                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3234
REUBEN ADAMS,
                                        Petitioner-Appellant,
                              v.

BYRAN BARTOW,
                                        Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
      No. 00-C-407—Patricia J. Gorence, Magistrate Judge.
                        ____________
     ARGUED JANUARY 16, 2003—DECIDED JUNE 3, 2003
                    ____________



  Before FLAUM, Chief Judge, and COFFEY and RIPPLE,
Circuit Judges.
  FLAUM, Chief Judge. Reuben Adams was committed to
the custody of the Wisconsin Department of Health and
Social Services after a jury found him eligible for confine-
ment pursuant to the state’s Sexually Violent Person
Commitments Statute, Wis. Stat. ch. 980. Adams then peti-
tioned for a writ of federal habeas corpus, see 28 U.S.C.
§ 2254, but the district court denied relief. We affirm.


                      I. BACKGROUND
 Adams’s history of sexual misconduct dates back to 1982,
when he received a probationary sentence after being
2                                               No. 02-3234

convicted of third-degree sexual assault on a sixteen-year-
old girl. Eight years later Adams was arrested again after
he engaged in repeated sexual acts with his eleven-year-old
stepdaughter. For that offense he pleaded guilty to second-
degree sexual assault of a child and was sentenced to four
years in prison. Adams’s extensive criminal history also in-
cludes nonsexual offenses such as robbery, intimidation of
a witness, battery, and burning and damaging property.
Almost all of his offenses involved female victims.
  In August 1994 the State of Wisconsin filed a petition
alleging that Adams was eligible for confinement pursuant
to the Sexually Violent Person Commitments Statute, Wis.
Stat. ch. 980. Chapter 980 requires the state to prove be-
yond a reasonable doubt that the subject of the petition is
a “sexually violent person,” which is defined 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 sexu-
ally 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 substantially
probable that the person will engage in acts of sexual vio-
lence.” Wis. Stat. § 980.01(7). A “mental disorder” is defined
in turn as “a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes a person
to engage in acts of sexual violence.” Id. § 980.01(2).
  In April 1995 a Milwaukee County circuit judge held, like
many had before her, that Chapter 980 was facially uncon-
stitutional and thus dismissed the state’s petition. See State
v. Post, 541 N.W.2d 115, 135 n.1 (Wis. 1995) (Abrahamson,
J., dissenting) (noting that approximately one-half of the
Wisconsin circuit court judges who had considered the con-
stitutionality of Chapter 980 had found the statute invalid).
The Wisconsin Court of Appeals summarily reversed, how-
ever, based on intervening Wisconsin Supreme Court deci-
sions that upheld Chapter 980 against constitutional chal-
No. 02-3234                                                  3

lenge. See Post, 541 N.W.2d 115; State v. Carpenter, 541
N.W.2d 105 (Wis. 1995). On remand a week-long jury trial
was held during which the state presented the testimony of
two expert witnesses: Dr. Kenneth Diamond, a senior staff
psychologist for the Wisconsin Department of Corrections,
and Dr. Ronald Sindberg, a psychiatrist at Mendota Mental
Health Institute. Dr. Diamond testified that Adams suffers
from antisocial personality disorder (“APD”), which is gen-
erally characterized by impulsiveness, inability to show re-
morse, and inability to learn from experience. This diagno-
sis, coupled with Adams’s “long and chronic history [of] sex-
ual[ ] violence against females,” his refusal to participate in
sex offender treatment programs, and the fact that his time
in prison had not changed his behavior, led Dr. Diamond to
conclude that Adams was “a risk and it’s highly probable
that he would recommit and reoffend.” Thus, in Dr.
Diamond’s opinion, Adams qualified as a “sexually violent
person” under Chapter 980.
  Dr. Sindberg did not personally examine Adams (because
Adams refused to be interviewed by him) but, after review-
ing the medical records, concurred with Dr. Diamond’s di-
agnosis of APD. Dr. Sindberg testified that Adams had no
remorse and was indifferent to the fact that he had sexually
assaulted others. Then, based on his evaluation of thirty-
one risk factors, Dr. Sindberg concluded that there was “a
substantial probability that [Adams] will reoffend or recom-
mit a sexually violent act.” “Substantial probability,” ac-
cording to Dr. Sindberg, meant “much more probable than
not.”
  At the conclusion of trial, during which Adams did not
present any expert testimony of his own, the jury found that
Adams met the criteria for commitment as a sexually
violent person under Chapter 980. Adams appealed, claim-
ing among other things that Chapter 980 was unconstitu-
tional as applied because “antisocial personality disorder is
too imprecise a category to pass due process muster.” In re
4                                                No. 02-3234

