1

 The Honorable David S. Doty, United States District Judge for the District of

Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3637

___________

Dennis D. Linehan, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Frank R. Milczark, sued as *

Frank Milczark, *

* 

Appellee. *

___________

Submitted: October 7, 2002

Filed: January 8, 2003

___________

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

___________

MURPHY, Circuit Judge.

Dennis Linehan filed this petition for habeas corpus seeking release from his

civil commitment under the Minnesota Sexually Dangerous Person Act, Minn. Stat.

§§ 253B.02, subd. 18c, 253B.18, subds. 2–3, 253B.185 (2002) (SDP Act). The

district court1

 denied the petition, but issued a certificate of appealability on whether

Kansas v. Hendricks, 521 U.S. 346 (1997), requires proof of an inability to control
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one’s behavior in order to commit an individual as a sexually dangerous person.

Linehan appeals, arguing that the SDP Act and his civil commitment under it are

unconstitutional. We affirm.

I.

Linehan began a pattern of sexual misconduct while still in his teens. In 1956

when Linehan was 15, he took indecent liberties with a 4 year old girl and was sent

to reform school. At age 19, he had intercourse with a 13 year old girl. In July 1963

Linehan and a friend beat and repeatedly raped a young woman. On June 10, 1965,

Linehan attacked and killed a 14 year old babysitter after watching her through a

window. He lured her to the door of the house, pulled her outside and into his car,

and choked her to death when she resisted his sexual assault. Linehan was arrested

the next month for that kidnapping and murder, but before his arrest he had already

committed additional offenses. In the course of a few weeks he had raped a 22 year

old woman and sexually molested two sisters, ages 11 and 12. In October 1965

Linehan pled guilty to kidnapping the babysitter, and the charges for her murder were

dropped. He was sentenced to serve a maximum of 40 years.

In June 1975 Linehan escaped from a minimum security facility with the intent

to prove that he could live outside of prison without committing a sexual assault.

Eleven days after his escape, Linehan was arrested in Michigan for sexually

assaulting a 12 year old girl. He was charged, tried, and convicted for that offense,

and he then threatened the victim. When the jury’s verdict was read, he pointed a

finger at the victim and said, “When I get out I am going to kill you.” After serving

the next five years in prison in Michigan, Linehan was returned to Stillwater,

Minnesota to complete his sentence. 

Linehan’s mandatory release date was in May 1992, and in March of that year

the Ramsey County Attorney petitioned for his civil commitment under the Minnesota
2

An individual committed under the SDP Act may seek release under the

procedures provided in the Minnesota Commitment and Treatment Act, Minn. Stat.

§§ 253B.01, 253.18, subd. 7 and subd. 15 (2002). That statute provides for a special

review board to consider all petitions for transfer or discharge brought by patients

committed as mentally ill and dangerous to the public, including those committed as

sexually dangerous persons. See Minn. Stat. §§ 253B.18, 253B.185(2002). 

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Psychopathic Personality Commitment Act (PP Act). See Minn. Stat. §§ 526.09–.10

(1992) (current version at Minn. Stat. §§ 253B.02, subd. 18a, 253B.185 (2002)).

After commitment hearings, the trial court committed Linehan to the Minnesota

Security Hospital for an indeterminate term as a “psychopathic personality.” The

Minnesota Supreme Court later vacated Linehan’s PP Act commitment after

concluding that the state had failed to prove by clear and convincing evidence that he

exhibited “utter lack of power to control” his sexual impulses as required under the

act. See In re Linehan, 518 N.W.2d 609 (Minn. 1994) (Linehan I); see also State ex.

rel. Pearson v. Probate Court of Ramsey County, 287 N.W. 297, 302 (1939) (holding

that PP Act required a showing of utter inability to control behavior). Linehan was

then released in August 1994 to a residence on the grounds of the Stillwater

correctional facility where he lived under intensive supervised release and

participated in sex offender treatment programs. 

