United States Court of Appeals

For the First Circuit

No. 06-2292

DAVID M. DUTIL,

Petitioner, Appellant,

v.

ROBERT MURPHY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Boudin and Howard,

Circuit Judges.

David B. Hirsch for appellant.

Annette C. Benedetto, Assistant Attorney General, with whom

Martha Coakley, Attorney General, was on brief for appellee.

December 11, 2008
The Massachusetts Legislature repealed portions of Chapter 123A in 1

1990, but in so doing specified that persons who were previously

committed were to be "maintained at said treatment center" subject

to the provisions of the original commitment order. Commonwealth

v. Tate, 675 N.E.2d 772, 774 n.3 (Mass. 1997). The Legislature

enacted a revised version of the statute in 1999. The portions of

Chapter 123A at issue here, those dealing with the availability of

a hearing to redetermine his sexual dangerousness, remain

materially unchanged since Dutil's commitment. See Mass. Gen. Laws

ch. 123A, § 9. 

-2-

HOWARD, Circuit Judge. Petitioner David Dutil appeals

from a decision of the district court dismissing his petition for

a writ of habeas corpus. Dutil, adjudged a sexually dangerous

person (“SDP”) under Massachusetts law, has long since completed

the full term of his criminal sentence, and is now indefinitely

confined to the Massachusetts Treatment Center under the

Massachusetts SDP statute, Mass. Gen. Laws ch. 123A. His appeal 1

challenges the constitutionality of his ongoing civil commitment,

arguing that by failing to ensure regular and expeditious review of

his sexual dangerousness, the Commonwealth’s SDP statute deprives

him of his substantive due process rights and is therefore facially

invalid. Because we find that the text of the statute, as

interpreted by Massachusetts state courts, does not on its face

violate the due process protections heretofore afforded SDPs

subject to civil commitment, we affirm.

I. BACKGROUND

The relevant facts may be briefly summarized based on the

findings of the Massachusetts Supreme Judicial Court (“SJC”). See
Mass. Gen. Laws ch. 123A, § 9 reads in relevant part: 2

Any person committed to the treatment center shall be

entitled to file a petition for examination and discharge

once in every twelve months. Such petition may be filed

by either the committed person, his parents, spouse,

issue, next of kin or any friend. The department of

correction may file a petition at any time if it believes

a person is no longer a sexually dangerous person. A

copy of any petition filed under this subsection shall be

sent within fourteen days after the filing thereof to the

department of the attorney general and to the district

attorney for the district where the original proceedings

-3-

In re Dutil, 768 N.E.2d 1055 (Mass. 2002). The factual findings of

the state court are presumed to be correct under 28 U.S.C. §

2254(e)(1). E.g., Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir.

2002) (citing Sanna v. DiPaolo, 265 F.3d 1, 7 (1st Cir. 2001)).

In the late 1980s, Dutil was sentenced for six criminal

charges of indecent assault and battery on a child under the age of

fourteen years. In 1986, he was sentenced to two years of

probation for the first two charges; two years later, he pled

guilty to the other four charges and received four concurrent tenyear prison terms. At the latter sentencing, the judge also

determined Dutil to be a sexually dangerous person pursuant to the

then-current Massachusetts SDP statute and committed him to a

treatment center indefinitely. Dutil’s criminal sentence ended in

1997.

Pursuant to Mass. Gen. Laws ch. 123A, § 9, a provision

allowing SDPs to argue that their sexual dangerousness has ended,

Dutil filed petitions for discharge in 1996, 1997, and 1998. A 2
were commenced. Said petition shall be filed in the

district of the superior court department in which said

person was committed. The petitioner shall have a right

to a speedy hearing on a date set by the administrative

justice of the superior court department. Upon the

motion of the person or upon its own motion, the court

shall appoint counsel for the person. The hearing may be

held in any court or any place designated for such

purpose by the administrative justice of the superior

court department. In any hearing held pursuant to the

provisions of this section, either the petitioner or the

commonwealth may demand that the issue be tried by a

jury. If a jury trial is demanded, the matter shall

proceed according to the practice of trial in civil cases

in the superior court.

-4-

judge denied the 1996 petition in August 1997 after a hearing,

finding that Dutil remained an SDP. Dutil withdrew the 1997

petition before the scheduled hearing. Dutil’s 1998 petition

included a request for a jury trial, and in early February 2000, a

jury found beyond a reasonable doubt that Dutil remained sexually

dangerous.

While the third petition was pending, Dutil filed a state

habeas corpus petition arguing, inter alia, that Massachusetts’ SDP

statute violated the requirements of Kansas v. Hendricks, 521 U.S.

