and the studies showing poor inter-rater reliability); Shoba
Sreenivasan et al., Expert Testimony in Sexually Violent Predator
Commitments: Conceptualizing Legal Standards of “Mental Disor-
der” and “Likely to Reoffend,” 31 J. Am. Acad. Psychiatry & L.
471, 477 (2003) (noting that, although based on a “misinter-
pret[ation] [of] the law” as it currently stands, “[t]he use of
[APD] to justify civil commitment is unlikely to find general
acceptance among mental health professional groups”); Jack
Vognsen & Amy Phenix, Antisocial Personality Disorder is
Not Enough: A Reply to Sreenivasan, Weinberger, and Garrick, 32 J.
Am. Acad. Psychiatry & L. 440, 442 (2004) (noting that while
reliance on APD for a SVP determination is not precluded
by law, neither is a “caffeine-related disorder[],” but that
neither is “clinically appropriate”).
26 No. 08-1171

odology and the outcome of any mental health evaluation
offered as evidence is a proper subject for cross-examina-
tion, and we would expect that, in the ordinary case,
such efforts would expose the strengths and weaknesses
of the professional medical opinions offered.”).
We acknowledge the studies demonstrating that a
significant percentage of the male prison population is
diagnosable with this condition. See Crane, 534 U.S. at 412
(citing statistics of forty to sixty percent).1 4 Mr. Brown
focuses on the prevalence of the disorder among those
incarcerated as evidence that it does not distinguish a
subgroup of offenders for whom preventive detention
is appropriate. We believe his contention misses the
mark. As the Supreme Court emphasized in Crane:
[T]here must be proof of serious difficulty in
controlling behavior. And this, when viewed in
light of such features of the case as the nature of
the psychiatric diagnosis, and the severity of the
mental abnormality itself, must be sufficient to
distinguish between the dangerous sexual offender
whose serious mental illness, abnormality, or

14
Mr. Brown suggests that, with this brief reference, the Court
“suggested, albeit obliquely, that a diagnosis of APD alone
might be too imprecise and overbroad to survive constitutional
scrutiny.” Appellant’s Br. 30. We need not resolve that
question, as the case before us does not involve a diagnosis of
APD alone, but a diagnosis that couples APD with a sexually-
related disorder. See Crane, 534 U.S. at 411 (noting the
diagnoses of APD and exhibitionism).
No. 08-1171 27

disorder subjects him to civil commitment from
the dangerous but typical recidivist convicted in
an ordinary criminal case.
Id. at 413. That is, it is not the diagnosis alone, in the
abstract, that is the focus in assessing the constitu-
tionality of a civil commitment. Instead, we are concerned
with how the mental disorder manifests itself in the
individual, particularly as regards its effect on his ability
to control his behavior. As we stated in McGee, “the
factfinder has the ultimate responsibility to assess how
probative a particular diagnosis is on the legal question of
the existence of a ‘mental disorder’; the status of the
diagnosis among mental health professionals is only a
step on the way to that ultimate legal determination.”
McGee, 593 F.3d at 577 (emphasis in original). Although a
clinical diagnosis by a professional plays a significant
role in civil commitment, it is not the end of the matter. If
for the offender in question, the condition of APD is
serious enough to cause an inability to control sexually
violent behavior,15 the standards set by the Supreme

15
As the Court of Appeals of Wisconsin noted:
[H]e brings his challenges in large part because the
disorder affects so many who are not sexually violent.
But, even assuming that the diagnosis of “antisocial
personality disorder” is relatively common, the count-
less citizens who suffer from it are not ipso facto vulner-
able to commitment under ch. 980, stats. Only the
relatively few who also satisfy the remaining criteria of
§ 980.01(7), stats., may be found to be “sexually violent
persons.”
(continued...)
28 No. 08-1171

Court would be satisfied. Although the statistics that
indicate that APD is a common condition in prison cer-
tainly warrant attention in light of Crane’s admonition,
those figures do not demonstrate that the diagnosis
never can bear the weight of a civil commitment con-
sistent with due process.
Finally, we need not decide whether a diagnosis of APD
alone suffices for due process purposes: Mr. Brown was
diagnosed with a paraphilic disorder as well, and testi-
mony at his commitment trial supported the view that
both diagnoses caused, in Mr. Brown, significant emotional
and volitional impairments. Cf. Crane, 534 U.S. at 411, 413
(noting the dual diagnoses of APD and exhibitionism,
although citing the statistics about the prevalence of
APD in the male prison population).

2.
Mr. Brown next contends that the State of Wisconsin is
judicially estopped from asserting APD as the basis for
civil commitment when it has refused to allow criminal
defendants to raise the disorder as part of an insanity
plea. See Appellant’s Br. 33 (citing State v. Lindh, 457
N.W.2d 564, 568 (Wis. Ct. App. 1990), rev’d on other grounds,
468 N.W.2d 168 (Wis. 2001)). Judicial estoppel prevents a
party from an “about-face,” Butler v. Village of Round Lake,

15
(...continued)
In re Commitment of Adams, 588 N.W.2d 336, 341 (Wis. Ct. App.
1998) (emphasis in original).
No. 08-1171 29

