In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3278

M ICHAEL L. M C G EE,
                                            Petitioner-Appellant,
                               v.

B YRAN B ARTOW,
                                            Respondent-Appellee.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
       No. 1:06-cv-01151-WCG—William C. Griesbach, Judge.



   A RGUED D ECEMBER 5, 2008—D ECIDED JANUARY 27, 2010




  Before R IPPLE, K ANNE and T INDER, Circuit Judges.
  R IPPLE, Circuit Judge. In 2003, Michael McGee was
ordered to be civilly committed as a “sexually violent
person” (“SVP”) pursuant to Chapter 980 of the
Wisconsin Statutes. After exhausting his state appeals
and petitioning unsuccessfully for post-commitment
relief in the state courts, he filed a petition for habeas
corpus in the United States District Court for the
Eastern District of Wisconsin, contending that his contin-
2                                               No. 07-3278

ued state custody deprives him of his right to due process
of law. The district court denied the writ but issued a
certificate of appealability on the question. For the reasons
set forth in this opinion, we affirm the judgment of the
district court.


                              I
                     BACKGROUND
                             A.
   In 1987, Mr. McGee entered an apartment that he be-
lieved was vacant, apparently intending to rob it. Instead,
he found a woman and her child asleep on the sofa.
Mr. McGee then ordered the woman upstairs, where he
raped her. Following the rape, Mr. McGee stayed in the
victim’s home until the next morning when she convinced
him that she had to take her son to school, which he
allowed her to do. As he accompanied his victim down
the street he repeatedly apologized to her. After ensuring
that her son had reached his school safely, the victim
was able to escape to her mother’s home. The victim
identified Mr. McGee in a photographic line-up, and he
later was convicted of burglary and sexual assault. He
was sentenced to eight years’ imprisonment and six
years’ probation.
  In 1992, after serving five years of his sentence,
Mr. McGee was released on parole. He subsequently was
accused of two separate, additional incidents of sexual
assault, one involving a woman and another involving
an adolescent male, neither of which resulted in a con-
No. 07-3278                                             3

viction. His parole, however, was revoked, and he
was returned to the physical custody of the Wisconsin
authorities.


                            B.
  In 1995, before his mandatory release, the State of
Wisconsin filed a petition seeking to have Mr. McGee
declared a SVP under Chapter 980. He was civilly com-
mitted following a jury trial. This first civil commitment
determination was reversed after a state court concluded
that Mr. McGee’s trial counsel in the commitment pro-
ceeding was ineffective for failing to discover evidence
that undermined the credibility of the accusers in the
1992 incidents. Accordingly, in 1999, he was released
from civil commitment.
  In 2000, Mr. McGee’s parole again was revoked after
he tested positive for marijuana and had contact with
the alleged victim of one of the 1992 assaults. Before
his scheduled release, the State of Wisconsin again
initiated proceedings to have Mr. McGee committed as
a SVP.


                           C.
  The proceedings resulting in Mr. McGee’s second civil
commitment form the basis of his current petition for
habeas relief. In those Chapter 980 proceedings,
Mr. McGee represented himself at a bench trial.
 The state presented two experts. First, the state called
Dr. Caton Roberts, a psychologist employed by the Depart-
4                                                   No. 07-3278

ment of Corrections and a university lecturer in psychol-
ogy. Dr. Roberts testified that his evaluation was based
upon fifteen hours of review of Mr. McGee’s record;
specifically relevant were Mr. McGee’s various rule
violations, difficulty staying out of trouble, physical
altercations, criminal convictions and “pervasive
impulsivity.” R.16, Ex. 83 at 118-21. Based upon his
review, Dr. Roberts testified that, in his opinion,
Mr. McGee suffered from “a personality disorder not
otherwise specified [“NOS”] with antisocial features.” 

Dr. Roberts believed that his diagnosis fit
within the criteria listed in the Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) published by the
American Psychiatric Association (“APA”).1 

He acknowledged that he could not diagnose Mr. McGee
with Antisocial Personality Disorder (“APD”) as
described in the DSM because the record was devoid of
any evidence of personality disorders before Mr. McGee
reached the age of 15, an explicit requirement in the
DSM for an APD diagnosis. 

Dr. Roberts
further testified that he had reviewed other proposed
diagnoses in Mr. McGee’s file by other examiners, but
did not believe that they were supported in the record.
Dr. Roberts specifically stated that he did not believe
that the record supported a diagnosis of “a paraphili[c]


1
  All references to the DSM refer to the Diagnostic and Statisti-
cal Manual of Mental Disorders, Fourth Edition, Text Revision,
published by the American Psychiatric Association in 2000.
In the profession, the text is sometimes referred to as the DSM-
IV-TR. For the sake of simplicity, we use the shorthand “DSM.”
No. 07-3278                                                 5

disorder not otherwise specified.” 

In addition
to his clinical diagnoses, Dr. Roberts testified about the
use of two actuarial tools that support, in his judgment,
a conclusion that Mr. McGee “was substantially probable
to reoffend sexually if not detained and treated.” 

  The state also called Dr. Cynthia Marsh. Dr. Marsh
testified that she was also a state-employed counselor
and a university lecturer; she holds a Ph.D. in “urban
education specializing in counseling psychology.” 

at 19. Dr. Marsh testified that she had diagnosed
Mr. McGee with two mental illnesses that qualified him
to be committed as a SVP: paraphilia NOS and a per-
sonality disorder NOS with antisocial features. 

She stated that the “key characteristic” for a diagnosis of
personality disorder was “disregard for and violation of
the rights of others.” 

She acknowledged that
she had based her diagnosis on Mr. McGee’s history,
including the sexual assault charges from 1992 that had
proved problematic in his first commitment proceeding.
  Dr. Marsh also testified about the results of three actuar-
ial tools. She stated that subjects with scores similar to
Mr. McGee’s in each of these instruments reoffended at
rates of between forty-eight and fifty-four percent over
a six- to fifteen-year period following release. Her con-
clusion, based on her diagnoses and the actuarial tools,
was that Mr. McGee was “much more likely than not to
reoffend in a sexually violent manner.” 

Dr. Marsh was not subject to cross-examination because
Mr. McGee had refused to participate in the second day
of his commitment proceeding.
6                                               No. 07-3278

  Based on the testimony of Drs. Roberts and Marsh, the
state court ordered Mr. McGee committed as a SVP
pursuant to Wis. Stat. § 980.06.


                            D.
  Following his commitment, Mr. McGee took an unsuc-
cessful direct appeal and then petitioned, again unsuc-
cessfully, for state collateral relief. Mr. McGee next filed
a petition for habeas corpus in the United States
District Court for the Eastern District of Wisconsin. The
district court dismissed Mr. McGee’s petition, but
granted a certificate of appealability under 28 U.S.C.
§ 2253(c)(2). The substance of the state and federal pro-
ceedings are explored in significant detail below.


                             II
               PROCEDURAL DEFAULT
  As briefed to this court, Mr. McGee raises two chal-
lenges to his commitment. The first is whether confine-
ment as a SVP on the basis of his diagnoses, which he
claims lack a reasonable scientific foundation, violates
due process of law. The second is whether, under the
Supreme Court’s decision in Kansas v. Crane, 

(2002), committing courts must ascertain whether the
nature and specificity of a particular person’s mental
impairment is of a level which justifies civil confinement.
In his view, this latter challenge focuses on whether
the Wisconsin courts have failed to implement Crane
No. 07-3278                                                 7

properly because the statute does not require that com-
mitment is supported by a finding of a “special and
serious lack of ability to control behavior.” 

  Before the district court, the State contended that all of
Mr. McGee’s claims were procedurally defaulted. Before
this court, the State has abandoned a procedural challenge
to the first issue Mr. McGee presents. As to the second
issue, however, the State now contends that Mr. McGee
failed to present it to the state courts, resulting in a pro-
cedural default that would bar our consideration of
the issue. It also argues, in the alternative, that even if
the second issue regarding the application of Crane was
properly before the state courts, Mr. McGee forfeited
the argument in his federal habeas proceeding by failing
to present it to the district court.
  To inform our analysis of the procedural status of these
claims, we begin with a detailed examination of the
parties’ positions at all stages of Mr. McGee’s challenge
to his commitment.


                             A.
  Mr. McGee appeared pro se for most of his commit-
ment proceedings, including his trial, in the Wisconsin
Circuit Court for Racine County. After he was ordered
committed, he filed, pro se, a motion for relief from the
judgment with the committing court. In that motion, he
presented a variety of issues, one of which was
identified by the court as a claim “that the diagnosis,
essentially one of a personality trait [sic] is not sufficient
8                                               No. 07-3278

for the commitment.” R.85 at 11. At his hearing on the
motion, the nature of Mr. McGee’s contentions was some-
what clarified by his repeated interruptions of counsel
for the State to inquire what “not otherwise specified”
meant as related to his diagnosis. 

