Thomas Matherly v. Justin Andrews , 817 F.3d 115 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7691
THOMAS SHANE MATHERLY,
Petitioner - Appellant,
v.
JUSTIN ANDREWS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:13-hc-02077-D)
Argued: January 28, 2016 Decided: March 16, 2016
Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.
Affirmed in part; reversed and remanded in part by published
opinion. Chief Judge Traxler wrote the opinion, in which Judge
Agee and Judge Wynn joined.
ARGUED: Joshua Robbins, Brian Remondino, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Michael
Lockridge, BUREAU OF PRISONS, Butner, North Carolina, for
Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation
Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
TRAXLER, Chief Judge:
Thomas Shane Matherly appeals from the district court’s
order granting summary judgment to the respondent (the
“government”) on his petition for a writ of habeas corpus, filed
under 28 U.S.C. § 2241. In the petition, Matherly challenges
his prior civil commitment as a “sexually dangerous person”
under 18 U.S.C. § 4248 of the Adam Walsh Child Protection and
Safety Act of 2006 (the “Act”). See United States v. Matherly,
514 Fed. App’x. 287 (4th Cir. 2013) (per curiam). For the
following reasons, we affirm the district court’s decision in
part, and reverse and remand in part.
I.
A.
The Adam Walsh Act authorizes the civil commitment of,
inter alia, “sexually dangerous person[s]” who are “in the
custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). The
civil commitment process is initiated when the Attorney General,
his designee, or the Director of the Bureau of Prisons (“BOP”),
certifies to the district court where the individual is confined
that the individual “is a sexually dangerous person.” Id. The
certification automatically stays the inmate’s release pending a
hearing. See id.A “sexually dangerous person” is defined as “a person who
has engaged or attempted to engage in sexually violent conduct
2
or child molestation and who is sexually dangerous to others.”
18 U.S.C. § 4247(a)(5). A person is “sexually dangerous to
others” if “the person suffers from a serious mental illness,
abnormality, or disorder as a result of which he would have
serious difficulty in refraining from sexually violent conduct
or child molestation if released.” 18 U.S.C. § 4247(a)(6).
This “serious difficulty” prong “refers to the degree of the
person’s ‘volitional impairment,’ which impacts the person’s
ability to refrain from acting upon his deviant sexual desires.”
United States v. Hall, 664 F.3d 456, 463 (4th Cir. 2012)
(quoting Kansas v. Hendricks, 521 U.S. 346, 358 (1997)).
“If, after [a] hearing, the [district] court finds by clear
and convincing evidence that the person is a sexually dangerous
person, the court shall commit the person to the custody of the
Attorney General,” either for release to a state civil
commitment system or to a federal facility until it is
determined that the person “is no longer sexually dangerous to
others, or will not be sexually dangerous to others if released
under a prescribed regimen of medical, psychiatric, or
psychological care or treatment.” 18 U.S.C. § 4248(d); see also
United States v. Timms, 664 F.3d 436, 439 (4th Cir. 2012).
B.
In October 2003, Matherly pled guilty to one count of
possession of child pornography and was sentenced to 41 months
3
imprisonment, followed by a 3-year term of supervised release.
See 18 U.S.C. § 2252A(a)(5)(B). Shortly thereafter, the
district court also revoked Matherly’s supervised release from
an earlier conviction for interstate travel to engage in a
sexual act with a minor, see 18 U.S.C. § 2423, and sentenced him
to a consecutive 6-month term of imprisonment. Matherly was
committed to the custody of the BOP to serve his aggregate 47-
month prison term. See 18 U.S.C. § 3621(a).
From October 31, 2003, to November 22, 2006, Matherly was
serving his term of imprisonment in a BOP facility. With prior
time served, and assuming that he earned the “good time” credit
available under 18 U.S.C. § 3624(b), Matherly was eligible to be
released to supervision on November 23, 2006. See J.A. 33; see
also United States v. Comstock, 627 F.3d 513, 517 (4th Cir.