346 (1997), by failing to require annual review of commitments.

The Massachusetts Superior Court denied the habeas petition, and in

2002, the SJC affirmed the Superior Court's denial. In re Dutil,

768 N.E.2d at 1059. Neither court appears to have directly

addressed Dutil’s claim that he is entitled to annual review as a

matter of federal due process. 
The relevant passage of the footnote reads, "The failure to 3

provide an automatic annual retrial and, instead, only providing an

annual retrial through the relatively simple and effective

expediency of filing a petition does not violate due process."

This passage may not squarely address Dutil's current due process

challenge: as certified by the district court, the issue on appeal

is Dutil's claim that the statute fails to ensure a timely hearing

on a petition.

-5-

In 2003, Dutil filed the instant federal habeas petition

pursuant to 28 U.S.C. § 2254. The memorandum filed in support of

his petition again alleged, inter alia, that he was entitled to

annual review under Hendricks. A magistrate judge’s report and

recommendation found Dutil’s argument without merit, concluding in

a footnote that the statute's provision for "annual retrial through

the . . . filing [of] a petition" comports with due process. The 3

district court adopted the magistrate’s report and dismissed the

petition without commenting on this footnote.

Dutil subsequently filed an Application for a Certificate

of Appealability with the district court requesting permission to

appeal on five distinct grounds. After citing In re Trimmer, 378

N.E.2d 59, 60 (Mass. 1978), for the proposition that the

Massachusetts SDP statute "clearly does not set an express time

limitation within which the court must hold a reexamination

hearing," and after speculating that "it might plausibly be

thought" that SDPs are entitled to "something more in the nature of

a speedy trial rather than simply the right to file a (nonduplicative) petition on the anniversary of a civil commitment,"
In so doing, the district court also noted, in a footnote, that 4

"there is no particular magic in the phrase 'annual review,'" and

he indicated his intention to frame the issue for appeal to include

a challenge to the "indefinite delay of such reviews."

We further note that the issue as framed by the district court also

excludes Dutil's argument, urged in his appellate briefs, that the

requirement of filing a petition to receive a redetermination

hearing is itself a violation of substantive due process. Dutil

previously advanced this argument in front of the district court as

an equal protection challenge, to no avail. He again advanced this

argument, still as an equal protection challenge, in his

Application for an Expanded Certificate of Appealability and in his

Motion to Reconsider that decision, but we denied both motions.

Therefore, the question of whether the petition requirement itself

is a violation of either substantive due process or of equal

protection is not properly before us on appeal, and we decline to

reach it.

-6-

the district court granted the certificate as to one issue:

whether due process is denied by the statute’s failure to provide

an express outward time limit within which the responsible court

must hold a reexamination hearing when requested by a person

civilly committed as an SDP. Massachusetts argues that Dutil 4

failed to exhaust this claim in state court, and that in any event

the statute comports with due process requirements.

II. EXHAUSTION OF STATE REMEDIES

“Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28 U.S.C. §

2254(b)(1), thus giving the state the first ‘opportunity to pass

upon and correct alleged violations of its prisoners' federal

rights.’” Josselyn v. Dennehy, 475 F.3d 1, 2-3 (1st Cir. 2007)

(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)); see also id.
-7-

at 3 ("Where, as here, a state's highest court offers discretionary

review, a petitioner must present that court with the opportunity

to review the federal claim to have exhausted available state

remedies." (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004))).

Appellee argues that Dutil has failed to meet this exhaustion

requirement, taking the position that the SJC was never fairly

presented with the question of whether the Massachusetts SDP

statute violates the Due Process Clause by failing to set an

express time limit within which the court must hold a reexamination

hearing. We disagree.

A. Standards

The exhaustion requirement, while at times technical and

arcane, is straightforward in this context. A claim for habeas

corpus relief has been exhausted where the claim has been “fairly

presented” to the state courts. Id. (quoting Baldwin, 541 U.S. at

29) (internal quotation marks omitted). Fair presentation means

that the petitioner “must show that he tendered his federal claim

'in such a way as to make it probable that a reasonable jurist

would have been alerted to the existence of the federal question.'”

Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (quoting

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)). This does

not mean, however, that the pleadings in the state and federal

courts must be identical, but only that “the legal theory

[articulated] in the state and federal courts must be the same.”
-8-

Id. (quoting Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987))

(alteration in original, internal quotation marks omitted). 

We have previously held that a habeas petitioner fairly

presents a claim by doing any of the following: “(1) citing a

provision of the federal constitution; (2) presenting a federal

constitutional claim in a manner that fairly alerts the state court

to the federal nature of the claim; (3) citing federal

constitutional precedents; or (4) claiming violation of a right

specifically protected in the federal constitution.” Id. (citing

Gagne, 835 F.2d at 7). 

