405 U.S.

504
92 S.Ct. 1048
31 L.Ed.2d 394

Donald Gilbert HUMPHREY, Petitioner,

v.
Elmer O. CADY, Warden.
No. 705004.
Argued Dec. 7, 1971.
Decided March 22, 1972.

Syllabus
Petitioner was convicted of contributing to the delinquency of a minor, a
misdemeanor punishable by a maximum sentence of one year. In lieu of
sentence, he was committed to the 'sex deviate facility' in the state prison,
for a potentially indefinite period, pursuant to the Wisconsin Sex Crimes
Act. That Act provides that when a court finds that a convicted person was
'probably directly motivated by a desire for sexual excitement,' it may
commit the defendant to the Department of Health and Social Services for
a social, physical, and mental examination, and if the Department
recommends specialized treatment, the court must hold a hearing on the
need therefor. If the State establishes the need for treatment, the court
must commit the defendant for treatment in lieu of sentence for a period
equal to the maximum sentence authorized for the crime. At the end of
that period the Department may petition for a renewal of the commitment
for five years. After notice and hearing, the court may renew the
commitment if it finds that discharge would be 'dangerous to the public.'
Further five-year renewals may be similarly obtained. Petitioner is subject
to a five-year renewal order, obtained at the expiration of his one-year
sentence. He challenges the original and renewal commitment procedures.
He argues that commitment for compulsory treatment under the Sex
Crimes Act, at least after the original commitment, is essentially
equivalent to commitment under Wisconsin's Mental Health Act, which
provides for jury determinations, and that his commitment without jury
action deprives him of equal protection of the laws. He also claims that he
was denied effective assistance of counsel at both hearings and the
opportunity to be present and to confront the State's witnesses at the

renewal hearing. He charges equal protection and due process violations

as a result of his commitment to state prison rather than to a mental
hospital, as provided by the Mental Health Act. At the renewal hearing his
counsel argued that a new commitment would constitute double jeopardy
and indicated a broad constitutional challenge to the Sex Crimes Act.
However, no further action on petitioner's behalf was taken. The District
Court dismissed his habeas corpus petition on the grounds that his claims
were lacking in merit and that they had been waived by failure to present
them adequately to the state courts. The Court of Appeals refused to
certify probable cause for an appeal, on the ground that the claims were
frivolous. Held:
1. Petitioner's claims are substantial enough to warrant an evidentiary
hearing. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620;
Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Pp. 508
514.
(a) The renewal proceedings bear substantial resemblance to the postsentencing proceedings in Baxstrom, supra, and the Wisconsin Supreme
Court has held that even the initial commitment is not just a sentencing
alternative but an independent commitment for treatment, comparable to
commitment under the Mental Health Act. Pp. 508511.
(b) The Mental Health Act and the Sex Crimes Act are apparently not
mutually exclusive, and an equal protection claim would be persuasive if
it develops on remand that petitioner was deprived of a jury determination
or other procedural protections merely by the arbitrary decision to seek
commitment under one Act rather than the other. P. 512.
(c) Remand will provide ample opportunity to develop facts relevant to
the State's claim of mootness as well as to petitioner's other constitutional
claims. Pp. 512514.
2. Federal habeas corpus is not barred by every state procedural default,
and an evidentiary hearing is required to determine whether petitioner
knowingly and intelligently made a deliberate strategic waiver of his
claims in state court. Pp. 514 517.
Reversed and remanded to District Court.
Irvin B. Charne, Milwaukee, Wis., for petitioner.
George L. Frederick, Madison, Wis., for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

