McGee v. Bartow

• Decision Date: 27 January 2010
• Docket Number: No. 07-3278.,07-3278.
• Citation: 593 F.3d 556
• Parties: Michael L. McGEE, Petitioner-Appellant, v. Byran BARTOW, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

593 F.3d 556

Michael L. McGEE, Petitioner-Appellant, v. Byran BARTOW, Respondent-Appellee.

No. 07-3278.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2008.

Decided January 27, 2010.

Eric J. Schwab (argued), Jerold S. Solovy, Attorney, Jenner & Block, Chicago, IL, for Petitioner-Appellant.

J.B. Van Hollen, Attorney, Warren D. Weinstein (argued), Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before RIPPLE, KANNE and TINDER, Circuit Judges.

RIPPLE, Circuit Judge.

In 2003, Michael McGee was ordered to be civilly committed as a "sexually violent person" ("SVP") pursuant to Chapter 980 of the Wisconsin Statutes. After exhausting his state appeals and petitioning unsuccessfully for post-commitment relief in the state courts, he filed a petition for habeas corpus in the United States District Court for the Eastern District of Wisconsin, contending that his continued state custody deprives him of his right to due process of law. The district court denied the writ but issued a certificate of appealability on the question. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

In 1987, Mr. McGee entered an apartment that he believed was vacant, apparently intending to rob it. Instead, he found a woman and her child asleep on the sofa. Mr. McGee then ordered the woman upstairs, where he raped her. Following the rape, Mr. McGee stayed in the victim's home until the next morning when she convinced him that she had to take her son to school, which he allowed her to do. As he accompanied his victim down the street he repeatedly apologized to her. After ensuring that her son had reached his school safely, the victim was able to escape to her mother's home. The victim identified Mr. McGee in a photographic line-up, and he later was convicted of burglary and sexual assault. He was sentenced to eight years' imprisonment and six years' probation.

In 1992, after serving five years of his sentence, Mr. McGee was released on parole. He subsequently was accused of two separate, additional incidents of sexual assault, one involving a woman and another involving an adolescent male, neither of which resulted in a conviction. His parole, however, was revoked, and he was returned to the physical custody of the Wisconsin authorities.

B.

In 1995, before his mandatory release, the State of Wisconsin filed a petition seeking to have Mr. McGee declared a SVP under Chapter 980. He was civilly committed following a jury trial. This first civil commitment determination was reversed after a state court concluded that Mr. McGee's trial counsel in the commitment proceeding was ineffective for failing to discover evidence that undermined the credibility of the accusers in the 1992 incidents. Accordingly, in 1999, he was released from civil commitment.

In 2000, Mr. McGee's parole again was revoked after he tested positive for marijuana and had contact with the alleged victim of one of the 1992 assaults. Before his scheduled release, the State of Wisconsin again initiated proceedings to have Mr. McGee committed as a SVP.

C.

The proceedings resulting in Mr. McGee's second civil commitment form the basis of his current petition for habeas relief. In those Chapter 980 proceedings, Mr. McGee represented himself at a bench trial.

The state presented two experts. First, the state called Dr. Caton Roberts, a psychologist employed by the Department of Corrections and a university lecturer in psychology. Dr. Roberts testified that his evaluation was based upon fifteen hours of review of Mr. McGee's record; specifically relevant were Mr. McGee's various rule violations, difficulty staying out of trouble, physical altercations, criminal convictions and "pervasive impulsivity." R.16, Ex. 83 at 118-21. Based upon his review, Dr. Roberts testified that, in his opinion, Mr. McGee suffered from "a personality disorder not otherwise specified ["NOS"] with antisocial features." Id. at 119. Dr. Roberts believed that his diagnosis fit within the criteria listed in the Diagnostic and Statistical Manual of Mental Disorders ("DSM") published by the American Psychiatric Association ("APA").¹ Id. at 119-20. He acknowledged that he could not diagnose Mr. McGee with Antisocial Personality Disorder ("APD") as described in the DSM because the record was devoid of any evidence of personality disorders before Mr. McGee reached the age of 15, an explicit requirement in the DSM for an APD diagnosis. Id. at 120-21. Dr. Roberts further testified that he had reviewed other proposed diagnoses in Mr. McGee's file by other examiners, but did not believe that they were supported in the record. Dr. Roberts specifically stated that he did not believe that the record supported a diagnosis of "a paraphili[c] disorder not otherwise specified." Id. at 120. In addition to his clinical diagnoses, Dr. Roberts testified about the use of two actuarial tools that support, in his judgment, a conclusion that Mr. McGee "was substantially probable to reoffend sexually if not detained and treated." Id. at 124.

