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

No. 04-3988
JOHN L. LAXTON,
                                         Petitioner-Appellant,
                              v.

BYRAN BARTOW,
                                         Respondent-Appellee.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 03 C 977—William C. Griesbach, Judge.
                        ____________
     ARGUED MAY 10, 2005—DECIDED AUGUST 31, 2005
                     ____________


  Before FLAUM, Chief Judge, and KANNE and WILLIAMS,
Circuit Judges.
  FLAUM, Chief Judge. Petitioner-appellant John L. Laxton
was involuntarily committed to a secure mental health
facility after a jury found that he was a sexually violent
person as defined in the Wisconsin Sexually Violent Person
Commitment Statute, Wis. Stat. § 980. Laxton appealed to
the Wisconsin Court of Appeals and the Wisconsin Supreme
Court, both of which affirmed his commitment. He then
petitioned for a writ of habeas corpus in the United States
District Court for the Eastern District of Wisconsin, arguing
that the commitment violated his substantive due process
rights. The district court denied the writ, and Laxton
appeals. We conclude that the Wisconsin Supreme Court’s
2                                               No. 04-3988

adjudication of Laxton’s due process claim was not contrary
to or an unreasonable application of clearly established
federal law and therefore affirm the district court’s denial
of the writ.


                     I. Background
  On October 13, 1994, Laxton was arrested while peep-
ing into the window of a room occupied by two young
girls. Laxton had a long history of sexual misconduct. At the
time, petitioner was on parole after serving part of
an eleven-year sentence for abducting and sexually assault-
ing two twelve-year-old girls. As a result of the window-
peeping incident, Laxton’s parole was revoked, and he was
convicted of disorderly conduct. Shortly before his release
from prison, on September 11, 1998, the state filed a
petition seeking to commit Laxton as a sexually violent
person under Wis. Stat. § 980. The statute defines a
“sexually violent person” as:
    a person who has been convicted of a sexually vio-
    lent offense, has been adjudicated delinquent for a
    sexually violent offense, or has been found not guilty of
    or not responsible for a sexually 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
    violence.
Wis. Stat. § 980.01(7).
  Wisconsin affords persons who are the subject of a
commitment petition the right to a trial as well as “all
constitutional rights available to a defendant in a criminal
proceeding.” See Wis. Stat. § 980.05. At petitioner’s com-
mitment trial, the state presented evidence of Laxton’s long
history of sexual misconduct. This evidence showed that
Laxton began window peeping and exposing himself at the
No. 04-3988                                                   3

age of twelve. In 1981, he was convicted of exposing his
penis to a fifteen-year-old girl whom he stopped to ask for
directions. In 1987, he was convicted of sexually assaulting
two twelve-year-old girls whom he encountered delivering
newspapers in separate incidents on the same morning. He
approached the first girl and grabbed her in the crotch area
and demanded oral sex before the girl managed to escape.
Thirty minutes later, he encountered and attacked another
girl. He dragged the girl behind bushes where he forcibly
performed oral sex on her and placed his penis in her mouth
until he ejaculated.
  While serving his sentences for these offenses, Laxton
was terminated from two sexual offender treatment pro-
grams for failing to make progress. Less than five months
after his release on parole, petitioner was arrested for the
window-peeping incident that triggered the state’s commit-
ment petition. Ironically, at the time of the October 13,
1994 incident, Laxton was undergoing sexual offender
treatment and was reportedly “doing well.” Laxton’s parole
agent testified that, according to petitioner, window peeping
was a “red flag” for him, meaning it could lead to a new,
more serious, offense. Petitioner also admitted at trial that
he had committed several other acts of window peeping the
same week before being caught.
  Several experts testified at the trial. Dr. Timothy
McGuire, a staff psychologist for the Wisconsin Department
of Corrections, testified for the state and diagnosed Laxton
with pedophilia, voyeurism, and paraphilia. He explained
that pedophilia is characterized by “recurrent, intense
sexually arousing fantasies, sexual urges, or behaviors
involving sexual activities with prepubescent children.”
Voyeurism, Dr. McGuire explained, is essentially “window
peeping for sexual gratification.” Paraphilia, according to
Dr. McGuire, refers to a variety of sexually deviant behav-
iors; in Laxton’s case, it primarily referred to his exhibition-
ism, or instances in which Laxton exposed himself for
4                                                 No. 04-3988

