Tobey v. U.S..

• Decision Date: 29 June 2011
• Docket Number: Civil Action No. DKC 10–1358.,Criminal No. DKC 03–0151.
• Citation: 794 F.Supp.2d 594
• Parties: David H. TOBEYv.UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

794 F.Supp.2d 594

David H. TOBEY

v.UNITED STATES of America.

Civil Action No. DKC 10–1358.Criminal No. DKC 03–0151.

United States District Court, D. Maryland.

June 29, 2011.

Joseph Martin Peterson, DLA Piper U.S. LLP, Baltimore, MD, for David H. Tobey.Larry D. Adams, Office of the United States Attorney, Baltimore, MD, for United States of America.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

A provision of the Adam Walsh Child Protection and Safety Act of 2006 empowers the government to certify a person in the custody of the Bureau of Prisons as “sexually dangerous.” 18 U.S.C. § 4248(a). Once certified, the individual must remain incarcerated—even after his originally sentenced prison term has ended—until a district court conducts a hearing. Id. At the hearing, the district court may either discharge or civilly commit the certified individual. Id. § 4248(d). One question generated by this scheme is simple: how does the time between a prisoner's certification and hearing affect a term of supervised release that follows the prisoner's original sentence?

Petitioner David H. Tobey has been certified as a sexually dangerous person. Because of this certification, Tobey has remained in federal custody after completing his original term of imprisonment almost four years ago. He has now filed a petition for habeas corpus in which he contends that he has finished his term of supervised release, despite the fact that he has never actually been released. (ECF No. 1). The issues have been fully briefed and the court now rules pursuant to Local Rule 105. 6, no hearing being deemed necessary. For the reasons that follow, Tobey's motion must be denied. A prisoner's detention following certification delays the start of the prisoner's supervised release period.

I. Background

In May 2003, Tobey pled guilty to one count of unlicensed dealing in firearms. He was then sentenced to five years of imprisonment, with three years of supervised release to follow. Tobey was originally scheduled for early release, which would have permitted him to complete his term of imprisonment on September 7, 2007. Had he been released then, and assuming no interruptions in the supervised release period, Tobey would have finished his term of supervised release on September 7, 2010.

A single day before the end of his original prison term, however, the government filed a certification pursuant to § 4248 in the United States District Court for the Eastern District of North Carolina. See United States v. Tobey, No. 5:07–hc–02166–BO (E.D.N.C. filed Sept. 6, 2007), ECF No. 1. The certification cited Tobey's previous convictions in both Maryland and Florida for sex acts involving children. It also noted his diagnosis of pedophilia. Because of his certification as a sexually dangerous person, Tobey's release was automatically stayed. Indeed, the Fourth Circuit described the events as follows:

The nine Respondents [including Tobey] are incarcerated at the Federal Correctional Institute at Butner, North Carolina, and they were—when their respective certifications were made—about to be released from BOP custody and begin serving previously imposed terms of supervised release. Shortly before each Respondent was to be released, however, the government instituted a § 4248 civil commitment proceeding, filing a certification that the particular Respondent was in the custody of the BOP, a “sexually dangerous person,” and “sexually dangerous to others.” Pursuant to § 4248(a), the filing of these certifications stayed release of the Respondents.

United States v. Broncheau, 645 F.3d 676, 681, 2011 WL 2043956, at *2 (4th Cir.2011) (footnote omitted).

Although Tobey was supposed to receive a civil commitment hearing, none has yet been held. Tobey's case was first held in abeyance until the appeals process in a related § 4248 case was finished. See United States v. Comstock, 507 F.Supp.2d 522, 559 (E.D.N.C.2007), aff'd, 551 F.3d 274 (4th Cir.2009), rev'd, ––– U.S. ––––, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010), on remand, 627 F.3d 513 (4th Cir.2010). Because the related case eventually went before the Supreme Court, Tobey waited almost two and a half years before the lower court took any action in his case. Finally, on June 11, 2010, the district court lifted the stay and denied a motion from Tobey seeking his own release.

