Matherly v. Andrews

817 F.3d 115

Thomas Shane MATHERLY, Petitioner–Appellant,

v.Justin ANDREWS, Respondent–Appellee.

No. 14–7691.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2016.

Decided: March 16, 2016.

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.

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.

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.Appx. 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 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, 117 S.Ct. 2072, 138 L.Ed.2d 501 (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 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 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.Appx. 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 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 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, 117 S.Ct. 2072. 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, 114 S.Ct. 1483, 128 L.Ed.2d 229 (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, 121 S.Ct. 2271, 150 L.Ed.2d 347 (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, 114 S.Ct. 1483 ). "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 respect to transactions already completed.’ " Id. (emphasis added) (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483 ). 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, 114 S.Ct. 1483 (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, 114 S.Ct. 1483 ).

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, 117 S.Ct. 2072. There is likewise nothing that suggests that Congress intended to protect the public from a "sexually dangerous" person who might be committed to the custody of the BOP in the future, but not from a "sexually dangerous" person who is...