Petitioner was convicted of contributing to the delinquency of a minor, a

misdemeanor punishable by a maximum sentence of one year. Wis.Stat.Ann.
947.15 (1958). In lieu of sentence, he was committed to the 'sex deviate
facility,' located in the state prison, for a potentially indefinite period of time,
pursuant to the Wisconsin Sex Crimes Act. Wis.Stat.Ann. 959.15 (1958), as
amended, Wis.Stat.Ann. c. 975 (1971). In this petition for federal habeas
corpus, he seeks to challenge the constitutional validity of the statutory
procedures for commitment and the conditions of his confinement. The District
Court dismissed his petition without an evidentiary hearing, on the ground that
(1) his claims were for the most part lacking in merit as a matter of law, and (2)
his claims had been waived by his failure to present them adequately to the
state courts. The Court of Appeals refused to certify probable cause for an
appeal, 28 U.S.C. 2253, relying not on the ground of waiver but solely on the
ground that the claims lacked merit.1 We granted certiorari to consider the
constitutional challenge to the statute. 401 U.S. 973, 91 S.Ct. 1202, 28 L.Ed.2d
322 (1971). We have concluded that an evidentiary hearing is necessary to
resolve petitioner's constitutional claims, and also to resolve the question of
waiver; consequently we remand the case to the District Court for a hearing.2

* The Wisconsin Sex Crimes Act provides that after a person is convicted of
any crime, the court may consider whether the crime was 'probably directly
motivated by a desire for sexual excitement.' If the court finds such motivation,
it may commit the defendant to the Department of Public Welfare (now the
Department of Health and Social Services) for a social, physical, and mental
examination. If the Department recommends specialized treatment for the
defendant's 'mental and physical aberrations,' the court must hold a hearing on
the need for such treatment. If the State establishes the need for treatment by a
preponderance of the evidence, the court must commit the defendant to the
Department for treatment in lieu of sentence, for a period equal to the
maximum sentence authorized for the defendant's crime. At the end of that
period, the Department may petition for an order renewing the commitment for
five years. After notice and hearing, the court may renew the commitment if it
finds that the defendant's discharge would be 'dangerous to the public because
of (his) mental or physical deficiency, disorder or abnormality.' Further fiveyear renewals may be similarly obtained without limitation.

Petitioner is presently subject to a five-year renewal order, obtained at the

expiration of his one-year maximum sentence. His principal claims relate to the
procedure that resulted in the order renewing his commitment. In addition, he

challenges the original commitment procedures, and the conditions of his

confinement.
4

A review of petitioner's claims compels us to conclude that they are at least

substantial enough to warrant an evidentiary hearing, in light of this Court's
decisions in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620
(1966), and Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326
(1967). Thus we reject the contrary conclusion of the Court of Appeals, implicit
in its decision to deny leave to appeal.

A. One of petitioner's principal arguments is that commitment for compulsory

treatment under the Sex Crimes Act, at least after the expiration of the initial
commitment in lieu of sentence, is essentially equivalent to commitment for
compulsory treatment under Wisconsin's Mental Health Act, Wis.Stat.Ann., c.
51 (1957); that a person committed under the Mental Health Act has a statutory
right to have a jury determine whether he meets the standards for commitment,
Wis.Stat.Ann. 51.03; and that petitioner's commitment under the Sex Crimes
Act without such a jury determination deprived him of equal protection of the
laws.

In Baxstrom, substantially the same argument was advanced by a convicted

prisoner who was committed under New York law for compulsory treatment,
without a jury trial, at the expiration of his penal sentence. This Court held that
the State, having made a jury determination generally available to persons
subject to commitment for compulsory treatment, could not, consistent with the
Equal Protection Clause, arbitrarily withhold it from a few. 383 U.S., at 110
112, 86 S.Ct., at 762763. The Court recognized that the prisoner's criminal
record might be a relevant factor in evaluating his mental condition, and in
determining the type of care and treatment appropriate for his condition; it
could not, however, justify depriving him of a jury determination on the basic
question whether he was mentally ill and an appropriate subject for some kind
of compulsory treatment.

