                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 13-2103
                                 ________________

                               WILLIAM CONOVER,

                                                Appellant

                                           v.

                    DR. MERIL MAIN, Superintendent;
            ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
                          ________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Civil Action No. 3-11-cv-06324)
                     District Judge: Honorable Peter G. Sheridan
                                  ________________

                              Argued October 21, 2014

            Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges

                         (Opinion filed: February 25, 2015)

Bruce P. Merenstein, Esquire (Argued)
Christian D. Sheehan, Esquire
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

      Counsel for Appellant

John J. Hoffman
  Acting Attorney General of New Jersey
Melissa H. Raksa
  Assistant Attorney General, of Counsel
David L. DaCosta
  Deputy Attorney General, on the Briefs
Lisa A. Puglisi, Esquire (Argued)
Office of Attorney General of New Jersey
P.O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

          Counsel for Appellees

                                      ________________

                                          OPINION*
                                      ________________

AMBRO, Circuit Judge

          William X. Conover is a civilly committed detainee at the Special Treatment Unit

at Avenel, New Jersey, under New Jersey’s Sexually Violent Predator Act (SVPA). He

appeals the District Court’s order denying habeas relief. For the following reasons, we

affirm.

                                               I.

          In 1993, Conover pled guilty to first-degree aggravated sexual assault, second-

degree attempted aggravated assault, first-degree kidnapping, first-degree armed robbery,

and second-degree burglary. At the time of sentencing, Conover argued he qualified

under New Jersey’s Sex Offender Act to serve his sentence at the Adult Diagnostic

Treatment Center (ADTC) at Avenel, where he would receive “a program of specialized

treatment for his mental condition.” N.J.S.A. 2C:47-3(a) (1979). Based on a court-


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                               2
ordered psychological evaluation, however, the trial judge determined Conover failed to

meet the statutory criteria for incarceration at the ADTC and instead sentenced him to a

24-year prison term, during which he neither requested nor received sex-offender

treatment.

       While Conover was still incarcerated, the New Jersey Legislature passed the

SVPA, allowing it to identify and commit for treatment “a[ny] person who has been

convicted . . . for commission of a sexually violent offense, . . . and suffers from a mental

abnormality or personality disorder that makes the person likely to engage in acts of

sexual violence if not confined in a secure facility for control, care and treatment.” N.J.

Stat. Ann. § 30:4-27.26 (1998). After reviewing Conover’s case toward the end of his

prison term to determine his eligibility under the SVPA, the State filed a petition for civil

commitment in April 2007. Conover “immediately challenged the State’s petition,

arguing that because he had not been provided with sex offender treatment while he was

incarcerated, civil commitment would violate the ex post facto clauses of the federal and

state constitutions.” In re Civil Commitment of W.X.C., 8 A.3d 174 (N.J. 2010).

       The SVPA trial judge rejected Conover’s facial and as-applied challenges to the

SVPA, concluding that the statute was civil (rather than punitive) in nature and therefore

did not subject him to ex post facto punishment. Further, the judge found that the State

had proven by clear and convincing evidence that Conover was a sexually violent

predator who qualified for civil commitment. He appealed, and both the New Jersey

Superior Court Appellate Division and New Jersey Supreme Court affirmed. The U.S.

Supreme Court denied Conover’s petition for a writ of certiorari.

                                              3
       In October 2011, Conover filed a pro se petition for a writ of habeas corpus in the

U.S. District Court for the District of New Jersey, alleging that his state-court

commitment order imposes punishment in violation of the U.S. Constitution. The

District Court dismissed Conover’s petition in full, which it construed as raising Eighth

Amendment, ex post facto, and double-jeopardy claims, and this appeal followed. We

granted a certificate of appealability (“COA”) on the three claims identified by the

District Court and appointed pro bono counsel.1

                                             II.

       The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

constrains our power to disturb a state-court’s order of civil commitment. We will

reverse a state court’s determination of a claim on the merits only if it “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law” or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). As the District Court denied Conover’s petition

without conducting an evidentiary hearing, our review of its decision is plenary. See

Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008).

