United States v. Combe ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
August 23, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-4063
v. (D. Utah)
SCOTT K. COMBE, (D.C. No. 1:04-CR-00051-TS-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Defendant and appellant Scott K. Combe appeals the district court’s order
denying his motion to clarify his supervised release terms and conditions. For the
following reasons, we dismiss this appeal as not ripe for judicial review.
BACKGROUND
On November 2, 2004, Mr. Combe pled guilty to one count of possession of
firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to thirty months’ imprisonment, followed by thirty-six months of
supervised release. His convicted felon status stemmed from a 1987 conviction in
Idaho for lewd contact with minor children under the age of 16.
On January 26, 2007, an agent of the Federal Bureau of Prisons (“FBI”)
certified Mr. Combe as sexually dangerous, based upon the Idaho conviction, his
psychological diagnosis of Pedophilia, Sexually Attracted to Males, and his risk
assessment, which indicated that “he will have serious difficulty refraining from
sexually violent conduct or child molestation if released.” R. Vol. 1 at 111. This
had the effect of automatically staying Mr. Combe’s release from custody,
pursuant to 18 U.S.C. § 4248. Thus, although Mr. Combe was scheduled to be
released from prison three days later (on January 29), because of his certification
as sexually dangerous, he was not released, and he remains in custody, housed
apparently in the civil commitment unit. He has not yet, however, been formally
determined to be sexually dangerous. The government has described his civil
-2-
commitment hearing to make that determination as “upcoming.” Br. for United
States at 11.
Mr. Combe then filed a motion to dismiss the certification petition in the
Eastern District of North Carolina, arguing that 18 U.S.C. § 4248 is
unconstitutional for many reasons, including that it violates due process and
presents ex post facto challenges. The district court initially granted Mr. Combe’s
motion, but his release was immediately stayed and the order was ultimately
vacated by the Fourth Circuit Court of Appeals. United States v. Broncheau, 759
F. Supp. 2d 682 (E.D.N.C. 2010), vacated, 2011 WL 2043956, at *8 (4th Cir.
May 26, 2011).
Additionally, on February 5, 2010, Mr. Combe filed a writ of habeas corpus
under 28 U.S.C. § 2241, in which he claimed, inter alia, due process and ex post
facto problems. His habeas petition was denied without prejudice as moot after
Mr. Combe had received his order for release in Broncheau, which has since been
vacated. The upshot is that Mr. Combe remains incarcerated in North Carolina.
On March 1, 2009, Mr. Combe wrote a letter to the sentencing court in the
District of Utah asking when his term of supervised release was supposed to start
running. There apparently is no response to that letter. On February 18, 2010,
Mr. Combe wrote to the Office of Probation and Pretrial Services for the District
of Utah, also asking whether his term of supervised release had started. On
April 26, 2010, a probation officer responded to Mr. Combe’s inquiry, stating that
-3-
his “36-month term of supervised release will not commence until you are
released from federal custody or the start of a civil commitment in federal
custody.” R. Vol. 1 at 106. Quoting an opinion written by a member of the
General Counsel of the Administrative Office of the Courts, the probation officer
explained that when the government initiates a § 4248 civil commitment
proceeding by certifying that an offender is sexually dangerous, the prisoner’s
release is stayed. Accordingly, the term of supervised release does not
commence, “because the offender has not been released from imprisonment.” R.
Vol. 1 at 105 (further quotation omitted).
On August 25, 2010, Mr. Combe filed a motion asking the sentencing court
to clarify when his term of supervised release would start. The sentencing court
evidently interpreted his motion as seeking a declaration that his term of
supervised release had expired. On March 18, 2011, the sentencing court denied
his motion, concluding that his term of supervised release had not commenced
because he had not yet been released from imprisonment. This appeal followed.
DISCUSSION
The Adam Walsh Child Protection and Safety Act, Pub. L. 109-248,
provides in part that “[An] individual authorized by . . . the Director of the
Bureau of Prisons, may certify that [a person in custody] is a sexually dangerous
person. [Such a] certificate . . . shall stay the release of the person pending [a
-4-
court’s hearing to determine the person’s dangerousness.]” 18 U.S.C. § 4248(a).
It appears that Mr. Combe has not yet had that hearing. As a result, we do not
know whether Mr. Combe will be determined to be a sexually dangerous person
or not, under 18 U.S.C. § 4247. The government concedes that, if he is not found
to be sexually dangerous, he will be “freed from confinement.” Br. of United
States at 13.
At that point, the issue of whether Mr. Combe is subject to supervised
release, or should be deemed to have already effectively endured his supervised
release, will be squarely presented. As of now, any ruling on his supervised
release is premature.
Article III restricts the jurisdiction of federal courts to actual controversies
and prohibits mere advisory opinions. Clark v. State Farm Mut. Auto. Ins. Co.,
590 F.3d 1134, 1138 (10th Cir. 2009). “Ripeness doctrine is rooted both in the
jurisdictional requirement that Article III courts hear only ‘cases and
controversies’ and in prudential considerations limiting our jurisdiction.” Alto
Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170, 1173 (10th Cir.
2011). We have stated that the “[r]ipeness doctrine addresses a timing question:
when in time is it appropriate for a court to take up the asserted claim.” Kansas
Judicial Review v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008).
“Generally, we apply a two-factor test to determine whether an issue is
ripe. We evaluate ‘the fitness of the issue for judicial resolution and the hardship
-5-
to the parties of withholding judicial consideration.’” Id. (quoting Sierra Club v.
Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990)). We have characterized the
fitness inquiry as “whether the case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all.” Salt Lake
Tribune Publishing Co. v. Management Planning, Inc., 454 F.3d 1128, 1140 (10th
Cir. 2006) (further quotation omitted). The hardship inquiry involves “whether
the challenged action creates a direct and immediate dilemma for the parties.” Id.(further quotation omitted).
In this case, what remains unresolved is whether Mr. Combe will be
determined to be sexually dangerous, or whether he will be freed from
confinement. “Whether a judicial determination of the starting date of his
supervised release affects [Mr. Combe’s] legal rights depends upon how those
questions are answered.” United States v. Seger, 2011 WL 3555670, at *4 (D.
Maine, Aug. 8, 2011). Furthermore, as in Seger, with respect to hardship, “no
matter the Court’s ruling, [Mr. Combe] will remain in custody pending his § 4248
hearing and, therefore, the Court’s order would have no immediate effect on
[Mr. Combe].”
Finally, we note that, according to the government and as explained above,
Mr. Combe has, in essence, filed 28 U.S.C. § 2241 habeas petitions in the court of
the jurisdiction where he is confined (the Eastern District of North Carolina),
arguing that his confinement violates his constitutional rights. See Br. of United
-6-
States at 12 n.6. The exact status of those petitions and/or proceedings as of now
is unclear, but that is the proper venue for Mr. Combe to challenge his
confinement pursuant to the Adam Walsh Act.
In short, we find his motion here to be premature, and not ripe for review.
We accordingly dismiss it without prejudice for lack of jurisdiction.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-7-