United States v. Timms

Decision Date09 January 2012
Docket Number11–6941.,Nos. 11–6886,s. 11–6886
Citation664 F.3d 436
PartiesUNITED STATES of America, Petitioner–Appellant, v. Gerald Wayne TIMMS, Respondent–Appellee.United States of America, Petitioner–Appellee, v. Gerald Wayne Timms, Respondent–Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

664 F.3d 436

UNITED STATES of America, Petitioner–Appellant,
v.
Gerald Wayne TIMMS, Respondent–Appellee.United States of America, Petitioner–Appellee,
v.
Gerald Wayne Timms, Respondent–Appellant.

Nos. 11–6886

11–6941.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2011.Decided: Jan. 9, 2012.


[664 F.3d 438]

ARGUED: Ian James Samuel, United States Department of Justice, Washington, D.C., for the United States. Kearns Davis, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, North Carolina, for Gerald Wayne Timms. ON BRIEF: Tony West, Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; Thomas G. Walker, United States Attorney, Raleigh, North Carolina, for the United States. Eric M. David, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, North Carolina, for Gerald Wayne Timms.

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

Affirmed in part, reversed in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ concurred.

[664 F.3d 439]

OPINION
AGEE, Circuit Judge:

The Government appeals from the judgment of the District Court for the Eastern District of North Carolina dismissing the Government's action to civilly commit Gerald Wayne Timms as a “sexually dangerous person” under 18 U.S.C. § 4248 (“§ 4248” or “the statute”). The district court held that the statute, as applied to Timms, violated the Due Process and Equal Protection Clauses of the United States Constitution. Timms cross-appeals, asserting additional grounds upon which § 4248 should be found unconstitutional. For the reasons set forth below, we reverse the district court's judgment on the grounds the Government raises, affirm as to the grounds Timms raises, and remand for the district court to determine whether Timms satisfies the criteria for commitment as a “sexually dangerous person.”

I. Factual and Procedural Background

Timms' case is among the first cases arising out of the civil commitment system established by § 4248 as part of the Adam Walsh Child Protection and Safety Act of 2006, (“the Act”), Pub.L. No. 109–248 § 302, 120 Stat. 587, 620–22. The background of Timms' commitment proceeding, as well as the context for the arguments made in this appeal, are inextricably connected to the litigation of § 4248 cases in this Circuit thus far.

Section 4248 authorizes the civil commitment of, inter alia, individuals who are in the custody of the Bureau of Prisons (“BOP”) and who are determined to be “sexually dangerous person[s].” A “sexually dangerous person” is defined under the Act as someone “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. § 4247(a)(5); 28 C.F.R. § 549.91. The inquiry is thus two-fold, requiring the district court to make both retrospective and prospective findings.1

The commitment process begins when the Attorney General, the Director of the BOP, or their designee certifies an individual as a “sexually dangerous person” in the district court where that individual is in custody. The certification automatically stays the prisoner's release from BOP custody. § 4248(a). The district court is then required to “order a hearing to determine whether the person is a sexually dangerous person.” Id. If “the court finds by clear and convincing evidence that the person is a sexually dangerous person,” the person is committed to the custody of the Attorney General, either for release to a state civil commitment system or to a federal facility until such time as the person is determined no longer to be sexually dangerous. § 4248(d)-(e).

When the Act was first implemented, individuals were certified under § 4248(a) in various district courts around the country, depending on the location of that person's BOP place of incarceration. Early in the process, however, the BOP began transferring potential candidates for § 4248 civil commitment to the Federal Correctional Institute in Butner, North

[664 F.3d 440]

Carolina (“FCI–Butner”) for an initial assessment, such that § 4248 civil commitment actions are now being reviewed almost exclusively through that facility.2 As a result, nearly all § 4248 civil commitment actions nationwide are now filed and adjudicated in the Eastern District of North Carolina, and then appealed to this Court.3

The first challenge brought before us regarding the constitutionality of § 4248 was 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) (“ Comstock I ”). As we previously summarized,

In Comstock, the [Government] 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 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.