Two weeks later, on June 23, 2010, Tobey filed a second motion to dismiss the government's certification. This time, the district court granted Tobey's motion and ordered that he be released within 30 days. United States v. Broncheau, 759 F.Supp.2d 682 (E.D.N.C.2010). Before the order took effect, however, the government appealed the decision and obtained an emergency stay from the United States Court of Appeals for the Fourth Circuit. In a recent published decision, the Fourth Circuit vacated and remanded the district court's order. Broncheau, 645 F.3d 676.

Since his certification as a sexually dangerous person, Tobey has asked the court to clarify the start date of his supervised release period three times. The first of these filings was received on January 20, 2009. It was construed as a petition under 28 U.S.C. § 2241 and transferred to the Eastern District of North Carolina. See Tobey v. Warden, No. DKC 09–0237, slip. op. (D.Md. Feb. 26, 2009), ECF No. 2. That court dismissed the petition without prejudice because Tobey failed to “resolve certain deficiencies in the initial filing.” Tobey v. Warden, No. 09–2145, slip. op. (E.D.N.C. Feb. 4, 2011).

Tobey wrote this court again in a letter received on June 4, 2009. He emphasized that he did not wish to file a § 2241 petition; instead he merely wanted to know if he was “receiving credit towards Supervised Release while being held pending the Civil Commitment proceedings.” Letter at 2, United States v. Tobey, No. DKC 03–0151 (D.Md. June 4, 2009), ECF No. 32. The letter was forwarded to the Eastern District of North Carolina, where the prior § 2241 petition was still pending.

Most recently, on May 24, 2010, Tobey filed a “Petition of Inquiry, Conformation [sic], and Enforcement of Courts [sic] Authority.” The petition again questioned when Tobey's supervised release began. (ECF No. 1). Because the petition appeared to challenge the execution or computation of his sentence, it was docketed as a petition for habeas corpus under 28 U.S.C. § 2241. See United States v. Miller, 871 F.2d 488, 490 (4th Cir.1989). This time, however, the court kept the petition and appointed counsel. (ECF No. 5).¹

After counsel for Tobey filed an amended petition on August 23, 2010 (ECF No. 7), the government filed an opposition on September 8, 2010 (ECF No. 8). Tobey filed a reply on September 27, 2010. (ECF No. 9). Just over a month ago, on May 4, 2011, the government filed notice of two additional cases in other courts that it deemed relevant. (ECF No. 10). Tobey filed his own supplement to the petition, citing additional authority (including the Fourth Circuit's decision in United States v. Broncheau ). (ECF No. 11). Finally, the government responded to the supplement. (ECF No. 12).

II. Analysis

The sole dispute here concerns when Tobey's term of supervised release began (or whether it has begun at all). Tobey argues that his supervised release started on September 7, 2007, when he was scheduled for early release from his original prison sentence. The government responds that Tobey's term of supervised release is stayed while he waits for a § 4248 civil commitment proceeding. Thus, in the government's view, Tobey still has a full three years of supervised release remaining.

The analysis necessarily begins with the language of the relevant statutes. Crespo v. Holder, 631 F.3d 130, 133 (4th Cir.2011).² The statutory language must be read in the specific context in which it is used and in the broader context of the statute as a whole. Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir.2008). Absent explicit legislative intent to the contrary, the court must give the words of a statute their plain and ordinary meaning. Broughman v. Carver, 624 F.3d 670, 675 (4th Cir.2010).

The first relevant statute is the one governing supervised release. That provision explains, in relevant part:

A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.

18 U.S.C. § 3624(e); see also id. § 3583(a) (explaining that a defendant is placed on supervised release “after imprisonment”). As both parties recognize, this case principally turns on the meaning of the phrase “released from imprisonment.”

The supervised release statute must be read together with § 4248(a), the statute under which Tobey is currently detained. That statute, titled “Civil commitment of a sexually dangerous person,” provides in part:

In relation to a person who is in the custody of the Bureau of Prisons, ... the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person[.] ... The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person...