Since 1880, Wisconsin has relied on a jury to decide whether to confine a

person for compulsory psychiatric treatment.3 Like most, if not all, other States
with similar legislation, Wisconsin conditions such confinement not solely on
the medical judgment that the defendant is mentally ill and treatable, but also
on the social and legal judgment that his potential for doing harm, to himself or
to others, is great enough to justify such a massive curtailment of liberty.4 In
making this determination, the jury serves the critical function of introducing
into the process a lay judgment, reflecting values generally held in the
community, concerning the kinds of potential harm that justify the State in

confining a person for compulsory treatment.5

8

Commitment for compulsory treatment under the Wisconsin Sex Crimes Act
appears to require precisely the same kind of determination, involving a
mixture of medical and social or legal judgments.6 If that is so (and that is
properly a subject for inquiry on remand), then it is proper to inquire what
justification exists for depriving persons committed under the Sex Crimes Act
of the jury determination afforded to persons committed under the Mental
Health Act.

Respondent seeks to justify the discrimination on the ground that commitment

under the Sex Crimes Act is triggered by a criminal conviction; that such
commitment is merely an alternative to penal sentencing; and consequently that
it does not require the same procedural safeguards afforded in a civil
commitment proceeding. That argument arguably has force with respect to an
initial commitment under the Sex Crimes Act, which is imposed in lieu of
sentence, and is limited in duration to the maximum permissible sentence.7 The
argument can carry little weight, however, with respect to the subsequent
renewal proceedings, which result in five-year commitment orders based on
new findings of fact, and are in no way limited by the nature of the defendant's
crime or the maximum sentence authorized for that crime. The renewal orders
bear substantial resemblance to the post-sentence commitment that was at issue
in Baxstrom. Moreover, the Wisconsin Supreme Court has expressly held that
even the initial commitment under the Sex Crimes Act is not simply a
sentencing alternative, but rather an independent commitment for treatment,
comparable to commitment under the Mental Health Act. The Wisconsin court
held, anticipating this Court's decision in Specht v. Patterson, 386 U.S. 605, 87
S.Ct. 1209, 18 L.Ed.2d 326 (1967), that a hearing was required even for the
initial commitment under the Sex Crimes Act. Huebner v. State, 33 Wis.2d 505,
521530, 147 N.W.2d 646, 654658 (1967). While the Huebner decision
was grounded in considerations of procedural due process, the Wisconsin court
also noted carefully the relevance of Baxstrom and the Equal Protection Clause
to its decision.8

10

An alternative justification for the discrimination might be sought in some

special characteristic of sex offenders, which may render a jury determination
uniquely inappropriate or unnecessary. It appears, however, that the Mental
Health Act and the Sex Crimes Act are not mutually exclusive; that
'aberrations' warranting commitment under the latter might also amount to
'mental illness' warranting commitment under the former.9 The equal protection
claim would seem to be especially persuasive if it develops on remand that
petitioner was deprived of a jury determination, or of other procedural

protections, merely by the arbitrary decision of the State to seek his

commitment under one statute rather than the other.10
11

B. The remand hearing will also provide an opportunity for the District Court
to consider factual questions relevant to petitioner's other claims. In addition to
the lack of a jury trial, petitioner challenges several other aspects of the hearing
that led to the renewal of his commitment. He claims he was denied effective
assistance of counsel, and he was denied the opportunity to be present and to
confront the State's witnesses. These claims are tied inextricably to the question
of possible waiver of rights at that hearing, a question that clearly requires
further exploration on remand, see infra, at 514517.

12

Petitioner also challenges the adequacy of the hearing that led to his initial
commitment. The record shows that petitioner was not represented by counsel
at that initial commitment, App. 11 12, and thus the question arises whether the
state court ever in fact held the hearing required by Huebner and Specht, and
now by statute as well. Moreover, petitioner claims that, even if there was such
a hearing, it provided at most an opportunity to challenge the finding that he
needed treatment, and not an opportunity to challenge the initial determination
that his crime was sexually motivated, a determination that was a necessary
prerequisite to the invocation of the whole commitment process. Respondent
argues that any defect in the initial commitment has been rendered moot by the
intervening renewal hearing.11 It may be, however, that the initial commitment
has continuing effects that cannot be remedied by a mere attack on the
subsequent renewal order.12 On remand, the District Court should resolve this
threshold question of mootness, and if the Court determines that the merits of
these claims are properly before it, then it should proceed to resolve the
relevant factual and legal questions.