2010) (noting that Matherly’s projected release date was
November 23, 2006). 1 However, it now appears that because
November 23, 2006, was Thanksgiving Day, the BOP originally
1
By statute, “[a] prisoner shall be released by the Bureau
of Prisons on the date of the expiration of the prisoner’s term
of imprisonment, less any time credited toward the service of
the prisoner’s sentence.” 18 U.S.C. § 3624(a). The BOP may
grant “good-time credit” of up to 54 days per year, see 18
U.S.C. § 3624(b)(1), and such “credit awarded . . . shall vest
on the date the prisoner is released from custody,” 18 U.S.C. §
3624(b)(2). However, “[n]othing in [subsection 3624] shall be
construed to limit or restrict the authority of the Director of
the Bureau of Prisons under section 3621.” 18 U.S.C. §
3624(c)(4). Without application of any good-time credit,
Matherly’s sentence would have expired on May 26, 2007.
4
intended to exercise its discretion to release Matherly from his
criminal confinement and to supervised release one day early –
on November 22, 2006. See J.A. 31 (noting that Matherly “was
scheduled for release” on November 22, 2006); see also 18 U.S.C.
§ 3624(a) (“If the date for a prisoner’s release falls on a
Saturday, a Sunday, or a legal holiday at the place of
confinement, the prisoner may be released by the Bureau on the
last preceding weekday.”). On that same day, however, the
government certified Matherly as a “sexually dangerous person”
under 18 U.S.C. § 4248, automatically staying his release from
the custody of the BOP.
During the ensuing civil commitment proceedings, Matherly
“conce[ded] that he previously engaged in child molestation and
suffers from a serious mental disorder,” leaving the government
with the task of “prov[ing] by clear and convincing evidence
only that Matherly ‘would have serious difficulty in refraining
from sexually violent conduct or child molestation if
released.’” Matherly, 514 Fed. App’x. at 288 (quoting 18 U.S.C.
§ 4247(a)(6)). On May 3, 2012, following an evidentiary
hearing, the district court found that Matherly was a “sexually
dangerous person” under the Act and ordered that he be committed
5
to the custody of the Attorney General. We affirmed. See id.
at 289. 2
On April 1, 2013, Matherly filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2241, alleging, among
other things, that the Adam Walsh Act had been impermissibly
applied retroactively to him and that, in any event, he was not
“in the custody of the Bureau of Prisons” within the meaning of
§ 4248(a) when the government filed the § 4248 certificate. The
government moved to dismiss the petition or, in the alternative,
for summary judgment, which the district court granted. On
appeal, we appointed counsel for Matherly.
II.
We begin with Matherly’s claim that the Adam Walsh Act was
impermissibly applied to him because the Act became effective
after he was convicted of his criminal offenses and committed to
the custody of the BOP.
The commitment proceedings authorized under § 4248 are
“civil - not criminal” in nature. See Timms, 664 F.3d at 456.
They are not intended to and do not punish an inmate for prior
2The delay between the filing of Matherly’s certificate and
the order of civil commitment was the product of extended
litigation by Matherly and others regarding the
constitutionality of the Adam Walsh Act. See United States v.
Comstock, 627 F.3d 513 (4th Cir. 2010); United States v.
Comstock, 551 F.3d 274 (4th Cir. 2009), rev’d in part, 560 U.S.
126 (2010).
6
criminal offenses. See id. Accordingly, the Double Jeopardy
and Ex Post Facto Clauses do not provide an avenue for release.
See id. at 455-56; see also Hendricks, 521 U.S. at 370-71.
Matherly does not contend otherwise. Rather, he claims that
application of the Act to him violated the general presumption
against the retroactive application of newly enacted statutes to
prior conduct. See Landgraf v. USI Film Prods., 511 U.S. 244,
265 (1994). We disagree.