On August 31, 1994, the Minnesota Legislature met in a special session and

enacted the Sexually Dangerous Persons Act, now codified as Minn. Stat. § 253B.02,

subd. 18c (2002). The SDP Act authorizes civil commitment upon a showing of 1)

past sexual violence; 2) present mental, personality, or sexual disorder or dysfunction;

and 3) resultant likelihood of future sexually dangerous behavior.2

 The act states that

for “the purposes of this provision, it is not necessary to prove that the person has an

inability to control the person’s sexual impulses.” See Minn. Stat. § 253B.02, subd.

18c(b) (2002). Two days after the SDP Act was passed, the Ramsey County Attorney

filed a petition for Linehan’s commitment under it. 
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A commitment hearing was held before Judge Bertrand Poritsky who issued

an order on July 27, 1995, after 20 days of testimony. Judge Poritsky concluded that

Linehan met the criteria for commitment under the SDP Act and committed Linehan

to the Minnesota Security Hospital for a 60 day evaluation period. The court found

that Linehan had antisocial personality disorder (APD), based on the criteria listed in

the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) (DSM-IV), and that as a result of his APD and his history

of harmful sexual conduct, it was “highly probable” that Linehan would commit

further sexual crimes. The court also found that Linehan displayed a continued

attraction to young females and that two recent episodes demonstrated “a degree of

impulsivity and lack of control in connection with sexual impulses.” In these

episodes Linehan had been observed masturbating within minutes of physical play

with his seven year old stepdaughter. After a further hearing, the trial court issued

an order indeterminately committing Linehan as a sexually dangerous person. 

Linehan appealed Judge Poritsky’s order committing him for a 60 day

evaluation, claiming the SDP Act was unconstitutional. The Minnesota Court of

Appeals affirmed and upheld the constitutionality of the statute. See In re Linehan,

544 N.W.2d 308 (Minn. App. 1996). The Minnesota Supreme Court accepted review

of the intermediate court’s decision and later issued its opinion relating to Linehan’s

initial commitment in In re Linehan, 557 N.W.2d 171 (Minn. 1996) (Linehan III). On

the same day the supreme court released its opinion on the appeal from the trial

court’s indeterminate commitment order, an appeal it had taken directly under

accelerated review. See In re Linehan, 557 N.W.2d 167 (Minn. 1996) (later referred

to by the supreme court as Linehan II; see In re Linehan, 594 N.W.2d 867, 870

(Minn. 1999) (Linehan IV)). The supreme court rejected Linehan’s constitutional

claims and upheld his commitment under the SDP Act, holding that the statute “does

not require that the proposed patient is unable to control his or her sexual impulses”

and that “evidence of Linehan's APD and dangerousness supplied a constitutionally

adequate basis for civil commitment.” Linehan III, 557 N.W.2d at 175–76, 183. 
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Linehan petitioned the United States Supreme Court for a writ of certiorari in

both Linehan II and Linehan III. While his petitions were pending, the Supreme

Court issued its decision in Hendricks. In that case, the Court upheld the

constitutionality of a civil commitment under the Kansas Sexually Violent Predator

Act and discussed the constitutional protections required for civil commitment

statutes. See Hendricks, 521 U.S. 346 (1997). In December 1997, the Supreme Court

granted certiorari in Linehan II and Linehan III, vacated the judgments, and remanded

the cases for further consideration in light of Hendricks. See Linehan v. Minnesota,

522 U.S. 1011 (1997).

On remand, the Minnesota Supreme Court imposed a narrowing construction

to the SDP Act based on its reading of Hendricks and again upheld the

constitutionality of Linehan’s commitment. See Linehan IV, 594 N.W.2d 867 (Minn.

1999). The court held that while the state need not show that a person meets the

“utter inability” standard from the Minnesota Pearson case, Hendricks requires that

the state prove that those civilly committed under the SDP Act be “sexually

dangerous persons who have engaged in a prior course of sexually harmful behavior

and whose present disorder or dysfunction does not allow them to adequately control

their sexual impulses, making it highly likely that they will engage in harmful sexual

acts in the future.” Linehan IV, 594 N.W.2d at 876. The court went on to conclude

that Linehan’s “lack of adequate control” had been sufficiently established during his

commitment proceedings. Linehan again petitioned for certiorari, claiming his civil

commitment raised issues of substantive due process, double jeopardy, and ex post

facto application. The Supreme Court declined to grant certiorari. 