13

Finally, petitioner challenges the place and character of his confinement under
the Sex Crimes Act. He objects to the fact that he was committed to the state
prison, rather than to a mental hospital, as he would have been under the Mental
Health Act; and he contends that no treatment was provided at the prison,
notwithstanding the fact that he was in a prison unit labeled 'Sex Deviate
Facility.' These matters, in his view, deprived him of equal protection and due
process. Respondent argues that this aspect of petitioner's claim has become
moot, because (1) petitioner has been released on parole, see n. 2, supra, and (2)
the State has established a new treatment facility at the state mental hospital, to
which petitioner might be committed if his parole were revoked.13 On remand,
the parties will have ample opportunity to develop the facts relevant to the
question of mootness, as well as to petitioner's substantial constitutional claims.

II
14

Plainly, then, we cannot accept as a ground for decision the conclusion of the
Court of Appeals that petitioner's claims are too frivolous to require a hearing.
And alternative ground was relied on by the District Court, however, and
respondent presses that argument here. The District Court held that petitioner
had waived his constitutional claims by failing to present them properly to the
state courts. In order to consider this argument, it will be necessary to review
the somewhat complicated procedural history of this case.

15

Petitioner first sought to challenge the constitutionality of the Sex Crimes Act
at the hearing on the State's petition to renew his commitment beyond the
initial one-year period. His appointed counsel argued that a new commitment
order would constitute a prohibited second punishment for a single offense, and
indicated that she was making a broad constitutional challenge to the Sex
Crimes Act. The state trial judge adjourned the matter to permit the parties to
brief the constitutional issues. When petitioner's counsel failed to submit a
brief, or to take any further action on behalf of petitioner, the state court
concluded that the bare petition of the Department of Public Welfare was
sufficient to support an order continuing petitioner's confinement.14 No appeal
was taken from that order.15

16

Petitioner subsequently filed a petition for habeas corpus, without the

assistance of counsel, in the Wisconsin Supreme Court, which at that time was
the only state court authorized to grant habeas corpus relief to state prisoners.16
The petition was summarily dismissed without a response from the State or an
opinion by the court. While the petition is not in the record before us, both
parties represent that it was substantially identical to the subsequent petition for
federal habeas corpus that initiated the present proceedings.17

17

The federal petition, also prepared without the assistance of counsel, alleges, in
addition to the claim of double jeopardy, a claim that petitioner was denied
equal protection and due process, referring specifically to, inter alia, the lack of
a jury trial, and confinement in the state prison.

18

The District Court held that the failure of petitioner's trial counsel to file a brief
in the state trial court amounted to a deliberate strategic decision to abandon
petitioner's constitutional claims; it justified the Wisconsin Supreme Court's
denial of post-conviction relief; and it operated as a bar to federal relief as well.
We cannot agree with respondent or the District Court that the present record
shows the deliberate bypass of state remedies that might bar federal

consideration of petitioner's claims. We conclude, however, that respondent

should be given an opportunity to develop the relevant facts. Accordingly, the
case must be remanded for an evidentiary hearing on this point, as well as on
the merits of such claims as may be ripe for federal determination.
19

This Court has repeatedly made it plain that not every state procedural default
bars federal habeas corpus relief. Title 28 U.S.C. 2254(b), (c), which require
a state prisoner to exhaust available state remedies, are limited in their
application to those state remedies still open to the habeas applicant at the time
he files his application in federal court. Fay v. Noia, 372 U.S. 391, 434435,
83 S.Ct. 822, 846847, 9 L.Ed.2d 837 (1963); see Picard v. Connor, 404 U.S.
270, 272 n. 3, 92 S.Ct. 509, 510, 30 L.Ed.2d 438 (1971). In this case it appears
that petitioner has met the requirements of the exhaustion rule, inasmuch as no
direct appeal is presently available to him, and he has taken his claim for postconviction relief to the highest state court. 18