Mr. McGee
called the diagnosis “bogus,” 

and insisted that
the State “basically made [the diagnosis] up,” 

The circuit court denied the motion for relief from judg-
ment.
  Mr. McGee was represented by counsel on appeal. Prior
to the appointment of counsel, he filed his own notice
of appeal, in which he cited three bases to challenge the
commitment. Specifically, he contended: (1) that his
commitment was based on insufficient evidence that
his “social history manifests the scientific diagnostic
criteria of any mental and/or personality disorder”; (2) that
confinement on the basis of his diagnosis “violates the
substantive component of the Due Process Clause”; and
(3) that the State’s use of a personality disorder NOS
diagnosis as the basis for confinement violated state
law and due process “inasmuch [as the] condition
[was] literally made up by” state psychologists. R.1,
Attach. 6 at 1.
  In counsel’s brief to the appellate court, however, the
challenge articulated was instead that Mr. McGee’s bur-
glary conviction could not serve as the predicate
offense for a Chapter 980 proceeding because it was not
a “sexually motivated” offense. R.10, Ex. B at 6. The Court
of Appeals of Wisconsin affirmed. It does not appear,
from the record before us, that Mr. McGee petitioned for
discretionary review to the Supreme Court of Wisconsin.
No. 07-3278                                                   9

                              B.
  Following the Court of Appeals’ affirmance of his
commitment, Mr. McGee, again pro se, filed a habeas
petition in the Court of Appeals of Wisconsin under State
v. Knight, 

(Wis. 1992),2 challenging his
commitment with a claim of ineffective assistance of
appellate counsel.3 Although it is not a perfectly clear or
well-organized brief, it does appear to raise and attempt
to develop several issues relevant to the present pro-
ceeding. Mr. McGee’s overarching contention to the
Wisconsin court was that his appellate counsel was



2
   State v. Knight, 

(Wis. 1992), involved a
collateral attack on a criminal conviction based on a claim of
ineffective assistance of appellate counsel. The Supreme Court
of Wisconsin held in Knight that the appropriate procedure
for such an attack was a habeas corpus proceeding filed in the
court that considered the direct appeal. 

Such
proceedings have come to be known in Wisconsin as
“Knight petitions.” See, e.g., State ex rel. Panama v. Hepp, 

, 808 (Wis. Ct. App. 2008) (discussing the applicabil-
ity of Knight petitions).
3
  Chapter 980 proceedings include a statutory right to counsel.
See Wis. Stat. § 980.03(2)(a). The Supreme Court of Wisconsin
has held that where a statutory right to counsel exists, it
includes the right to effective assistance of counsel. A.S. v.
State, 

, 54 (Wis. 1992). Wisconsin applies the
familiar deficiency and prejudice test of Strickland v.
Washington, 

, 687 (1984), for ineffective assistance
claims based on a statutory right to counsel. See State ex rel.
Schmelzer v. Murray, 

, 48 (Wis. 1996).
10                                              No. 07-3278

ineffective for failing to raise various arguments related
to his mental condition in the direct appeal. At trial, the
State’s experts had discussed Mr. McGee’s scores on
various actuarial tools and interpreted his results to
demonstrate his probability of reoffending. In his
Knight petition, Mr. McGee claimed that his scores, and
thus his risk of recidivism, did not actually bear on the
relevant question of whether he had a “mental condi-
tion” upon which civil confinement can be imposed
consistent with due process. R.1, Attach. 3 at 2. He further
contended that his confinement was based on a “non-
demonstratable [sic] personality disorder,” that it was a
“tautology of an antisocial per[so]nality disorder,” and
that his diagnosis, by definition, “does not cause any
inability to control behavior.” 

He also con-
tended that the State’s experts did not demonstrate
“that mere features of an antisocial per[so]nality
disorder can be diagnosed as a disorder under the
category not otherwise specified in the (DSM).” 

His
NOS diagnosis, therefore, was not of an “actual mental
condition” that could support confinement. 

contended that his diagnosis was “literally made up”
and “only exist[s] in the minds of the chapter 980 evalua-
tion team but nowhere else.” 

   The Court of Appeals of Wisconsin denied Mr. McGee’s
petition. After recounting the procedural history and
confirming that a Knight petition was the proper vehicle
for his challenges, the court turned to Mr. McGee’s sub-
stantive contentions. Noting that the brief was “difficult
to understand,” the court construed the single issue that
it could discern as a claim that appellate counsel was
No. 07-3278                                               11

ineffective for failing to challenge the use of actuarial
tools as part of the diagnostic model. R.10, Ex. E at 4. It
held that Mr. McGee’s petition was “an attempt to re-
try” his commitment and noted that its earlier order
upholding commitment was based on its assessment of
his intent in committing the burglary, “not the experts’
testimony.” 

continued without further
explanation, that, “[t]herefore, even if appellate counsel
had made such arguments, they would not have been
successful.” 

was denied “on the grounds
that McGee was not prejudiced by his appellate
counsel’s performance.” 

v. Washington,

, 694 (1984)).
  Mr. McGee, again proceeding pro se, next petitioned the
Supreme Court of Wisconsin for discretionary review of
his Knight petition. In his petition, he again raised
appellate counsel’s ineffectiveness for failing to
challenge the sufficiency of his diagnoses. He also again
contended that even if APD itself had been proved, it
did not cause any inability to control behavior, sexual or
otherwise. R.1, Attach. 1 at 1. The Supreme Court of
Wisconsin denied review.


                             C.
  Mr. McGee, again proceeding pro se, filed a federal
habeas petition under 28 U.S.C. § 2254. We shall
endeavor to give his petition and his briefs the fairest
reading with an eye toward the issues he wishes to
present in the present appeal. See Baldwin v. Reese, 

, 32 (2004) (identifying the petition and brief as
12                                                   No. 07-3278

documents a court should reference for determining
whether the fair presentment requirement has been met).
  Mr. McGee began by contending that he “cannot be
clinically diagnosed with anything.” R.8 at 2 (emphasis in
original). Mr. McGee’s briefing traced the history of his
challenges to his commitment and repeatedly stated that
he raised an issue regarding the application of the
Supreme Court’s decision in Kansas v. Crane and whether
his “disorder” caused the required inability to control
behavior. 

see also 

(stating that a per-
sonality disorder diagnosis “without more” does not
satisfy “the requirement of a mental condition that
causes a lack of control”). He further claimed that the
state courts had ignored the issue. 

also contended, at some length, that his
NOS diagnoses were lacking in validity and not
accepted within the psychiatric community. He noted
the variance between the diagnosis accepted in
Wisconsin and the diagnostic criteria of related, generally
accepted disorders as identified by the DSM.4 

see
also 

-13 (listing the DSM criteria for APD and
stating that it is “nothing but another way of saying ‘Crimi-
nal’ ”); R.11 at 4 (quoting Justice Kennedy’s concurring



4
   Although Mr. McGee sometimes uses the term “antisocial
personality” to describe his diagnosis, it is clear that he is
drawing a distinction between the actual APD diagnosis and
the NOS diagnosis upon which he was committed. See, e.g.,
R.11 at 3 (“[T]his petitioner does dispute whether antisocial
features alone is a legitimate diagnosis.” (emphasis in original)).
No. 07-3278                                                      13

opinion in Kansas v. Hendricks, 

, 372 (1997), for
the proposition that Hendricks’s disorder, pedophilia,
“is at least described in the DSM[]” (emphasis added by
petitioner)). In further briefing, he reiterated that the
personality disorder NOS diagnosis was, in his view, “not
a real diagnosis.” R.11 at 4 (Response to the State’s
Motion to Dismiss).
  The district court, exercising its obligations under Rule 4
of the Rules Governing Section 2254 Cases, reviewed
the petition alone and concluded that summary dismissal
was not appropriate. Accordingly, it ordered the State
to file an answer to the claim that Mr. McGee’s “incar-
ceration under Chapter 980 violates the Constitution
because it is based on a diagnosis of personality disorder
that does not correspond to the requirements of due
process.” R.4 at 1 (citing Kansas v. Crane, 

(2002)).
  The State of Wisconsin filed a motion to dismiss for
procedural default, and Mr. McGee responded. The
State’s position was that Mr. McGee had failed to raise
a due process challenge 5 to his commitment through one



5
  The State acknowledges that Mr. McGee took a direct appeal
and filed a subsequent Knight petition. R.10 at 2. In its memoran-
dum in support of the motion to dismiss, the State vaguely
refers to Mr. McGee’s “brief in the Wisconsin Court of Ap-
peals,” 

as though there were only one brief. We take
the State to be referring to Mr. McGee’s direct appeal in
which he was assisted by counsel, because the State notes
                                                      (continued...)
14                                                 No. 07-3278

complete round of state court review. R.10 at 3-4 (citing
O’Sullivan v. Boerckel, 

, 854 (1999) (Stevens, J.,
dissenting)). The State further argued that, although a
claim for ineffective assistance of counsel was preserved
through the Knight petition proceedings, counsel was not
ineffective, and therefore Mr. McGee could not, by way
of a right to counsel claim, establish cause and prejudice
for the default of his due process claim.
  In ruling on the motion, the district court carefully
reviewed the history of Mr. McGee’s commitment chal-
lenges and concluded that the due process claims had
been presented fairly to the state courts. The district
court acknowledged that Mr. McGee had failed to
present the due process arguments on direct appeal, but
noted that this was “hardly McGee’s fault.” R.12 at 8. The
court construed Mr. McGee’s Knight petition alleging
ineffective assistance as raising a claim that counsel
was ineffective for failing to contend
     that [his] diagnosis is essentially a “bogus disor-
     der” that was invented by state psychologists to
     justify his continued confinement after he com-
     pleted his sentence. . . . McGee also argued that an
     antisocial personality disorder, by definition, does
     not cause inability to control one’s behavior. Thus, he
     claimed that his involuntary commitment on the
     basis of such a diagnosis violated his Fourteenth


5
  (...continued)
later that “no petition for review was filed,” 

only
true with respect to the direct appeal.
No. 07-3278                                                   15

    Amendment right to due process of law as set
    forth by the United [States] Supreme Court in
    Kansas v. Crane . . . .