“[T]he permissibility of applying a statute retroactively
is a ‘pure question of law,” Jaghoori v. Holder, 772 F.3d 764,
769 (4th Cir. 2014), and “is, at bottom, a question of
congressional intent,” id. at 770. When determining whether a
statute has been impermissibly applied retrospectively, we
engage in a three-step inquiry and apply “‘a commonsense,
functional judgment.’” Jaghoori, 772 F.3d at 771 (quoting INS
v. St. Cyr, 533 U.S. 289, 321 (2001)). First, we “must
determine ‘whether Congress has expressly prescribed the
statute’s proper reach.’” Cruz v. Maypa, 773 F.3d 138, 144 (4th
Cir. 2014) (quoting Landgraf, 511 U.S. at 280). “If so, the
inquiry ends there.” Id. If we determine that Congress has not
spoken with the requisite clarity, we “must decide whether the
statute would operate retroactively, ‘i.e., whether it would
impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
7
respect to transactions already completed.’” Id. (emphasis
added) (quoting Landgraf, 511 U.S. at 280). However, “[a]
statute does not operate retrospectively merely because it is
applied in a case arising from conduct antedating the statute’s
enactment, or upsets expectations based on prior law.”
Landgraf, 511 U.S. at 269 (citation and internal quotation marks
omitted). Finally, if we determine that “the statute does have
a retroactive effect,” we will not apply it “‘absent clear
congressional intent favoring such a result.’” Id. (quoting
Landgraf, 511 U.S. at 280).
We think Congress sufficiently expressed its intent that
the Adam Walsh Act apply to all persons in the BOP’s custody who
would pose a current threat to the public if released. See 18
U.S.C. § 4247(a)(5), (6) (defining a “sexually dangerous person”
in part as one “who is sexually dangerous to others,” because
“the person suffers from a serious mental illness, abnormality,
or disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released”). There is “[n]othing on the face of
the statute [that] suggests that [Congress] sought to create
anything other than a civil commitment scheme designed to
protect the public from [a present threat of] harm.” Hendricks,
521 U.S. at 361. There is likewise nothing that suggests that
Congress intended to protect the public from a “sexually
8
dangerous” person who might be committed to the custody of the
BOP in the future, but not from a “sexually dangerous” person
who is already in its custody and nearer to release.
But even if we were to hold that Congress did not speak
with the requisite clarity regarding the statute’s proper scope,
Matherly’s challenge fails because the Act does not operate
retroactively. In Hendricks, the United States Supreme Court
rejected a challenge to a state statute that also permitted the
civil commitment of “sexually violent predator[s]” who were
presently confined by the state but scheduled for release. Id.
at 352 (internal quotation marks omitted). A “sexually violent
predator” was defined as “any person who has been convicted of
or charged with a sexually violent offense and who suffers from
a mental abnormality or personality disorder which makes the
person likely to engage in the predatory acts of sexual
violence.” Id. (internal quotation marks omitted). As with
§ 4248 of the Adam Walsh Act, the civil commitment “inquiry
[was] thus two-fold, requiring . . . both retrospective and
prospective findings.” Timms, 664 F.3d at 439. Nevertheless,
the Court held that the statute “clearly [did] not have
retroactive effect.” Hendricks, 521 U.S. at 371.
[T]he Act does not impose punishment; thus, its
application does not raise ex post facto concerns.
Moreover, the Act clearly does not have retroactive
effect. Rather, the Act permits involuntary
confinement based upon a determination that the person
9
currently both suffers from a ‘mental abnormality’ or
‘personality disorder’ and is likely to pose a future
danger to the public. To the extent that past
behavior is taken into account, it is used . . .
solely for evidentiary purposes.
Id. at 370-71 (third emphasis added); see Landgraf, 511 U.S. at
266 (noting that “the antiretroactivity principle finds
expression in several provisions of our Constitution,” including
“[t]he Ex Post Facto Clause”); Cruz, 773 F.3d at 145 (noting
that “Landgraf and the Ex Post Facto Clause are informed by the
same retroactivity concerns”).