Adams, 588 N.W.2d 336, 340 (Wis. Ct. App. 1998). The
Wisconsin Court of Appeals rejected his argument:
    [T]he fact that “antisocial personality disorder,” stand-
    ing alone without any other diagnosis or evidence, could
    never lead to a finding that a defendant, without a his-
    tory of sex offenses, is a “sexually violent person,” does
    not mean that that condition, in combination with evi-
    dence satisfying the additional criteria of § 980.01(7),
    stats., cannot constitutionally support that finding. . . .
    It is that additional coupling that, in Justice Kennedy’s
    words, “offer[s] a solid basis for concluding that civil
    detention is justified.”
Id. at 341 (quoting Kansas v. Hendricks, 521 U.S. 346, 373
(1997) (Kennedy, J., concurring)). Thus, the court held, “the
inclusion of ‘antisocial personality disorder’ as, potentially,
a ‘condition’ qualifying as a ‘mental disorder’ under the
statute does not render the statute unconstitutionally
imprecise.” Id. at 340.
  Adams also urged the appeals court to find the evidence
insufficient “because neither of the State’s experts gave tes-
timony that would allow the jury to find beyond a reason-
able doubt that [he] was substantially likely to commit an-
other sexually violent offense.” Id. The court rejected this
argument as well:
       The evidence, largely undisputed, included informa-
    tion about Adams’s history of sexually violent crimes,
    history of non-sexual crimes and antisocial behavior,
    failures under court-ordered supervision, denial of re-
    sponsibility, refusal to participate in sexual assault
    treatment programs and drug/alcohol treatment pro-
    grams, and his sexual offense recidivism. Further, the
    psychologists’ testimony was more supportive of the
    State’s position than Adams claims. Dr. Diamond tes-
    tified that Adams is “a risk and it’s highly probable that
    he would recommit and reoffend.” Dr. Sindberg testified
No. 02-3234                                               5

   that, based on his evaluation of thirty-one risk factors,
   there was “a substantial probability that [Adams] will
   reoffend or recommit a sexually violent act,” and that,
   in his analysis, he considered “substantial probability”
   to mean “much more probable than not.”
     Thus, as the State argues, the psychologists’ testi-
   mony, standing alone, may very well have satisfied the
   standard. Unquestionably, however, their testimony in
   combination with the other evidence provided a suffi-
   cient basis for the jury to conclude beyond a reasonable
   doubt that Adams is dangerous because he suffers from
   a mental disorder that renders him substantially prob-
   able to engage in acts of sexual violence.
Id. at 341-42 (footnote omitted). The Wisconsin Supreme
Court denied Adams’s petition for review.
  In March 2000 Adams petitioned for federal habeas
corpus under 28 U.S.C. § 2254, alleging that his commit-
ment violated due process. The district court appointed
counsel for Adams and ordered briefing plus supplemental
briefing following the Supreme Court’s decision in Kansas
v. Crane, 534 U.S. 407 (2002). In August 2002 the court
denied Adams’s petition but granted him a certificate of
appealability on the following issues:
   Whether the state court of appeals[’] decision rejecting
   the petitioner’s due process challenge to his commit-
   ment under Chapter 980 of the Wisconsin Statutes was
   an unreasonable application of Kansas v. Hendricks
   [521 U.S. 346 (1997)] or Foucha v. Louisiana [504 U.S.
   71 (1992)]; and
   [W]hat impact, if any, Kansas v. Crane, 534 U.S. 407
   (2002), has on the analysis of the petitioner’s constitu-
   tional claims.
6                                                  No. 02-3234