(emphasis added) (citations omitted). In light of
this content in his Knight petition, the district court con-
cluded that the State had a fair opportunity “to consider
the gist of [] McGee’s claim, which was that due
process was violated because of the state’s reliance upon
a diagnosis not recognized in the field of mental health
as a basis to civilly confine an individual indefinitely.”

  After briefing on the merits, the contentions of which
are outlined above, the court denied the writ. Because
the state courts had not adjudicated Mr. McGee’s claim
on the merits, the district court noted that it was
required to “dispose of the matter as law and justice
require.” R.26 at 2 (citing 28 U.S.C. § 2243).
  The court then stated that, in its view, Mr. “McGee’s
argument is quite narrow”: that his particular diagnoses
do not “live up to the Supreme Court’s requirements


6
  The district court, in its subsequent order on the merits,
acknowledged that the claim of ineffective assistance of
counsel for failure to raise the due process issues was the claim
actually exhausted. R.26 at 2 n.2. The due process challenges
were only presented to the state courts as embedded, not
independent claims. The district court continued, “[b]ecause
I find that the claim ultimately fails, it follows that his
appellate counsel was not ineffective for failing to raise it in
McGee’s appeal.” 

07-3278

for due process.” R.26 at 2-3. The court, relying on its
interpretation of Crane, ruled that “just as there are no
magic words, there are no magic diagnoses . . . . [F]or
due process purposes, it matters little whether the
disorder is described as ‘antisocial personality disorder’
or ‘personality disorder with antisocial features.’ ” 

The court then reviewed the record and concluded
that Mr. McGee’s confinement was not based solely on a
“personality disorder,” but on a substantial probability
of reoffense, appropriately evaluated (contrary to
Mr. McGee’s contentions as interpreted by the district
court) by the use of actuarial risk assessment models. The
district court held that Mr. McGee properly had been
“found to be a SVP based on testimony that he had a
mental disorder that caused him to have serious
difficulty controlling his behavior.” 

                             D.
  Mr. McGee, still pro se, petitioned the court for a certifi-
cate of appealability. In his petition, he identified four
issues. The first two relate to his claim that a diagnosis
of a personality disorder NOS is an invalid and unrecog-
nized creation of the Wisconsin Chapter 980 team.
The third claims that the district court sidestepped the
diagnostic validity issue when it found that Mr. McGee
was not confined “solely” on the basis of his diagnosis, but
on a finding of a substantial probability of reoffense. R.26
at 4-5. Finally, Mr. McGee’s fourth claim references the
opinion of the district court in a related case, brought by
Bruce Brown. Specifically, Mr. McGee quotes that
No. 07-3278                                               17

court on the subject of Mr. Brown’s paraphilia NOS
diagnosis and its conclusion that a petitioner may be
able to show that it does not distinguish between the
dangerous but typical recidivist, as required by
Supreme Court precedent. Mr. McGee seems to contend
that his diagnoses, particularly the personality disorder,
are infirm for the same reason.
  The district court issued a certificate of appealability on
the “single issue” raised in Mr. McGee’s habeas petition:
“that his diagnosis for personality disorder does not
qualify under the Supreme Court’s due process require-
ments for involuntary incarceration.” R.34 at 1. The
district court continued, “[i]n essence, he believes the
State of Wisconsin manufactured a bogus diagnosis,
unrecognized out of the state’s own corridors, in order
to keep him locked up.” 

McGee briefs his due process challenge to his
commitment as comprising two elements, first, that his
diagnoses are medically invalid and unrecognized, and
second, that Wisconsin has failed to implement Crane by
requiring a finding that the nature and severity of a
particular diagnosis cause a “special and serious lack of
ability to control 

. The State
had claimed, in the district court, that Mr. McGee’s claims
were procedurally defaulted. The State now makes that
claim only with respect to the second element of
Mr. McGee’s due process challenge, that is, with respect
to the claim that Wisconsin procedures do not satisfy
18                                                 No. 07-3278

Crane.7 The State further argues that this second element
is not encompassed within the certificate of appealability
and was forfeited by Mr. McGee in the district court.
  If the State is correct that Mr. McGee did not present
his claims in state court, the consequence is significant.
Failure to present fairly claims through one complete
round of state court review works a procedural default,
barring a federal court from review of the substance of
a habeas petition, unless a petitioner can establish cause
and prejudice to excuse the default or can establish
that failure to consider his claims will result in a funda-
mental miscarriage of justice. See Johnson v. Hulett, 

, 431 (7th Cir. 2009).
  Upon review of the history of the proceedings, we
cannot agree with the State regarding the matters
properly before this court. We are mindful of our obliga-
tion to construe liberally the submissions of Mr. McGee
when he proceeded pro se. See Wyatt v. United States,

, 459 (7th Cir. 2009) (noting that it is appropri-
ate to construe district court habeas filings by pro se
petitioners liberally); Osagiede v. United States, 

,
405 (7th Cir. 2008) (construing liberally a request for a



7
  At oral argument, the attorney for the State told us that
while he did not “agree” with the district court regarding its
holding on default, it was not so far off the mark, in his view,
that the State would argue it was erroneous. The State’s argu-
ment, therefore, is that the district court’s ruling (and
Mr. McGee’s presentations in that court) only encompassed
the first element of the current challenge.
No. 07-3278                                                  19

certificate of appealability); Lewis v. Sternes, 

, 1027 (7th Cir. 2004) (noting that it was proper to
make a “generous interpretation” of a habeas petitioner’s
state court filings in considering default). Mr. McGee,
who has not completed high school, has navigated the
bulk of his commitment proceedings, his state collateral
review, and, until his arrival at this court, his federal
habeas proceeding without the assistance of counsel. The
singular prior stage at which he accepted the assistance
of counsel was his state direct appeal. Prior to counsel’s
appointment on direct appeal, Mr. McGee indicated an
intent to raise the very issues before us today. Counsel
chose not to pursue those issues, and, at his next opportu-
nity, Mr. McGee argued that counsel’s performance rose
to the level of ineffective assistance because of that
choice. While his claims were not presented artfully, the
“basic rationale” of Mr. McGee’s due process challenge
was “readily discernible” in the state courts and in the
district court. Perruquet v. Briley, 

, 512 (7th Cir.
2004).
  Mr. McGee never stated, as directly as he does in his
brief to this court, that as a consequence of Crane, the
Chapter 980 process was infirm for failing to require a
separate factual finding of a special and serious inability
to control behavior. Instead, Mr. McGee simply and
repeatedly stated that, with respect to his own diagnoses,
the State did not and could not demonstrate an inability
to control behavior. See, e.g., R.1, Attach. 3 at 2, 3 (Knight
petition); R.1, Attach. 1 at 1 (Petition for Review of
Knight petition). We also note that the district court’s
summation of the state court proceedings recognized that
20                                                  No. 07-3278

the due process issue presented challenges to the validity
of the diagnoses themselves and their sufficiency under
Crane’s impairment standard. See R.12 at 6-7 (characteriz-
ing the challenge in the state court as whether he was
diagnosed with “a ‘bogus disorder’ that . . . . by definition,
does not cause inability to control one’s behavior . . . . [such]
that his involuntary commitment . . . violated his Four-
teenth Amendment right to due process of law as set
forth by the United [States] Supreme Court in Kansas
v. Crane”).
  The district court was correct. The two arguments
Mr. McGee makes are part of the same basic due
process challenge, and both elements were part of his
submissions in both the state court in his Knight pro-
ceeding and the district court. See Sweeney v. Carter, 

, 333 (7th Cir. 2004) (noting that “a mere variation
in legal theory” does not work a procedural default
and that “a petitioner may reformulate her claims so
long as the substance of the claim remains the same”)
(internal quotation marks omitted); see also United States
ex rel. Nance v. Fairman, 

, 940 (7th Cir. 1983)
(drawing a distinction between the effect of a “mere
variation” in legal theory and a “different legal claim” for
procedural default purposes). If we were to find the
second element of his challenge lacking in any respect, it
would be that there is no direct reference to it in the
request for a certificate of appealability; but, as the State
acknowledges, this is not a fatal failing because our
court would be at liberty to consider his briefing of the
No. 07-3278                                                     21

issue as a request for expansion of the certificate.8
Because we perceive the second element to be part of the
same due process challenge, however, we see no need
to expand the certificate, which itself only purported to
distill Mr. McGee’s claim to its “essence,” not present it
in detailed particulars. R.34 at 1.
  The State’s reliance on the opinions of the district court
to justify limiting the issues presented in the case is
misplaced. The district court attempted to give fair treat-
ment to a muddled pro se pleading when it described,
at various times, the gist or essence of Mr. McGee’s sub-
missions. We do not take those distillations to be attempts
by the district court to narrow the issues before it rather
than simple attempts to understand the presentation
made to it. In any event, we are not limited to the
district court’s characterizations of the pleadings before
it in considering the issue of forfeiture, just as
the district court was not limited by the state court’s
characterizations of Mr. McGee’s submissions when it
considered the issue of default and concluded, contrary
to the Court of Appeals of Wisconsin, that the due
process challenge was fairly presented.
 Upon review of the state court record, we view
Mr. McGee’s challenge regarding the Crane lack of control



8
  Although the State has told us that it has not briefed the issue,
Appellee’s Br. 2-3, and will do so only upon further order of the
court, its brief actually does address this issue in substance.
See 

With the position of the State so before us,
we have determined that further briefing of this issue is unnec-
essary.
22                                                 No. 07-3278

requirement to be on the same basic footing as his chal-
lenge to the validity of the diagnoses themselves. The
operative facts and the guiding legal principles were
presented to the state court. See 

.9
The two issues, to the extent they are at all separable, are
inextricably linked.
 In sum, we conclude that Mr. McGee neither has proce-
durally defaulted nor forfeited his claims, and, therefore,
we shall proceed to consideration on the merits.


