                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-3637
                                     ___________

Dennis D. Linehan,                        *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Frank R. Milczark, sued as                *
Frank Milczark,                           *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: October 7, 2002
                                 Filed: January 8, 2003
                                  ___________

Before MURPHY, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Dennis Linehan filed this petition for habeas corpus seeking release from his
civil commitment under the Minnesota Sexually Dangerous Person Act, Minn. Stat.
§§ 253B.02, subd. 18c, 253B.18, subds. 2–3, 253B.185 (2002) (SDP Act). The
district court1 denied the petition, but issued a certificate of appealability on whether
Kansas v. Hendricks, 521 U.S. 346 (1997), requires proof of an inability to control


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
one’s behavior in order to commit an individual as a sexually dangerous person.
Linehan appeals, arguing that the SDP Act and his civil commitment under it are
unconstitutional. We affirm.

                                         I.

       Linehan began a pattern of sexual misconduct while still in his teens. In 1956
when Linehan was 15, he took indecent liberties with a 4 year old girl and was sent
to reform school. At age 19, he had intercourse with a 13 year old girl. In July 1963
Linehan and a friend beat and repeatedly raped a young woman. On June 10, 1965,
Linehan attacked and killed a 14 year old babysitter after watching her through a
window. He lured her to the door of the house, pulled her outside and into his car,
and choked her to death when she resisted his sexual assault. Linehan was arrested
the next month for that kidnapping and murder, but before his arrest he had already
committed additional offenses. In the course of a few weeks he had raped a 22 year
old woman and sexually molested two sisters, ages 11 and 12. In October 1965
Linehan pled guilty to kidnapping the babysitter, and the charges for her murder were
dropped. He was sentenced to serve a maximum of 40 years.

       In June 1975 Linehan escaped from a minimum security facility with the intent
to prove that he could live outside of prison without committing a sexual assault.
Eleven days after his escape, Linehan was arrested in Michigan for sexually
assaulting a 12 year old girl. He was charged, tried, and convicted for that offense,
and he then threatened the victim. When the jury’s verdict was read, he pointed a
finger at the victim and said, “When I get out I am going to kill you.” After serving
the next five years in prison in Michigan, Linehan was returned to Stillwater,
Minnesota to complete his sentence.

      Linehan’s mandatory release date was in May 1992, and in March of that year
the Ramsey County Attorney petitioned for his civil commitment under the Minnesota

                                        -2-
Psychopathic Personality Commitment Act (PP Act). See Minn. Stat. §§ 526.09–.10
(1992) (current version at Minn. Stat. §§ 253B.02, subd. 18a, 253B.185 (2002)).
After commitment hearings, the trial court committed Linehan to the Minnesota
Security Hospital for an indeterminate term as a “psychopathic personality.” The
Minnesota Supreme Court later vacated Linehan’s PP Act commitment after
concluding that the state had failed to prove by clear and convincing evidence that he
exhibited “utter lack of power to control” his sexual impulses as required under the
act. See In re Linehan, 518 N.W.2d 609 (Minn. 1994) (Linehan I); see also State ex.
rel. Pearson v. Probate Court of Ramsey County, 287 N.W. 297, 302 (1939) (holding
that PP Act required a showing of utter inability to control behavior). Linehan was
then released in August 1994 to a residence on the grounds of the Stillwater
correctional facility where he lived under intensive supervised release and
participated in sex offender treatment programs.

       On August 31, 1994, the Minnesota Legislature met in a special session and
enacted the Sexually Dangerous Persons Act, now codified as Minn. Stat. § 253B.02,
subd. 18c (2002). The SDP Act authorizes civil commitment upon a showing of 1)
past sexual violence; 2) present mental, personality, or sexual disorder or dysfunction;
and 3) resultant likelihood of future sexually dangerous behavior.2 The act states that
for “the purposes of this provision, it is not necessary to prove that the person has an
inability to control the person’s sexual impulses.” See Minn. Stat. § 253B.02, subd.
18c(b) (2002). Two days after the SDP Act was passed, the Ramsey County Attorney
filed a petition for Linehan’s commitment under it.