                       II. DISCUSSION
  For Adams to obtain federal habeas corpus relief, he must
show that the Wisconsin Court of Appeals’ decision was an
“unreasonable” application of clearly established federal
law, as determined by the Supreme Court. 28 U.S.C.
§ 2254(d)(1). The state court’s ruling must be “objectively
unreasonable,” which means something more than just in-
correct or erroneous. Lockyer v. Andrade, 123 S.Ct. 1166,
1174 (2003).
  The essence of Adams’s claim is that it is a violation of
due process to civilly commit a person based solely on the
fact that he is a previously convicted sex offender with APD.
According to Adams, that is precisely what Wisconsin is
doing in his case, in contravention of both Foucha and
Hendricks. In response the state asserts that Adams was
confined not only because he committed prior crimes and
because he has APD, but also because the state proved be-
yond a reasonable doubt that he is dangerous beyond his
control.1
  We begin our analysis with Foucha. A Louisiana court
ordered Foucha, an insanity acquittee, committed to a men-
tal institution based upon a doctor’s testimony that he had
an antisocial personality. The Supreme Court reversed,
holding that due process did not permit Foucha’s continued
confinement, and in passing the Court made these remarks:
    [T]he State asserts that because Foucha once commit-
    ted a criminal act and now has an antisocial personality
    that sometimes leads to aggressive conduct, a disorder
    for which there is no effective treatment, he may be



1
   The state also devotes much of its brief to explaining why
Chapter 980 is facially constitutional. Its arguments along those
lines are irrelevant, however, because Adams is not raising, and
we are not deciding, any facial challenges to the statute.
No. 02-3234                                                7

    held indefinitely. This rationale would permit the State
    to hold indefinitely any other insanity acquittee not
    mentally ill who could be shown to have a personality
    disorder that may lead to criminal conduct. The same
    would be true of any convicted criminal, even though he
    has completed his prison term.
Foucha, 504 U.S. at 82-83.
  According to Adams’s interpretation of this passage, due
process prohibits a state from ever committing an individual
who suffers from nothing more than a personality disorder
because otherwise “a state could civilly commit whole
categories of criminal offenders by branding them deviant
and designating them mentally disordered.” Thus, Adams
says, because he is being confined based solely on the fact
that he is a criminal with APD, the Wisconsin Court of
Appeals’ decision was “unreasonable” within the meaning
of § 2254(d)(1).
  We reject Adams’s challenge on several grounds. First, as
we will explain in more detail below, the Wisconsin appeals
court’s decision to confine Adams was based on more than
just that he is a convicted sex offender with APD, so the
factual underpinning of Adams’s claim is erroneous. Second,
the Supreme Court’s decision in Foucha was based on a
specific combination of factors that is not present in this
case: (1) the state, for whatever reason, had conceded that
antisocial personality was not a mental disease and there-
fore admitted that it was confining someone who was not
actually mentally ill, id. at 78-79; (2) Foucha was not af-
forded constitutionally adequate procedures to establish the
grounds for his confinement, id. at 79; and (3) the state had
not shown that Foucha was dangerous and in fact had no
obligation to do so because its statute placed the burden on
the individual to show that he was not dangerous, id. at
81-82. Ultimately, the general rule we take from Foucha is
simply that an insanity acquittee may be held for only as
8                                               No. 02-3234