                              III
              CONTROLLING PRECEDENT
  We begin with an examination of the Supreme Court’s
guidance on civil commitment. When the Court has
examined the issue of civil commitment, it has
reaffirmed the principle that, when strict procedural
and substantive requirements are satisfied fully, commit-



9
  We acknowledge that the due process challenges were
presented to the state courts as embedded within claims of
ineffective assistance. We do not understand the State’s argu-
ment, however, to be that the claims are defaulted because
they were embedded. See Lewis v. Sternes, 

, 1026
(7th Cir. 2004). In any event, we have recognized that in
some circumstances, where ineffective assistance claims are
presented “as a means to reach” the embedded claims and
those claims are the real substance of a petitioner’s challenge,
we will consider them fairly presented. See Malone v. Walls,

, 755 (7th Cir. 2008).
No. 07-3278                                                  23

ment is a legitimate exercise of the authority of the state
and consistent with “our understanding of ordered lib-
erty.” Kansas v. Hendricks, 

, 357 (1997). When
the process is lacking in either substance or procedure,
however, the Court has not hesitated to reject a commit-
ment as violative of due process.


                              A.
  In Foucha v. Louisiana, 

(1992), the Court
examined the claim of a man who was detained indefi-
nitely after having been found not guilty by reason of
insanity. Specifically, a state statute provided for the
automatic commitment of an insanity acquittee in a
psychiatric hospital and permitted continued confinement
until the acquittee himself could prove that he was no
longer “dangerous,” whether or not he was then
mentally ill. 

  Foucha was found not guilty by reason of insanity on
charges of burglary and discharge of a firearm and was
committed to the custody of a psychiatric hospital. After
four years of confinement, facility officials recommended
Foucha for discharge. As required by statute, a hearing
was held on his eligibility for release. The trial court
appointed the experts who conducted his pretrial exam-
ination, and they concluded that Foucha was not then
mentally ill. At the hearing, one of the doctors testified
that, although Foucha was in “good shape” mentally, he
had an antisocial personality and had been involved in
altercations in the facility. 

As a result, the doctor
was not “comfortable in certifying” that Foucha was no
24                                              No. 07-3278

longer dangerous. 

court determined that
Foucha had not carried the burden of proving that he
was no longer dangerous and ordered his recommit-
ment. The Louisiana Supreme Court affirmed.
  Before the Supreme Court of the United States, con-
sistent with the testimony of its expert, Louisiana did not
contend that Foucha was “mentally ill” at the time that
he sought release, 

instead, it contended “that
because Foucha once committed 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 held indefinitely,” 

The Court disagreed:
     This rationale would permit the State to hold
     indefinitely any other insanity acquittee not men-
     tally ill who could be shown to have a per-
     sonality disorder that may lead to criminal con-
     duct. The same would be true of any convicted
     criminal, even though he has completed his prison
     term. It would also be only a step away from
     substituting confinements for dangerousness for
     our present system which, with only narrow
     exceptions and aside from permissible confine-
     ments for mental illness, incarcerates only those
     who are proved beyond reasonable doubt to have
     violated a criminal law.

The Court ruled that the basis for continued
detention of Foucha as an insanity acquittee had “disap-
peared,” 

and, therefore, his commitment no
longer satisfied the requirement of due process that “the
No. 07-3278                                                25

nature of commitment bear some reasonable relation to
the purpose for which the individual is committed,” 

see also 

(O’Connor, J., concurring) (“I think it
clear that acquittees could not be confined as mental
patients absent some medical justification for doing so;
in such a case the necessary connection between the
nature and purposes of confinement would be absent.”).
Accordingly, the Court ruled that Louisiana was not
entitled to continue to confine Foucha absent “constitu-
tionally adequate procedures to establish the grounds for
his confinement.” 

Because Louisiana had not
shown “by clear and convincing evidence that [Foucha
was] mentally ill and dangerous,” consistent with
existing precedent on civil commitment, his continued
confinement was held to be constitutionally infirm. 

                             B.
  Several years later, in Kansas v. Hendricks, 

(1997), the Court again examined the issue of civil con-
finement, this time in the context of sex offenders. Peti-
tioner Hendricks had a long history of serious sexual
abuse of children and had been diagnosed with pedophilia.
He admitted an uncontrollable urge to molest children.
He was committed pursuant to Kansas’s Sexually Violent
Predator Act, under which persons proven by clear and
convincing evidence to have a “mental abnormality” that
makes them “ ‘likely to engage in . . . predatory acts of
sexual violence’ ” were eligible for civil commitment. 

(quoting Kan. Stat. § 59-29a02(a)). On appeal, the
26                                              No. 07-3278

Kansas Supreme Court reversed, holding the Kansas
statute unconstitutional under Foucha. The term “mental
abnormality,” it ruled, did not meet the requirement of
establishing a “mental illness” sufficient to support
confinement. 

  The Supreme Court reversed. It concluded that sub-
stantive due process was satisfied by the statute’s re-
quirement of a “mental abnormality.” 

The
Court acknowledged, as it had in Foucha, that “freedom
from physical restraint has always been at the core of
the liberty protected by the Due Process Clause from
arbitrary governmental action.” 

(internal quota-
tion marks and citation omitted). That liberty interest, the
Court continued, “is not absolute,” 

in “certain
narrow circumstances” states have “provided for the
forcible civil detainment of people who are unable to
control their behavior and who thereby pose a danger to
the public health and safety,” 

The Court noted
that it has “consistently upheld such involuntary com-
mitment statutes provided the confinement takes place
pursuant to proper procedures and evidentiary stan-
dards.” 

generally do not pass constitu-
tional muster premised on a “finding of dangerousness,
standing alone,” but have been deemed constitutionally
adequate when they have “coupled proof of dangerous-
ness with the proof of some additional factor, such as a
‘mental illness’ or ‘mental abnormality.’ ” 

This additional factor, the Court held, “serve[s] to limit
involuntary civil confinement to those who suffer from
a volitional impairment rendering them dangerous
beyond their control.” 

                                                27

   The Court was careful to note that the term “mental
illness,” used in Foucha to identify the required “additional
factor,” was “devoid of any talismanic significance.” 

Not only had the Court itself referred to this
additional factor under many different names, but,
perhaps more importantly, “ ‘psychiatrists disagree
widely and frequently on what constitutes mental ill-
ness.’ ” 

v. Oklahoma, 

, 81 (1985)).
The Court continued:
    [W]e have never required state legislatures to
    adopt any particular nomenclature in drafting
    civil commitment statutes. Rather, we have tradi-
    tionally left to legislators the task of defining
    terms of a medical nature that have legal signifi-
    cance. Cf. Jones v. United States, 

, 365,
    n. 13 (1983). As a consequence, the States have,
    over the years, developed numerous specialized
    terms to define mental health concepts. Often,
    those definitions do not fit precisely with the
    definitions employed by the medical commu-
    nity. . . . Legal definitions . . . which must “take
    into account such issues as individual responsibil-
    ity . . . and competency,” need not mirror those
    advanced by the medical profession. American
    Psychiatric Association, Diagnostic and Statistical
    Manual of Mental Disorders xxiii, xxvii (4th ed.
    1994).

quotation in original). In Hendricks’s
case, he had been diagnosed with a condition that “the
psychiatric profession itself classifies as a serious mental
28                                              No. 07-3278

disorder.” 

His diagnosis, together with his
admitted lack of volitional control and the predictions
relating to his future dangerousness, “adequately
distinguishe[d] Hendricks from other dangerous persons
who are perhaps more properly dealt with exclusively
through criminal proceedings.” 

The Court,
therefore, upheld Hendricks’s commitment and the
Kansas statute’s structure as consistent with due process.
   Concurring in the judgment, Justice Kennedy agreed
that the Kansas statute “is within [the] pattern and tradi-
tion of civil confinement.” 

(Kennedy, J., concur-
ring). He specifically noted that the condition at issue,
pedophilia, “is at least described in the DSM[].” 

fully joining in the Court’s opinion, he con-
cluded: “If, however, civil confinement were to become
a mechanism for retribution or general deterrence, or if
it were shown that mental abnormality is too imprecise
a category to offer a solid basis for concluding that
civil detention is justified, our precedents would not
suffice to validate it.” 