Linehan then filed this petition for a writ of habeas corpus on November 29,

2000, challenging the constitutionality of his civil commitment and seeking his

release from confinement. On August 8, 2001, United States Magistrate Judge Arthur

J. Boylan issued a report recommending that the petition be denied. Linehan filed

objections, and the district court issued an order on September 20, 2001 adopting the
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magistrate’s report and denying Linehan’s petition. On January 6, 2002, the district

court granted Linehan’s request for a certificate of appealability. The court phrased

the appealable issue as “Whether the constitutional interpretation in Kansas v.

Hendricks, 521 U.S. 346 (1997) requires proof of an ‘inability to control’ or whether

a lesser showing is acceptable.” 

Linehan appeals, claiming that the SDP Act does not meet federal substantive

due process standards because it requires less proof of volitional impairment than that

demanded by Hendricks, as clarified in Kansas v. Crane, 122 S. Ct. 867 (2002), and

that his indeterminate civil commitment as a sexually dangerous person is

unconstitutional because the state did not provide proof of volitional impairment at

his commitment proceedings. The state argues that the SDP Act, as interpreted by the

Minnesota Supreme Court, meets constitutional standards, that these standards

require a finding of volitional impairment, and that Linehan’s commitment is

constitutional because he has demonstrated serious difficulty controlling his sexual

impulses. 

II.

A.

When a claim has been adjudicated on the merits in state court, an application

for a writ of habeas corpus can only be granted where the state court adjudication

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of clearly established Federal

law, as determined by the Supreme Court of the United

States; or
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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceedings.

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (2002)

(AEDPA). A state court decision is contrary to clearly established federal law if a

state court reached a conclusion “opposite to that reached by [the Supreme Court] on

a question of law” or confronted “facts that are materially indistinguishable from a

relevant Supreme Court precedent” and reached the opposite result. Williams v.

Taylor, 529 U.S. 362, 405 (2000). A state court has unreasonably applied clearly

established federal law if it “identifie[d] the correct governing legal principle from

[the Supreme] Court’s decision but unreasonably applie[d] that principle to the facts

of the [petitioner’s] case.” Id. at 413. Habeas relief cannot be granted just because

a federal court concludes that the state court erred in its application of federal law; the

test is whether the state court’s application was “unreasonable.” See id. at 411. 

B.

Linehan argues that Linehan IV applied a rule contradicting the governing law

set in Hendricks and Crane, that deference is thus not due the Minnesota decision,

and that we should exercise our independent judgment about the constitutional issues.

He argues that the SDP Act fails to meet constitutional requirements because the

“lack of adequate control” standard is broader than the test set by the Supreme Court.

He contends that the SDP Act does not adequately distinguish those eligible for

commitment from “the dangerous but typical recidivist convicted in an ordinary

criminal case,” Crane, 122 S. Ct. at 870, and that what is required is something closer

to a “special and serious” lack of ability to control standard. Id. 

In Linehan’s view the “utter lack of control” standard formulated in the 1939

Pearson case sufficiently distinguishes between a dangerous recidivist and the

dangerous sexual offender subject to civil commitment. The Minnesota Supreme
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Court’s rejection of that standard in Linehan IV is contrary to the “special and serious

inability to control” standard established in Hendricks, and clarified in Crane, he

contends. He also claims that through judicial interpretation the Pearson standard

became a more flexible test and does not conflict with Crane-Hendricks. As an

illustration he cites In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994) (PP Act

requires a “volitional dysfunction which grossly impairs judgment and behavior with

respect to the sex drive.”).