sexual arousal. Dr. McGuire testified that these conditions
predisposed Laxton to engage in acts of sexual violence and
that his repeated sexual offenses “clearly show an inability
to refrain [from] acting on the sexual urges when they do
occur.” (Tr. Vol. 2 at 31.)
  The state also called psychologist Dr. Sheila Fields, who
diagnosed Laxton with paraphilia and exhibitionism, and
also noted his cannabis abuse. She explained how Laxton’s
behavior progressed from voyeurism to exhibitionism
to forcing sexual activity:
    With the voyeurism he feels a strong urge. He can’t stop
    the urge to want to look in people’s windows, to watch
    people who do not know they’re being watched. He then
    becomes sexually excited, and he moves on to exposing
    his penis, his genitals. Once sexually excited, at least
    three times in his life that we know of, he’s moved on to
    having sexual activity with someone who did not want
    to. That’s—I believe is not necessarily . . . something
    that he wanted to do.
(Tr. Vol. 2 at 131-32.) Dr. Fields concluded that Laxton
is predisposed to sexually violent behavior and has diffi-
culty controlling his sexual urges.
  Psychologist Dr. Michael Kotkin testified as an expert for
the defense. Dr. Kotkin diagnosed Laxton with exhibition-
ism and voyeurism, and again noted his marijuana abuse.
He did not, however, find sufficient evidence to support a
diagnosis of either paraphilia or pedophilia. Although he
opined that Laxton did not show a pattern of violent sexual
behavior, Dr. Kotkin acknowledged that Laxton’s two
sexual assaults in 1987 could be a compelling predictor of
future violent sexual offenses.
  Finally, Laxton testified on his own behalf. He did not
dispute the details of his prior sex offenses but testified that
he would not commit another violent sexual act in
the future.
No. 04-3988                                                  5

  Tracking the language of the statute, the court instructed
the jury that the state had to prove three elements beyond
a reasonable doubt before it could find Laxton a sexually
violent person. First, the state was required to establish
that Laxton had been convicted of a sexually violent offense.
This element was not disputed. Second, the state had to
prove that Laxton has a mental disorder, defined as “a
congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to engage in
acts of sexual violence.” (Tr. Vol. 4 at 10.) The court further
explained:
    Acts of sexual violence means acts which constitute
    sexually violent offenses. Acts of window peeping
    or exposure of the penis, absent any other behavior
    toward another person, do not alone constitute sexually
    violent offenses under Chapter 980.
    Not all persons who commit sexually violent crimes can
    be diagnosed as suffering from mental disorders, nor
    are all persons with a mental disorder predisposed to
    commit sexually violent offenses.
(Id. at 11.) Third, the state was obligated to prove that
Laxton “is dangerous to others because he has a mental
disorder which creates a substantial probability that he will
engage in acts of sexual violence.” (Id.) The court further
explained that “substantial probability means much more
likely than not.” (Id.) Neither party objected to these jury
instructions. After four days of trial, the jury returned a
verdict finding that Laxton was a sexually violent person.
  Laxton appealed from the judgment and order of commit-
ment, arguing that the jury instruction defining sexually
violent offenses was inappropriate. The Wisconsin Court
of Appeals summarily affirmed the commitment, noting
that Laxton had not preserved his objection to the jury
instruction at trial. Petitioner then sought review in the
Wisconsin Supreme Court, arguing that his commitment
violated the substantive due process guarantees in the
6                                                No. 04-3988