                                             III.

       Conover first challenges the state courts’ denial of his ex post facto and double-

jeopardy claims as contrary to clearly established federal law. In rejecting Conover’s

1
  We acknowledge the highly professional pro bono representation of Conover by Bruce
P. Merenstein and Christian D. Sheehan of Schander Harrison Segal & Lewis LLP, and
thank them for their able representation.
                                              4
claims, however, the New Jersey Supreme Court reasonably relied on Kansas v.

Hendricks, 521 U.S. 346 (1997), rejecting similar challenges to the constitutionality of

Kansas’s analogous civil-commitment statute. While Conover argues that his position is

supported by Justice Kennedy’s concurrence in Hendricks, we agree with the New Jersey

Supreme Court that Conover’s reasoning much more closely tracks that of the Hendricks

dissent. Id. at 373 (Breyer, J., dissenting) (viewing the statute’s failure to “provide

Hendricks . . . with treatment until after his release date from prison” as evidence of the

Kansas legislature’s punitive intent). In any event, only the Hendricks majority opinion

is clearly established federal law.2

       To the extent Conover disavows that his constitutional challenges to the SVPA are

facial in nature, the District Court correctly held that the Supreme Court’s decision in

Seling v. Young, 531 U.S. 250 (2001), bars him from arguing that the statute is

unconstitutionally punitive “as applied” to him.

                                             IV.

       Conover next challenges the District Court’s conclusion that his Eighth

Amendment claim is not recognized under § 2254. In reaching this conclusion, the

District Court relied on our decision in Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002).

There we held that 42 U.S.C. § 1983 was the more appropriate vehicle for a prisoner to

challenge the denial of sex-offense treatment required for his parole eligibility. We agree


2
 Conover posits that Justice Kennedy’s opinion is controlling, but in doing so he
mischaracterizes Justice O’Connor’s opinion for the Court as a plurality opinion. Justice
Kennedy wrote separately only to “add . . . additional comments” and “join[ed] the
opinion of the Court in full.” 521 U.S. at 371 (Kennedy, J., concurring).
                                              5
with Conover that Leamer is distinguishable. While he (like the Leamer plaintiff) bases

his claim on the allegedly wrongful denial of sex-offender treatment in prison, he (unlike

the Leamer plaintiff) challenges the effect of that denial on a subsequent order of

confinement. Because “granting [Conover’s] petition would ‘necessarily imply’ a change

to the fact . . . of [his civil commitment],” he may proceed under § 2254. McGee v.

Martinez, 627 F.3d 933, 936 (3d Cir. 2010) (quoting Leamer, 288 F.3d at 543).

       Our conclusion that the District Court incorrectly concluded it was without

jurisdiction to hear this claim, however, does Conover little good. Because the SVPA is

not “punitive” in nature, “the law is not a ‘cruel and unusual punishment’ in violation of

the Eighth Amendment.” Doe v. Miller, 405 F.3d 700, 723 n.6 (8th Cir. 2005).

Likewise, a “‘punitive as applied’ argument is foreclosed by Seling.” Hydrick v. Hunter,

500 F.3d 978 (9th Cir. 2007), vacated on other grounds by 129 S. Ct. 2431 (2009).

Conover’s Eighth Amendment claim therefore fails on the merits.3

                                              V.

       Finally, Conover argues that the District Court erred in not granting him leave to

amend his habeas petition to include a due-process claim. However, we did not include

this issue in our COA, and because Conover “failed . . . to raise the due process issue in

either state court or in the district court,” it “has been procedurally defaulted [and]

waived.” Griggs v. Maryland, 263 F.3d 355, 359 (4th Cir. 2001). Accordingly, we

3
 Accordingly, we need not reach the State’s argument that Conover procedurally
defaulted this claim by failing to raise it before the state courts. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts
of the State.”).
                                              6
decline Conover’s invitation to expand the scope of our COA to include this issue.

                                    *   * * *      *

      We thus affirm the District Court’s order denying Conover’s petition for habeas

corpus.




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