Like the statute at issue in Hendricks, the Adam Walsh Act
“does not seek to ‘affix culpability for prior’ acts. Instead
it simply ‘uses’ prior acts ‘solely for evidentiary purposes’ to
support a finding of a person’s mental abnormality or future
dangerousness or both.” Comstock, 627 F.3d at 523 (quoting
Hendricks, 521 U.S. at 362). The Act “do[es] not operate
retroactively,” but rather “address[es] dangers that arise
postenactment.” Vartelas v. Holder, 132 S. Ct. 1479, 1489 n.7
(2012); see id. (noting that “laws prohibiting persons convicted
of a sex crime against a victim under 16 years of age from
working in jobs involving frequent contact with minors, and laws
prohibiting a person who has been adjudicated as a mental
defective or who has been committed to a mental institution from
possessing guns . . . do not operate retroactively. Rather,
they address dangers that arise postenactment: sex offenders
10
with a history of child molestation working in close proximity
to children, and mentally unstable persons purchasing guns”)
(internal quotation marks omitted); see also Reynolds v.
Johnson, No. 12-55675, 2015 WL 9584386 (9th Cir. Dec. 31, 2015)
(holding that the Adam Walsh Act “‘addresses dangers that arise
postenactment’ and therefore ‘does not operate retroactively’”)
(alterations omitted) (quoting Vartelas, 132 S. Ct. at 1489
n.7); United States v. Wetmore, 766 F. Supp. 2d 319, 337 (D.
Mass. 2011) (rejecting retroactivity challenge to Adam Walsh Act
because “Supreme Court precedent is clear that statutes
permitting the civil commitment of sexually dangerous persons
are not impermissibly retroactive and do not violate the Ex Post
Facto Clause”); cf. Matter of Jackson, 26 I. & N. Dec. 314, 318
(BIA May 20, 2014) (“Because the Adam Walsh Act addresses the
potential for future harm posed by . . . sexual predators to the
beneficiaries of family-based visa petitions, . . . the
application of its provisions to convictions that occurred
before its enactment does not have an impermissible retroactive
effect.”).
Accordingly, we affirm the district court’s grant of
summary judgment to the government on Matherly’s retroactivity
claim.
11
III.
Matherly also contends that his civil commitment was
improper because the BOP had already released him from its legal
custody when the government filed the § 4248 certification. See
18 U.S.C. § 4248(a); United States v. Joshua, 607 F.3d 379, 388
(4th Cir. 2010) (holding that the term “custody” in § 4248(a)
means not simply physical custody, but rather “legal custody”
and, therefore, that “[t]he statutory language ‘in the custody
of the Bureau of Prisons’ . . . requires the BOP to have
ultimate legal authority over the person’s detention”).
The government asserted that the certification was timely
under the Act because Matherly “was in BOP custody serving the
last day of his criminal sentence” when it was filed. J.A. 27.
In support, the government submitted a Declaration of the
Custodian of Records for the BOP, referencing and attaching
records from the BOP “SENTRY” database, which “tracks the status
and activities of persons in BOP custody and provides . . .
sentence information, locations of confinement, and release
dates.” J.A. 25. According to these records, Matherly’s
projected statutory release date, after application of time
served and good time credits, was November 23, 2006. However,
due to the Thanksgiving holiday, Matherly’s scheduled release
date was November 22, 2006 – the same day that the government
filed the § 4248 certificate.
12
In his pro se response to the government’s motion, however,
Matherly submitted a number of additional documents that he also
represents to be BOP records. Matherly claimed that “the
certificate was filed after the expiration of his sentence
because according to a BOP Memo,” dated October 24, 2006, he was
scheduled “to depart at 8:00 [a.m. on] November 22, 2006,” and
“[t]he certificate was filed two hours . . . after the departure
time,” at 10:08 a.m. J.A. 35 (emphasis added); see also J.A.
