The opinion of the court was delivered by: Present: The Honorable Audrey B. Collins, Chief United States District Judge
CRIMINAL MINUTES - GENERAL
Angela Bridges Not Present Not Present Deputy Clerk Court Reporter/Recorder, Tape No. Assistant U.S. Attorney
Present Cust. Bond Attorneys for Defendants: Present App. Ret. Not Present
ORDER Dismissing Without Prejudice Motion to Clarify Terms of Supervised Release (In Chambers)
On May 27, 2011, Defendant Peter Martin Ebel filed a Motion to Clarify Terms of Supervised Release. (Docket No. 58.) The government opposed on June 22, 2011 and Defendant replied on July 25, 2011. For the reasons below, the Court DISMISSES the motion WITHOUT PREJUDICE as unripe for adjudication.
After pleading guilty to production of child pornography, Defendant was sentenced on February 3, 2003 to 120 months' imprisonment and three years of supervised release. (Docket No. 55.) It was recommended that he enter the Sex-Offender Treatment Program in Butner, North Carolina. (Id.)
Accounting for good time credit, Defendant was scheduled for release from custody on June 22, 2010. Just one day before his release, however, the government filed a "Certification of a Sexually Dangerous Person" pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act"), 18 U.S.C. § 4248(a) in federal district court in North Carolina. (Govt. Exs. 1, 2.) According to the terms of the Adam Walsh Act, that certification "stayed" Defendant's release from custody until the statutory procedures could be § 4248(a) ("A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.").*fn1 Defendant has filed a motion to dismiss that proceeding, arguing both that the statutory scheme is unconstitutional and that his supervised release would provide an "adequate and necessary safeguard" to obviate the need for civil commitment under § 4248.*fn2 Those proceedings appear to continue and, despite the passage of more than a year, no hearing has yet been scheduled on Defendant's civil commitment. United States v. Ebel, Case No. CV 5:10-hc-2124-BO (E.D.N.C., filed on Defendant filed the pending motion on May 27, 2011, requesting that the Court clarify the beginning date for his term of supervised release. In his view, because a term of supervised release "commences on the day the person is released from imprisonment," 18 U.S.C. § 3624(e), his term of supervised release should have begun to run on June 22, 2010, the date his term of imprisonment expired, even though he was not released from the physical custody of the Bureau of Prisons ("BOP"). The government argues that the Court should not reach the merits because the issue is not ripe for adjudication. On the merits, the government disagrees with Defendant's position, arguing that under § 4248(a), Defendant's "release" was stayed pending the final determination of the government's request for certification, so he was never "released from imprisonment" as required by § 3624(e) to commence his period of supervised release. Importantly, both parties agree that the term of supervised release begins to run upon a final determination of the § 4248(a) proceeding, whether the outcome is Defendant's release from custody or civil commitment under the Adam Walsh Act. (Opp. 12 n.8.)
The validity and contours of the Adam Walsh Act have been the subject of ongoing litigation, particularly in the Eastern District of North Carolina and in the Fourth Circuit, where the Butner facility is , United States v. Comstock, __ U.S. __, __, 130 S. Ct. 1949, 1965 (2010) (in case brought in Eastern District of North Carolina, holding that the Adam Walsh Act is a valid exercise of Congressional authority), on remand, 627 F.3d 513, 524--25 (4th Cir. 2010) (rejecting due process challenge to "clear and convincing" burden of proof to justify commitment); United States v. Broncheau, 645 F.3d 676, 684 (4th Cir. 2011) (holding in part that § 4248 applies to inmates whose sentences also include terms of supervised release); United States v. Timms, __ F. Supp. 2d __, __, 2011 WL 2610566, at *13 (E.D.N.C. July 1, 2011) (holding that Adam Walsh Act violates equal protection and due process), appeal pending, United States v. Timms, Case No. 11-6886 (4th Cir., filed on July 14, 2011).
The particular issued raised here -- whether Defendant's term of supervised release began on the date his term of imprisonment expired -- has also been addressed in several cases, most of which have adopted the government's position. See, e.g., Tobey v. United States, __ F. Supp. 2d __, __, 2011 WL 2623495, at *7 (D. Md. June 29, 2011) (agreeing with government that term of supervised release does not begin because certification under § 4248(a) stays release from imprisonment); United States v. Francis, Case No. 03-166-KSF, 2011 WL 1642571, at *3 (E.D. Ky. May 2, 2011) (same); United States v. Combe, Case No. 1:04-CR-51 TS, 2011 WL 976892, at *2 (D. Utah Mar. 18, 2011) (same), appeal dismissed, 2011 WL 3677793 (10th Cir. Aug. 23, 2011); United States v. Bolander, Case No. 01-CR-2864-L, 2010 WL 5342202, at *2--3 (S.D. Cal. Dec. 21, 2010) (same). But see United States v. Brown, Case No. 3:04-cr-00119 JWS, 2011 WL 1831627, at *4--6 (D. Alaska May 12, 2011) (holding that term of supervised release begins at the end of period of imprisonment, notwithstanding the filing of a certificate pursuant to § 4248(a)). The Court need not decide which conclusion is correct because, in this case, Defendant's claim is not ripe for adjudication.
"'Ripeness,' the Supreme Court has observed, 'is peculiarly a question of timing.'" United States v. , 560 F.3d 926, 931 (9th Cir. 2009). It is a "constitutional prerequisite for jurisdiction," so the Court has "no jurisdiction to review claims unless they are ripe." Id. Although a party "need not 'await the consummation of threatened injury to obtain preventive relief," the injury must nevertheless be "certainly impending" and cannot involve "'contingent future events that may not occur as anticipated, or indeed may not Thus, the Court must address two questions to ...