United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
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.
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,
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.)
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
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
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).
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.
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.” 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 . . . .”).
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).
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 ...