      2
       An individual committed under the SDP Act may seek release under the
procedures provided in the Minnesota Commitment and Treatment Act, Minn. Stat.
§§ 253B.01, 253.18, subd. 7 and subd. 15 (2002). That statute provides for a special
review board to consider all petitions for transfer or discharge brought by patients
committed as mentally ill and dangerous to the public, including those committed as
sexually dangerous persons. See Minn. Stat. §§ 253B.18, 253B.185(2002).

                                          -3-
       A commitment hearing was held before Judge Bertrand Poritsky who issued
an order on July 27, 1995, after 20 days of testimony. Judge Poritsky concluded that
Linehan met the criteria for commitment under the SDP Act and committed Linehan
to the Minnesota Security Hospital for a 60 day evaluation period. The court found
that Linehan had antisocial personality disorder (APD), based on the criteria listed in
the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994) (DSM-IV), and that as a result of his APD and his history
of harmful sexual conduct, it was “highly probable” that Linehan would commit
further sexual crimes. The court also found that Linehan displayed a continued
attraction to young females and that two recent episodes demonstrated “a degree of
impulsivity and lack of control in connection with sexual impulses.” In these
episodes Linehan had been observed masturbating within minutes of physical play
with his seven year old stepdaughter. After a further hearing, the trial court issued
an order indeterminately committing Linehan as a sexually dangerous person.

        Linehan appealed Judge Poritsky’s order committing him for a 60 day
evaluation, claiming the SDP Act was unconstitutional. The Minnesota Court of
Appeals affirmed and upheld the constitutionality of the statute. See In re Linehan,
544 N.W.2d 308 (Minn. App. 1996). The Minnesota Supreme Court accepted review
of the intermediate court’s decision and later issued its opinion relating to Linehan’s
initial commitment in In re Linehan, 557 N.W.2d 171 (Minn. 1996) (Linehan III). On
the same day the supreme court released its opinion on the appeal from the trial
court’s indeterminate commitment order, an appeal it had taken directly under
accelerated review. See In re Linehan, 557 N.W.2d 167 (Minn. 1996) (later referred
to by the supreme court as Linehan II; see In re Linehan, 594 N.W.2d 867, 870
(Minn. 1999) (Linehan IV)). The supreme court rejected Linehan’s constitutional
claims and upheld his commitment under the SDP Act, holding that the statute “does
not require that the proposed patient is unable to control his or her sexual impulses”
and that “evidence of Linehan's APD and dangerousness supplied a constitutionally
adequate basis for civil commitment.” Linehan III, 557 N.W.2d at 175–76, 183.

                                         -4-
       Linehan petitioned the United States Supreme Court for a writ of certiorari in
both Linehan II and Linehan III. While his petitions were pending, the Supreme
Court issued its decision in Hendricks. In that case, the Court upheld the
constitutionality of a civil commitment under the Kansas Sexually Violent Predator
Act and discussed the constitutional protections required for civil commitment
statutes. See Hendricks, 521 U.S. 346 (1997). In December 1997, the Supreme Court
granted certiorari in Linehan II and Linehan III, vacated the judgments, and remanded
the cases for further consideration in light of Hendricks. See Linehan v. Minnesota,
522 U.S. 1011 (1997).

       On remand, the Minnesota Supreme Court imposed a narrowing construction
to the SDP Act based on its reading of Hendricks and again upheld the
constitutionality of Linehan’s commitment. See Linehan IV, 594 N.W.2d 867 (Minn.
1999). The court held that while the state need not show that a person meets the
“utter inability” standard from the Minnesota Pearson case, Hendricks requires that
the state prove that those civilly committed under the SDP Act be “sexually
dangerous persons who have engaged in a prior course of sexually harmful behavior
and whose present disorder or dysfunction does not allow them to adequately control
their sexual impulses, making it highly likely that they will engage in harmful sexual
acts in the future.” Linehan IV, 594 N.W.2d at 876. The court went on to conclude
that Linehan’s “lack of adequate control” had been sufficiently established during his
commitment proceedings. Linehan again petitioned for certiorari, claiming his civil
commitment raised issues of substantive due process, double jeopardy, and ex post
facto application. The Supreme Court declined to grant certiorari.

