Timms v. Johns

• Decision Date: 31 March 2010
• Docket Number: No. 5:08-HC-2160-BO.,5:08-HC-2160-BO.
• Citation: 700 F.Supp.2d 764
• Parties: Gerald Wayne TIMMS, Petitioner,v.Tracy JOHNS, Warden, FCI Butner, Respondent.
• Court: U.S. District Court — Eastern District of North Carolina

700 F.Supp.2d 764

Gerald Wayne TIMMS, Petitioner,
v.
Tracy JOHNS, Warden, FCI Butner, Respondent.

No. 5:08-HC-2160-BO.

United States District Court,
E.D. North Carolina,
Western Division.

March 31, 2010.

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Kearns Davis, Brooks Pierce McLendon Humphrey & Leonard, L.L.P., Greensboro, NC, Andrew Tripp, Brooks Pierce McLendon Humphrey & Leonard, LLP, Raleigh, NC, for Petitioner.

Edward D. Gray, R.A. Renfer, Jr., U.S. Attorney's Office, Raleigh, NC, Michael D. Bredenberg, Butner, NC, for Respondent. ORDER TERRENCE W. BOYLE, District Judge.

This matter is before the Court on Petitioner Gerald Wayne Timms' Petition for Writ of Habeas Corpus and the Government's Motion to Dismiss the Petition. Petitioner claims that he is unlawfully detained pursuant to 18 U.S.C. § 4248, the civil commitment component of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. 109-248, 120 Stat. 587 (2006). For the reasons set forth herein, the Petition is GRANTED. The Government's Motion to Dismiss is DENIED.

INTRODUCTION

On February 16, 2001, Gerald Wayne Timms (hereinafter “Timms” or “Petitioner”) pled guilty to violations of 18 U.S.C. § 2252A(a)(2). The United States District Court for the Southern District of Florida sentenced Timms to 100 months of confinement in the custody of the United States Bureau of Prisons. Allowing for credits against his active sentence, Timms was scheduled for release on November 11, 2008. But on October 23, 2008, the United States Bureau of Prisons certified Timms as a Sexually Dangerous Person pursuant to 18 U.S.C. § 4248. See United States v. Timms, 08-hc-2156-BR (E.D.N.C. October 23, 2008) (the “Commitment Action”). The Commitment Action was held in abeyance by Order of Judge Britt on October 28, 2008.

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At this time, Petitioner remains in the custody of the United States Bureau of Prisons. He is presently confined at the Federal Correctional Institute located in Butner, North Carolina. As of Petitioner's hearing before this Court in Raleigh, North Carolina, Petitioner had been held for nearly 14 months.

Petitioner, acting pro se, filed a Petition for a Writ of Habeas Corpus. A status conference was held on October 21, 2009, and counsel was appointed to represent Petitioner. This Court subsequently granted Petitioner leave to file an Amended Petition. Petitioner, through counsel, filed this Amended Petition on January 8, 2010. The Government filed a response and motion to dismiss on January 25, 2010. Petitioner replied on February 5, 2010. A hearing was held in Raleigh, North Carolina, on March 5, 2010. The Petition is now ripe for ruling.

DISCUSSION

This Petition argues that 18 U.S.C. § 4248 violates the United States Constitution. At the outset, this Court notes that the Constitutional questions raised by Petitioner were addressed in part in United States v. Comstock, 507 F.Supp.2d 522 (E.D.N.C.2007), aff'd 551 F.3d 274, 280 (4th Cir.2009), cert. granted --- U.S. ----, 129 S.Ct. 2828, 174 L.E.2d 551 (2009). Judge Britt's Order in Comstock, 507 F.Supp.2d 522 (E.D.N.C.2007), found § 4248 unconstitutional on the grounds that (1) the civil commitment of those deemed sexually dangerous does not fall within the Article I Commerce Clause powers of Congress; and (2) the failure to apply the beyond a reasonable doubt standard in § 4248 proceedings constitutes a denial of due process. The Fourth Circuit Court of Appeals affirmed that Order on the grounds that § 4248 fell outside of the Article I Commerce powers of Congress. 551 F.3d 274, 280 (4th Cir.2009). The United States Supreme Court granted certiorari on June 22, 2009, --- U.S. ----, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009), and held oral arguments on January 12, 2010.