Timms v. Johns, 627 F.3d 525, 526–27 (4th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2938, 180 L.Ed.2d 239 (2011) (“ Timms I ”).

On October 23, 2008, while Comstock I was pending before this Court, the Government filed a certificate in the District

[664 F.3d 441]

Court for the Eastern District of North Carolina, seeking to commit Timms as a “sexually dangerous person” under § 4248. At the time, Timms was in BOP custody, serving a 100–month sentence for soliciting and receiving child pornography by mail, in violation of 18 U.S.C. § 2252A(a)(2). He was scheduled to be released from BOP custody on November 11, 2008, but upon the Government's § 4248 certification, Timms' release was stayed.4 Timms' commitment proceeding was assigned to Judge W. Earl Britt, who, by order dated October 28, 2008, appointed the federal public defender to represent Timms and sua sponte placed Timms' proceeding in abeyance pending the outcome of the appeal in Comstock I.5 Neither Timms nor his appointed counsel objected to Judge Britt's decision, or filed a motion to conduct the § 4248 commitment hearing in this proceeding.

However, within days of the Government filing the § 4248 certification, 6 Timms filed a separate pro se habeas corpus action pursuant to 28 U.S.C. § 2241 against the Warden at FCI–Butner. Timms requested that § 4248 be declared unconstitutional such that he would be entitled to a writ of habeas corpus, or in the alternative, that his commitment hearing occur, so that he could be released as scheduled from his incarceration at FCI–Butner. Timms' habeas action was assigned to Judge Terrence W. Boyle.

In January 2009, this Court affirmed the dismissal of the § 4248 certifications in Comstock I, holding that Congress lacked constitutional authority to enact the statute. 551 F.3d at 276. The United States Supreme Court subsequently granted certiorari. During this time, the district court's stay remained in effect, thus holding Timms beyond the date of his scheduled release from federal custody for the service of his criminal sentence.

While the Comstock I appeal was pending, Judge Boyle conducted initial hearings in Timms' habeas proceeding and, inter alia, appointed private counsel to represent him. Timms' newly-appointed counsel renewed a request that Timms be immediately released on the basis of our holding in Comstock I or, in the alternative, that the district court conduct an evidentiary hearing on Timms' sexual dangerousness under § 4248. Counsel for Timms also alleged § 4248 was unconstitutional for additional reasons beyond those upon which our holding in Comstock I was based. In March 2010, Judge Boyle granted Timms' petition for habeas corpus, holding that § 4248 was unconstitutional (both on its face and as applied to Timms), and ordering his immediate release. Timms' release

[664 F.3d 442]

was stayed pending the Government's appeal to this Court.

In May 2010, the United States Supreme Court issued its opinion in Comstock, reversing our decision that § 4248 was unconstitutional, and holding that Congress properly enacted the statute pursuant to the Necessary and Proper Clause of the United States Constitution, Art. I, § 8, cl. 18. United States v. Comstock, ––– U.S. ––––, 130 S.Ct. 1949, 1954, 176 L.Ed.2d 878 (2010). The Supreme Court remanded the case to this Court to consider the additional grounds presented, but not decided, in Comstock I, and upon which the district court in that case had held that § 4248 was unconstitutional. Id. at 1955, 1965. This Court heard oral argument in the remanded case in September 2010, in seriatim with the appeal of Timms' habeas action.

Our decisions in those cases were both filed on December 6, 2010. Timms I, 627 F.3d 525; United States v. Comstock, 627 F.3d 513 (4th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 3026, 180 L.Ed.2d 865 (2011) (“ Comstock II ”). In Comstock II, we reversed the district court's judgment concerning the burden of proof under § 4248. We held that the statute did not violate the Due Process Clause by requiring a court to find by “clear and convincing evidence”—rather than “proof beyond a reasonable doubt”—that the individual “has engaged or attempted to engage in sexual violence or child molestation” and is “sexually dangerous to others.” 627 F.3d at 526, 529; cf. § 4248(d), 4247(a)(5). In Timms I, we also reversed the district court's judgment, holding that habeas corpus relief was...

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