The state responds that the issue in this case is whether the governing law was

unreasonably applied by the Minnesota Supreme Court in Linehan IV. It says

AEDPA mandates deference to state court decisions and requires a habeas court to

focus on “whether the state court’s application of clearly established federal law was

objectively unreasonable.” See Williams, 529 U.S. at 409. It maintains that the SDP

Act has been sufficiently narrowed to meet constitutional requirements and therefore

the state’s decision cannot fail to meet AEDPA’s reasonableness standard. The state

argues that the SDP Act’s three requirements for commitment—past course of

harmful sexual conduct, proof of a disorder that results in lack of adequate ability to

control behavior, and high likelihood of engaging in future harmful sexual

conduct—work in combination to ensure that only a small portion of sex offenders

released from prison qualify for commitment under this standard. It further contends

that the Pearson standard is equivalent to the absolute lack of control standard

rejected as “unworkable” by the Supreme Court. See Crane, 122 S. Ct. at 870. 

C.

In Hendricks, the Supreme Court upheld the Kansas Sexually Violent Predator

Act against constitutional challenge. That statute provided for civil commitment of

persons “who have a mental abnormality or personality disorder and who are likely

to engage in repeat acts of sexual violence if not treated for their mental abnormality

or personality disorder.” Kan. Stat. Ann. § 59-29a01 et seq. (1994). The Supreme
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Court observed that the due process clause places constraints on the use of civil

commitment statutes but that they have been upheld “when they have coupled proof

of dangerousness with the proof of some additional factor, such as a ‘mental illness

or ‘mental abnormality.’” Hendricks, 521 U.S. at 358. 

Proof of another factor in addition to future dangerousness serves to limit civil

commitments to “those who suffer from a volitional impairment rendering them

dangerous beyond their control.” Id. at 358. It is the “admitted lack of volitional

control, coupled with a prediction of further dangerousness, [that] adequately

distinguishes [someone committed under the Kansas statute] from other dangerous

persons who are perhaps more properly dealt with exclusively through criminal

proceedings,” id. at 360. A civil commitment statute will therefore be within

constitutional limits if a “mental abnormality” or “personality disorder” is required

which makes “it difficult, if not impossible, for the person to control his dangerous

behavior.” Id. at 358. The Court concluded that the Kansas act set adequate criteria

for judging whether an individual is unable to control his dangerous behavior,

rejected Hendricks’s constitutional attack on it, and reversed the state decision in his

favor. 

 Linehan’s petition was remanded by the Supreme Court for reconsideration in

light of its Hendricks decision. After the Minnesota court had applied Hendricks to

petitioner’s claims and issued its decision in Linehan IV, the Supreme Court

announced its Crane decision which clarified the level of volitional impairment

constitutionally required for commitment. In Crane, the Supreme Court again took

up the Kansas commitment statute, for the state court had applied Hendricks to

require proof of a complete inability to control sexual impulses. See In re Crane, 7

P.3d 285, 290 (Kan. 2000). The Supreme Court reversed and held that the Kansas

court’s reading of Hendricks was too restrictive. Proof of a total lack of control is not

constitutionally required, the Supreme Court explained, because such an absolute

approach would be unworkable. Crane, 122 S. Ct. at 870. What is required in order
3

The Minnesota Supreme Court has not yet discussed Crane, but it recently

denied review of an intermediate appellate decision which rejected the argument that

Crane announced a different and more demanding standard than Hendricks. See In

re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002), review denied, No. C4-00-

748 (Minn. S. Ct. October 29, 2002). 

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for civil commitment to meet constitutional requirements is “proof of serious

difficulty in controlling behavior”. Id.

Although the certificate of appealability in this case framed the issue in terms

of the proof required by Hendricks, Linehan argues that Crane must also be

considered because it makes more clear what the Supreme Court intended in

Hendricks. The state responds that the Minnesota Supreme Court only had Hendricks

to consider when it decided Linehan IV and that Hendricks should be the sole focus

here. It points out that Crane was only “decided after Linehan filed his habeas corpus

petition” and urges that the clearly established federal law the Minnesota Supreme

Court had to apply did not include Crane.