46. Based upon Matherly’s interpretation of these documents,
the BOP no longer had legal custody - or ultimate legal
authority - over him when the certificate was filed because “the
date of release arrived prior to the filing of the
certification,” and the BOP had already “processed [his]
paperwork for release.” J.A. 38.
On November 7, 2014, the district court granted summary
judgment to the government without holding a hearing. In its
order, the district court stated as follows:
On November 22, 2006, at 9:20 a.m., the BOP
released Matherly from custody. Forty-eight minutes
later, at 10:08 a.m., an Assistant United States
Attorney for the Eastern District of North Carolina
commenced civil commitment proceedings against
Matherly by filing a Certification of a Sexually
Dangerous Person pursuant to 18 U.S.C. § 4248(a).
J.A. 64 (citations omitted). However, the district court went
on to “reject[] Matherly’s claim that the government lacked
jurisdiction to file a certificate seeking his commitment on the
13
final day of his criminal sentence.” J.A. 66. In support of
its conclusion, the district court cited United States v.
Wetmore, 700 F.3d 570, 575 (1st Cir. 2012) and Hubbart v. Knapp,
379 F.3d 773, 779-81 (9th Cir. 2004).
In Wetmore, the First Circuit Court of Appeals considered
inmate Wetmore’s similar challenge to the timing of the
government’s filing of a § 4248 certificate. Although the
certificate had been filed the day before Wetmore’s projected
release date of November 18, 2006, Wetmore argued that it was
untimely because his release date had been improperly calculated
and should have been set a day earlier. The court rejected the
challenge, as follows:
[E]ven accepting Wetmore’s premise that he was due for
release on November 17, 2006, the last day of a
sentence is part of that sentence, 18 U.S.C. §
3624(a); Wetmore was still serving his sentence in BOP
custody on November 17 when the government filed its
request; and so the request was timely on its face. .
. . If it was unlawful for BOP to detain Wetmore
until 11:59 p.m. on November 17, Wetmore has yet to
explain why.
Wetmore, 700 F.3d at 575 (emphasis added); see also Hubbart, 379
F.3d at 780-81 (denying federal habeas relief to a petitioner
who had been civilly committed under California’s Sexually
Violent Predator Act where the state court determined that the
predator’s custody at the time the commitment proceedings were
initiated, while perhaps unlawful, “was the result of a good
faith error” and the Sexually Violent Predator Act had provided
14
the petitioner “with numerous procedural safeguards”) (internal
quotation marks omitted).
We have held that the word “custody” in § 4248 “refers not
to physical custody or some qualified derivative but rather to
legal custody” and, therefore, that “[t]he statutory language
‘in the custody of the Bureau of Prisons’ . . . requires the BOP
to have ultimate legal authority over the person’s detention.”
Joshua, 607 F.3d at 388 (emphasis added). In Joshua, however,
the inmate had been confined pursuant to a United States Army
court-martial and was merely being housed within a BOP-operated
facility. See id. at 381; see also United States v. Hernandez-
Arenado, 571 F.3d 662, 667 (7th Cir. 2009) (rejecting “an
interpretation that would allow physical custody alone to
suffice” and instead “read[ing] custody more narrowly as
including all federal offenders, but not those housed in the BOP
as a service to another entity which is responsible for that
individual’s incarceration”). Here, in contrast, there is no
question that Matherly was remanded to the legal custody of the
BOP pursuant to a federal conviction and, therefore, that the
BOP “ha[d] ultimate legal authority over [Matherly’s] detention”
while he was being physically confined in its facilities.
Joshua, 607 F.3d at 388; id. at 386 (noting that the individuals
referenced in § 4248(a) includes “those remanded to the custody
15
of the BOP after a federal conviction”); see also 18 U.S.C. §
2621.