The state also called Dr. Cynthia Marsh. Dr. Marsh testified that she was also a state-employed counselor and a university lecturer; she holds a Ph.D. in "urban education specializing in counseling psychology." Id., Ex. 84 at 19. Dr. Marsh testified that she had diagnosed Mr. McGee with two mental illnesses that qualified him to be committed as a SVP: paraphilia NOS and a personality disorder NOS with antisocial features. Id. at 34-35. She stated that the "key characteristic" for a diagnosis of personality disorder was "disregard for and violation of the rights of others." Id. at 35. She acknowledged that she had based her diagnosis on Mr. McGee's history, including the sexual assault charges from 1992 that had proved problematic in his first commitment proceeding.

Dr. Marsh also testified about the results of three actuarial tools. She stated that subjects with scores similar to Mr. McGee's in each of these instruments reoffended at rates of between forty-eight and fifty-four percent over a six- to fifteen-year period following release. Her conclusion, based on her diagnoses and the actuarial tools, was that Mr. McGee was "much more likely than not to reoffend in a sexually violent manner." Id. at 39. Dr. Marsh was not subject to cross-examination because Mr. McGee had refused to participate in the second day of his commitment proceeding.

Based on the testimony of Drs. Roberts and Marsh, the state court ordered Mr. McGee committed as a SVP pursuant to Wis. Stat. § 980.06.

D.

Following his commitment, Mr. McGee took an unsuccessful direct appeal and then petitioned, again unsuccessfully, for state collateral relief. Mr. McGee next filed a petition for habeas corpus in the United States District Court for the Eastern District of Wisconsin. The district court dismissed Mr. McGee's petition, but granted a certificate of appealability under 28 U.S.C. § 2253(c)(2). The substance of the state and federal proceedings are explored in significant detail below.

II PROCEDURAL DEFAULT

As briefed to this court, Mr. McGee raises two challenges to his commitment. The first is whether confinement as a SVP on the basis of his diagnoses, which he claims lack a reasonable scientific foundation, violates due process of law. The second is whether, under the Supreme Court's decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), committing courts must ascertain whether the nature and specificity of a particular person's mental impairment is of a level which justifies civil confinement. In his view, this latter challenge focuses on whether the Wisconsin courts have failed to implement Crane properly because the statute does not require that commitment is supported by a finding of a "special and serious lack of ability to control behavior." Id. at 413, 122 S.Ct. 867.

Before the district court, the State contended that all of Mr. McGee's claims were procedurally defaulted. Before this court, the State has abandoned a procedural challenge to the first issue Mr. McGee presents. As to the second issue, however, the State now contends that Mr. McGee failed to present it to the state courts, resulting in a procedural default that would bar our consideration of the issue. It also argues, in the alternative, that even if the second issue regarding the application of Crane was properly before the state courts, Mr. McGee forfeited the argument in his federal habeas proceeding by failing to present it to the district court.

To inform our analysis of the procedural status of these claims, we begin with a detailed examination of the parties' positions at all stages of Mr. McGee's challenge to his commitment.

A.

Mr. McGee appeared pro se for most of his commitment proceedings, including his trial, in the Wisconsin Circuit Court for Racine County. After he was ordered committed, he filed, pro se, a motion for relief from the judgment with the committing court. In that motion, he presented a variety of issues, one of which was identified by the court as a claim "that the diagnosis, essentially one of a personality trait [sic] is not sufficient for the commitment." R.85 at 11. At his hearing on the motion, the nature of Mr. McGee's contentions was somewhat clarified by his repeated interruptions of counsel for the State to inquire what "not otherwise specified" meant as related to his diagnosis. Id. at 14. Mr. McGee called the diagnosis "bogus," id. at 15, and insisted that the State "basically made [the diagnosis] up," id. at 17. The circuit court denied the motion for relief from judgment.

Mr. McGee was represented by counsel on appeal. Prior to the appointment of counsel, he filed his own notice of appeal, in which he cited three bases to challenge the commitment. Specifically, he contended: (1) that his commitment was based on insufficient evidence...