Finally, as a general rule, we are solicitous of the

obstacles that pro se litigants face, and while such litigants are

not exempt from procedural rules, we hold pro se pleadings to less

demanding standards than those drafted by lawyers and endeavor,

within reasonable limits, to guard against the loss of pro se

claims due to technical defects. Boivin v. Black, 225 F.3d 36, 43

(1st Cir. 2000) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972);

Instituto de Educacion Universal Corp. v. U.S. Dep't of Educ., 209

F.3d 18, 23 (1st Cir. 2000)).

B. Analysis

While we agree with the appellee that the precise issue

before us as framed by the district court was not clearly presented

to the SJC, we think that Dutil's due process arguments were

sufficiently presented to that court for exhaustion purposes.
-9-

Dutil's state habeas petition, which he filed pro se, specifically

identified "substantive due process" as a ground for his complaint,

and it made the claim that "he is being confined absent a finding

or requirement of mental illness and dangerousness." This broad

statement was then sharpened in his brief to the SJC, again filed

pro se. In that brief, under a heading on the first page reading,

"ON ITS FACE, G.L. c 123A VIOLATES . . . THE DUE PROCESS CLAUSE OF

THE UNITED STATES CONSTITUTION," Dutil wrote, "Chapter 123A is not

sufficiently narrowly tailored to survive scrutiny, for the

following reasons . . . (2) the statute fails to require judicial

review annually in order to determine whether the involuntarily

confined individual requires further confinement." Later, in a

section entitled "THE STATUTE FAILS TO REQUIRE JUDICIAL REVIEW

ANNUALLY IN ORDER TO DETERMINE WHETHER THE INVOLUNTAIRLLY [sic]

COMMITTED INDIVIDUAL REQUIRES FURTHER CONFINEMENT," Dutil quoted

Hendricks as support for his contention that "[w]ithout annual

judicial review, there is no assurance the '[Commonwealth] does not

intend an individual committed under the Act to remain confined any

longer than he suffers from the mental abnormality rendering him

dangerous'" (second alteration in original). Dutil concluded this

section with a short paragraph that included the sentence, "Dutil's

inability to receive annual judicial review is a serious violation

of substantive due process."
We also note that the magistrate judge implied that Dutil's due 5

process claim was fairly presented when she decided the claim on

its merits, and the district court adopted that finding both

explicitly and implicitly in its order granting Dutil's Certificate

of Appealability.

-10-

Dutil's state habeas petition is explicit in its

invocation of due process and broad enough to encompass a challenge

to the statute's alleged failure to provide for a timely

reexamination hearing. The brief is overt in its reference to the

federal due process clause, it cites Hendricks as an arguably onpoint federal constitutional precedent, and, in both the

introduction and in the later argument, it sufficiently states the

relevant legal theory upon which Dutil proceeds. Moreover, while

the details of Dutil's legal argument have evolved slightly since

the filing of his pro se state habeas petition, having transformed

from a request for annual judicial review to a request for periodic

reexamination, the legal theory on which Dutil proceeds -- that the

failure to provide timely reexamination violates the federal due

process clause as interpreted in Hendricks -- has remained the

same. That the SJC decided not to address this theory specifically

in its denial of Dutil's state court habeas appeal is beside the

point; the argument was fairly presented to that court, and we

therefore find Dutil has satisfied the exhaustion requirement for

his federal habeas petition.5
-11-

III. CONSTITUTIONALITY OF THE STATUTE

The merits of Dutil's federal habeas corpus claim are

another matter entirely. As explained below, Dutil's argument that

the Massachusetts SDP statute is invalid on its face due to its

alleged failure to provide for an express outward time limit for

reviews of his sexual dangerousness is unpersuasive. In

particular, Dutil extrapolates too freely from the two cases upon

which he chiefly relies: Hendricks and Petition of Lund, 617 N.E.2d

1013 (Mass. App. Ct. 1993). Fairly read, Lund does not authorize

the thirty month delay that Dutil reads into the challenged

statute, and Hendricks does not impose a deadline for

redetermination hearings that is more exacting than the

Massachusetts statute. 

A. Standards

Because the SJC did not decide Dutil's substantive due

process claim, our review is de novo. Teti v. Bender, 507 F.3d 50,

56 (1st Cir. 2007) (citing DiBenedetto v. Hall, 272 F.3d 1, 6-7 &

n.1 (1st Cir. 2001); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001)).