  Justice Breyer, writing in dissent, agreed with the major-
ity’s conclusion that Hendricks’s commitment did not
violate due process. He first noted, in agreement with
the majority, that “the Constitution gives States a degree
of leeway” in establishing the necessary criteria for com-
mitment. 

(Breyer, J., dissenting).
Like Justice Kennedy, Justice Breyer also noted that
Hendricks’s disorder was a recognized disorder by the
psychiatric community, listed in the DSM. Justice Breyer
continued:
No. 07-3278                                               29

    I concede that professionals also debate whether
    or not this disorder should be called a mental
    “illness.” But the very presence and vigor of this
    debate is important. The Constitution permits a
    State to follow one reasonable professional view,
    while rejecting another. The psychiatric debate,
    therefore, helps to inform the law by setting the
    bounds of what is reasonable, but it cannot here
    decide just how States must write their laws
    within those bounds.

omitted). Moreover, the effect of
the disorder on Hendricks himself did “not consist
simply of a long course of antisocial behavior, but rather
it includes a specific, serious, and highly unusual
inability to control his actions.” 

result of
his inability to control his urges posed a very serious
danger to children. Under these circumstances, Justice
Breyer, while dissenting on the ground that Kansas had
violated the Ex Post Facto Clause, concluded that
Kansas had acted permissibly in classifying Hendricks
as mentally ill and dangerous as those terms had been
used in Foucha.


                             C.
  Five years later, in Kansas v. Crane, 

(2002),
the Court again took up a due process challenge to civil
commitment. Crane was a convicted sex offender diag-
nosed with exhibitionism and antisocial personality
disorder. He was ordered committed under the same
Kansas statute at issue in Hendricks. After Hendricks, the
30                                               No. 07-3278

Kansas Supreme Court interpreted due process to
require a finding of a complete lack of volitional control
to support civil commitment and ruled Crane’s civil
commitment unconstitutional. The State of Kansas
sought review, and the Supreme Court vacated the judg-
ment.
  The Supreme Court held that Hendricks did not require
a determination that the committed individual had a
complete lack of control. Instead, the Court clarified,
“Hendricks underscored the constitutional importance
of distinguishing a dangerous sexual offender subject to
civil commitment from other dangerous persons who
are perhaps more properly dealt with exclusively
through criminal proceedings.” 

(internal quota-
tion marks and citations omitted). That distinction was
made in Hendricks in part by the “presence of what the
psychiatric profession itself classifie[d] . . . as a serious
mental disorder.” 

marks omitted)
(modification in original). The Court further noted that
a “critical distinguishing feature” of the serious disorder
in Hendricks was “a special and serious lack of ability to
control behavior.” 

-13. What due process
requires in this context, the Court determined, is
     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 diagno-
     sis, and the severity of the mental abnormality
     itself, must be sufficient to distinguish the danger-
     ous sexual offender whose serious mental illness,
     abnormality, or disorder subjects him to civil
No. 07-3278                                             31

   commitment from the dangerous but typical
   recidivist convicted in an ordinary criminal case.

The Court acknowledged the imprecision in its
definition but noted that “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.” 

be so, the Court reasoned,
to respect the “considerable leeway” of states in defining
the conditions that make individuals eligible for commit-
ment. 

science of psychiatry, which
informs but does not control ultimate legal determina-
tions, is an ever-advancing science, whose distinctions
do not seek precisely to mirror those of the law.” 

additional section of its opinion, the Court noted
that, although volitional impairment had been at the
center of its analysis in Hendricks, which dealt with an
individual suffering from pedophilia, the Court had
not drawn “a clear distinction between the purely ‘emo-
tional’ sexually related mental abnormality and the ‘voli-
tional.’ ” 

“Nor,” the Court continued, “when
considering civil commitment, have we ordinarily distin-
guished for constitutional purposes among volitional,
emotional, and cognitive impairments. The Court in
Hendricks had no occasion to consider whether confine-
ment based solely on ‘emotional’ abnormality would be
constitutional, and we likewise have no occasion to do
so in the present case.” 

omitted).
  In dissent, Justice Scalia contended that the majority
had “gutt[ed]” Hendricks, and had introduced significant
uncertainties in precisely how state courts could conduct
32                                               No. 07-3278

commitment proceedings; requiring commitment to be
supported by some degree of inability to control
behavior “displays an elegant subtlety of mind,” but, he
noted, does little to instruct trial courts conducting com-
mitment proceedings. 

423 (Scalia, J., dissenting).
  Against this backdrop, we now turn to an analysis of
the case before us.


                             IV
                        ANALYSIS
                             A.
  As in all habeas corpus proceedings under 28 U.S.C.
§ 2254, the successful petitioner must demonstrate that
he “is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a).
For claims actually “adjudicated on the merits in State
court proceedings,” the statute commands that we under-
take a limited review. 

We evaluate the
record to discern only whether the state court’s adjudica-
tion of the claim (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” 

or (2) “was based on an unrea-
sonable determination of the facts in light of the
evidence presented,” 

  These narrow and deferential standards of review
do not apply, however, where the relevant state courts
did not adjudicate the claims presented on a federal
No. 07-3278                                             33

habeas petition. Cheeks v. Gaetz, 

, 684-85
(7th Cir. 2009). In such cases, we apply the general stan-
dard of review contained in 28 U.S.C. § 2243, which
directs that we “dispose of the matter as law and justice
require.” Id.10


                            B.
  We first address Mr. McGee’s challenges to the Wis-
consin civil commitment procedures. He claims that the
procedures fail to ensure, in the language of Crane, that
commitment be ordered only upon some “proof of serious
difficulty in controlling 

. In
Mr. McGee’s view, this language necessarily requires, in
each case, an explicit finding of some inability to control
behavior. Because his committing court made no
such finding, Mr. McGee contends that his commitment
violates the due process standards set forth in Crane.
We considered and rejected a similar challenge to Wis-
consin procedures in Laxton v. Bartow, 

(7th
Cir. 2005), but the posture of that case called for highly
deferential review under 28 U.S.C. § 2254(d). In Laxton’s
direct challenge to his commitment, the state court had
determined that its statute satisfied Crane in the absence
of a specific finding. On habeas review, we found that
interpretation of Crane not unreasonable. 

We now take up the same question here, when our
review, for reasons explained above, is de novo.


10
  We have equated this standard with de novo review.
See Carlson v. Jess, 

, 1024 (7th Cir. 2008).
34                                                     No. 07-3278

  We begin with the guidance provided by the Supreme
Court cases we have discussed. In Crane, the Court held
that the Constitution would not permit civil confine-
ment ordered “without any lack-of-control determina-

(emphasis in original). Such a deter-
mination was necessary, the Court continued, to “distin-
guish[] a dangerous sexual offender subject to civil com-
mitment from other dangerous persons who are
perhaps more properly dealt with exclusively through
criminal proceedings.” 

marks
omitted). To satisfy this purpose, the Constitution
requires “proof of serious difficulty in controlling be-
havior,” which, admittedly, “will not be demonstrable
with mathematical precision.” 

This proof, when
viewed in light of the nature and severity of the
diagnosis at issue, the Court reiterated, limits civil com-
mitment to the subset of offenders whose “illness, abnor-
mality, or disorder,” renders them dangerous and
thus forms a constitutional basis for indefinite state
custody. 

have noted earlier, the explicitness
of this guidance, or at least the universality of its applica-
tion, was placed in question by the ensuing section of
the Court’s opinion that noted that the Court has not
drawn a distinction between volitional, emotional and
cognitive impairments.1 1


11
   Writing in dissent, Justice Scalia contended that the majority
had misread Kansas v. Hendricks, 

(1997), to “estab-
lish[] the requirement of a finding of inability to control behav-
ior.” Kansas v. Crane, 

, 419 (2002) (Scalia, J., dissent-
                                                     (continued...)
No. 07-3278                                                      35

  State and federal courts have been non-uniform in
their interpretation of Crane with respect to the issue
of whether a separate finding is required. The majority
of jurisdictions to have considered whether Crane
imposed a new requirement of a separate finding of
serious difficulty to control behavior have con-
cluded that it does not. See Richard S. v. Carpinello, 

, 83-84 (2d Cir. 2009) (collecting cases accepting
both positions and adopting the majority view).
  This case does not require that we answer these broad
questions. Mr. McGee contends only that the com-
mitting court failed to make a necessary determination
about his inability to control his behavior; he does not
contend that the State impermissibly relied solely upon
an “emotional impairment.” Moreover, although the
committing court did not make a specific finding about
his inability to control his behavior, we believe that such
a finding was implicit in the findings that the com-
mitting court did make under the specific provisions of
the Wisconsin statute.


11
  (...continued)
ing) (emphasis in original). In the view of the dissenting Justices,
Hendricks had ruled that the Kansas statute’s “causal connection
between the likelihood of repeat acts of sexual violence and the
existence of a ‘mental abnormality’ or ‘personality disorder’
necessarily establishes ‘difficulty if not impossibility’ in con-
trolling behavior.” 

original). That is, the
Kansas statute at issue in Hendricks and again in Crane passed
constitutional muster because an inability to control behavior
is implicit in a scheme that requires a nexus between a
disorder and the likelihood of recidivism.
36                                               No. 07-3278

  The Wisconsin statute applies only to sexually violent
persons. In the Wisconsin scheme, a “sexually violent
person” eligible for commitment 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 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 likely that the person will engage in one or
     more acts of sexual violence.
Wis. Stat. § 980.01(7) (emphasis added). The term “mental
disorder” is further defined as “a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual vio-
lence.” 

