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7th Circuit: Committing a person under ch. 980 while he’s still in prison doesn’t violate Foucha v. Louisiana

Carl C. Gilbert, Jr., v. Deborah McCulloch, No. 13-3460 (7th Cir. Jan. 12, 2015)

Gilbert was committed as a sexually violent person while he was still in prison serving a criminal sentence, so he was not transferred to the ch. 980 treatment facility till he finished the sentence. The state courts upheld his commitment and the Seventh Circuit now rejects Gilbert’s habeas challenge, holding the state court’s decision was not clearly contrary to, nor an unreasonable application of, Foucha v. Louisiana, 504 U.S. 71 (1992).

Gilbert was on parole when the state filed a petition to civilly commit him under ch. 980. But Gilbert’s parole was revoked and he was returned to prison to serve reincarceration time before the trial on the petition. At trial in February 2008 the jury found him to be a sexually violent person and he was ordered committed to the DHS for care and treatment. But he wasn’t sent to a DHS facility; instead, he remained in prison to finish his reincarceration time until August 2010. (Slip op. at 2-4).

Gilbert’s statutory and constitutional challenges to the ch. 980 commitment were rejected by the state courts, State v. Gilbert, 2011 WI App 61, 333 Wis. 2d 157, 798 N.W.2d 889, affirmed, 2012 WI 72, 342 Wis. 2d 82, 816 N.W.2d 215. In this habeas proceeding he renews the constitutional argument, arguing that Foucha requires as a matter of due process that there be a determination of mental disorder and dangerousness at the time the commitment begins, and that his commitment was invalid because he remained in prison after the commitment order was entered, and thus there was no “current” finding that he was a sexually violent person when he was finally transferred to a DHS facility. (Slip op. at 11). Under the demanding habeas standard, the court can’t conclude the state courts’ decision violates Foucha:

… The Wisconsin Supreme Court rejected the argument that Foucha’s “current mental illness and dangerousness” language meant Gilbert was entitled to release, and our question is whether that decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington [v. Richter], 131 S. Ct. [770,] 786-87 [(2011)].

Were the question presented to us an initial question of federal constitutional law, we might reach a different result. The two-and-a-half year delay between the order of commitment and Gilbert’s entry into DHS care is certainly a concern for us. We are constrained, though, by the posture of this case and by the narrow scope of our habeas review. The Wisconsin Supreme Court concluded that its statutory scheme allowed the simultaneous commitment and incarceration of a sexually violent person, and that Foucha did not preclude such an interpretation. Gilbert II, [342 Wis. 2d 82, ¶¶55-61]. The Wisconsin court emphasized that the State was still required to follow the commitment procedures in chapter 980 of the Wisconsin statutes, which it said ensured that the committed person was at the moment that determination was made a sexually violent person. Id. at 230. The court also stated that a person who serves a sentence of incarceration and is then transferred to DHS custody will be subject to periodic reevaluation once in DHS care to determine whether he remains a sexually violent person. Id. (citing Wis. Stat. § 980.07). The Wisconsin Supreme Court concluded that these protections meant that sexually violent persons will continue to be “’held as long as [they are] both mentally ill and dangerous, but no longer.’” Id. (quoting Foucha, 504 U.S. at 77).

Applying the 28 U.S.C. § 2254 standard of review as we must, we do not find the Wisconsin decision denying Gilbert relief to be contrary to or an unreasonable application of clearly established United States Supreme Court law. … (Slip op. at 15-16).

The court also concludes Gilbert’s situation is different than the petitioner in Foucha. (Slip op. at 16-18). First, there is no suggestion Gilbert no longer suffers from a mental disorder, while in Foucha the state conceded the petitioner was no longer mentally ill but still wanted to keep him committed. Foucha, 504 U.S. at 86. Further, the state courts didn’t hold Gilbert could be or remain committed even if he no longer had a mental disorder, and unlike the statutory scheme in Foucha, ch. 980 only allows a person to be committed “until such time as the person is no longer a sexually violent person,” § 980.06. Lastly:

…Gilbert’s parole revocations and resulting sentences make his circumstances unique. He was ordered committed after a jury found him to be a sexually violent person, and no one questions that he could be committed then. But Gilbert violated the conditions of his parole twice after the commitment petition had been filed. Only because he violated his parole did he stay in DOC custody as long as he did after the jury ruled he should be civilly committed. Neither Foucha nor any other United States Supreme Court decision speaks to this or an analogous situation. … No United States Supreme Court case has considered a delay between a commitment order and transfer of custody to a mental health facility, or a time period between examinations. Nor did Foucha or any other Supreme Court decision consider the effect of a new conviction or parole revocation on a civil commitment proceeding. … (Slip op. at 17-18.)

The decisions in Gilbert’s direct appeal are thoroughly dissected here and here. For what it’s worth, consistent with its “concern” about the delay in this case, the court leaves the door open to challenges based on a longer delay between an order of commitment and transfer to DHS custody:

We emphasize that our decision is a narrow one. We need not get into the potential federal due process implications of Wisconsin Supreme Court statements that Gilbert emphasizes—that the Wisconsin statute “does not specify when the commitment must commence” and so the State could seek a civil commitment “at any time” after a person has been convicted of a sexually violent offense. Gilbert II, [342 Wis. 2d 82, ¶¶33-39] (construing Wis. Stat. § 980.06). Gilbert worries that this language means the State might seek and obtain a commitment order early into a person’s ten- or twenty-year sentence, and then a person would be committed based on a mental disorder determination made ten or twenty years earlier…. But that is not what happened here. … We decide today Gilbert’s case, and not any theoretical possibilities that he contemplates. … (Slip op. at 23-24).

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