3

In Crane, the Supreme Court explained that the Kansas Supreme Court had

interpreted Hendricks in “an overly restrictive manner,” Crane, 122 S. Ct. at 868, for

Hendricks “set forth no requirement of total or complete lack of control,” id. at 870

(emphasis in original), and purposefully avoided any “bright line” rule. Id. at 871.

Since Hendricks was the clearly established federal law the Minnesota Supreme Court

was bound to apply in Linehan IV, it is to that case we look in analyzing whether the

federal law was reasonably applied. Crane nevertheless has value in the process to

the extent its discussion can sharpen out understanding of the Hendricks rule. See id.

at 870–81.
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D.

In Linehan IV the Minnesota Supreme Court correctly identified the Hendricks

constitutional standard, and it used similar language in defining what is required for

civil commitment under the SDP Act. See Linehan IV, 594 N.W.2d at 875; see also

Bell v. Cone, 122 S. Ct. 1843, 1852 (2002) (since state court correctly identified

constitutional principles governing petitioner’s claim, no merit to claim that its

decision was contrary to clearly established federal law); Williams, 529 U.S. at 407.

It concluded that “the Minnesota SDP Act ‘requires a finding of further

dangerousness,’” as well as findings which link that dangerousness “‘to the existence

of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not

impossible, for the person to control his behavior.’” Id. (quoting Hendricks, 521 U.S.

at 358). The court reasoned that although “some lack of volitional control is

necessary to narrow the scope of civil commitment statutes,” Hendricks does not

require proof that a person lack total control over his sexual impulses. Linehan IV,

594 N.W.2d at 873 & n.3. The court concluded that the Pearson utter lack of control

standard had been specifically rejected by the SDP Act and that it was equivalent to

a complete lack of control test. See id. at 875–76. In enunciating the governing

standard under the SDP Act, the court narrowed the possible reaches of the statute to

require proof of a “lack of adequate ability to control,” holding that this constriction

would satisfy substantive due process concerns. See id. at 873 n.3, 876.

 The Minnesota Supreme Court held that the SDP Act’s lack of adequate

control standard requires proof of a volitional impairment rendering a person

dangerous beyond his control and a linkage to a diagnosis of a present mental,

personality, or sexual disorder or dysfunction. See id. at 875. The court described

the type of diagnosis required to be for a “mental abnormality” or “personality

disorder” which makes it “difficult, if not impossible” for the person to control his

sexual behavior. Linehan IV thus requires a finding of volitional impairment, and it

meets the Hendricks requirement that a civil commitment statute provide for
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“distinguishing a dangerous sexual offender subject to civil commitment ‘from other

dangerous persons who are perhaps more properly dealt with exclusively through

criminal proceedings.’” Crane, 122 S. Ct. 870 (quoting Hendricks, 521 U.S. at 360).

We conclude that the Minnesota Supreme Court reasonably applied the clearly

established federal law when it reconsidered the constitutionality of the standard for

civil commitment under the SDP Act. The standard enunciated in Linehan IV

requires a finding of “lack of adequate control” in relation to a properly diagnosed

disorder or dysfunction, as well as findings of past sexual violence and resultant

likelihood of future sexually dangerous behavior. This combination of required

findings will adequately distinguish an offender subject to civil commitment, who has

difficulty controlling his behavior because of a disorder or dysfunction, from the more

typical offender with behavioral problems, who is best dealt with in the criminal

system. The SDP Act standard, as narrowed by the Minnesota Supreme Court in

Linehan IV therefore adequately distinguishes between the typical recidivist and the

dangerous sexual offender and complies with substantive due process requirements.

Since the court’s application of Hendricks to the SDP Act meets constitutional

requirements, it cannot be considered an unreasonable application of Supreme Court

precedent.

E. 

