United States v. Timms, 5:08-HC-02156-BO

• Decision Date: 15 July 2011
• Docket Number: No. 5:08-HC-02156-BO,5:08-HC-02156-BO
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES OF AMERICA, Petitioner, v. GERALD WAYNE TIMMS, Respondent.

UNITED STATES OF AMERICA, Petitioner, v. GERALD WAYNE TIMMS, Respondent.

No. 5:08-HC-02156-BO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Dated: July 15, 2011

ORDER

This matter is before the Court on the Government's Motion to Stay [DE 78] this Court's July 1, 2011 Order dismissing the above-captioned case. For the reasons set forth herein, the Government's Motion to Stay is denied.

I. INTRODUCTION

Respondent Gerald Wayne Timms served a 100-month federal sentence ending at the North Carolina Federal Correctional Institute at Butner, North Carolina ("FCI Butner"), following his conviction for receipt of material by mail involving the sexual exploitation of a minor. Less than two weeks before Respondent's scheduled November 11, 2008 release date, the Government filed a certificate under the relevant provisions of the The Adam Walsh Child Protection and Safety Act of 2006¹ (the "Act," "the Adam Walsh Act," or "§ 4248") to civilly commit Respondent as a sexually dangerous person [DE 1]. Because he was certified under the Act, Respondent was not released from federal custody at the end of hiscriminal sentence. Respondent has continuously remained imprisoned, under the authority of the Executive Branch, for the thirty-one months since his scheduled release date.

On July 1, 2011, this Court entered an Order [DE 76] articulating two distinct and substantial Constitutional injuries that the Government inflicted upon Respondent. Specifically, the Court found that through the operation of the Adam Walsh Act, the Government deprived Respondent of both due process of law and the equal protection of law, as secured by the Fifth Amendment to the United States Constitution. To remedy Respondent's injuries, the undersigned dismissed this action and ordered the Government to place Respondent into the custody of the United States Probation Office.

By Motion [DE 78] filed July 6, 2011, the Government requested that this Court stay the effectuation of the July 1 Order pending appeal. Respondent promptly responded in opposition to the Government's Motion [DE 80] . On July 14, 2011, the Government noted an appeal [DE 81] of the July 1 Order to the United States Court of Appeals for the Fourth Circuit.² In this posture, the Motion to Stay is ripe for adjudication. It is denied.

II. DISCUSSION

Courts balance four factors to determine whether to grant astay pending appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987) .

With regard to the first factor, the Court finds that the Government has not made a strong showing that it is likely to succeed on the merits. The "strong showing" required to compel this Court to indefinitely stay its Order pending appeal "is more stringent that the 'reasonable probability' standard that is applicable to a preliminary injunction." Davis v. Meyers, 101 F.R.D. 67, 69 (D. Nv. 1984) . The Government's Motion falls short of the necessary showing for a stay to issue.

The Government contends that the July 1 Order should be stayed, inter alia, because there is a presumption that § 4248 is constitutional, citing to United States v. Wilkinson, 626 F. Supp. 2d 184, 195 (D. Mass. 2009) for support. But Wilkinson offers no comfort to the Government's cause. Wilkinson, after all, addressed a sweeping facial challenge to the Adam Walsh Act. Wilkinson, 626 F. Supp. 2d at 185. This Court's July 1 Order, on the other hand, focused narrowly on the Act as-applied to this particular Respondent. The Wilkinson presumption of constitutionality is inapposite.

The Government asserts that it is very likely to win on appeal, but it fails to address the many obstacles that it is likely to encounter in the appellate process. In particular, the Government fails to address how the recent Fourth Circuit opinion and concurrence in United States of America v. Broncheau, No. 107611 (4th Cir. May 26, 2011) can be interpreted to condone the Government's application of the Adam Walsh Act in this case. The Court, as expressed in the July 1 Order, sees no possible way for the Government to justify its violation of Respondent's rights.

In an 32-page opinion, this Court demonstrated how the Government's application of the Adam Walsh Act in this case has substantially deprived Respondent of due process of law and the equal protection of law. The Court hereby incorporates by reference its Order of July 1, 2011, in particular those sections addressing the separate and substantial constitutional violations visited upon Respondent by the Government's application of the Adam Walsh Act in this case. The Court reaffirms its holding as articulated in the July 1 Order, and finds that the Government has not made a "strong showing" that it is likely to succeed in its appellate efforts.

With regard to the second factor, the Government contends that release of Respondent "would pose a grave danger to the community." (Pet.'s Br. Supp. Mot. Stay at 10.) In support, the Government relies on the Executive Branch's certification that Respondent is a "sexually dangerous person" as defined by 18 U.S.C. 4247(a)(5)who will have "serious difficulty in refraining from sexually violent conduct or child molestation." However, the Government's position fails to acknowledge that Respondent will be on supervised release and monitored as set out in his criminal judgment. Moreover, the allegations...