(emphasis added). Unlike the
Kansas statute at issue in Hendricks and Crane, personality
disorders are not listed as a separate and independent
statutory basis upon which commitment could be based;
Wisconsin instead has interpreted the term “mental
disorder” to encompass personality disorders. See In re
Commitment of Adams, 

, 340 (Wis. Ct. App.
1998).
  The requirement of some inability to control behavior,
which the Crane dissenters contended was implicit in
the Kansas scheme, has been made an explicit element of
eligibility for civil confinement in Wisconsin. The Wis-
consin statute expressly requires that, in order to
No. 07-3278                                                37

satisfy the legal definition of a “mental disorder,” the
committed person must suffer from an emotional or
volitional impairment. Wis. Stat. § 980.01(2). Moreover,
the Supreme Court of Wisconsin has interpreted this
statute to require a connection between the person’s
mental condition and the individual’s dangerousness.
See In re Commitment of John Laxton, 

, 792-
93 (Wis. 2002) (referencing the definition of a SVP in
§ 

). A person can be adjudicated a
sexually violent person only if the person is dangerous
because he suffers from a mental disorder that makes it
substantially probable that the person will engage in acts
of sexual violence. The requirement of a connection
between the mental disorder in the functioning of the
person’s emotional or volitional capacity and his
likelihood of engaging in sexual violence “necessarily
and implicitly requires proof that the person’s mental
disorder involves serious difficulty for such person in
controlling his or her behavior.” 

When a
Wisconsin court makes a finding that an individual has
a “mental disorder” within the meaning of the statute,
that court has necessarily found that emotional or voli-
tional capacity is impaired. See Wis. Stat. § 980.01(2). Thus,
the critical element identified as lacking in Crane, “proof
of serious difficulty in controlling 

, is an existing requirement under Wisconsin law.
38                                                   No. 07-3278

                                C.
  As we have noted, Mr. McGee was diagnosed with
two conditions that were offered to establish the
requisite “mental disorder” that made him substantially
probable to commit future acts of sexual violence. See
Wis. Stat. § 980.01. Dr. Roberts diagnosed him with a
personality disorder NOS with antisocial features;
Dr. Marsh agreed with that diagnosis and further diag-
nosed him with paraphilia NOS-nonconsent.
  Mr. McGee asks us to hold that neither diagnosis
suffices for due process purposes. First, he contends that
both are “invalid and unreliable ‘disorders.’ ” Appellant’s
Br. 10. Specifically, Mr. McGee notes that, while both
diagnoses were purportedly arrived at after con-
sideration of the diagnostic criteria in the DSM, neither
is a listed and defined disorder. Instead, both diagnoses
derive from catchall “not otherwise specified” categories
of disorders.12 As a result, the specific diagnoses at
issue lack generally accepted, standardized diagnostic
criteria. Moreover, Mr. McGee contends that the failure
of the APA to include the disorders within the DSM


12
   The DSM identifies broad classes of disorders (e.g., “Anxiety
Disorders”) and lists within each class specific, related disorders
(Panic Disorder, Social Phobia, Obsessive-Compulsive
Disorder, etc.), each of which are discussed in some detail and
guidelines for the diagnosis of which are provided. Each class
of disorder also includes at least one “not otherwise speci-
fied” category, for which brief, non-exhaustive examples, but
no specific diagnostic criteria, are provided.
No. 07-3278                                                 39

demonstrates that the consensus view in the profession
does not find the disorders valid or reliable. Mr. McGee
also claims that, even if the use of “not otherwise speci-
fied” categories is not categorically infirm, additional
problems with his diagnoses have resulted in a denial of
due process. He claims that he cannot be diagnosed
legitimately with any personality disorder because all
personality disorders require, as a diagnostic criterion,
presentation in adolescence; the diagnosing professionals
acknowledged at trial that no adolescent presentation
had been documented in his case. Finally, he claims
that the diagnosis of paraphilia NOS (nonconsent or
rape) represents an extreme minority viewpoint in the
profession that has been explicitly and publicly rejected
by the APA in crafting the DSM.


                              1.
  Because Mr. McGee’s contentions rely heavily upon the
DSM, we begin with some observations about the text.
According to the editors, the “highest priority” of the text
is “to provide a helpful guide to clinical practice.” DSM,
xxiii. The editors refer to it as “[a]n official nomenclature,”
and, as such, make clear that it “must be applicable in a
wide variety of contexts” including environments for
clinicians and researchers, as well as health and mental
health professionals. 

to fields outside
of these medical and psychological settings, the text
includes a “Cautionary Statement,” which provides:
      The specified diagnostic criteria for each mental
    disorder are offered as guidelines for making
40                                                    No. 07-3278

     diagnoses, because it has been demonstrated that
     the use of such criteria enhances agreement
     among clinicians and investigators. The proper
     use of these criteria requires specialized clinical
     training that provides both a body of knowledge
     and clinical skills.
        These diagnostic criteria and the DSM-IV Classi-
     fication of mental disorders reflect a consensus of
     current formulations of evolving knowledge in our
     field. They do not encompass, however, all the condi-
     tions for which people may be treated or that may be
     appropriate topics for research efforts.
        The purpose of DSM-IV is to provide clear
     descriptions of diagnostic categories in order to
     enable clinicians and investigators to diagnose,
     communicate about, study, and treat people with
     various mental disorders. It is to be understood that
     inclusion here, for clinical and research purposes, of a
     diagnostic category such as Pathological Gambling
     or Pedophilia does not imply that the condition meets
     legal or other non-medical criteria for what constitutes
     mental disease, mental disorder, or mental disability.
     The clinical and scientific considerations involved in
     categorization of these conditions may not be wholly
     relevant to legal judgments, for example, that take into
     account such issues as individual responsibility, disabil-
     ity determination, and competency.
DSM, xxxvii (emphasis added).
  With respect to the circumstances of forensic evaluations,
the DSM includes a specific response. The editors note
No. 07-3278                                               41

the “imperfect fit between the questions of ultimate
concern to the law and the information contained in a
clinical diagnosis” and the resultant “risks and limita-
tions.” 

The text explicitly mentions that a
DSM-based diagnosis “does not carry any necessary
implications regarding the individual’s degree of control
over [his] behavior[] . . . . Even when diminished control
over one’s behavior is a feature of the disorder,
having the diagnosis in itself does not demonstrate that
a particular individual is (or was) unable to control his
or her behavior at a particular time.” Id.; see also Barefoot
v. Estelle, 

, 920 (1983) (Blackmun, J., dissent-
ing) (quoting the Brief for the American Psychiatric
Association as Amicus Curiae for the proposition that
“[t]he unreliability of psychiatric predictions of long-term
future dangerousness is by now an established fact
within the profession”). Clearly, however, the APA is
aware that its text is used for forensic purposes, even
though standardization in that context was not a goal of
the APA in drafting the DSM. The text notes the value of
“the use of an established system of diagnosis,” as is
provided in the DSM, to “enhance[] the value and reliabil-
ity” of legal determinations, including those relevant to
involuntary civil commitment. DSM, xxxiii.
  Despite its limitations in a non-medical setting, the
DSM is a highly influential and useful tool. The Supreme
Court has cited the DSM authoritatively, most notably in

, 414; see also 

(Kennedy, J., concurring) (noting with approval that
the disorder which formed the basis of the commitment
proceedings was “at least described in the DSM[]”). Many
42                                                   No. 07-3278

mental health professionals have advocated that a valid,
DSM-recognized diagnosis be a necessary, but not suffi-
cient, condition for involuntary civil commitment.1 3
  Whether a legitimate mental health diagnosis must be
based on the DSM is a question for the members of the
mental health profession, and, therefore, one to which we
do not address ourselves. Our concern is with the due
process requirements for the relevancy and legitimacy
of evidence adduced in civil commitment proceedings. In
that narrow legal context, we cannot adopt any rule
that asks the DSM to do what the text itself professes
that it was not intended to do: answer ultimate legal
questions or create a perfect fit between law and medicine
in the realm of involuntary civil commitment.



13
   See, e.g., John Matthew Fabian, To Catch a Predator, And Then
Commit Him for Life, 33 Champion 44, 49 (Feb. 2009) (noting that
it “is critical . . . that psychiatric and psychological clinicians
who testify in good faith as to mental abnormality are able to
identify psychiatric disorders that are defined in the DSM[]”);
Robert A. Prentky et al., Sexually Violent Predators in the Court-
room: Science on Trial, 12 Psychol. Pub. Pol’y & L. 357, 364 (2006)
(“The classification of a syndrome as a mental disorder in the
DSM[] must be regarded as the primary standard for medical
validity in the SVP context.”); Brett Trowbridge & Jay Adams,
Sexually Violent Predator Assessment Issues, 26 Am. J. Forensic
Psychol. 29, 37 (2008) (“Although a diagnosis of a DSM[] mental
disorder is not sufficient in and of itself to meet [the civil
commitment] standard, it nevertheless permits the evaluator
to utilize accepted diagnostic categories and thus go beyond
mere opinion or speculation.”).
No. 07-3278                                                  43

  Not only has the Supreme Court cautioned that bright-
line rules are often an ill-fit for this context, see 

, it has spoken directly to the issue of medical
evidence in commitment proceedings: “[T]he science of
psychiatry, which informs but does not control ultimate
legal determinations, is an ever-advancing science,
whose distinctions do not seek precisely to mirror those
of the law.” Id.; see also 

(“Legal
definitions . . . need not mirror those advanced by the
medical profession.”). Having made clear in Foucha
that dangerousness without proof of some underlying
mental condition is not sufficient to sustain an involun-
tary commitment, the Court’s more recent statements
have reflected the need to provide states with “leeway”
in crafting legal standards reflecting the available sci-
ence. 