A federal habeas court has jurisdiction over any claim

that a prisoner is "in custody in violation of the Constitution or

laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3),

2254(a). A violation of substantive due process is found when the

government's conduct is so "egregiously unacceptable, outrageous,
-12-

or conscience-shocking" that "the constitutional line has been

crossed." Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990)

(citations omitted) (declining to narrow the "wide . . . variety of

labels" used to describe the standard for finding violations of

substantive due process). 

To mount a successful facial challenge to a statute, the

challenger "must establish that no set of circumstances exists

under which the Act would be valid. The fact that [an Act] might

operate unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid . . . ."

United States v. Salerno, 481 U.S. 739, 745 (1987); see also Cook

v. Gates, 528 F.3d 42, 56 (1st Cir. 2008); Comfort v. Lynn Sch.

Comm., 418 F.3d 1, 12 (1st Cir. 2005) (en banc), abrogated on other

grounds, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.

1, ___ U.S. ___, 127 S. Ct. 2738 (2007).

B. Massachusetts Courts' Interpretation of the SDP Statute

The essence of Dutil's complaint is that, while the

Massachusetts SDP statute nominally requires a "speedy hearing" on

an SDP's petition for release, it has been interpreted by the

Massachusetts courts to allow for unconstitutional delays. For

support, he points to Lund, in which the Appeals Court of

Massachusetts held that an SDP was not denied his right to a speedy

hearing when he received a hearing more than thirty months after

filing his petition for release. 617 N.E.2d at 1014-15. Dutil
-13-

argues that this state court decision represents a binding

interpretation of the "speedy hearing" language. See Royal v.

Superior Court, 531 F.2d 1084, 1088 n.14 (1st Cir. 1976) (citing

Pollard v. Dwight, 8 U.S. (4 Cranch) 421, 429 (1808)); see also

Chicago, Milwaukee, & St. Paul Ry. Co. v. Risty, 276 U.S. 567, 570

(1928). It is this interpretation that gives rise to Dutil's claim

that the statute allows for unconstitutional delay.

A closer reading of Lund, however, reveals that the case

does not stand for so broad a proposition as Dutil suggests. While

it is true that the petitioner in Lund waited more than thirty

months for a hearing on his § 9 petition, the state appellate court

took pains to explain that the delay was largely of the

petitioner's own making: 

Although [the petitioner] was appointed counsel on August

4, 1989, no complaint or other action on the petition was

taken until March 19, 1991. There is nothing in the

record before us which shows that the attorney general or

the district attorney were even sent a copy of the

petition under § 9, and, therefore, that the Commonwealth

was aware of it prior to the motion seeking an immediate

discharge. 

 

617 N.E.2d at 1014-15. After adjusting for the petitioner's

dilatory prosecution of his petition, the Lund court made clear its

opinion that the actual delay not attributable to the petitioner

was seven months, not thirty. Id. at 1015.

In light of the Lund court's explicit discussion of the

exceptional circumstance of a represented petitioner's lengthy
-14-

delay, Dutil's reliance on Lund for the proposition that the

Massachusetts state courts have interpreted the SDP "speedy

hearing" language to allow for a thirty month delay is unavailing.

The most we can fairly infer from Lund is that the Massachusetts

courts have allowed something closer to a seven month delay under

circumstances where the state attempts an earlier hearing, as it

did in Lund. Id. But what delay, precisely, Massachusetts would

allow under its SDP statute is speculation in which we need not,

and explicitly do not, engage: it is enough to ascertain that

neither Lund nor any other Massachusetts case of which we are aware

interprets the "speedy hearing" language to encompass any delay

approaching the thirty months that Dutil protests.

C. Substantive Due Process Protections for SDPs Under Hendricks

Bearing in mind this less-rigid understanding of the

Massachusetts SDP statute and state court interpretations thereof,

we turn to the question of whether Hendricks requires a finding of

facial invalidity. In Hendricks, the Supreme Court held

constitutional an SDP statute that, unlike the Massachusetts

statute at issue in this case, provided for automatic annual

judicial redetermination of sexual dangerousness. Dutil relies on

Hendricks for the proposition that SDPs have a right to more

expeditious hearings to redetermine their sexual dangerousness than

they are currently afforded, and he argues that the Massachusetts
-15-

SDP statute must be invalidated as a matter of substantive due

process. We disagree.

To support his reading of Hendricks, Dutil adverts to

language in that case discussing Kansas' then-current SDP statute,

which provided for automatic annual judicial redetermination of

sexual dangerousness. Specifically, the Supreme Court wrote:

[C]ommitment under the Act is only potentially

indefinite. The maximum amount of time an individual can

be incapacitated pursuant to a single judicial proceeding

is one year. If Kansas seeks to continue the detention

beyond that year, a court must once again determine

beyond a reasonable doubt that the detainee satisfies the

same standards as required for the initial confinement.