In addition to his general constitutional attack on the SDP Act, Linehan

contends that his own commitment is unconstitutional. Linehan argues that Crane

limited the kind of mental disorders that can serve as a predicate for civil commitment

to those severe in nature, at the far end of an inability to control scale. He maintains

that the trial court’s finding that he suffers from APD, a disorder which he says could

be diagnosed in “40%-60% of the male prison population,” fails to distinguish him

from “other dangerous persons who are perhaps more properly dealt with exclusively

through criminal proceedings.” Crane, 122 S. Ct. at 870 (quoting Hendricks, 521
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U.S. at 360). His own commitment can therefore not be upheld because the Linehan

IV standard will not distinguish a severe case which justifies civil commitment from

a milder form present in much of the criminal population. Linehan also argues that

there were no clear and convincing findings that he lacked control of his sexual

impulses. He contends that even if Linehan IV sufficiently tightened the type of

required findings under the SDP Act to make it constitutional, the requisite “lack of

adequate control” findings were not made about him. 

In its twenty six page initial commitment order and memorandum, the trial

court made specific findings that Linehan met the criteria for APD described in the

diagnostic manual DSM-IV. The trial court also found that Linehan had revealed “a

degree of impulsivity and lack of control in connection with sexual impulses” during

several recent family visits. In re Linehan, No. P8-94-0382, slip op. at 23 (Ramsey

County Dist. Ct., July 27, 1995). Although the visiting time was limited, he left his

wife and stepdaughter to go masturbate after some physical play with the young girl.

The trial court concluded that since Linehan had been incarcerated for a long period,

it needed to “look for more subtle signs than rape and killing” when evaluating his

condition and making its findings. Id. at 24. The court considered Linehan’s

behavior toward hospital and prison staff in relation to his likelihood of engaging in

future harmful conduct and found that his aggressiveness toward both staff and

guards indicated an inability to control his behavior even when subject to careful

supervision. The court also found it significant that Linehan had had only a single

opportunity to commit an additional violent offense after his original commitment and

that he had used that opportunity to attack a young girl within two weeks of his

escape in 1975. The court also took notice of the fact that the attack occurred after

Linehan had escaped in order to prove he could control himself and not commit more

sexual offenses. Id. at 17. 

The Minnesota Supreme Court took all these findings into consideration. It

thoroughly review the evidentiary record before holding that the trial court’s findings
4

 We note that there are state procedures available for Linehan to challenge his

continued confinement in the future. See Minn. Stat. § 253B.18.

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fully supported the conclusion that Linehan “lacks adequate control over his sexual

behavior.” Linehan IV, 594 N.W.2d at 876. The supreme court observed that the

record from the commitment hearings “contains substantial evidence that [Linehan]

continued to engage in impulsive sexual behavior and lacks adequate control over his

harmful sexual impulses.” Id. at 878. It concluded that the trial court record and

findings were sufficient to distinguish Linehan from the “typical recidivist,” and to

establish that his behavior met the SDP Act standard for a constitutional civil

commitment because of the nature of his APD, combined with his history of sexual

violence. See id. at 876–78.

We conclude that the Minnesota Supreme Court did not unreasonably apply the

clearly established federal law to Linehan. It was not unreasonable for the court to

conclude that there was enough evidence in the trial record to establish that Linehan

lacked adequate control over his impulses and that he suffered from a form of APD

that warranted civil commitment under constitutional standards. Linehan’s claim that

his indeterminate commitment under the SDP Act was unconstitutional must therefore

fail.4

III.

The Minnesota Supreme Court reasonably applied clearly established federal

law in narrowing the SDP Act in Linehan’s case to meet the substantive due process

requirements set by Hendricks. Although Hendricks does not require proof of a

complete lack of control, it does require impairment of the ability to control one’s

behavior. In Linehan IV, the Minnesota Supreme Court defined the SDP Act’s lack

of adequate control standard in a way that was not an unreasonable application of the

law set by the United States Supreme Court since it requires a finding of volitional
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impairment in connection with a mental disorder or dysfunction which serves to

distinguish a sexually dangerous person from a typical recidivist criminal. The

Minnesota Supreme Court also reasonably applied clearly established federal law to

the facts of petitioner’s case in concluding that the record showed he demonstrated

a disorder making it difficult, if not impossible, for him to control his dangerous

impulses and was constitutionally committed as a sexually dangerous person. 

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

A true copy.

Attest:

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