      Linehan then filed this petition for a writ of habeas corpus on November 29,
2000, challenging the constitutionality of his civil commitment and seeking his
release from confinement. On August 8, 2001, United States Magistrate Judge Arthur
J. Boylan issued a report recommending that the petition be denied. Linehan filed
objections, and the district court issued an order on September 20, 2001 adopting the

                                         -5-
magistrate’s report and denying Linehan’s petition. On January 6, 2002, the district
court granted Linehan’s request for a certificate of appealability. The court phrased
the appealable issue as “Whether the constitutional interpretation in Kansas v.
Hendricks, 521 U.S. 346 (1997) requires proof of an ‘inability to control’ or whether
a lesser showing is acceptable.”

       Linehan appeals, claiming that the SDP Act does not meet federal substantive
due process standards because it requires less proof of volitional impairment than that
demanded by Hendricks, as clarified in Kansas v. Crane, 122 S. Ct. 867 (2002), and
that his indeterminate civil commitment as a sexually dangerous person is
unconstitutional because the state did not provide proof of volitional impairment at
his commitment proceedings. The state argues that the SDP Act, as interpreted by the
Minnesota Supreme Court, meets constitutional standards, that these standards
require a finding of volitional impairment, and that Linehan’s commitment is
constitutional because he has demonstrated serious difficulty controlling his sexual
impulses.

                                          II.

                                          A.

       When a claim has been adjudicated on the merits in state court, an application
for a writ of habeas corpus can only be granted where the state court adjudication

      (1)    resulted in a decision that was contrary to, or involved an
             unreasonable application of clearly established Federal
             law, as determined by the Supreme Court of the United
             States; or




                                         -6-
      (2)    resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented
             in the State court proceedings.

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (2002)
(AEDPA). A state court decision is contrary to clearly established federal law if a
state court reached a conclusion “opposite to that reached by [the Supreme Court] on
a question of law” or confronted “facts that are materially indistinguishable from a
relevant Supreme Court precedent” and reached the opposite result. Williams v.
Taylor, 529 U.S. 362, 405 (2000). A state court has unreasonably applied clearly
established federal law if it “identifie[d] the correct governing legal principle from
[the Supreme] Court’s decision but unreasonably applie[d] that principle to the facts
of the [petitioner’s] case.” Id. at 413. Habeas relief cannot be granted just because
a federal court concludes that the state court erred in its application of federal law; the
test is whether the state court’s application was “unreasonable.” See id. at 411.

                                            B.

       Linehan argues that Linehan IV applied a rule contradicting the governing law
set in Hendricks and Crane, that deference is thus not due the Minnesota decision,
and that we should exercise our independent judgment about the constitutional issues.
He argues that the SDP Act fails to meet constitutional requirements because the
“lack of adequate control” standard is broader than the test set by the Supreme Court.
He contends that the SDP Act does not adequately distinguish those eligible for
commitment from “the dangerous but typical recidivist convicted in an ordinary
criminal case,” Crane, 122 S. Ct. at 870, and that what is required is something closer
to a “special and serious” lack of ability to control standard. Id.

      In Linehan’s view the “utter lack of control” standard formulated in the 1939
Pearson case sufficiently distinguishes between a dangerous recidivist and the
dangerous sexual offender subject to civil commitment. The Minnesota Supreme

                                           -7-
Court’s rejection of that standard in Linehan IV is contrary to the “special and serious
inability to control” standard established in Hendricks, and clarified in Crane, he
contends. He also claims that through judicial interpretation the Pearson standard
became a more flexible test and does not conflict with Crane-Hendricks. As an
illustration he cites In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994) (PP Act
requires a “volitional dysfunction which grossly impairs judgment and behavior with
respect to the sex drive.”).

