US v. McCarty, 90-98-HC-BR.

Decision Date01 September 1990
Docket NumberNo. 90-98-HC-BR.,90-98-HC-BR.
CourtU.S. District Court — Eastern District of North Carolina
PartiesUNITED STATES of America, Plaintiff, v. Wallace McCARTY, Defendant.

Eileen G. Coffey, U.S. Atty.'s Office, Raleigh, N.C., for plaintiff.

Jeffrey Lee Starkweather, Federal Public Defender, Raleigh, N.C., for defendant.

ORDER

BRITT, Chief Judge.

This matter is before the court on defendant Wallace McCarty's motion to dismiss a mental commitment petition brought by the United States. McCarty argues that this court lacks jurisdiction over him under 18 U.S.C. § 4245. This motion has been fully briefed by both parties and is now ready for decision. Based upon the discussion below, the court finds that McCarty is not subject to the court's jurisdiction under § 4245, but that his competence may be adjudicated under 18 U.S.C. § 4241.

FACTS

On 29 October 1975, Wallace McCarty was convicted of Assault during a Bank Robbery and was sentenced to 20 years imprisonment. He was paroled to the District of Maryland on 1 June 1979, with a full term date of 26 August 1995. On 10 March 1981, the United States Parole Commission issued a parole violator's warrant, which was executed against McCarty on 8 April 1983. A parole revocation hearing was held which resulted in McCarty being reparoled to the District of Maryland with a new full term date of 2 July 1999.

On 2 October 1989, a second parole violator's warrant was issued by the United States Parole Commission, based on McCarty's 1 September 1989 Breaking and Entering conviction in Maryland. This warrant was amended on 23 January 1990 to include an additional charge of Assault by Threat, and was executed on 15 November 1989.

Despite several attempts, the Parole Commission has been unable to complete McCarty's parole revocation hearing. The most recent effort to revoke McCarty's parole was made on 4 May 1990. This hearing was suspended due to testimony that McCarty was not competent to proceed. Based upon this testimony, Ray Essex, the Hearing Examiner, recommended that McCarty's parole revocation hearing be continued for one year, or until McCarty recovers sufficiently to participate in a hearing.1 The Parole Commission concurred with this recommendation, and issued a Notice of Action on 25 May 1990. (Exhibit 2 attached to Plaintiff's Reply to Defendant's Response).

On 16 February 1990, while the parole proceedings were pending, the United States filed the Motion to Determine Present Mental Condition of Imprisoned Person pursuant to 18 U.S.C. § 4245 which is the subject of this order. In its motion, the United States requested the court to determine whether McCarty is presently suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. On 18 April 1990, a hearing was held on this motion. At this hearing, McCarty's counsel orally moved to dismiss the motion on the ground that the court lacked jurisdiction over him. The court continued the hearing, and requested that the parties brief the question of the court's jurisdiction.

18 U.S.C. § 4245

The first issue before the court is whether defendant McCarty is subject to the court's jurisdiction under 18 U.S.C. § 4245. The pertinent section of this statute reads:

If a person serving a sentence of imprisonment objects either in writing or through his attorney to being transferred to a suitable facility for care or treatment, an attorney for the Government, at the request of the director of the facility in which the person is imprisoned, may file a motion with the court for the district in which the facility is located for a hearing on the present mental condition of the person. The court shall grant the motion if there is reasonable cause to believe that the person may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. A motion filed under this subsection shall stay the transfer of the person pending completion of procedures contained in this section.

18 U.S.C. § 4245(a).

Defendant McCarty has challenged the applicability of this section to him on the ground that he is not "serving a sentence of imprisonment." This challenge does not require the court to address the substantive issue whether McCarty presently suffers from a mental disease or defect.

McCarty comes to the court in an unusual position. He is a parolee held on a parole violator's warrant. His parole has not been formally revoked, and the Parole Commission has determined that he is incompetent to proceed with a parole revocation hearing. Despite the government's efforts, McCarty remains a parolee, and must be treated as would any other parolee in like circumstances.

The Supreme Court has held that the condition of being a parolee is "very different from that of confinement in a prison." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972).

The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked. We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the parolee and often on others.

Id. Based upon this reasoning, the Supreme Court held that the liberty interest of a parolee is sufficiently substantial to be protected by the Due Process Clause. Consequently, a parolee facing revocation of his parole must be afforded due process before he is returned to the status of prisoner.

By its terms, 18 U.S.C. § 4245 applies only to persons serving a sentence of imprisonment. The statute offers no further definition of this class of persons. However, legislative history repeatedly refers to the subjects of the statute as "incarcerated in a penal institution," as "inmates of a Federal penal institution," and as "serving a sentence in a Federal facility." S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin. News 3182, at 3429, 3430 (hereinafter S.Rep. No. 225). These references strongly suggest that § 4245 is intended to afford procedural safeguards to prisoners who are serving a sentence by incarceration in a Federal penal institution. This conclusion is supported by the Eighth Circuit's recent dictum that, pursuant to § 4245, "a prisoner who is serving in a federal facility may not be transferred to a mental hospital without the prisoner's consent or a court order." United States v. Watson, 893 F.2d 970, vacated on other grounds sub nom., United States v. Holmes, 900 F.2d 1322 (8th Cir.1990).

This analysis of § 4245 is strengthened by the fact that the parole regulations expressly provide a procedure for conducting mental competency proceedings for parolees. Under the applicable regulation, a parolee found incompetent to participate in a revocation hearing may be transferred to a Bureau of Prisons facility for further examination. 28 C.F.R. § 2.8 (1989). The record before the court indicates that McCarty has been found incompetent under § 2.8, and is presently being held pursuant to that section.

The court's analysis of § 4245 leads it to conclude that this statute is applicable only to persons serving a sentence through incarceration in a federal facility. McCarty, a parolee whose parole has not yet been revoked, does not fall into this class of persons. Accordingly, the court finds that defendant Wallace McCarty is not subject to the court's jurisdiction under 18 U.S.C. § 4245.

18 U.S.C. § 4241

The United States has raised the possibility that the court may have jurisdiction over McCarty under 18 U.S.C. § 4241. If so, the court may proceed...

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3 cases
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    • United States
    • U.S. District Court — Eastern District of North Carolina
    • October 29, 2010
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    • United States
    • New York Supreme Court — Appellate Division
    • December 27, 2012
    ...shall postpone the revocation hearing and order that the parolee be given a mental health examination”); United States v. McCarty, 747 F.Supp. 311 (E.D.N.C.1990)(where the parole revocation hearing was suspended because the parolee was unfit to proceed, a separate motion to determine presen......
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    • United States
    • U.S. District Court — Middle District of Alabama
    • August 3, 2004
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