20

This Court has also held, however, that a federal habeas judge may in his
discretion deny relief to an applicant who has deliberately bypassed the orderly
procedure of the state courts, on the ground that in so doing he has forfeited his
state court remedies. Fay v. Noia, supra, at 438439, 83 S.Ct., at 848849.
But such a waiver must be the product of an understanding and knowing
decision by the petitioner himself, who is not necessarily bound by the decision
or default of his counsel. An evidentiary hearing will ordinarily be required
before the District Court can determine whether petitioner made a deliberate
strategic waiver of his claim in state court. In this case, a hearing is necessary to
determine (1) the reason for counsel's failure to file a brief or to take further
action in the state courts, and (2) the extent of petitioner's knowledge and
participation in that decision. If the District Court cannot find persuasive
evidence of a knowing and intelligent waiver on the part of petitioner himself,
then the Court should proceed to consider petitioner's constitutional claims.

21

The judgment is reversed and the case is remanded to the District Court for
further proceedings in accordance with this opinion. It is so ordered.

22

Reversed and remanded.

23

Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the
consideration or decision of this case.

The Court of Appeals said in pertinent part:

'Plaintiff also claims various procedural rights to which he would be entitled in

the course of a separate proceeding for conviction of an offense, but the
continuation of commitment is not such a proceeding.' App., 58.
2

After the petition for certiorari had been filed, it appears that petitioner was
released on parole to the custody of the Secretary of the State Department of
Health and Social Services. That change in his custody does not necessarily
moot his claims; it simply requires the substitution of the Secretary for the
prison warden as respondent, which can be accomplished by motion under Rule
49 of this Court, or by the District Court on remand.

The jury-trial provision first appeared in c. 266, Wis.Laws 1880, pp. 299, 301;
compare Wis.Rev.Stat. 593, p. 208 (1878), with Wis.Rev.Stat., 593, p. 114
(1883 Supp.).

The Mental Health Act authorizes commitment of a person for compulsory

treatment if the court or jury finds that he is (1) mentally ill, and (2) a 'proper
subject for custody and treatment.' Wis.Stat. Ann. 51.02(5), 51.03 (1957).
The social and legal aspects of the determination are implicit not only in the
determination of who is a 'proper subject for custody and treatment,' but also in
the definition of mental illness itself, contained in the Interstate Compact on
Mental Health, and recently adopted by Wisconsin, as well as by many other
States: "Mental illness' means mental disease to such extent that a person so
afflicted requires care and treatment for his own welfare, or the welfare of
others, or of the community.' (Emphasis added.) Wis.Stat.Ann. 51.75, Art.
II(f) (Supp.1971).

In 1926 the Wisconsin Legislature voted to eliminate the jury-trial provision

from the Mental Health Act, at the request of the state medical society, but the
Governor vetoed the bill. Again in 1947 an attempt was made to eliminate the
jury trial. A legislative committee reported that juries too often refused to order
commitment when the medical experts thought it appropriate. Wis.Stat.1947, c.
51, general comment of interim committee, at p. 802. This time the state
legislature refused to do away with jury trials, however, and indeed when the
legislature enacted in that same year a new statute for the compulsory treatment
of 'sex psychopaths,' the new statute contained a provision for jury trial
paralleling the provision in the Mental Health Act. Wis.Stat.1947, 51.37(4).
Not until 1951, with the passage of a new Sex Crimes Act, did the provision for
jury trial disappear from the legislation governing the compulsory treatment of
sex offenders. Wis.Stat.1951, 340.485(14)(a).

The Sex Crimes Act authorizes an initial commitment of an otherwise eligible

person for compulsory treatment if the court finds that he is in need of

'specialized treatment for his mental or physical aberrations,' Wis.Stat.Ann.