       The state responds that the issue in this case is whether the governing law was
unreasonably applied by the Minnesota Supreme Court in Linehan IV. It says
AEDPA mandates deference to state court decisions and requires a habeas court to
focus on “whether the state court’s application of clearly established federal law was
objectively unreasonable.” See Williams, 529 U.S. at 409. It maintains that the SDP
Act has been sufficiently narrowed to meet constitutional requirements and therefore
the state’s decision cannot fail to meet AEDPA’s reasonableness standard. The state
argues that the SDP Act’s three requirements for commitment—past course of
harmful sexual conduct, proof of a disorder that results in lack of adequate ability to
control behavior, and high likelihood of engaging in future harmful sexual
conduct—work in combination to ensure that only a small portion of sex offenders
released from prison qualify for commitment under this standard. It further contends
that the Pearson standard is equivalent to the absolute lack of control standard
rejected as “unworkable” by the Supreme Court. See Crane, 122 S. Ct. at 870.

                                          C.

      In Hendricks, the Supreme Court upheld the Kansas Sexually Violent Predator
Act against constitutional challenge. That statute provided for civil commitment of
persons “who have a mental abnormality or personality disorder and who are likely
to engage in repeat acts of sexual violence if not treated for their mental abnormality
or personality disorder.” Kan. Stat. Ann. § 59-29a01 et seq. (1994). The Supreme

                                          -8-
Court observed that the due process clause places constraints on the use of civil
commitment statutes but that they have been upheld “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.

       Proof of another factor in addition to future dangerousness serves to limit civil
commitments to “those who suffer from a volitional impairment rendering them
dangerous beyond their control.” Id. at 358. It is the “admitted lack of volitional
control, coupled with a prediction of further dangerousness, [that] adequately
distinguishes [someone committed under the Kansas statute] from other dangerous
persons who are perhaps more properly dealt with exclusively through criminal
proceedings,” id. at 360. A civil commitment statute will therefore be within
constitutional limits if a “mental abnormality” or “personality disorder” is required
which makes “it difficult, if not impossible, for the person to control his dangerous
behavior.” Id. at 358. The Court concluded that the Kansas act set adequate criteria
for judging whether an individual is unable to control his dangerous behavior,
rejected Hendricks’s constitutional attack on it, and reversed the state decision in his
favor.

       Linehan’s petition was remanded by the Supreme Court for reconsideration in
light of its Hendricks decision. After the Minnesota court had applied Hendricks to
petitioner’s claims and issued its decision in Linehan IV, the Supreme Court
announced its Crane decision which clarified the level of volitional impairment
constitutionally required for commitment. In Crane, the Supreme Court again took
up the Kansas commitment statute, for the state court had applied Hendricks to
require proof of a complete inability to control sexual impulses. See In re Crane, 7
P.3d 285, 290 (Kan. 2000). The Supreme Court reversed and held that the Kansas
court’s reading of Hendricks was too restrictive. Proof of a total lack of control is not
constitutionally required, the Supreme Court explained, because such an absolute
approach would be unworkable. Crane, 122 S. Ct. at 870. What is required in order

                                          -9-
for civil commitment to meet constitutional requirements is “proof of serious
difficulty in controlling behavior”. Id.

       Although the certificate of appealability in this case framed the issue in terms
of the proof required by Hendricks, Linehan argues that Crane must also be
considered because it makes more clear what the Supreme Court intended in
Hendricks. The state responds that the Minnesota Supreme Court only had Hendricks
to consider when it decided Linehan IV and that Hendricks should be the sole focus
here. It points out that Crane was only “decided after Linehan filed his habeas corpus
petition” and urges that the clearly established federal law the Minnesota Supreme
Court had to apply did not include Crane.3

       In Crane, the Supreme Court explained that the Kansas Supreme Court had
interpreted Hendricks in “an overly restrictive manner,” Crane, 122 S. Ct. at 868, for
Hendricks “set forth no requirement of total or complete lack of control,” id. at 870
(emphasis in original), and purposefully avoided any “bright line” rule. Id. at 871.
Since Hendricks was the clearly established federal law the Minnesota Supreme Court
was bound to apply in Linehan IV, it is to that case we look in analyzing whether the
federal law was reasonably applied. Crane nevertheless has value in the process to
the extent its discussion can sharpen out understanding of the Hendricks rule. See id.
at 870–81.