United States and Wisconsin Constitutions because the
statute did not require the jury to determine specifically
that he had a mental disorder that involves serious diffi-
culty in controlling his behavior. In re Commitment
of Laxton, 647 N.W.2d 784, 786 (Wis. 2002).
   The Wisconsin Supreme Court granted Laxton’s peti-
tion for review, instructing both parties “to address whether
Laxton’s due process rights were violated because there was
no jury determination regarding his level of volitional
control.” Id. at 788. Following briefing and argument, the
Wisconsin court affirmed the commitment. Laxton then
filed a petition for a writ of habeas corpus, arguing that the
Wisconsin Supreme Court decision was contrary to or an
unreasonable application of clearly established federal law.
The district court denied the writ, but issued a certificate of
appealability on the following questions: (1) whether
petitioner’s Fourteenth Amendment right to due process
requires a jury determination that he has serious difficulty
controlling his sexually dangerous behavior; and (2)
whether the jury instructions in petitioner’s case satisfied
due process by informing the jury of its responsibility to
make this determination.


                      II. Discussion
  The Supreme Court has held that although freedom from
physical restraint is “at the core of the liberty protected by
the Due Process Clause,” this interest may be overridden,
even in the civil context, in certain limited circumstances.
See Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (quoting
Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). More specifi-
cally, the Court has upheld involuntary commitment
statutes which “couple[ ] proof of dangerousness with the
proof of some additional factor, such as a ‘mental illness’ or
‘mental abnormality.’ ” Id. at 358 (citations omitted). As the
Court explained, these statutory requirements “serve to
No. 04-3988                                                  7

limit involuntary civil confinement to those who suffer from
a volitional impairment rendering them dangerous beyond
their control.” Id.
  In Hendricks, the Court upheld the Kansas Sexually
Violent Predator Act (SVPA), noting that it “requires
a finding of future dangerousness, and then links that
finding to the existence of a ‘mental abnormality’ or ‘person-
ality disorder’ that makes it difficult, if not impossible, for
the person to control his dangerous behavior.” Id. The Court
explained that the precommitment requirement of a mental
disorder or personality disorder outlined in the SVPA is
“consistent with the requirements of these other statutes
that we have upheld in that it narrows the class of persons
eligible for confinement to those who are unable to control
their dangerousness.” Id.
   Several years later, the Court again addressed “the
constitutional requirements substantively limiting the
civil commitment of a dangerous sexual offender” in the
context of the Kansas SVPA. Kansas v. Crane, 534 U.S. 407,
409 (2002). The Court concluded that the Kansas Supreme
Court had interpreted Hendricks “in an overly restrictive
manner” when it understood Hendricks to “insist[ ] upon ‘a
finding that the defendant cannot control his dangerous
behavior’—even if (as provided by Kansas law) problems of
‘emotional capacity’ and not ‘volitional capacity’ prove the
‘source of bad behavior’ warranting commitment.” Crane,
534 U.S. at 409, 411 (quoting In re Crane, 7 P.3d 285, 290
(Kan. 2000)). The Court clarified that Hendricks did not set
forth a “requirement of a total or complete lack of control,”
id. at 411, and concluded:
    It is enough to say that there must be proof of serious
    difficulty in controlling behavior. And this, 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 distinguish the
    dangerous sexual offender whose serious mental illness,
8                                                No. 04-3988

    abnormality, or disorder subjects him to civil commit-
    ment from the dangerous but typical recidivist con-
    victed in an ordinary criminal case.
Id. at 413.
  Petitioner argues that the Wisconsin Supreme Court
decision affirming his commitment was contrary to and
an unreasonable application of Hendricks and Crane
because it upheld his commitment without a specific jury
instruction or finding that he had serious difficulty in
controlling his behavior.
  Petitioner’s habeas claim is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA), which provides
in relevant part:
    (d) An application for a writ of habeas corpus on behalf
    of a person in custody pursuant to the judgment of a
    State court shall not be granted with respect to any
    claim that was adjudicated on the merits in State court
    proceedings unless the adjudication of the claim—
    (1) resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly estab-
    lished Federal law, as determined by the Supreme
    Court of the United States; or
    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.
28 U.S.C. § 2254(d).
   A state court decision is “contrary to . . . clearly estab-
lished Federal law” when the court reached a conclu-
sion “opposite to that reached by [the Supreme] Court on
a question of law” or confronted “facts that are materially
indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [its]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
No. 04-3988                                                 9

