In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3988

JOHN L. LAXTON,

Petitioner-Appellant,

v.

BYRAN BARTOW,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 977—William C. Griesbach, Judge.

____________

ARGUED MAY 10, 2005—DECIDED AUGUST 31, 2005

____________

Before FLAUM, Chief Judge, and KANNE and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Petitioner-appellant John L. Laxton

was involuntarily committed to a secure mental health

facility after a jury found that he was a sexually violent

person as defined in the Wisconsin Sexually Violent Person

Commitment Statute, Wis. Stat. § 980. Laxton appealed to

the Wisconsin Court of Appeals and the Wisconsin Supreme

Court, both of which affirmed his commitment. He then

petitioned for a writ of habeas corpus in the United States

District Court for the Eastern District of Wisconsin, arguing

that the commitment violated his substantive due process

rights. The district court denied the writ, and Laxton

appeals. We conclude that the Wisconsin Supreme Court’s
2 No. 04-3988

adjudication of Laxton’s due process claim was not contrary

to or an unreasonable application of clearly established

federal law and therefore affirm the district court’s denial

of the writ.

I. Background

On October 13, 1994, Laxton was arrested while peeping into the window of a room occupied by two young

girls. Laxton had a long history of sexual misconduct. At the

time, petitioner was on parole after serving part of

an eleven-year sentence for abducting and sexually assaulting two twelve-year-old girls. As a result of the windowpeeping incident, Laxton’s parole was revoked, and he was

convicted of disorderly conduct. Shortly before his release

from prison, on September 11, 1998, the state filed a

petition seeking to commit Laxton as a sexually violent

person under Wis. Stat. § 980. The statute defines a

“sexually violent person” 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 substantially

probable that the person will engage in acts of sexual

violence.

Wis. Stat. § 980.01(7).

Wisconsin affords persons who are the subject of a

commitment petition the right to a trial as well as “all

constitutional rights available to a defendant in a criminal

proceeding.” See Wis. Stat. § 980.05. At petitioner’s commitment trial, the state presented evidence of Laxton’s long

history of sexual misconduct. This evidence showed that

Laxton began window peeping and exposing himself at the
No. 04-3988 3

age of twelve. In 1981, he was convicted of exposing his

penis to a fifteen-year-old girl whom he stopped to ask for

directions. In 1987, he was convicted of sexually assaulting

two twelve-year-old girls whom he encountered delivering

newspapers in separate incidents on the same morning. He

approached the first girl and grabbed her in the crotch area

and demanded oral sex before the girl managed to escape.

Thirty minutes later, he encountered and attacked another

girl. He dragged the girl behind bushes where he forcibly

performed oral sex on her and placed his penis in her mouth

until he ejaculated.

While serving his sentences for these offenses, Laxton

was terminated from two sexual offender treatment programs for failing to make progress. Less than five months

after his release on parole, petitioner was arrested for the

window-peeping incident that triggered the state’s commitment petition. Ironically, at the time of the October 13,

1994 incident, Laxton was undergoing sexual offender

treatment and was reportedly “doing well.” Laxton’s parole

agent testified that, according to petitioner, window peeping

was a “red flag” for him, meaning it could lead to a new,

more serious, offense. Petitioner also admitted at trial that

he had committed several other acts of window peeping the

same week before being caught.

Several experts testified at the trial. Dr. Timothy

McGuire, a staff psychologist for the Wisconsin Department

of Corrections, testified for the state and diagnosed Laxton

with pedophilia, voyeurism, and paraphilia. He explained

that pedophilia is characterized by “recurrent, intense

sexually arousing fantasies, sexual urges, or behaviors

involving sexual activities with prepubescent children.”

Voyeurism, Dr. McGuire explained, is essentially “window

peeping for sexual gratification.” Paraphilia, according to

Dr. McGuire, refers to a variety of sexually deviant behaviors; in Laxton’s case, it primarily referred to his exhibitionism, or instances in which Laxton exposed himself for
4 No. 04-3988

sexual arousal. Dr. McGuire testified that these conditions

predisposed Laxton to engage in acts of sexual violence and

that his repeated sexual offenses “clearly show an inability

to refrain [from] acting on the sexual urges when they do

occur.” (Tr. Vol. 2 at 31.)

The state also called psychologist Dr. Sheila Fields, who

diagnosed Laxton with paraphilia and exhibitionism, and

also noted his cannabis abuse. She explained how Laxton’s

behavior progressed from voyeurism to exhibitionism

to forcing sexual activity:

With the voyeurism he feels a strong urge. He can’t stop

the urge to want to look in people’s windows, to watch

people who do not know they’re being watched. He then

becomes sexually excited, and he moves on to exposing

his penis, his genitals. Once sexually excited, at least

three times in his life that we know of, he’s moved on to

having sexual activity with someone who did not want

to. That’s—I believe is not necessarily . . . something

that he wanted to do.