This requirement . . . demonstrates that Kansas does not

intend an individual committed pursuant to the Act to

remain confined any longer than he suffers from a mental

abnormality rendering him unable to control his

dangerousness.

521 U.S. at 364. This passage certainly can be read to articulate

a right not to be confined past the point of dangerousness. 

Hendricks does not, however, establish that a statute's

failure to provide an unambiguous timeline for a redetermination of

an SDP's sexual dangerousness renders the statute unconstitutional.

This is so for at least two reasons. First, the explicit language

of Hendricks does not support the proposition Dutil advances. The

passage quoted above does not specify how often the state must

reassess an SDP's dangerousness. Rather, it indicates that an SDP

statute providing for automatic annual judicial redetermination can

be constitutionally acceptable. Additionally, Hendricks analyzes
In fact, the Supreme Court in Hendricks did not even address the 6

issue of redetermination in its discussion of whether Kansas' SDP

statute violated the due process clause. 521 U.S. at 356-60. That

discussion instead focused exclusively on whether the statute

required sufficient proof of dangerousness plus "some additional

factor," id. at 358-59, and whether such proof had been made as to

Hendricks himself, id. at 360. 

-16-

Kansas' SDP statute in a context meaningfully different from this

case. The quoted passage from Hendricks supported the Court's

conclusions that, for purposes of the double jeopardy and ex post

facto clauses of the Constitution, the State of Kansas had

established civil, not criminal, proceedings, and that

incarceration under that act was not punitive. See id. at 360-69;

accord Seling v. Young, 531 U.S. 250, 261 (2001) (discussing

Hendricks). The Court thus focused on Kansas' redetermination

provision as evidence of the state's non-punitive intent, not as a

necessary element for an SDP statute to pass muster under the due

process clause. 

6

Moreover, even assuming, arguendo, that Hendricks did

announce a substantive due process right to periodic

redetermination hearings, Dutil has failed to show that "no set of

circumstances exists under which the [‘speedy trial’ language of

the Massachusetts SDP statute] would be valid." Salerno, 481 U.S.

at 745. Despite the obvious ambiguity in the phrase "speedy

trial," those words permit interpretations that would be consistent

with even an exacting due process requirement for redetermination

hearings. 
-17-

IV. CONCLUSION

In assessing the Massachusetts statute for facial

validity, we are therefore left with a statutory guarantee of a

"speedy hearing"; a state court interpretation that sanctions a

thirty month delay where twenty-three of those months are the

result of the exceptional circumstance of dilatory prosecution by

a represented petitioner; and a Supreme Court case that, in a

different constitutional context, upholds an SDP statute providing

for automatic annual judicial review but is silent as to what

redetermination procedures are necessary for purposes of due

process. This authority does not support a collateral facial

challenge to the state statute: in light of the statute's "speedy

hearing" provision and judicial interpretations thereof, it is not

apparent that "no set of circumstances exists under which the Act

would be valid," Salerno, 481 U.S. at 745, nor that the statute is

so "outrageous" as to constitute a violation of substantive due

process, see Amsden, 904 F.2d at 754. Should some aspect of the

legal background change -- the statute is revised, the state courts

further interpret the phrase "speedy hearing," or a relevant

constitutional precedent intervenes -- perhaps a facial challenge

will lie. But the text of the statute does not now on its face
It bears mention that, if any person incarcerated under the 7

Massachusetts SDP statute is truly aggrieved by the state's failure

to hear a petition for release, that person is not without

recourse. For instance, the aggrieved person may be able to bring

an action in the nature of mandamus to force a speedy hearing. See

Mass. Gen. Laws ch. 249, § 5. Alternatively, a petitioner who

suffers a significant delay in receiving a hearing may have an asapplied due process challenge to the statute, as such a delay could

conceivably stress the petitioner's right to avoid incarceration

past the point of his or her dangerousness. We emphasize, however,

that Dutil's case does not present this scenario: according to the

record, Dutil does not have a petition for release pending, nor has

he at any point since February 2000. Moreover, and as explained

above, Dutil's prior petitions all appear to have been handled

appropriately. His first petition was heard in a timely manner,

and his second was withdrawn. While his third petition was not

heard until sometime in the second year after its filing, it

contained a request for a jury finding and ultimately resulted in

a jury trial. We cannot conclude from the record -- nor has Dutil

argued -- that any delay in hearing any of Dutil's three prior

petitions violated his due process rights.

-18-

violate the due process protections heretofore afforded SDPs

subject to civil commitment.7

Affirmed.