Sexually Violent Person

No due process violation in delay of over two years (due to prison sentence in unrelated matters) between finding that defendant is a sexually violent person and the start of his confinement based on that finding

Gilbert v. McCullough, 776 F.3d 487 (7th Cir. 2015)

Carl C. Gilbert, Jr. had his parole revoked twice after he violated the conditions of his parole. These violations occurred while a civil commitment petition was pending against him, 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 (a jury having found that he qualified as a sexually violent person). Gilbert argued on habeas review that his commitment was contrary to the Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71 (1992) because the interposition of his prison term caused a delay between his commitment verdict and his entry in DHS care, meaning that there was no ”current" determination that he was a sexually violent person when he entered DHS care. After the Supreme Court of Wisconsin rejected Gilbert’s due process argument, both the federal district court for the Eastern District of Wisconsin and the Court of Appeals for the Seventh Circuit expressed concern regarding the delay, but ultimately held that the decision to reject Gilbert’s due process claim did not qualify as “contrary to or an unreasonable application of clearly established United States Supreme Court precedent.”

Although the Seventh Circuit acknowledged that “[w]ere the question presented to us as an initial question of federal constitutional law, we might reach a different result” and that the “two-and-a-half year delay between the order of commitment and Gilbert's entry into DHS care is certainly a concern for us,” they found themselves “constrained…by the narrow scope of habeas review.” In distinguishing Foucha, the Seventh Circuit found that, unlike in that case, there was “no suggestion that Gilbert no longer suffers from a mental disorder.” Further, there was no ruling or even intimation that “Gilbert could be committed, or that his commitment could continue, if he no longer had a mental disorder,” which would have been a holding contrary to Foucha.

Found in DMHL Volume 34 Issue 1