      3
       The Minnesota Supreme Court has not yet discussed Crane, but it recently
denied review of an intermediate appellate decision which rejected the argument that
Crane announced a different and more demanding standard than Hendricks. See In
re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied, No. C4-00-
748 (Minn. S. Ct. October 29, 2002).

                                         -10-
                                          D.

       In Linehan IV the Minnesota Supreme Court correctly identified the Hendricks
constitutional standard, and it used similar language in defining what is required for
civil commitment under the SDP Act. See Linehan IV, 594 N.W.2d at 875; see also
Bell v. Cone, 122 S. Ct. 1843, 1852 (2002) (since state court correctly identified
constitutional principles governing petitioner’s claim, no merit to claim that its
decision was contrary to clearly established federal law); Williams, 529 U.S. at 407.
It concluded that “the Minnesota SDP Act ‘requires a finding of further
dangerousness,’” as well as findings which link that dangerousness “‘to the existence
of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not
impossible, for the person to control his behavior.’” Id. (quoting Hendricks, 521 U.S.
at 358). The court reasoned that although “some lack of volitional control is
necessary to narrow the scope of civil commitment statutes,” Hendricks does not
require proof that a person lack total control over his sexual impulses. Linehan IV,
594 N.W.2d at 873 & n.3. The court concluded that the Pearson utter lack of control
standard had been specifically rejected by the SDP Act and that it was equivalent to
a complete lack of control test. See id. at 875–76. In enunciating the governing
standard under the SDP Act, the court narrowed the possible reaches of the statute to
require proof of a “lack of adequate ability to control,” holding that this constriction
would satisfy substantive due process concerns. See id. at 873 n.3, 876.

       The Minnesota Supreme Court held that the SDP Act’s lack of adequate
control standard requires proof of a volitional impairment rendering a person
dangerous beyond his control and a linkage to a diagnosis of a present mental,
personality, or sexual disorder or dysfunction. See id. at 875. The court described
the type of diagnosis required to be for a “mental abnormality” or “personality
disorder” which makes it “difficult, if not impossible” for the person to control his
sexual behavior. Linehan IV thus requires a finding of volitional impairment, and it
meets the Hendricks requirement that a civil commitment statute provide for

                                         -11-
“distinguishing a dangerous sexual offender subject to civil commitment ‘from other
dangerous persons who are perhaps more properly dealt with exclusively through
criminal proceedings.’” Crane, 122 S. Ct. 870 (quoting Hendricks, 521 U.S. at 360).

       We conclude that the Minnesota Supreme Court reasonably applied the clearly
established federal law when it reconsidered the constitutionality of the standard for
civil commitment under the SDP Act. The standard enunciated in Linehan IV
requires a finding of “lack of adequate control” in relation to a properly diagnosed
disorder or dysfunction, as well as findings of past sexual violence and resultant
likelihood of future sexually dangerous behavior. This combination of required
findings will adequately distinguish an offender subject to civil commitment, who has
difficulty controlling his behavior because of a disorder or dysfunction, from the more
typical offender with behavioral problems, who is best dealt with in the criminal
system. The SDP Act standard, as narrowed by the Minnesota Supreme Court in
Linehan IV therefore adequately distinguishes between the typical recidivist and the
dangerous sexual offender and complies with substantive due process requirements.
Since the court’s application of Hendricks to the SDP Act meets constitutional
requirements, it cannot be considered an unreasonable application of Supreme Court
precedent.

                                          E.