(Tr. Vol. 2 at 131-32.) Dr. Fields concluded that Laxton

is predisposed to sexually violent behavior and has difficulty controlling his sexual urges.

Psychologist Dr. Michael Kotkin testified as an expert for

the defense. Dr. Kotkin diagnosed Laxton with exhibitionism and voyeurism, and again noted his marijuana abuse.

He did not, however, find sufficient evidence to support a

diagnosis of either paraphilia or pedophilia. Although he

opined that Laxton did not show a pattern of violent sexual

behavior, Dr. Kotkin acknowledged that Laxton’s two

sexual assaults in 1987 could be a compelling predictor of

future violent sexual offenses.

Finally, Laxton testified on his own behalf. He did not

dispute the details of his prior sex offenses but testified that

he would not commit another violent sexual act in

the future.
No. 04-3988 5

Tracking the language of the statute, the court instructed

the jury that the state had to prove three elements beyond

a reasonable doubt before it could find Laxton a sexually

violent person. First, the state was required to establish

that Laxton had been convicted of a sexually violent offense.

This element was not disputed. Second, the state had to

prove that Laxton has a mental disorder, defined as “a

congenital or acquired condition affecting the emotional or

volitional capacity that predisposes the person to engage in

acts of sexual violence.” (Tr. Vol. 4 at 10.) The court further

explained:

Acts of sexual violence means acts which constitute

sexually violent offenses. Acts of window peeping

or exposure of the penis, absent any other behavior

toward another person, do not alone constitute sexually

violent offenses under Chapter 980.

Not all persons who commit sexually violent crimes can

be diagnosed as suffering from mental disorders, nor

are all persons with a mental disorder predisposed to

commit sexually violent offenses.

(Id. at 11.) Third, the state was obligated to prove that

Laxton “is dangerous to others because he has a mental

disorder which creates a substantial probability that he will

engage in acts of sexual violence.” (Id.) The court further

explained that “substantial probability means much more

likely than not.” (Id.) Neither party objected to these jury

instructions. After four days of trial, the jury returned a

verdict finding that Laxton was a sexually violent person.

Laxton appealed from the judgment and order of commitment, arguing that the jury instruction defining sexually

violent offenses was inappropriate. The Wisconsin Court

of Appeals summarily affirmed the commitment, noting

that Laxton had not preserved his objection to the jury

instruction at trial. Petitioner then sought review in the

Wisconsin Supreme Court, arguing that his commitment

violated the substantive due process guarantees in the
6 No. 04-3988

United States and Wisconsin Constitutions because the

statute did not require the jury to determine specifically

that he had a mental disorder that involves serious difficulty in controlling his behavior. In re Commitment

of Laxton, 647 N.W.2d 784, 786 (Wis. 2002).

The Wisconsin Supreme Court granted Laxton’s petition for review, instructing both parties “to address whether

Laxton’s due process rights were violated because there was

no jury determination regarding his level of volitional

control.” Id. at 788. Following briefing and argument, the

Wisconsin court affirmed the commitment. Laxton then

filed a petition for a writ of habeas corpus, arguing that the

Wisconsin Supreme Court decision was contrary to or an

unreasonable application of clearly established federal law.

The district court denied the writ, but issued a certificate of

appealability on the following questions: (1) whether

petitioner’s Fourteenth Amendment right to due process

requires a jury determination that he has serious difficulty

controlling his sexually dangerous behavior; and (2)

whether the jury instructions in petitioner’s case satisfied

due process by informing the jury of its responsibility to

make this determination.

II. Discussion

The Supreme Court has held that although freedom from

physical restraint is “at the core of the liberty protected by

the Due Process Clause,” this interest may be overridden,

even in the civil context, in certain limited circumstances.

See Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (quoting

Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). More specifically, the Court has upheld involuntary commitment

statutes which “couple[ ] proof of dangerousness with the

proof of some additional factor, such as a ‘mental illness’ or

‘mental abnormality.’ ” Id. at 358 (citations omitted). As the

Court explained, these statutory requirements “serve to
No. 04-3988 7

limit involuntary civil confinement to those who suffer from

a volitional impairment rendering them dangerous beyond

their control.” Id.

In Hendricks, the Court upheld the Kansas Sexually

Violent Predator Act (SVPA), noting that it “requires

a finding of future dangerousness, and then links that

finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for

the person to control his dangerous behavior.” Id. The Court

explained that the precommitment requirement of a mental

disorder or personality disorder outlined in the SVPA is

“consistent with the requirements of these other statutes

that we have upheld in that it narrows the class of persons

eligible for confinement to those who are unable to control

their dangerousness.” Id.