975.06(1)(2) (1971), which restated Wis.Stat.Ann. 959.15(5)(6), adding
a provision for a judicial hearing, as required by the Wisconsin Supreme Court
in Huebner v. State, 33 Wis.2d 505, 147 N.W.2d 646 (1967). The statute
authorizes renewal of the commitment order if the court finds that discharge
would be 'dangerous to the public because of the person's mental or physical
deficiency, disorder or abnormality.' Wis.Stat.Ann. 975.14 (1971), formerly
Wis.Stat.Ann. 959.15(14)(b) (1958).
7

Two courts of appeals have implied the contrary, see Matthews v. Hardy, 137
U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct.
1231, 25 L.Ed.2d 423 (1970), and United States ex rel. Schuster v. Herold, 410
F.2d 1071 (CA2), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96
(1969). This case does not present the claim of right to a jury trial at the initial
commitment, however, and we intimate no view on that question here.
Petitioner's only objections to the initial commitment are discussed infra, at
513.

Following Huebner, petitioner rests his claim alernatively on Specht and the
Due Process Clause, or on Baxstrom and the Equal Protection Clause. The
Wisconsin Supreme Court has, however, rejected the argument that either
Baxstrom or Huebner requires the State to extend to sex offenders the right to a
jury trial at the hearing on the petition for renewal of commitment. Buchanan
v. State, 41 Wis.2d 460, 164 N.W.2d 253 (1969). In rejecting the equal
protection claim, the court relied on distinctions so elusive that, if they can
support the discrimination at all, they will require further factual development
at the remand hearing in this case. The jury question was also raised, but not
decided, in Hill v. Burke, 289 F.Supp. 921 (W.D.Wis.1968), aff'd, 422 F.2d
1195 (CA7 1970).

Tr. of Oral Arg. 22; Respondent's Supplemental Memorandum, filed Feb. 25,
1971, pp. 34. Compare the criteria for commitment in n. 4 with the criteria in
n. 6, supra.

10

Baxstrom v. Herold, supra at 111, 86 S.Ct. at 762, 15 L.Ed.2d 620; Cross v.

Harris, 135 U.S.App.D.C. 259, 262, 418 F.2d 1095, 1098 (1969); Millard v.
Harris, 132 U.S.App.D.C. 146, 152, 406 F.2d 964, 970 (1968).

11

See State ex rel. Stroetz v. Burke, 28 Wis.2d 195, 136 N.W.2d 829 (1965).

12

For example, if petitioner can successfully challenge the initial finding that his
crime was sexually motivated, then his commitment under the Sex Crimes Act
would be improper even if he meets the statutory standards for continued
commitment, i.e., even if his discharge would be 'dangerous to the public

because of . . . mental or physical . . . abnormality.' In that case, he could

properly be committed only under the Mental Health Act, in accordance with its
procedures and criteria for commitment, and its conditions of confinement.
13

See Brief for Respondent 2830, and Appendix to Brief 140 156.

14

The state court relied largely on petitioner's failure to introduce any evidence in
his behalf. In this connection it is noteworthy that the record does not show any
evidence introduced by the State, either; moreover, under Wisconsin law, the
State has the burden of proof in such proceedings. Goetsch v. State, 45 Wis.2d
285, 172 N.W.2d 688 (1969) (decided after the commitment hearing in this
case).

15

An eppeal is authorized by Wis.Stat.Ann. 975.16, formerly Wis.Stat.Ann.

959.15(16).

16

Wis.Stat.Ann., c. 292 (1958), which has been replaced by a comprehensive

post-conviction review statute, Wis.Stat.Ann. 974.06 (1971).

17

On remand, the District Court will have the opportunity to ascertain precisely
what claims were presented in the state habeas petition.

18

There is, of course, no requirement that petitioner file repetitious applications in

the state courts. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30
L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 448 n. 3, 73 S.Ct. 397, 402,
97 L.Ed. 469 (1953). The question on remand is whether any of petitioner's
claims is so clearly distinct from the claims he has already presented to the state
courts that it may fairly be said that the state courts have had no opportunity to
pass on the claim; and if so, whether there is presently available a state forum
in which he can effectively present the claim.
Moreover, some or all of petitioner's claims may be entitled to be treated as
claims for relief under the Civil Rights Act, 42 U.S.C. 1983, in which case no
exhaustion is required. Wilwording v. Swenson, supra.