An “unreasonable application of [ ] clearly established
Federal law” results when a court “correctly identifies the
governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case.” Id. at 407-08. Under the
“unreasonable application” prong, a federal court may not
issue the writ “simply because the court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly.” Id. at 411. Rather, that application must also
be objectively unreasonable. Id.
  In reviewing petitioner’s commitment, the Wisconsin
Supreme Court identified both Hendricks and Crane as
controlling precedent and reasonably summarized the
holdings of both cases. See Laxton, 647 N.W.2d at 790-91.
The court emphasized that, under Crane, “there must
be proof of serious difficulty in controlling behavior”
which is “sufficient to distinguish the dangerous sexual
offender . . . from the dangerous but typical recidivist.” Id.
at 791 (quoting Crane, 534 U.S. at 413). Therefore, we
conclude that the Wisconsin Supreme Court’s adjudication
was not “contrary to” Supreme Court precedent. See
Williams, 529 U.S. at 406 (“[A] run-of-the-mill state-court
decision applying the correct legal rule from our cases to the
facts of a prisoner’s case would not fit comfortably within §
2254(d)(1)’s ‘contrary to’ clause.”). Because the court
identified the correct legal rule, we turn to the “unreason-
able application” prong and consider whether it applied
Hendricks and Crane unreasonably to petitioner’s case. See
id. at 407-08.
  The Wisconsin Supreme Court affirmed Laxton’s commit-
ment, holding that the Wisconsin statute and the commit-
ment trial comported with the requirements articulated in
Hendricks and Crane. The court concluded that civil
commitment under the statute does not require “a separate
factual finding regarding the individual’s serious difficulty
in controlling behavior” because this finding is implicit in
10                                               No. 04-3988

the statute’s definition of a “sexually dangerous person.” See
Laxton, 647 N.W.2d at 793. The Wisconsin Supreme Court
emphasized that the statute requires that the individual 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 violence.” Id. (quoting Wis. Stat.
§ 980.01(7)) (emphasis in Wisconsin Supreme Court deci-
sion). Therefore, the court reasoned, “[t]he requisite proof of
lack of control is established when the nexus between such
person’s mental disorder and dangerousness has
been established.” Id. at 787. By concluding that Laxton has
a mental disorder and that his mental disorder creates a
substantial probability that he will engage in acts of sexual
violence, the court explained, the jury had to conclude that
Laxton’s mental disorder involved serious difficulty for him
in controlling his behavior. Id. at 795. The court further
held that the nexus between the mental disorder and level
of dangerousness was “sufficient to distinguish Laxton from
a dangerous but typical recidivist” and that the jury
instructions at Laxton’s trial, which tracked the key
statutory language, were proper and did not violate sub-
stantive due process. Id.
  We cannot say that the Wisconsin Supreme Court’s
adjudication of petitioner’s due process claim was an
objectively unreasonable application of Supreme Court
precedent. In Hendricks, the Court emphasized the link
between the required finding of future dangerousness
and the offender’s mental illness or abnormality which
makes control over his behavior “difficult if not impossible.”
Hendricks, 521 U.S. at 358. In the particular case before it,
the offender had conceded that, when he becomes “stressed
out, he cannot control the urge to molest children.” Id. at
360. The Court concluded: “This admitted lack of volitional
control, coupled with a prediction of future dangerousness,
adequately distinguishes Hendricks from other dangerous
persons who are perhaps more properly dealt with exclu-
No. 04-3988                                                11