Thus, the question presented by Matherly is more aptly
described as whether the BOP relinquished its undisputed legal
authority over Matherly – prior to the expiration of Matherly’s
sentence and the government’s filing of the § 4248
certification. And, contrary to Matherly’s claim, we have never
held that physical custody is irrelevant to the question of
whether the BOP relinquished its otherwise legal authority over
an inmate. Cf. United States v. Savage, 737 F.3d 304, 308 (4th
Cir. 2013) (noting that custody “is not limited to actual
physical custody, but denotes a type of legal custody which
remains in the Attorney General . . . as he discharges his
responsibility to transfer a prisoner from one institution to
another for the well-being of the prisoner”) (internal quotation
marks and alteration omitted); United States v. Earl, 729 F.3d
1064, 1068 (9th Cir. 2013) (interpreting “the term ‘released’ in
the context of the [supervised release] statute to require not
only release from imprisonment, but also release from the BOP’s
legal custody at the expiration of the prisoner’s prescribed
sentence”).
Based upon the government’s submission to the district
court, we might well have agreed that there existed no genuine
issue of fact as to whether Matherly remained in both the
16
physical and legal custody of the BOP when the § 4248
certificate was filed. Matherly does not seem to dispute that
the BOP had the authority to maintain both legal and physical
custody of him pursuant to his criminal sentence until, at a
minimum, the end of the day on November 22, 2006. See 18 U.S.C.
§§ 3621(b), 3624(a); Wetmore, 700 F.3d at 575. Nor does he
claim that the BOP released him from its physical custody.
Nevertheless, this case is not so simple. Matherly,
proceeding pro se at the time, submitted documents that he now
contends are sufficient, in light of the district court’s
factual finding, to establish that the BOP actually released him
from its legal custody at 9:20 a.m., on November 22, 2006. In
particular, Matherly references a document entitled “Inmate
History.” J.A. 44. On its face, the document includes a list
of “admit[s]” and “release[s]” from BOP facilities, including a
“good conduct time release” from “BUF” to “BUT,” with a “start
date/time” of 9:20 a.m., on November 22, 2006, and “stop
date/time” of 9:30 a.m., on November 22, 2006. J.A. 44. But if
that entry is significant, its significance is unexplained to
us. Did the BOP voluntarily relinquish its “ultimate legal
authority over [Matherly’s] detention,” Joshua, 607 F.3d at 388,
at that date and time as Matherly contends? Or did the BOP
merely apply the good time credits that Matherly had been
projected to earn and release him from one facility to another
17
in anticipation of the change in his status from a criminal
commitment to a civil commitment? See, e.g., 18 U.S.C. §§ 3621,
3624. We simply cannot tell.
Here, the BOP records submitted by Matherly, even if they
had been authenticated, are insufficient to demonstrate that the
BOP relinquished its legal authority over Matherly prior to the
government’s filing of the § 4248 certificate on November 22,
2006, as Matherly contends. But they are also largely
unexplained. And, standing alone, they are insufficient to
eliminate the possibility that genuine issues of material fact
exist regarding the BOP’s relinquishment of its legal custody
over Matherly. All in all, we believe the better course is to
allow the parties an opportunity to better develop the record,
and the district court an opportunity to make additional
findings and conclusions in light of such developments. We
express no opinion as to whether summary judgment on Matherly’s
custody claim would be appropriate based upon a more developed
record. Nor do we express any opinion as to the government’s
argument that, even if untimely, the filing of the certificate
could be excused as de minimis under the circumstances.
IV.
For the foregoing reasons, we affirm the district court’s
determination that the Adam Walsh Act was not impermissibly
applied retroactively to Matherly. However, we reverse the
18
district court’s grant of summary judgment to the government on
Matherly’s claim that he was not “in the custody” of the BOP
when the § 4248 proceedings were initiated, and remand for
further proceedings on this issue.
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART
19