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United States v. Carr

United States District Court, E.D. North Carolina, Western Division

June 27, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
DANIEL G. CARR, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         The matter now is before the court on petitioner's motion for relief from his civil commitment judgment pursuant to Federal Rule of Civil Procedure 60(b) (DE 67). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court denies petitioner's motion.

         BACKGROUND

         On September 2, 2009, petitioner was indicted in the United States District Court for the Middle District of Tennessee for failure to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a). United States v. Carr, No. 2:09-CR-10-1 (M.D. Tenn. Sept. 2, 2009). The indictment alleged that petitioner failed to comply with the SORNA registration requirements in Tennessee when he traveled in interstate commerce from Tennessee to Mexico. (Id.) On November 24, 2010, petitioner entered a conditional guilty plea to the charge. Id. (M.D. Tenn. Nov. 24, 2010). On June 6, 2011, the court ordered petitioner committed to the custody of the United States Bureau of Prisons (“BOP”) to be imprisoned for a total term of 41months, followed by a life term of supervised release. (See id. (M.D. Tenn. June 6, 2011)).

         On May 21, 2012, the government initiated an action under the Adam Walsh Child Safety and Protection Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006), (“Adam Walsh Act” or “Act”) by filing its certification of petitioner as a sexually dangerous person pursuant to the Act. United States v. Carr, No. 12-HC-2121-FL (E.D. N.C. May 21, 2012). Although petitioner completed his federal sentence on June 1, 2012, the government's filing of the § 4248 certificate stayed petitioner's release from BOP custody pending the completion of the § 4248 civil commitment proceedings. See 18 U.S.C. § 4248(a). On March 5, 2013, this court conducted a bench trial under 18 U.S.C. § 4247(c) to determine whether to commit petitioner as a sexually dangerous person under 18 U.S.C. § 4248(d). Carr, No. 5:12-HC-2121-FL (E.D. N.C. Mar. 5, 2013). After the hearing, the court concluded that petitioner was a sexually dangerous person under § 4248(d), and ordered him committed to the custody of the United States Attorney General. (Id.)

         On September 23, 2013, petitioner filed a motion to vacate his criminal conviction for failing to update his sex-offender registration in the Middle District of Tennessee before traveling to Mexico and asked to be released from civil commitment. Carr v. United States, No. 2:13-cv00091 (M.D. Tenn. Sept. 23, 2013). On February 20, 2014, the Middle District of Tennessee denied petitioner's § 2255 motion, and dismissed the action. Id. (M.D. Tenn. Feb. 20, 2014). On July 21, 2016, this court, in petitioner's commitment proceedings, ordered that petitioner be conditionally released from his civil commitment pursuant to 18 U.S.C. § 4248(e) subject to specific conditions such as supervision by the United States Probation Office, restrictions on who he may reside or associate with, continued treatment, and restrictions on internet use. Carr, No. 12-HC-2121-FL (E.D. N.C. July 21, 2016) (DE 65) (full list of conditions to which petitioner was subject after his supervised release). On July 28, 2016, the BOP released petitioner from its custody into the community. See Fed. Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/ [https://perma.cc/L3T7-2LPE].

         On August 16, 2016, the United States Court of Appeals for the Sixth Circuit reversed the Middle District of Tennessee's denial of petitioner's § 2255 motion, and remanded the action to the Middle District of Tennessee court with instructions to set aside petitioner's SORNA conviction. See Carr v. United States, No. 14-5368, 2016 WL 4363159, at *3 (6th Cir. Aug. 16, 2016). The Sixth Circuit vacated petitioner's SORNA conviction because, under United States v. Nichols, 136 S.Ct. 1113, 1118 (2016), petitioner's statute of conviction did not require sex offenders to update their registration in the jurisdiction they were leaving. Id.; see Nichols, 136 S.Ct. at 1118; 18 U.S.C. § 2250(a). As for petitioner's request for release from civil commitment, the Sixth Circuit Court of Appeals construed such request as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and directed the United States District Court for the Middle District of Tennessee to transfer the § 2241 petition to this court. Id. On October 31, 2016, transfer was accomplished and petitioner was allowed to proceed with his § 2241 petition. United States v. Carr, No. 5:16-HC-2264-FL (E.D. N.C. Oct. 31, 2016). Respondent subsequently moved to dismiss.

         On February 8, 2017, petitioner, in this civil commitment action, filed a motion for relief pursuant to Federal Rule of Civil Procedure 60(b)(4), (5), and (6) from the court's March 5, 2013, judgment committing him as a sexually dangerous person. Carr, No. 12-HC-2121-FL (E.D. N.C. Feb. 8, 2017). The motion was fully briefed. On February 16, 2017, the court stayed petitioner's § 2241 proceeding pending disposition of petitioner's Rule 60(b) motion in the civil commitment action. Carr, No. 16-HC-2264-FL (E.D. N.C. Feb. 3, 2017).

         DISCUSSION

         “The consideration of Rule 60(b) motions proceeds in two stages.” Nat'l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). First, movant must meet “three threshold conditions[:] . . . that his motion is timely, that he has a meritorious defense to the action, and that the opposing party would not be unfairly prejudiced by having the judgment set aside.” Id. (quotations omitted). “Once the movant has met the threshold showings, he must satisfy one of the six enumerated grounds for relief under Rule 60(b).” Id. at 266.

         The government does not contest petitioner's ability to meet Rule 60(b)'s threshold requirements, and the court determines that petitioner has met the threshold conditions for relief. After meeting Rule 60(b)'s threshold requirements, a movant must then “satisfy one of the six enumerated grounds for relief under Rule 60(b).” Id. Petitioner seeks relief pursuant to subsections (b)(4), (5), and (6). Subsection (4) applies when “the judgment is void.” An order is “void” only if the court lacked personal or subject matter jurisdiction or acted contrary to due process of law. Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005). Subsection (5) applies when the judgment “is based on an earlier judgment that has been reversed or vacated.[1]” Finally, subsection (6) applies if “any other reason . . . justifies relief.” Although the language of Rule 60(b)(5) and (b)(6) is broad, both provisions have been construed narrowly. See Horne v. Flores, 557 U.S. 433, 447 (2009) (“Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests . . . .”).

         A. Rule 60(b)(4)

         Petitioner seeks relief pursuant to Rule 60(b)(4) on the grounds that his civil commitment judgment is void because he was not in the legal custody of the BOP at the time of his certification under § 4248 due to the fact that his criminal judgment ultimately was vacated pursuant to the Court's ruling in Nichols. The parties agree that § 4248(a) provides for civil commitment of individuals “who [are] in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a); see United States v. Joshua, 607 F.3d 379, 382 (4th Cir. 2010). Section 4248(a) requires only that the person be “in the custody of the Bureau of Prisons” when the “Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons” certifies that the person “is a sexually dangerous person, ” not when the court actually orders the person committed under 18 U.S.C. § 4248(d). See 18 U.S.C. § 4248(a).

         The parties additionally agree that the Fourth Circuit addressed the meaning of “custody” in the context of § 4248 in United States v. Joshua, 607 F.3d 379, 382 (4th Cir. 2010). The petitioner in Joshua was an ex-Army officer who had been convicted in a court-martial for violating the Uniform Code of Military Justice (“UCMJ”), and was serving his term of imprisonment in a BOP facility under a “Memorandum of Agreement” entered into under the statutory authority of UCMJ Article 58. Joshua, 607 F.3d at 381-82. The Memorandum of Agreement specifically provided that “military prisoners within BOP ...


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