       In addition to his general constitutional attack on the SDP Act, Linehan
contends that his own commitment is unconstitutional. Linehan argues that Crane
limited the kind of mental disorders that can serve as a predicate for civil commitment
to those severe in nature, at the far end of an inability to control scale. He maintains
that the trial court’s finding that he suffers from APD, a disorder which he says could
be diagnosed in “40%-60% of the male prison population,” fails to distinguish him
from “other dangerous persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” Crane, 122 S. Ct. at 870 (quoting Hendricks, 521

                                         -12-
U.S. at 360). His own commitment can therefore not be upheld because the Linehan
IV standard will not distinguish a severe case which justifies civil commitment from
a milder form present in much of the criminal population. Linehan also argues that
there were no clear and convincing findings that he lacked control of his sexual
impulses. He contends that even if Linehan IV sufficiently tightened the type of
required findings under the SDP Act to make it constitutional, the requisite “lack of
adequate control” findings were not made about him.

       In its twenty six page initial commitment order and memorandum, the trial
court made specific findings that Linehan met the criteria for APD described in the
diagnostic manual DSM-IV. The trial court also found that Linehan had revealed “a
degree of impulsivity and lack of control in connection with sexual impulses” during
several recent family visits. In re Linehan, No. P8-94-0382, slip op. at 23 (Ramsey
County Dist. Ct., July 27, 1995). Although the visiting time was limited, he left his
wife and stepdaughter to go masturbate after some physical play with the young girl.
The trial court concluded that since Linehan had been incarcerated for a long period,
it needed to “look for more subtle signs than rape and killing” when evaluating his
condition and making its findings. Id. at 24. The court considered Linehan’s
behavior toward hospital and prison staff in relation to his likelihood of engaging in
future harmful conduct and found that his aggressiveness toward both staff and
guards indicated an inability to control his behavior even when subject to careful
supervision. The court also found it significant that Linehan had had only a single
opportunity to commit an additional violent offense after his original commitment and
that he had used that opportunity to attack a young girl within two weeks of his
escape in 1975. The court also took notice of the fact that the attack occurred after
Linehan had escaped in order to prove he could control himself and not commit more
sexual offenses. Id. at 17.

      The Minnesota Supreme Court took all these findings into consideration. It
thoroughly review the evidentiary record before holding that the trial court’s findings

                                         -13-
fully supported the conclusion that Linehan “lacks adequate control over his sexual
behavior.” Linehan IV, 594 N.W.2d at 876. The supreme court observed that the
record from the commitment hearings “contains substantial evidence that [Linehan]
continued to engage in impulsive sexual behavior and lacks adequate control over his
harmful sexual impulses.” Id. at 878. It concluded that the trial court record and
findings were sufficient to distinguish Linehan from the “typical recidivist,” and to
establish that his behavior met the SDP Act standard for a constitutional civil
commitment because of the nature of his APD, combined with his history of sexual
violence. See id. at 876–78.

       We conclude that the Minnesota Supreme Court did not unreasonably apply the
clearly established federal law to Linehan. It was not unreasonable for the court to
conclude that there was enough evidence in the trial record to establish that Linehan
lacked adequate control over his impulses and that he suffered from a form of APD
that warranted civil commitment under constitutional standards. Linehan’s claim that
his indeterminate commitment under the SDP Act was unconstitutional must therefore
fail.4

                                        III.

       The Minnesota Supreme Court reasonably applied clearly established federal
law in narrowing the SDP Act in Linehan’s case to meet the substantive due process
requirements set by Hendricks. Although Hendricks does not require proof of a
complete lack of control, it does require impairment of the ability to control one’s
behavior. In Linehan IV, the Minnesota Supreme Court defined the SDP Act’s lack
of adequate control standard in a way that was not an unreasonable application of the
law set by the United States Supreme Court since it requires a finding of volitional


      4
       We note that there are state procedures available for Linehan to challenge his
continued confinement in the future. See Minn. Stat. § 253B.18.

                                        -14-
impairment in connection with a mental disorder or dysfunction which serves to
distinguish a sexually dangerous person from a typical recidivist criminal. The
Minnesota Supreme Court also reasonably applied clearly established federal law to
the facts of petitioner’s case in concluding that the record showed he demonstrated
a disorder making it difficult, if not impossible, for him to control his dangerous
impulses and was constitutionally committed as a sexually dangerous person.

      We therefore affirm the denial of the petition for a writ of habeas corpus.



      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -15-