sively through criminal proceedings.” Id. Because the lack
of volitional control was undisputed in Hendricks, the Court
did not address whether a specific jury instruction or
finding on this issue was required.
  In Crane, the Court did require proof of “serious difficulty
in controlling behavior,” however, it did compel the trial
court to give a specific instruction regarding the offender’s
lack of control. As discussed above, the Kansas Supreme
Court had read Hendricks to require a specific lack-of-
control finding and had reversed the commitment of a
sexual offender because the jury did not make such a
finding. See Crane, 7 P.3d at 290. The Supreme Court
vacated the judgment of the Kansas Supreme Court,
suggesting that it did not find that the absence of a specific
jury instruction and finding on control violated due process.
Moreover, the Court acknowledged that it was articulating
a less-than-precise constitutional standard. See Crane, 534
U.S. at 413 (“the Constitution’s safeguards of human liberty
in the area of mental illness and the law are not always
best enforced through precise bright-line rules”). Because of
the lack of clear lines in the field of psychiatry, and its
imperfect fit with legal standards, the Court reasoned, it
has “sought to provide guidance in this area by proceeding
deliberately and contextually, elaborating generally stated
constitutional standards and objectives as specific circum-
stances require.” Id. This approach, the Court explained,
was embodied in Hendricks. Id.
  In light of the Supreme Court’s decision in Crane to
vacate the judgment of the Kansas Supreme Court, the
absence of more precise language concerning a lack-of-
control element, and the Court’s own acknowledgment that
bright-line rules are inappropriate in this context, we
cannot agree with petitioner’s contention that Crane clearly
establishes that the jury must be instructed and specifically
find that petitioner has serious difficulty in controlling his
12                                               No. 04-3988

behavior. It was not objectively unreasonable for the
Wisconsin Supreme Court to conclude that the finding of
serious difficulty in controlling behavior was implicit in the
jury’s conclusion that Laxton met the statutory definition of
a sexually violent person.
  Laxton also contends that the Wisconsin Supreme Court
decision is contrary to clearly established federal law
because it ignores the requirement that reviewing courts
“approach the instructions in the same way that the jury
would—with a commonsense understanding of the instruc-
tions in light of all that has taken place at the trial.”
Johnson v. Texas, 509 U.S. 350, 368 (1993). Petitioner
asserts that the Wisconsin Supreme Court decision is
contrary to Johnson because the instructions did not
adequately inform the jury that there must be proof of
serious difficulty in controlling his behavior.
   We find no merit in petitioner’s argument. While Laxton
disputed that he lacked control over his sexually dangerous
behavior, the evidence presented at the commitment trial
firmly established the requisite nexus between Laxton’s
mental disorder and his dangerousness. Both Dr. McGuire
and Dr. Fields testified that Laxton’s mental disorder
rendered him unable to control his sexual urges. Even
Laxton’s own expert acknowledged that his prior sexually
violent acts could be a compelling predictor of future violent
sexual offenses. The trial court instructed the jury that, in
order to find that Laxton was a sexually violent person, it
must find that he is “dangerous to others” because he has “a
congenital or acquired condition affecting the emotional or
volitional capacity that predisposes [him] to engage in acts
of sexual violence” and “creates a substantial probability
that he will engage in acts of sexual violence.” The jury was
further instructed that “acts of sexual violence” does not
include mere window peeping or exposing oneself. We must
presume that the jury followed all the instructions it was
given. United States v. Eberhart, 388 F.3d 1043, 1050 (7th
No. 04-3988                                               13

Cir. 2004). Therefore, we conclude that, in finding that
Laxton was a sexually violent person under this standard,
there was “no reasonable likelihood” that the jury did not
implicitly conclude that Laxton’s mental disorder caused
serious difficulty in controlling his sexually violent behav-
ior. See Johnson, 509 U.S. at 368 (concluding that “there is
no reasonable likelihood that the jury would have
found itself foreclosed from considering the relevant aspects
of petitioner’s youth” where jury was instructed that it
could consider all mitigating evidence that had been
presented). The Wisconsin Supreme Court’s decision to
uphold Laxton’s commitment in light of these jury instruc-
tions was not “diametrically different” or “opposite in
character or nature” from any clearly established federal
law.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the decision of the
district court denying the petition for a writ of habeas
corpus.
14                                        No. 04-3988

A true Copy:
      Teste:

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




               USCA-02-C-0072—8-31-05