; 

(Breyer, J., dissenting).
   The Supreme Court’s cases on this point teach that
civil commitment upon a finding of a “mental disorder”
does not violate due process even though the predicate
diagnosis is not found within the four corners of the
DSM. A factfinder may have stronger confidence
in his conclusions when the examining mental health
professionals rely upon authoritative, consensus materials
in the field. See 

(noting that, in
Hendricks, the committed person was distinguished from
other dangerous persons not subject to commitment, in
part by the “presence of what the psychiatric profession
itself classifie[d] . . . as a serious mental disorder” (modifi-
cation in original) (internal quotation marks omitted));

(Kennedy, J., concurring)
44                                              No. 07-3278

(finding support for the conclusion that the commit-
ment was lawful in the fact that the diagnosis at issue “is
at least described in the DSM[]”). Indeed, reliance on
such a respected source permits reliability that should
not be minimized when so grave a restriction of
individual liberty is at issue. Likewise, when a particular
diagnosis is not accepted or is explicitly rejected by the
DSM or other authoritative sources, that factor is a
highly relevant consideration for the factfinder. In
either situation, however, the factfinder has the ultimate
responsibility to assess how probative a particular diagno-
sis is on the legal question of the existence of a “mental
disorder”; the status of the diagnosis among mental
health professionals is only a step on the way to that
ultimate legal determination. The methodology and the
outcome of any mental health evaluation offered as
evidence is a proper subject for cross-examination, and
we would expect that, in the ordinary case, such efforts
would expose the strengths and weaknesses of the profes-
sional medical opinions offered.
   No doubt, a medical diagnosis can be based on so
little evidence that bears on the controlling legal criteria
that any reliance upon it would be a violation of due
process. See 

(Kennedy, J., concur-
ring) (noting that a constitutional violation may be
found “if it were shown that mental abnormality is too
imprecise a category”). Therefore, a particular diagnosis
may be so devoid of content, or so near-universal in its
rejection by mental health professionals, that a court’s
reliance on it to satisfy the “mental disorder” prong of
the statutory requirements for commitment would
No. 07-3278                                                45

violate due process. Whether that point was reached in
this case is the question to which we now turn.


                              2.
  Both diagnoses at issue are based purportedly on “not
otherwise specified,” or NOS, diagnoses within the
general classes of personality disorders and paraphilias.
Perhaps in anticipation of criticism that these categories are
too amorphous to provide the kind of standardized,
clinical guidance found elsewhere in the text, the DSM
provides an explicit explanation of its use of NOS diagno-
ses. It begins by noting that “the diversity of clinical
presentations” makes it “impossible for the diagnostic
nomenclature to cover every possible situation.” DSM, 4.
The introductory note then identifies four specific situa-
tions in which an NOS diagnosis may be appropriate.
They include situations in which, although the presenta-
tion reflects the general guidelines for a diagnostic class,
“the symptomatic picture does not meet the criteria for
any of the specific disorders. This situation would occur
either when the symptoms are below the diagnostic threshold
for one of the specific disorders or when there is an atypi-
cal or mixed presentation.” 

In
addition, where a “symptom pattern” is not consistent
with a specific DSM classification, but “clinically causes
significant distress or impairment,” an NOS diagnosis
likewise would be appropriate. 

is generally critical of the use of NOS cate-
gories because, in the view of some professionals, they
are “ ‘less of a real diagnostic category than a receptacle
46                                              No. 07-3278

for miscellaneous symptoms.’ ” Appellant’s Br. 11
(quoting Thomas K. Zander, Civil Commitment Without
Psychosis: The Law’s Reliance on the Weakest Links in
Psychodiagnosis, 1 J. Sex. Offender Civ. Commitment 17, 67
(2005)); see also Brett Trowbridge & Jay Adams, Sexually
Violent Predator Assessment Issues, 26 Am. J. Forensic Psych.
29, 42 (2008) (“[T]he NOS categories are not diagnostic
categories at all but merely catch-all categories for symp-
toms not listed elsewhere.”). He also makes more
specific objections. First, he contends that the state court
erroneously accepted a diagnosis of personality disorder
NOS with antisocial features, as based in the DSM, even
though Mr. McGee did not meet the diagnostic criteria
for any personality disorder or meet the DSM’s
more specific guidelines for a personality disorder NOS
diagnosis. Second, he contends that his diagnosis for
paraphilia NOS (nonconsent or rape) has been rejected
explicitly by the profession and is only accepted by an
extreme minority primarily composed of state-em-
ployed professionals charged with civil commitment
evaluations. We shall address the due process chal-
lenges raised in each of these objections.


                             a.
  With regard to his personality disorder diagnosis, Mr.
McGee makes specific, textual arguments based on
the DSM. We therefore begin with a brief explanation of
the structure of the text. With each class of disorder, the
DSM provides general diagnostic criteria that apply to
all of the listed disorders within the class. In the case
No. 07-3278                                                  47

of personality disorders, that list includes six criteria, the
first of which states that the affected individual exhibits
“[a]n enduring pattern of inner experience and behavior
that deviates markedly from the expectations of the indi-
vidual’s culture.” DSM, 689. Another criterion states
that this pattern “is stable and of long duration, and its
onset can be traced back at least to adolescence or early adult-
hood.” 

After these general guidelines
are set forth, the text examines a number of specific
disorders within the class. In the discussion of Antisocial
Personality Disorder, or APD, (with which Mr. McGee
was not diagnosed, but which bears the closest relation-
ship to his diagnosis of personality disorder NOS
with antisocial features), the first listed diagnostic
criterion is “a pervasive pattern of disregard for and
violation of the rights of others occurring since age 15
years.” 

  In testimony at trial, the experts conceded that there
was no evidence demonstrating the onset of an antisocial
personality in Mr. McGee’s adolescence. R.16, Ex. 83 at 120-
21 (Dr. Roberts); 

at 35 (Dr. Marsh). It was for
that specific reason, according to one expert, that
Mr. McGee was given an NOS diagnosis with antisocial
features, rather than a diagnosis for the specific disorder
of APD. Mr. McGee objects that this approach was clini-
cally invalid because it failed to take account of the
general diagnostic criteria in the personality disorder
class, which also require onset in adolescence. Thus, his
argument goes, the expert testimony, while cloaked in
the authority of the DSM, was, in fact, invalid.
48                                                    No. 07-3278

  Mr. McGee essentially has asked us to rule that, in order
for a diagnosis to be considered as evidence of a mental
disorder, mental health professionals applying the
DSM must do more than the text itself requires. The
introductory materials to the DSM emphasize that:
     [t]he specific diagnostic criteria included in [the]
     DSM[] are meant to serve as guidelines to be
     informed by clinical judgment and are not meant to be
     used in a cookbook fashion. For example, the exercise
     of clinical judgment may justify giving a certain
     diagnosis to an individual even though the clinical
     presentation falls just short of meeting the full criteria
     for the diagnosis as long as the symptoms that are
     present are persistent and severe.
DSM, xxxii (emphasis added). The DSM itself thus explic-
itly contemplates that trained professionals will apply it
with informed clinical judgment to reach a conclusion; it
cautions that it should “not be applied mechanically
by untrained individuals.” 

however, our task is decidedly
different from the professionals who evaluated
Mr. McGee, reached a diagnosis and testified at his trial.
We must inquire only whether the diagnosis was so
patently lacking in credibility and validity that its con-
sideration by the factfinder in the Wisconsin courts re-
sulted in a denial of constitutional rights. Although we
acknowledge the variance between some of the clini-
cians’ factual statements and the specific criteria
in the DSM, we do not think, given the role assigned to
NOS diagnoses in the mental health profession, that the
No. 07-3278                                              49

state court was precluded from considering the per-
sonality disorder NOS diagnosis in making its decision
that Mr. McGee suffered from a mental disorder that
impaired his volitional capacity. The Supreme Court has
made it clear that the states have great flexibility in
the crafting of a definition of mental impairment.
The Wisconsin definition is clearly designed to identify
individuals who, unlike the typical recidivist, are unable
to exert full volitional control over their violent sexual
impulses. The NOS criteria, although not as specific
as the delineated categories of established psychiatric
diagnosis, can be useful tools, when employed with
prudence and caution, in making the legal determination
as to whether an individual falls within the ambit of the
statute.