Several years later, the Court again addressed “the

constitutional requirements substantively limiting the

civil commitment of a dangerous sexual offender” in the

context of the Kansas SVPA. Kansas v. Crane, 534 U.S. 407,

409 (2002). The Court concluded that the Kansas Supreme

Court had interpreted Hendricks “in an overly restrictive

manner” when it understood Hendricks to “insist[ ] upon ‘a

finding that the defendant cannot control his dangerous

behavior’—even if (as provided by Kansas law) problems of

‘emotional capacity’ and not ‘volitional capacity’ prove the

‘source of bad behavior’ warranting commitment.” Crane,

534 U.S. at 409, 411 (quoting In re Crane, 7 P.3d 285, 290

(Kan. 2000)). The Court clarified that Hendricks did not set

forth a “requirement of a total or complete lack of control,”

id. at 411, and concluded:

It is enough to say that there must be 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 diagnosis, and the severity of the mental

abnormality itself, must be sufficient to distinguish the

dangerous sexual offender whose serious mental illness,
8 No. 04-3988

abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

Id. at 413.

Petitioner argues that the Wisconsin Supreme Court

decision affirming his commitment was contrary to and

an unreasonable application of Hendricks and Crane

because it upheld his commitment without a specific jury

instruction or finding that he had serious difficulty in

controlling his behavior.

Petitioner’s habeas claim is governed by the Antiterrorism

and Effective Death Penalty Act (AEDPA), which provides

in relevant part:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—

(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

(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 proceeding.

28 U.S.C. § 2254(d).

A state court decision is “contrary to . . . clearly established Federal law” when the 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 decision of [the Supreme] Court

and nevertheless arrives at a result different from [its]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
No. 04-3988 9

An “unreasonable application of [ ] clearly established

Federal law” results when a court “correctly identifies the

governing legal rule but applies it unreasonably to the facts

of a particular prisoner’s case.” Id. at 407-08. Under the

“unreasonable application” prong, a federal court may not

issue the writ “simply because the court concludes in its

independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or

incorrectly.” Id. at 411. Rather, that application must also

be objectively unreasonable. Id.

In reviewing petitioner’s commitment, the Wisconsin

Supreme Court identified both Hendricks and Crane as

controlling precedent and reasonably summarized the

holdings of both cases. See Laxton, 647 N.W.2d at 790-91.

The court emphasized that, under Crane, “there must

be proof of serious difficulty in controlling behavior”

which is “sufficient to distinguish the dangerous sexual

offender . . . from the dangerous but typical recidivist.” Id.

at 791 (quoting Crane, 534 U.S. at 413). Therefore, we

conclude that the Wisconsin Supreme Court’s adjudication

was not “contrary to” Supreme Court precedent. See

Williams, 529 U.S. at 406 (“[A] run-of-the-mill state-court

decision applying the correct legal rule from our cases to the

facts of a prisoner’s case would not fit comfortably within §

2254(d)(1)’s ‘contrary to’ clause.”). Because the court

identified the correct legal rule, we turn to the “unreasonable application” prong and consider whether it applied

Hendricks and Crane unreasonably to petitioner’s case. See

id. at 407-08.

The Wisconsin Supreme Court affirmed Laxton’s commitment, holding that the Wisconsin statute and the commitment trial comported with the requirements articulated in

Hendricks and Crane. The court concluded that civil

commitment under the statute does not require “a separate

factual finding regarding the individual’s serious difficulty

in controlling behavior” because this finding is implicit in
10 No. 04-3988

the statute’s definition of a “sexually dangerous person.” See

Laxton, 647 N.W.2d at 793. The Wisconsin Supreme Court

emphasized that the statute requires that the individual is

“dangerous because he or she suffers from a mental disorder

that makes it substantially probable that the person will

engage in acts of sexual violence.” Id. (quoting Wis. Stat.

§ 980.01(7)) (emphasis in Wisconsin Supreme Court decision). Therefore, the court reasoned, “[t]he requisite proof of

lack of control is established when the nexus between such

person’s mental disorder and dangerousness has

been established.” Id. at 787. By concluding that Laxton has

a mental disorder and that his mental disorder creates a

substantial probability that he will engage in acts of sexual

violence, the court explained, the jury had to conclude that

Laxton’s mental disorder involved serious difficulty for him

in controlling his behavior. Id. at 795. The court further

held that the nexus between the mental disorder and level

of dangerousness was “sufficient to distinguish Laxton from

a dangerous but typical recidivist” and that the jury

instructions at Laxton’s trial, which tracked the key

statutory language, were proper and did not violate substantive due process. Id.

