Thomas Matherly v. Justin Andrew
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-hc-02077-D. [999775288]. [14-7691]
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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.
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TRAXLER, Chief Judge:
Thomas
order
Shane
granting
Matherly
summary
appeals
from
judgment
to
the
the
district
court’s
respondent
(the
“government”) on his petition for a writ of habeas corpus, filed
under 28 U.S.C. § 2241.
his
prior
civil
In the petition, Matherly challenges
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
inter
Adam
alia,
Walsh
Act
“sexually
authorizes
dangerous
the
civil
person[s]”
custody of the Bureau of Prisons.”
commitment
who
are
“in
18 U.S.C. § 4248(a).
of,
the
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
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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,”
commitment
system
either
or
to
for
a
release
federal
to
a
facility
state
until
civil
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
psychological care or treatment.”
medical,
psychiatric,
or
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
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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 47month 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
November
23,
2006). 1
November
23,
2006,
was
However,
projected
it
Thanksgiving
1
now
release
appears
Day,
the
date
that
BOP
was
because
originally
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.
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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
released.’”
§
violent
conduct
or
child
molestation
if
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
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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
“civil - not criminal” in nature.
authorized
under
§
4248
are
See Timms, 664 F.3d at 456.
They are not intended to and do not punish an inmate for prior
2
The 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
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criminal offenses.
See id.
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Accordingly, the Double Jeopardy
and Ex Post Facto Clauses do not provide an avenue for release.
See
id.
at
455-56;
see
also
Hendricks,
Matherly does not contend otherwise.
521
U.S.
at
370-71.
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.
265 (1994).
See Landgraf v. USI Film Prods., 511 U.S. 244,
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,
congressional intent,” id. at 770.
statute
engage
has
in
a
been
impermissibly
three-step
functional judgment.’”
v.
St.
Cyr,
determine
533
bottom,
a
question
of
When determining whether a
applied
and
retrospectively,
apply
“‘a
we
commonsense,
Jaghoori, 772 F.3d at 771 (quoting INS
U.S.
‘whether
inquiry
at
289,
Congress
321
has
(2001)).
First,
expressly
we
prescribed
“must
the
statute’s proper reach.’” Cruz v. Maypa, 773 F.3d 138, 144 (4th
Cir. 2014) (quoting Landgraf, 511 U.S. at 280).
inquiry ends there.”
Id.
“If so, the
If we determine that Congress has not
spoken with the requisite clarity, we “must decide whether the
statute
impair
would
rights
operate
a
party
retroactively,
possessed
‘i.e.,
when
he
whether
acted,
it
would
increase
a
party’s liability for past conduct, or impose new duties with
7
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respect
added)
to
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transactions
(quoting
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already
Landgraf,
511
completed.’”
U.S.
at
Id.
280).
(emphasis
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).
a
Finally, if we determine that “the statute does have
retroactive
effect,”
we
will
not
apply
it
“‘absent
congressional intent favoring such a result.’”
clear
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
protect the public from [a present threat of] harm.”
521 U.S. at 361.
Congress
intended
to
Hendricks,
There is likewise nothing that suggests that
to
protect
the
8
public
from
a
“sexually
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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
retroactively.
fails
because
the
Act
does
not
operate
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
violence.”
§ 4248
[was]
of
thus
to
engage
Court
the
predatory
acts
of
Id. (internal quotation marks omitted).
the
Adam
Walsh
two-fold,
held
that
retroactive effect.”
Act,
the
civil
.
requiring
prospective findings.”
the
in
.
.
commitment
both
statute
“clearly
As with
“inquiry
retrospective
Timms, 664 F.3d at 439.
the
sexual
Nevertheless,
[did]
not
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
and
have
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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
Hendricks,
or
both.”
at
Comstock,
362).
F.3d
at
523
Act
“do[es]
“address[es]
dangers
(quoting
521
U.S.
retroactively,”
but
postenactment.”
Vartelas v. Holder, 132 S. Ct. 1479, 1489 n.7
rather
The
627
not
that
operate
arise
(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.
they address dangers that arise postenactment:
10
Rather,
sex offenders
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with a history of child molestation working in close proximity
to
children,
(internal
and
mentally
quotation
unstable
marks
persons
omitted);
see
purchasing
also
guns”)
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
application
of
of
family-based
its
visa
provisions
to
petitions,
convictions
.
that
.
.
the
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.
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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.
In
support,
Custodian
of
the
government
Records
for
submitted
the
BOP,
a
J.A. 27.
Declaration
referencing
and
of
the
attaching
records from the BOP “SENTRY” database, which “tracks the status
and activities of persons in BOP custody and provides . . .
sentence
information,
dates.”
J.A.
25.
projected
statutory
locations
According
release
of
to
date,
confinement,
these
after
and
records,
Matherly’s
application
served and good time credits, was November 23, 2006.
release
of
time
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.
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In his pro se response to the government’s motion, however,
Matherly submitted a number of additional documents that he also
represents
to
certificate
be
was
BOP
filed
records.
Matherly
after
expiration
the
claimed
of
that
his
“the
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.
46.
J.A. 35 (emphasis added); see also J.A.
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
certification,”
and
arrived
the
paperwork for release.”
prior
BOP
had
to
the
already
filing
of
“processed
the
[his]
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).
on
to
“reject[]
Matherly’s
However, the district court went
claim
that
the
government
lacked
jurisdiction to file a certificate seeking his commitment on the
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final day of his criminal sentence.”
J.A. 66.
its
cited
conclusion,
the
district
court
In support of
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
government’s
similar
filing
of
a
challenge
§
4248
to
the
certificate.
timing
of
the
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
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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.
Arenado,
See id. at 381; see also United States v. Hernandez571
interpretation
suffice”
and
F.3d
662,
that
667
would
instead
(7th
Cir.
2009)
allow
physical
“read[ing]
custody
(rejecting
custody
more
“an
alone
to
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
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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
certification.
held
that
the
government’s
filing
of
the
§
4248
And, contrary to Matherly’s claim, we have never
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.
(noting
2013)
physical
custody,
that
but
custody
denotes
a
“is
type
not
of
limited
legal
to
custody
actual
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
16
remained
in
both
the
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physical
and
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legal
custody
certificate was filed.
Pg: 17 of 19
of
the
BOP
when
the
§
4248
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.
particular,
History.”
Matherly
J.A. 44.
references
a
document
entitled
In
“Inmate
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,
date/time” of 9:30 a.m., on November 22, 2006.
and
J.A. 44.
“stop
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?
merely
apply
the
good
time
credits
that
Or did the BOP
Matherly
had
been
projected to earn and release him from one facility to another
17
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in anticipation of the change in his status from a criminal
commitment to a civil commitment?
3624.
See, e.g., 18 U.S.C. §§ 3621,
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
unexplained.
And,
contends.
standing
But
alone,
they
they
are
are
also
largely
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
findings
district
and
court
an
conclusions
in
opportunity
light
of
to
such
make
additional
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
applied
that
the
retroactively
Adam
to
Walsh
Matherly.
18
Act
was
not
However,
we
impermissibly
reverse
the
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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
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