Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:06-cv-00753-LA-Lynn Adelman, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before RIPPLE, KANNE and TINDER, Circuit Judges.
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 reasons set forth in this opinion, we affirm the judgment of the district court.
Since 1974, Mr. Brown has been incarcerated frequently for crimes that are sexual in nature.*fn1 Between 1974 and 1978, his actions resulted in convictions for attempted sexual perversion and several counts of first-degree sexual assault. Three of his later offenses were committed 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.*fn2
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 Shortly thereafter, his parole again was revoked, and he was returned to state custody.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 electronic 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.*fn3
In 1998, as Mr. Brown's new release date neared, Wisconsin began Chapter 980 proceedings, seeking to have him committed civilly as a SVP. After extensive pretrial proceedings 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 presentence 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,"*fn4 namely, a paraphilia not otherwise specified involving nonconsenting persons ("paraphilia NOS nonconsent") and Antisocial Personality Disorder ("APD").
With respect to the paraphilia diagnosis, Dr. Doren began by noting that the term generally describes a condition 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 nonconsent, Dr. Doren also testified about clinical indicators 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 Mental Disorders ("DSM")*fn5 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 organization 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 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 diagnosis" 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 disorder 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 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.
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 admission 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.
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 proceeding. In its ruling granting a stay, the district court acknowledged that states have ...