We cannot say that the Wisconsin Supreme Court’s

adjudication of petitioner’s due process claim was an

objectively unreasonable application of Supreme Court

precedent. In Hendricks, the Court emphasized the link

between the required finding of future dangerousness

and the offender’s mental illness or abnormality which

makes control over his behavior “difficult if not impossible.”

Hendricks, 521 U.S. at 358. In the particular case before it,

the offender had conceded that, when he becomes “stressed

out, he cannot control the urge to molest children.” Id. at

360. The Court concluded: “This admitted lack of volitional

control, coupled with a prediction of future dangerousness,

adequately distinguishes Hendricks from other dangerous

persons who are perhaps more properly dealt with exclu-
No. 04-3988 11

sively through criminal proceedings.” Id. Because the lack

of volitional control was undisputed in Hendricks, the Court

did not address whether a specific jury instruction or

finding on this issue was required.

In Crane, the Court did require proof of “serious difficulty

in controlling behavior,” however, it did compel the trial

court to give a specific instruction regarding the offender’s

lack of control. As discussed above, the Kansas Supreme

Court had read Hendricks to require a specific lack-ofcontrol finding and had reversed the commitment of a

sexual offender because the jury did not make such a

finding. See Crane, 7 P.3d at 290. The Supreme Court

vacated the judgment of the Kansas Supreme Court,

suggesting that it did not find that the absence of a specific

jury instruction and finding on control violated due process.

Moreover, the Court acknowledged that it was articulating

a less-than-precise constitutional standard. See Crane, 534

U.S. at 413 (“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”). Because of

the lack of clear lines in the field of psychiatry, and its

imperfect fit with legal standards, the Court reasoned, it

has “sought to provide guidance in this area by proceeding

deliberately and contextually, elaborating generally stated

constitutional standards and objectives as specific circumstances require.” Id. This approach, the Court explained,

was embodied in Hendricks. Id.

In light of the Supreme Court’s decision in Crane to

vacate the judgment of the Kansas Supreme Court, the

absence of more precise language concerning a lack-ofcontrol element, and the Court’s own acknowledgment that

bright-line rules are inappropriate in this context, we

cannot agree with petitioner’s contention that Crane clearly

establishes that the jury must be instructed and specifically

find that petitioner has serious difficulty in controlling his
12 No. 04-3988

behavior. It was not objectively unreasonable for the

Wisconsin Supreme Court to conclude that the finding of

serious difficulty in controlling behavior was implicit in the

jury’s conclusion that Laxton met the statutory definition of

a sexually violent person.

Laxton also contends that the Wisconsin Supreme Court

decision is contrary to clearly established federal law

because it ignores the requirement that reviewing courts

“approach the instructions in the same way that the jury

would—with a commonsense understanding of the instructions in light of all that has taken place at the trial.”

Johnson v. Texas, 509 U.S. 350, 368 (1993). Petitioner

asserts that the Wisconsin Supreme Court decision is

contrary to Johnson because the instructions did not

adequately inform the jury that there must be proof of

serious difficulty in controlling his behavior.

We find no merit in petitioner’s argument. While Laxton

disputed that he lacked control over his sexually dangerous

behavior, the evidence presented at the commitment trial

firmly established the requisite nexus between Laxton’s

mental disorder and his dangerousness. Both Dr. McGuire

and Dr. Fields testified that Laxton’s mental disorder

rendered him unable to control his sexual urges. Even

Laxton’s own expert acknowledged that his prior sexually

violent acts could be a compelling predictor of future violent

sexual offenses. The trial court instructed the jury that, in

order to find that Laxton was a sexually violent person, it

must find that he is “dangerous to others” because he has “a

congenital or acquired condition affecting the emotional or

volitional capacity that predisposes [him] to engage in acts

of sexual violence” and “creates a substantial probability

that he will engage in acts of sexual violence.” The jury was

further instructed that “acts of sexual violence” does not

include mere window peeping or exposing oneself. We must

presume that the jury followed all the instructions it was

given. United States v. Eberhart, 388 F.3d 1043, 1050 (7th
No. 04-3988 13

Cir. 2004). Therefore, we conclude that, in finding that

Laxton was a sexually violent person under this standard,

there was “no reasonable likelihood” that the jury did not

implicitly conclude that Laxton’s mental disorder caused

serious difficulty in controlling his sexually violent behavior. See Johnson, 509 U.S. at 368 (concluding that “there is

no reasonable likelihood that the jury would have

found itself foreclosed from considering the relevant aspects

of petitioner’s youth” where jury was instructed that it

could consider all mitigating evidence that had been

presented). The Wisconsin Supreme Court’s decision to

uphold Laxton’s commitment in light of these jury instructions was not “diametrically different” or “opposite in

character or nature” from any clearly established federal

law.

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of the

district court denying the petition for a writ of habeas

corpus.
14 No. 04-3988

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-31-05