Habeas – Supplement Record
… Although we generally 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 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 supplement the record in this case with the record before the state appellate court. The parties have done so, and we have conducted a full review of Mr. Brown’s commitment record.
Habeas – Procedural Bar – “Cause and Prejudice”
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 constitutional right to appellate counsel to challenge a civil commitment. 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 constitutional 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 “ineffective assistance” when the proceedings in question did not entail a constitutional right to counsel).7
As footnote 7 makes clear, the court essentially holds that there is no constitutional right to assistance of counsel on appeal from an SVP commitment. From that premise, the following implications flow: because there is no right to counsel in this context, a claim of ineffective assistance of counsel isn’t supported; and, because a cause-and-prejudice analysis generally requires a preserved state claim of ineffective assistance, such an analysis isn’t supported either. Note, however, that Wisconsin itself takes a different approach, namely, “The guarantee of counsel on appeals as of right includes the guarantee of effective assistance of counsel.” State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256-59, 548 N.W.2d 45 (1996), quoting State ex rel. Flores v. State, 183 Wis. 2d 587, 605, 516 N.W.2d 362 (1994).
The court separately notes a distinct ground for excusing default: “actual innocence,” or fundamental miscarriage of justice. However, the “correct application of the actual innocence exception to civil commitment cases is a difficult one,” without guidance form the Supreme Court or other circuits, and the court leaves resolution for another day.
Habeas – SVP Diagnosis
SVP commitment is upheld against claims that diagnosis of paraphilia NOS nonconsent lacks scientific foundation and diagnosis of antisocial personality disorder (APD) is too broad.
The court largely follows its recent decision in McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010), which concluded that commitment based on diagnosis of paraphilia NOS nonconsent didn’t violate due process. The APD discussion is more involved. The court rejects the idea that APD is an invalid basis for commitment, despite language in Supreme Court caselaw strongly suggesting that it is. Same, relative to acknowledged professional disagreement about the propriety of using APD to support commitment:
… As we noted inMcGee 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 introduced his own expert who testified that, in her professional view, APD did not satisfy the Wisconsin statutory requirement of a “mental disorder” that could serve as the predicate for civil commitment. …
… That is, it is not the diagnosis alone, in the abstract, that is the focus in assessing the constitutionality 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. … Although the statistics that indicate that APD is a common condition in prison certainly 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 consistent with due process.
The court cautions that it is not holding a finding of APD alone suffices. McGee also was diagnosed with paraphilia NOS consent. Finally in relation to APD, the court holds that the unavailability of this diagnosis as an NGI defense doesn’t impair its viability as support for SVP commitment, “in view of the different purposes of the two types of proceedings.”
Habeas – Daubert
The test for admissibility of evidence in federal trials, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), isn’t required of state trial as a matter of due process.