long as he is still mentally ill; his dangerous propensities
alone do not justify continued confinement. See United
States v. Wattleton, 296 F.3d 1184, 1202 n.35 (11th Cir.
2002); United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir.
2002). The Wisconsin appeals court’s decision was not an
unreasonable application of this rule because there was no
dispute during the state court proceedings that Adams has
a mental illness—namely, APD. Moreover, even if Foucha
can be read to have implied in dicta that APD standing
alone is insufficient to warrant civil commitment, dicta does
not qualify as “clearly established Federal law” for purposes
of § 2254(d)(1). Andrade, 123 S.Ct. at 1172.
  We therefore move on to Hendricks. At issue there was a
Kansas statute that authorized the civil commitment of
persons who, due to a “mental abnormality” or a “personal-
ity disorder,” were likely to engage in “predatory acts of
sexual violence.” The Supreme Court upheld the statute
against constitutional challenge, observing that similar
statutes had been found valid “when they have coupled
proof of dangerousness with the proof of some additional
factor, such as a ‘mental illness’ or ‘mental abnormality.’ ”
Hendricks, 521 U.S. at 358. The Court further observed that
requiring proof of a “mental illness” or “mental abnormal-
ity” serves “to limit involuntary civil confinement to those
who suffer from a volitional impairment rendering them
dangerous beyond their control.” Id. In Hendricks’s case it
was his “admitted lack of volitional control, coupled with a
prediction of future dangerousness, [that] adequately
distinguishe[d] [him] from other dangerous persons who are
perhaps more properly dealt with exclusively through
criminal proceedings.” Id. at 360.
  The Supreme Court clarified Hendricks in Crane, in
which Kansas was seeking the civil commitment of a
previously convicted sexual offender who suffered from both
exhibitionism and APD. The state court had interpreted
Hendricks as insisting upon proof that the individual is
No. 02-3234                                                      9

completely unable to control his behavior, but the Supreme
Court found that reading to be too rigid. Rather, what
Hendricks requires is “proof of serious difficulty in control-
ling behavior,” which
    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 dis-
    tinguish the dangerous sexual offender whose serious
    mental illness, abnormality, or disorder subjects him to
    civil commitment from the dangerous but typical recidi-
    vist convicted in an ordinary criminal case.
Crane, 534 U.S. at 413 (citing Foucha, 504 U.S. at 82-83).
That distinction, the Court explained, is necessary “lest
‘civil commitment’ become a ‘mechanism for retribution or
general deterrence’—functions properly those of criminal
law, not civil commitment.” Id. at 412 (quoting Hendricks,
521 U.S. at 372-73 (Kennedy, J., concurring)).2
  Before examining whether the Wisconsin Court of Ap-
peals’ decision was an unreasonable application of
Hendricks, we must first decide what effect, if any, Crane
has on our analysis. Though the state argued before the dis-
trict court that Crane set forth a new rule of constitutional
law that did not apply retroactively to Adams’s claim, both
parties now agree that Crane did not create a new rule but
simply reaffirmed and clarified the holding in Hendricks.
We will assume, without deciding, that that is correct, and
so we are not faced with any questions of retroactivity. Fur-
ther, as Adams acknowledges, Crane cannot be considered
“clearly established Federal law” within the meaning of


2
  Interestingly, the Court noted in an immediately following
parenthetical that 40 to 60% of the male prison population is diag-
nosable with APD. Id. (citing Moran, The Epidemiology of Anti-
social Personality Disorder, 34 Social Psychiatry & Psychiatric
Epidemiology, 231, 234 (1999)).
10                                              No. 02-3234

