CARL C. GILBERT, JR., Petitioner-Appellant,
DEBORAH MCCULLOUGH, Respondent-Appellee
Argued May 28, 2014.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13 CV 00048 -- William C. Griesbach, Chief Judge.
For Carl C. Gilbert, Jr., Petitioner - Appellant: Edward King Poor, Attorney, Christopher James Zdarsky, Attorney, Quarles & Brady Llp, Chicago, IL.
For Deborah Mcculloch, Respondent - Appellee: Warren D. Weinstein, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
Williams, Circuit Judge.
This petition for a writ of habeas corpus involves an individual with a pending civil commitment petition who violates his parole and receives a prison sentence for that violation. Carl C. Gilbert, Jr. had his parole revoked twice after he violated the conditions of his parole on two separate occasions. These violations occurred while a civil commitment petition was pending against him. At the trial on that petition, a jury found Gilbert to be a sexually violent person, and the court entered a civil commitment order. But because Gilbert was sentenced to prison after his second parole revocation, he served that sentence before being transferred to a Wisconsin Department of Health Services (" DHS" ) facility as a civilly committed person. Gilbert maintains that his commitment is contrary to the Supreme Court's decision in
Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), because, in his view, there was not a " current" determination that he was a sexually violent person when he entered DHS care. Although the delay between the commitment verdict and Gilbert's entry into DHS care concerns us, we do not find the Wisconsin Supreme Court's decision rejecting Gilbert's due process argument to be contrary to or an unreasonable application of clearly established United States Supreme Court precedent, particularly in light of the facts that Gilbert's own parole violation caused the delay and he has continued to be evaluated without any indication that his condition has improved. We therefore affirm the judgment of the district court.
Gilbert was convicted of second-degree sexual assault in Wisconsin state court on December 7, 1992 and sentenced to ten years in prison. On December 4, 2006, shortly before he completed his sentence (his sentence for sexual assault was consecutive to another sentence), the State of Wisconsin filed a petition seeking Gilbert's commitment under Wisconsin Statute § 980.02 as a " sexually violent person." The state circuit court reviewed the petition that day and found probable cause to believe that Gilbert was eligible for commitment. Gilbert completed the prison portion of his sentence the next day, but he was transferred to the Wisconsin Resource Center, a facility operated by DHS, because of the pending commitment proceeding. He was still on parole.
Less than ten days after his transfer to the Center, Gilbert violated the conditions of his parole. As a result, he was returned to a Wisconsin Department of Corrections (" DOC" ) facility on January 19, 2007 pending a decision as to whether his parole would be revoked. The circuit court held a commitment petition hearing on March 22, 2007 and found probable cause to believe that Gilbert was a " sexually violent person" within the meaning of chapter 980 of the Wisconsin Statutes. The court then ordered Gilbert transferred for evaluation to the Center " or such other authorized institution as may be determined by the [DHS]." However, on August 8, 2007, Gilbert's parole was revoked, and he was reincarcerated at a DOC-operated facility.
A few months later, on October 17, 2007, the DOC granted Gilbert parole for a second time. Gilbert was transferred back to the Center pending resolution of the chapter 980 commitment petition. A little over a month after his transfer back to the Center, on November 25, 2007, Gilbert violated the terms of his second parole. He was reincarcerated at a DOC-operated facility pending the resolution of a parole revocation hearing. On December 28, 2007, his parole was revoked, and he began serving the resulting sentence.
Gilbert's chapter 980 civil commitment trial began on February 4, 2008. At the end of a three-day trial, the jury found beyond a reasonable doubt that Gilbert was a " sexually violent person" within the meaning of Wisconsin Statute § 980.06. The court entered a commitment order pursuant to § 980.06 ordering him committed to DHS for control, care, and treatment until he was no longer a sexually violent person, and it ordered that his commitment was to institutional care in a secure facility.
Gilbert was not transferred to a DHS facility at that point, however, because he was still serving his sentence for his second parole violation. Instead, Gilbert remained in a DOC-operated facility to serve out his sentence. He completed the sentence in August 2010. He was then transferred
to a DHS-operated facility in light of the February 2008 commitment order. 
On January 15, 2009, about eight months before he completed his sentence, Gilbert filed a postconviction motion asserting that his December 28, 2007 parole revocation meant that the chapter 980 commitment petition must be dismissed. The state circuit court denied the petition. The Wisconsin appellate court affirmed, finding Gilbert's commitment authorized by the Wisconsin statutory scheme. In re Commitment of Gilbert, 2011 WI App. 61, 333 Wis.2d 157, 798 N.W.2d 889, 891 (Wis. App. Ct. 2011) (" Gilbert I " ). The court concluded that Gilbert's arguments relied on statutory interpretation and did not raise any developed constitutional arguments. Id. at 893 n.9. The Wisconsin Supreme Court affirmed the appellate court's decision, with two justices dissenting. In re Commitment of Gilbert, 2012 WI 72, 342 Wis.2d 82, 816 N.W.2d 215 (Wis. 2012) (" Gilbert II " ). It agreed with the appellate court that Gilbert's arguments were centered on the statutory interpretation of chapter 980. Id. at 220. The Wisconsin Supreme Court concluded that chapter 980 did not require dismissal of Gilbert's commitment petition because the chapter does not contain language allowing for dismissal in his circumstances, does not set a time period for execution of a commitment order, and provides that an individual may be simultaneously committed under chapter 980 and incarcerated at a DOC facility. Id. at 222. Regarding the last point, the court pointed to § 980.07(6m), which states that " [i]f a person committed under § 980.06 is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement ... does not apply during the incarceration period." Id. at 226 (quoting Wis. Stat. § 980.07(6m)). Although Gilbert had not yet been committed when his parole was revoked, the court found that the language in § 980.07(6m) offered insight into how chapter 980 should be applied as a whole, and it ruled that simultaneous incarceration at a DOC facility and commitment under chapter 980 is permissible. Id. at 226-27.
While finding Gilbert's constitutional arguments " poorly developed," the Wisconsin Supreme Court nonetheless addressed them and found no constitutional infirmity in Gilbert's commitment. Id. at 229-30. The court reasoned that nothing in its decision suggested that the State could forgo the statutory procedures for commitment set forth in chapter 980 and that these procedures adequately ensured that at the issuance of the commitment order, the court has determined that the committed person is at that moment a sexually violent person. Id. at 230. The court also stated that if a person serves his prison sentence and is then transferred to DHS custody, he will be subject to periodic reevaluation to determine whether he remains a sexually violent person. Id. (citing Wis. Stat. § 980.07). With these protections, the Wisconsin Supreme Court found that sexually violent persons would " continue to be 'held as long as [they are] both mentally ill and dangerous, but no longer.'" Id. (quoting Foucha, 504 U.S. at
The court concluded that Gilbert's commitment was ...