585 F.3d 1020, 1023 (7th Cir. 2009); it is “an equitable
concept providing that a party who prevails on one
ground in a lawsuit may not . . . in another lawsuit repudi-
ate that ground,” Johnson v. ExxonMobil Corp., 426 F.3d
887, 891 (7th Cir. 2005) (internal quotation marks
omitted; modification in original). Among other require-
ments, however, in order for judicial estoppel to apply,
“the latter position must be clearly inconsistent with
the earlier position.” Urbania v. Cent. States, SE & SW
Areas Pension Fund, 421 F.3d 580, 589 (7th Cir. 2005). We do
not believe this to be the case here, where the statutory
standards for insanity and SVP status are different in
material respects. In particular, the definition of mental
disease or defect in the insanity statute excludes
“abnormalit[ies] manifested only by criminal or other-
wise antisocial conduct.” Wis. Stat. § 971.15(2) (emphasis
added). That different substantive standards apply is not
surprising in view of the different purposes of the two
types of proceedings in which the question of a “mental
disease or defect” or a “mental disorder” arise. A
criminal proceeding adjudicates guilt and metes out
punishment for prior offenses. A civil commitment pro-
ceeding instead invokes the police power of the state to
protect the community from potentially dangerous
persons who are mentally ill and, by reason of their
disorders, may commit future harmful acts; it also
asserts the state’s parens patriae powers to provide critical
services to those with mental illnesses. See Addington v.
Texas, 441 U.S. 418, 425-29 (1979). The questions of “mental
disease or defect” and “mental disorder,” therefore, also
aim at different ends. The first is a mechanism for avoid-
30 No. 08-1171

ance of criminal liability; while the second is primarily
aimed at protection of both the individual and the
public at large. A person whose mental disease or defect
results in a successful insanity plea is relieved of criminal
responsibility if he was afflicted with the mental disease
or defect at the time of the commission of the offense. That
same person may be a candidate for commitment if the
commitment criteria of a mental disorder and dangerous-
ness at the time of commitment are satisfied. This decision
is subject to reevaluation periodically. See Wis. Stat.
§ 980.07. The statutory schemes therefore perform very
different functions and understandably employ dif-
ferent standards.
In an attempt to cast an estoppel argument in a light
appropriate to our task in this habeas proceeding, without
arguing that judicial estoppel is itself an element of due
process, Mr. Brown asserts that the State’s “inconsistent”
positions “further undermine[] the diagnosis’s scientific
validity.” Appellant’s Br. 34. For the reasons stated in
the previous section, we are not persuaded that the scien-
tific validity of APD is so patently lacking that consider-
ation of it in a civil commitment proceeding violates
due process.

D.
Finally, Mr. Brown contends that Dr. Doren’s testimony
was so unreliable that it would have been inadmissible
in a federal proceeding under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). He urges us to
No. 08-1171 31

view Daubert’s standards for the admission of expert
testimony as “a practical and appropriate proxy” for
due process in this context. Appellant’s Br. 38-39.
We are not persuaded by this argument. Mr. Brown
points to no authority in which the Daubert standard has
been imposed on states as a requirement of due process
in any context, including criminal trials. Indeed, as we
have stated on habeas review of a criminal conviction:
Absent a showing that the admission of the evi-
dence violated a specific constitutional guarantee,
a federal court can issue a writ of habeas corpus on
the basis of a state court evidentiary ruling only
when that ruling violated the defendant’s right to
due process by denying him a fundamentally fair
trial. The standard, then, is not whether the testi-
mony satisfied the Frye [v. United States, 293 F. 1013
(D.C. Cir. 1923),] or Daubert tests—neither of which
purports to set a constitutional floor on the admissibility
of scientific evidence—but rather is whether the
probative value of the state’s evidence was so
greatly outweighed by its prejudice to [the defen-
dant] that its admission denied him a fundamen-
tally fair trial.
Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994) (citation
omitted; emphasis added).
In our view, the real substance of Mr. Brown’s request
that this court view Daubert as the due process floor in this
context merely echoes his claim that the diagnoses at
issue are so lacking in scientific pedigree or so over-
32 No. 08-1171

inclusive that their use in his commitment proceedings
violated due process. Having concluded that the diag-
noses, as implemented in this case, satisfy the require-
ments set forth by the Supreme Court, the disposition of
his secondary argument, cast as an evidentiary chal-
lenge, necessarily follows.

Conclusion
As we have stated, “[t]he primary due process concern
of the Supreme Court in the area of civil commitment
is the necessity of distinguishing between the typical
dangerous recidivist and the offender whose dangerous-
ness is caused by some identifiable mental condition
that impairs his ability to refrain from activity dangerous
to others.” McGee, 593 F.3d at 581. The State of Wisconsin
acted within these bounds when it ordered the commit-
ment of Mr. Brown as a SVP based on his diagnoses of
paraphilia NOS nonconsent and APD. At his commitment
trial, expert testimony supported the conclusion that he
suffered from two “mental disorders” as defined by the
Wisconsin statute, and that each of these disorders caused
him to have an inability to control his sexually violent
behavior. The diagnoses, although subject to some profes-
sional controversy, and the evidence upon which the
diagnoses were based, provided constitutionally adequate
bases under existing Supreme Court precedent to sup-
port Mr. Brown’s commitment. Because Mr. Brown
has not demonstrated that he is “actually innocent” of
being a SVP, the default of his claims cannot be ex-
cused and, in any event, the claims fail on the merits.
No. 08-1171 33

Accordingly, the judgment of the district court denying
the writ of habeas corpus must be affirmed.
A FFIRMED

3-19-10