627 F.3d 525 (4th Cir. 2010), 10-6496, Timms v. Johns

Docket Nº:10-6496.
Citation:627 F.3d 525
Opinion Judge:TRAXLER, Chief Judge:
Party Name:Gerald Wayne TIMMS, Petitioner-Appellee, v. Tracy JOHNS, Warden, FCI Butner, Respondent-Appellant.
Attorney:Anisha S. Dasgupta, United States Department of Justice, Washington, D.C., for Appellant. Kearns Davis, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, North Carolina, for Appellee. Tony West, Assistant Attorney General, Beth S. Brinkman, Deputy Assistant Attorney General, Mark B. Stern...
Judge Panel:Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges. Vacated and remanded with instructions by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge AGEE joined.
Case Date:December 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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627 F.3d 525 (4th Cir. 2010)

Gerald Wayne TIMMS, Petitioner-Appellee,

v.

Tracy JOHNS, Warden, FCI Butner, Respondent-Appellant.

No. 10-6496.

United States Court of Appeals, Fourth Circuit

December 6, 2010

Argued: Sept. 21, 2010.

ARGUED:

Anisha S. Dasgupta, United States Department of Justice, Washington, D.C., for Appellant.

Kearns Davis, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, North Carolina, for Appellee.

ON BRIEF:

Tony West, Assistant Attorney General, Beth S. Brinkman, Deputy Assistant Attorney General, Mark B. Stern, Samantha L. Chaifetz, United States Department of Justice, Washington, D.C.; George E.B. Holding, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant.

Andrew T. Tripp, Brooks,

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Pierce, McLendon, Humphrey & Leonard, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Vacated and remanded with instructions by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge AGEE joined.

OPINION

TRAXLER, Chief Judge:

This appeal arises out of Gerald Wayne Timms' petition for a writ of habeas corpus under 28 U.S. C.A. § 2241 (West 2006 & Supp.2010), challenging the government's efforts to commit him civilly as a " sexually dangerous person" under the provisions of 18 U.S. C.A. § 4248 (West Supp.2010). For the reasons set forth below, we vacate the district court's order granting habeas relief to Timms and remand with instructions to dismiss the § 2241 petition without prejudice.

I.

A.

Section 4248 of Title 18 was enacted in July 2006 as a part of the Adam Walsh Child Protection and Safety Act. See 18 U.S. C.A. § 4248. As applicable to Timms, it provides for the civil commitment of " sexually dangerous person[s]" in federal custody for care and treatment, following the expiration of their federal prison sentences. 18 U.S. C.A. § 4248(a). A " sexually dangerous person" is defined as one " who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S. C.A. § 4247(a)(5) (West Supp.2010). A person is sexually dangerous to others if " the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id.

To initiate a civil commitment proceeding under § 4248, the Attorney General, his designee, or the Director of the Federal Bureau of Prisons (" BOP" ), files a certificate in the United States District Court asserting that the person is " sexually dangerous" under the provisions of the Act. 18 U.S. C.A. § 4248(a). This filing automatically stays release of the person from custody pending a mandatory hearing before the district court. See id. " If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General." Id. Ongoing psychiatric evaluation and judicial review by the court that ordered the commitment occurs thereafter, including review at the request of the committed person or his legal guardian. See 18 U.S. C.A. § 4247(e), (h). The statute expressly preserves the right to habeas corpus. See 18 U.S. C.A. § 4247(g).

This court first encountered challenges to the constitutionality of § 4248 in United States v. Comstock, 551 F.3d 274 (4th Cir.2009), rev'd, __ U.S. __, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). In Comstock, the BOP certified five respondents in its custody as sexually dangerous under § 4248 and requested evidentiary hearings. The cases were assigned to Judge Earl Britt, Senior District Judge in the Eastern District of North Carolina, who appointed the federal public defender to represent the respondents. However, no evidentiary hearings were held. Instead, Judge Britt granted the respondents' motions to dismiss as a matter of law, on the ground that § 4248 exceeded the scope of Congress's authority under the United States Constitution

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to enact legislation and, in the alternative, on the ground that the statute facially violated respondents' due process rights. See United States v. Comstock, 507 F.Supp.2d 522, 526, 559 (E.D.N.C.2007). However, Judge Britt stayed release of the Comstock respondents from custody pending an appeal from his decision. Id. at 560.

B.

On October 23, 2008, while Judge Britt's decision in Comstock was on appeal to this court, the government filed a certificate in the United States District Court for the Eastern District of North Carolina, seeking to commit petitioner Timms as a " sexually dangerous person" under § 4248. Timms, who had pled guilty in 2001 to receipt of child pornography by mail, see 18 U.S. C.A. § 2252A(a)(2) (West 2000 & Supp.2010), was scheduled to be released from the Federal Correctional Institute in Butner, North Carolina (" FCI-Butner" ) on November 11, 2008. The § 4248 certificate set forth Timms' criminal history of sexual violence,1 initial psychological diagnoses of pedophilia, sexual sadism, marijuana abuse, and antisocial personality disorder, and initial risk assessments for sexual offense recidivism which " indicat[ed] that [Timms would] have serious difficulty refraining from sexually violent conduct or child molestation if released" from custody. J.A. 155. The government asked the district court to appoint counsel for Timms, order a psychiatric or psychological examination, see 18 U.S. C.A. § 4248(b), and schedule the statutorily-mandated hearing, see 18 U.S. C.A. § 4248(a).

The action initiated by the government, referred to herein as the " Commitment Action," was also assigned to Judge Britt. Judge Britt appointed the federal public defender to represent Timms, as requested, but simultaneously and sua sponte placed Timms' case in abeyance pending the outcome of the government's appeal of his decision in Comstock. The abeyance order reads as follows:

This court has found [§ 4248] to be unconstitutional in five cases, United States v. Comstock, 507 F.Supp.2d 522, 559 (E.D.N.C.2007), but has also ordered that the respondents in those cases not be released pending the appellate process.... Additionally, in other similar cases, the court has stayed briefing on motions to dismiss and the time period for government evaluations pending the appellate process....

For the reasons stated in those orders, the court hereby APPOINTS the Federal Public Defender to represent the respondent, but hereby HOLDS IN ABEYANCE any further action in this matter pending the appellate process in Comstock.

J.A. 158. Timms did not object to the order placing the Commitment Action in abeyance, nor did he request that the evidentiary hearing on the issue of his sexual dangerousness proceed under § 4248(a) notwithstanding the appeal in Comstock.

On October 26, 2008, three days after the Commitment Action was filed against him, Timms initiated this pro se habeas

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corpus action against the Warden at FCI-Butner. According to the initial petition, FCI-Butner personnel had informed Timms that he was slated to be placed in the unit that housed " Adam Walsh" commitments upon his scheduled release date. J.A. 9. Obviously aware of the Comst...

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