Comstock has been stayed awaiting the Supreme Court's ruling. But here, Petitioner advances grounds for relief not adjudicated in Comstock. Specifically, Petitioner contends (1) that he has been subject to criminal punishment pursuant to § 4248 without the benefit of the Constitutional protections afforded to a criminal defendant and (2) that § 4248 on its face violates the due process clause of the Fifth Amendment. As such, this Court will address the merits of the Petition to the extent that these issues were not adjudicated in Comstock.

I.

In order to determine the scope and measure of the Constitutional processes and protections to which Petitioner is entitled, this Court must determine whether Petitioner has been subject to civil or criminal proceedings. See In re DNA Ex Post Facto Issues, 561 F.3d 294, 298 (4th Cir.2009). The United States Supreme Court has set forth a two part test for distinguishing between civil and criminal proceedings. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); In re DNA Ex Post Facto Issues, 561 F.3d 294, 298 (4th Cir.2009). “The Court first asks whether the legislature's intent, as discerned from the structure and design of the statute along with any declared legislative intent, was to impose a punishment or merely to enact a civil or regulatory law.” In re DNA Ex Post Facto Issues, 561 F.3d at 298 (internal citations omitted). “Second, even if the legislature did not intend to impose a punishment, a law still may be said to do so if the sanction or disability that it imposes

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is ‘so punitive in fact’ that the law ‘may not legitimately be viewed as civil in nature.’ ” Id. “A defendant faces a ‘heavy burden’ in making a showing of such a punitive effect and can succeed only on the ‘clearest proof.’ ” Id. “In those limited circumstances, [Courts] will consider the statute to have established criminal proceedings for constitutional purposes.” Hendricks, 521 U.S. at 361, 117 S.Ct. 2072.

Congress intended § 4248 to establish civil proceedings. Section 4248 is entitled “civil commitment of a sexually dangerous person.” Section 4248 was placed in Chapter 313 pertaining to offenders with a mental disease or defect. And nothing on the face of the statute indicates that Congress intended that § 4248 should be construed as a criminal statute.

But although Congress intended to enact § 4248 as a civil or regulatory law, the sanctions imposed on Petitioner pursuant to § 4248 are so punitive in fact that the Act may not legitimately be viewed as civil in nature. In finding that the Kansas Sexually Violent Predator Act imposed civil commitment rather than criminal punishment, the Supreme Court in Hendricks held that “[w]here the State has “disavowed any punitive intent”; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safe-guards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent.” Hendricks, 521 U.S. at 368-69, 117 S.Ct. 2072. The Court noted that “an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state mental institution.” Id. at 363, 117 S.Ct. 2072. Moreover, the Court found it significant that individuals subject to civil commitment pursuant to the Kansas statute were “placed under the supervision of the Kansas Department of Health and Social and Rehabilitative Services, housed in a unit segregated from the general prison population and operated not by employees of the Department of Corrections, but by other trained individuals” and “receiving in the neighborhood of ‘31- 1/2 hours of treatment per week.’ ” Id. at 368, 117 S.Ct. 2072.

By contrast, in Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.2004), the Ninth Circuit Court of Appeals held that where a “detainee is confined in conditions identical to, similar to, or more restrictive than, those in which his criminal counterparts are held, we presume that the detainee is being subjected to ‘punishment.’ ” See also Youngberg v. Romeo, 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).

In the instant case, Petitioner has been subject to substantially the same conditions of confinement as a federal prisoner serving a criminal sentence. Petitioner is held within the confines of the Federal Correctional Institute in Butner, North Carolina. He is managed by BOP corrections officers and remains subject to BOP rules and regulations promulgated for the management of prisoners that are punitive in effect. Pursuant to these regulations, Petitioner has been placed in solitary confinement and lost telephone, commissary, and visitation privileges. Moreover, Petitioner is double bunked. His telephone

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calls are monitored and recorded. His recreational activities are limited. He shares mess privileges with prisoners. He wears a prison uniform. He is subject to strip searches and visual body cavity searches following visitation. And he is required to vacate his cell during periodic searches. These conditions, considered together, compel the conclusion that Petitioner has been subject to criminal punishment.

When viewed as a criminal statute, the Constitutional infirmities of § 4248 are both numerous and apparent. Section 4248 does not provide for a trial by jury. Proof beyond a reasonable doubt is not required. Section 4248 increases Petitioner's incarceration based on his past conviction in the Southern District of Florida in violation of the ex post facto clause. See Lynce v. Mathis, 519 U.S. 433, 441, 117...