§ 2254(d)(1) because it was not decided until after the
Wisconsin appeals court rendered its decision in this case.
We do agree with Adams, however, that Crane is still rele-
vant to the extent it can inform our understanding of
Hendricks. See Linehan v. Milczark, 315 F.3d 920, 926-27
(8th Cir. 2003).
  Adams’s claim that the Wisconsin appeals court unrea-
sonably applied Hendricks is based on his belief that he is
being confined solely because he is a convicted sex offender
with APD, which he points out is a relatively common dis-
order in the male prison population. See American Psychiat-
ric Association, Diagnostic and Statistical Manual of Mental
Disorders 704 (rev. 4th ed. 2000) (reporting that prevalence
of APD within clinical settings have varied from 3% to 30%
and that even higher prevalence rates are associated with
substance abuse treatment settings and prison or forensic
settings). He then asserts that, because APD is so prevalent
in the prison population, the appeals court did not make
any findings that “adequately distinguishes [him] from
other dangerous persons who are perhaps more properly
dealt with exclusively through criminal proceedings.”
Hendricks, 521 U.S. at 360.
  We disagree with Adams’s characterization of the appeals
court’s decision. The court found Adams eligible for confine-
ment under Chapter 980 not only because he is a sex of-
fender with APD but also because there was enough ev-
idence in the trial record to establish that Adams was “sub-
stantially probable” to commit another sexually violent
offense. Adams, 588 N.W.2d at 342. Specifically, the court
noted evidence of “Adams’s history of sexually violent
crimes, history of non-sexual crimes and antisocial behav-
ior, failures under court-ordered supervision, denial of re-
sponsibility, refusal to participate in sexual assault treat-
ment programs and drug/alcohol treatment programs, and
his sexual offense recidivism.” Id. at 341-42. The court also
noted Dr. Diamond’s testimony that Adams is “a risk and
No. 02-3234                                               11

it’s highly probable that he would recommit and reoffend”
and Dr. Sindberg’s testimony that “based on his evaluation
of thirty-one risk factors, there was a substantial probabil-
ity that [Adams] will reoffend or recommit a sexually vio-
lent act.” Id. (quotations omitted). Given this record, we
cannot say that it was unreasonable for the court to find
that the nature of Adams’s mental disorder was sufficient
to distinguish him from the “typical recidivist convicted in
an ordinary criminal case.” Crane, 534 U.S. at 413.
  We find additional support for our conclusion in Linehan,
where the petitioner made the identical argument that
Adams is making now—that the fact that he had APD, a
disorder which can be diagnosed in the majority of the male
prison population, failed to distinguish him from “other
dangerous persons who are perhaps more properly dealt
with exclusively through criminal proceedings.” Linehan,
315 F.3d at 928 (quoting Crane, 534 U.S. at 412). The
Eighth Circuit rejected this claim after considering the
state court’s specific findings regarding Linehan’s lack of
control over his impulses. For instance the state court found
that Linehan’s aggressiveness toward hospital and prison
staff indicated an inability to control his behavior even
when subject to careful supervision. The state court also
noted that Linehan had escaped from prison twenty years
earlier and had attacked a young girl within just two weeks
of his escape. Finally, the court noted that Linehan had
recently been observed masturbating within minutes of
physical play with his seven-year-old stepdaughter. Id.
   Based on this evidence, the Eighth Circuit held that the
state court did not unreasonably apply Hendricks, as clari-
fied by Crane, in concluding that Linehan was different
from the typical recidivist because he “lacked adequate con-
trol over his impulses” and therefore that he “suffered from
a form of APD that warranted civil commitment under con-
stitutional standards.” Id. at 929 (emphasis added). We
reach the same conclusion here. Though the evidence in
12                                              No. 02-3234

Adams’s case was somewhat less than that in Linehan, we
still believe that it was sufficient for the Wisconsin appeals
court to reasonably conclude that Adams was eligible for
civil commitment, not just because he suffered from APD
but also because the specific nature of his disorder made
him “dangerous beyond [his] control.” Hendricks, 521 U.S.
at 358.


                     III. CONCLUSION
  We emphasize again that we are not deciding any ques-
tions regarding the facial validity of Chapter 980, nor are
we deciding whether the Wisconsin Court of Appeals’ deci-
sion was an unreasonable application of Crane. The only
question before us, which we consider under the highly def-
erential standard applicable on habeas review, is whether
the court unreasonably applied either Hendricks or Foucha.
We conclude that it did not, and so the district court’s de-
nial of Adams’s § 2254 petition is AFFIRMED.
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—6-3-03