                             b.
  The diagnosis for paraphilia NOS (nonconsent or
rape), reached only by one of the two clinicians, presents
a more complicated picture. Even its most ardent advo-
cates acknowledge that the diagnosis is “probably . . . the
most controversial among the commonly diagnosed
conditions within the sex offender civil commitment
realm.” Dennis M. Doren, Evaluating Sex Offenders: A
Manual for Civil Commitments and Beyond 63 (2002). The
general class of disorders termed “paraphilias” refers
to conditions involving “recurrent, intense sexually
arousing fantasies, sexual urges, or behaviors generally in-
volving 1) nonhuman objects, 2) the suffering or humilia-
tion of oneself or one’s partner, or 3) children or other
50                                                 No. 07-3278

nonconsenting persons that occur over a period of at least
6 months.” DSM, 566 (emphasis added). Listed
paraphilias include exhibitionism, fetishism, frotteurism,
pedophilia, sexual masochism, sexual sadism, transvestic
fetishism and voyeurism. 

In addition, the
DSM includes a category of Paraphilia Not Otherwise
Specified, which is explained as the appropriate
diagnosis “for Paraphilias that do not meet the criteria
for any of the specific categories.” 

The DSM
contains a non-exhaustive list of examples: “telephone
scatologia (obscene phone calls), necrophilia (corpses),
partialism (exclusive focus on part of body), zoophilia
(animals), coprophilia (feces), klismaphilia (enemas), and
urophilia (urine).” 

Although the description
of sexual sadism includes a reference to rape as a
potential subject of fantasies or behaviors associated
with the disorder, rape is only consistent with a sadism
diagnosis when “it is the suffering of the victim that is
sexually arousing” to the person with the disorder. 

this reference (and a companion reference in
the description of sexual masochism), rape is not other-
wise included in the described Paraphilias or in the
exemplary list of NOS Paraphilias.
  In preparation for the DSM-III revision, a rape-related
paraphilia (“paraphilic rapism”) was considered for
inclusion. 

. It was suggested as a
distinct diagnosis because, for an afflicted individual, it
is “the coercive nature of the sexual act that is sexually
exciting, and not signs of . . . suffering of the victim,” as is
the case in sadism. 

(citing DSM revision Work
Group documents). Significant opposition from interest
No. 07-3278                                                       51

groups surrounded the suggestion, and the diagnosis
ultimately was rejected for inclusion in the main text of
the DSM in 1986. 

conclusion of the main text,
the DSM sets forth a list of “Other Conditions that May Be
a Focus of Clinical Attention,” although they are not
considered “mental disorders” sufficient to merit inclusion
in the main text. DSM, 731. Within this listing appears a
category called “Sexual Abuse of Adult,” which, according
to the text, “should be used when the focus of clinical
attention is sexual abuse of an adult (e.g., sexual coercion,
rape).” 

  Mr. McGee contends that this rejection by the DSM
demonstrates the consensus professional view that a
paraphilia NOS (nonconsent or rape) diagnosis is in-
valid. His contention is not without support in the profes-
sional literature.14 A frequently cited difficulty in accepting
a rape-related paraphilia diagnosis is that the lack of



14
   See Thomas K. Zander, Civil Commitment Without Psychosis:
The Law’s Reliance on the Weakest Links in Psychodiagnosis, 1 J. Sex.
Offender Civ. Commitment 17, 41-47 (2005); Holly Miller et al.,
Sexually Violent Predator Evaluations: Empirical Evidence,
Strategies for Professionals, and Research Directions, 29 L. & Hum.
Behavior 29, 39 (2005) (“Numerous evaluators have utilized
the diagnosis ‘paraphilia not otherwise specified’ to apply to
rapists. However, the definition of this appellation is so amor-
phous that no research has ever been conducted to establish
its validity (in fact the word rape is not even mentioned in
the Paraphilia NOS diagnostic description).”); Prentky et al.,
supra note 13, at 367 (noting the possibility that the category
is “a wastebasket for sex offenders,” and thus, “taxonomically
useless”).
52                                                    No. 07-3278

generally accepted standards results in poor diagnostic
reliability; that is, different evaluators may be likely to
reach different conclusions with respect to the same
individual at unacceptably high rates. See, e.g., Trowbridge
& 

(“NOS diagnoses have the worst
levels of inter-rater reliability. . . . [T]he diagnosis of
paraphilia NOS had an inter-rater reliability so low . . . that
it fell well into the poor category.”). The converse view,
and the one adopted by one of clinicians in Mr. McGee’s
proceedings and accepted by the committing court, also
has support in the literature.1 5
   Given these admittedly conflicting professional views,
we must conclude, on the basis of present Supreme Court
precedent, that the diagnosis of a paraphilic disorder
related to rape is not so unsupported by science that
it should be excluded absolutely from consideration by
the trier of fact. We reach this conclusion primarily
because of the Supreme Court’s repeated statements that
states must have appropriate room to make practical,
common-sense judgments about the evidence presented


15
  See, e.g., Dennis M. Doren, Evaluating Sex Offenders: A
Manual for Civil Commitments and Beyond 63 (2002); Gregory
DeClue, Paraphilia NOS (Nonconsenting) and Antisocial
Personality Disorder, 34 J. Psychiatry & L. 495, 511-12 (2006); Jack
Vognsen & Amy Phenix, Antisocial Personality Disorder is Not
Enough: A Reply to Sreenivasan, Weinberger, and Garrick, 32 J.
Am. Acad. Psychiatry & L. 440, 442 (2004) (contending that
forensic experts “must diagnose paraphilia” when an
individual suffers more than a personality disorder because
of a sexual deviance involving rape).
No. 07-3278                                                           53

in commitment proceedings. As Justice Breyer wrote in
considering the diagnosis of pedophilia in Hendricks, the
“presence and vigor” of professional debate on the
subject of whether a particular condition qualifies as an
illness is important, because “[t]he Constitution permits
a State to follow one reasonable professional view, while
rejecting 

(Breyer, J., dissenting).
“The psychiatric debate, therefore, helps to inform the
law by setting the bounds of what is reasonable, but it
cannot here decide just how States must write their laws
within those bounds.” Id.1 6 We are mindful of Justice
Kennedy’s admonition that if a state’s mental health
predicate for civil commitment becomes “too imprecise


16
   The State of Wisconsin is not alone, among jurisdictions
providing for civil commitment, in concluding that a paraphilic
rape disorder can be the predicate diagnosis, or one piece of
predicate diagnoses. See, e.g., Brock v. Seling, 

, 1091
(9th Cir. 2004) (per curiam) (denying habeas relief); In re
Detention of Moore, 

, 1019 (Wash. 2009) (en banc);
In re Care and Treatment of Colt, 

, 804 (Kan. 2009); In
re Civil Commitment of W.X.C., 

, 466, 467 (N.J. Super.
Ct. App. Div. 2009), certification granted, 

(N.J. 2009);
In re A.M., 

, 441 (N.D. 2009); In re Detention of
Hardin, 

, 917, 922 (Ill. App. Ct. 2009) (reversing
the trial court’s determination that a petition for commitment
based in part on a diagnosis of paraphilia NOS-nonconsent did
not demonstrate probable cause), appeal allowed, ___ N.E.2d ___,

(Ill. Sept. 30, 2009); In re R.Y., Jr., 

, 782,
786 (Pa. Super. Ct. 2008); Dunivan v. State, 

, 78 (Mo.
Ct. App. 2008); State v. Shaw, 

, 1147-48 (Fla. Dt. Ct.
App. 2006); People v. Williams, 

, 781-82 (Cal. 2003).
54                                              No. 07-3278

a category,” it may run afoul of the Constitution. 

(Kennedy, J., concurring). The existence of a heated
professional debate over a particular diagnosis does not
indicate that such a line has been crossed here.
  The professional objections to the diagnosis of paraphilia
NOS (nonconsent or rape) are not without persuasive
value. The existence of the debate is a relevant issue in
commitment proceedings and a proper considera-
tion for the factfinder in weighing the evidence that the
defendant has the “mental disorder” required by statute.
Given the present state of Supreme Court precedent,
however, we cannot conclude that the diagnosis of a rape-
related paraphilia is so empty of scientific pedigree or
so near-universal in its rejection by the mental health
profession that civil commitment cannot be upheld as
constitutional when this diagnosis serves as a predicate.


                        Conclusion
  The primary due process concern of the Supreme
Court in the area of civil commitment is the necessity of
distinguishing between the typical dangerous recidivist
and the offender whose dangerousness is caused by some
identifiable mental condition that impairs his ability to
refrain from activity dangerous to others. The Wisconsin
SVP statute, by its very language, accomplishes this
result. Limited to the sexually dangerous, it narrows the
class of offender eligible for commitment by requiring a
judicial determination that a mental condition impairs
the offender’s ability to refrain from sexually dangerous
activity. In Mr. McGee’s case, the Wisconsin committing
No. 07-3278                                            55

court found that Mr. McGee’s admitted sexual danger-
ousness was caused by a mental condition. In reaching
that conclusion, it relied upon the assessments of two
mental health professionals who concluded that
Mr. McGee was afflicted with conditions that satisfied the
Wisconsin legal criteria for a “mental disorder.” These
diagnoses, which were constitutionally adequate under
existing Supreme Court precedent, and the evidence
upon which the diagnoses were based, afforded the
Wisconsin committing court an adequate basis, under
the Due Process Clause, to order his commitment.
  Accordingly, the judgment of the district court denying
the writ of habeas corpus must be affirmed.
                                                A FFIRMED




                          1-27-10