United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
a federal civil detainee proceeding pro se, seeks
habeas corpus relief pursuant to 28U.S.C.
August 20, 2014, the government certified petitioner as a
sexually dangerous person pursuant to the Adam Walsh Act (the
"Act"), 18U.S.C. §4248. See United States
v. Preacher. 5:14-HC-2179-FL (DE 1) (E.D. N.C. Aug. 20,
2014). At the time, petitioner was serving a term of 168
months in the Bureau of Prisons ("BOP") following
his conviction in 2000 for "attempted aggravated sexual
abuse of a child in Indian country in violation of 18 U.S.C.
§§ 2241(c) and 1153" in the United States
District Court for the District of Idaho. Preacher v.
Obama. No. 1:11-CV-00596-BLW, 2012 WL 5199662, at *1 (D.
Idaho Oct. 22, 2012). When the district court sentenced
petitioner on December 18, 2000, he allegedly had two months
remaining on a nine-month prison term imposed by the
Shoshone-Bannock Tribal Court. Pet. ¶ 6 (DE 1 at 2).
According to petitioner, while incarcerated for his federal
offenses, Shoshone-Bannock Tribal Jail lodged a detainer
against him. Id. ¶ 5.
April 3, 2015, following an evidentiary hearing, this court
found petitioner qualified as a sexually dangerous person as
defined by the Act and civilly committed him to the custody
of the United States Attorney General. See Order, United
States v. Preacher. 5:14-HC-2179-FL (DE 110) (E.D. N.C.
Apr. 3, 2015). On April 9, 2015, petitioner appealed his
civil commitment, claiming the government untimely initiated
the civil commitment proceedings. See Order,
United States v. Preacher. 5:14-HC-2179-FL (DE 117)
(4th Cir. Oct. 7, 2015). On October 7, 2015, the Fourth
Circuit affirmed the court's civil commitment order.
Id. Petitioner did not file a petition for
certiorari with the Supreme Court.
September 2, 2016, petitioner filed the instant petition. In
support of his petition, petitioner alleges his commitment
violates the Interstate Agreement on Detainers Act
("IADA"), 18 U.S.C. § App. 2 § 1 (grounds
one, three and four) and his Fifth Amendment right to
procedural due process (grounds one and two).
petition brought pursuant to 28 U.S.C. § 2241 is used to
attack the manner in which the sentence is executed.
Specifically, a section 2241 petition is appropriate when a
petitioner is challenging the fact or duration of
confinement. See Preiser v. Rodriguez, 411 U.S. 475,
490 (1973). In order to obtain relief, the petitioner must
show that he is "in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3); accord Rose v. Hodges.
423 U.S. 19, 21 (1975); United States v. Little. 392
F.3d 671, 679 (4th Cir. 2004).
first argues that the BOP "retroactively used civil
commitment" to prevent his return to the tribal jail and
completion of his tribal court sentence in violation the
IADA. See Pet. at 7-8. Petitioner's reliance on
the IADA is misplaced. The purpose of the IADA is to,
inter alia, "encourage the expeditious and
orderly . . . determination of the proper status of any and
all detainers based on untried indictments,
informations, or complaints." 18 U.S.C. A. § App.2
§2 Art. 1 (emphasis added). Consistent with this
purpose, the IADA provides that when a prisoner is serving a
term of imprisonment in a party State, and there is
pending in any other party State any untried
indictment, information, or complaint on the basis of which a
detainer has been lodged against the prisoner, the prisoner
shall be brought to trial within one hundred and eighty days
after he shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting
officer's jurisdiction written notice of the place of his
imprisonment and his request for a final disposition to be
made of the indictment, information, or complaint
18 U.S.C.A. § App. 2 § 2 Art. 111(a). Here, there
is no pending "untried indictment, information or
complaint." Indeed, as petitioner advises, the tribal
court sentenced him in May 2000. Pet. at 7. Accordingly,
petitioner is not entitled to habeas relief on the basis of
any alleged violation of the IADA.
petitioner claims the BOP "used a retrospective law
retroactively for [an] illegal purpose . .. thereby violating
.. . [his] due process procedural rights." Id.
While extreme changes in the conditions of confinement, such
as an involuntary civil commitment, invoke the protections of
the Due Process Clause of the Fifth Amendment, see Vitek
v. Jones, 445 U.S. 480, 493-94 (1980) (providing due
process requirements in the context of any involuntary civil
commitment), petitioner fails to plausibly allege a due
process claim. Procedural due process generally requires
notice and a hearing in advance of a deprivation of liberty.
Zinermon v. Burch, 494 U.S. 113, 127 (1990).
Petitioner does not allege that the BOP denied him notice of
the proceedings or failed to apprise him of the purpose
thereof, nor does he allege a denial of his right to counsel
or to confront and cross-examine witnesses at the
proceedings. See Jones, 445 U.S. 480, 496-97.
Petitioner also does not allege that the proceedings failed
to conform with the statutory scheme of the Adam Walsh Act or
that he was subject to measures beyond those authorized by
the Act. See 18 U.S.C. § 4247(d) (providing the
civil commitment prisoner with representation by counsel, and
an opportunity to testify, present evidence, subpoena
witnesses, and confront and cross-examine witnesses who
appear at the hearing). Accordingly, petitioner's due
process claim is meritless.
the petition liberal construction, the court assumes in using
the term "retroactive, " petitioner attempts to
bring a claim under the Ex Post Facto Clause of the United
States Constitution, U.S. Const. Art. 1, § 9, cl.3.
Section 4248 commitment actions are civil proceedings.
United States v. Timms, 664 F.3d 436, 456 (4th Cir.
2012). "Because § 4248 is a civil commitment
statute, its application does not raise ex post facto
concerns." King v. Ratledge, No.
5:14-HC-2038-FL, 2014 WL 11497897, at *3 (E.D. N.C. Dec. 3,
2014) (collecting cases); see Seling v. Young. 531
U.S. 250, 267 (2001) (stating a statute "found to be
civil, cannot be deemed punitive 'as applied' to a
single individual in violation of the Double Jeopardy and Ex
Post Facto Clauses . . . ."). Accordingly, to the extent
petitioner brings an ex post facto claim, it lacks merit.
to the extent petitioner claims that his civil commitment is
precluded by the existence of the tribal jail detainer, the
court disagrees. Petitioner cites no authority in support of
this proposition and the court is aware of none. Cf
Foster v. Smith, No. 5:16-HC-2202-BR(DE 6) (E.D. N.C.
July 10, 2017) (holding section 4248 does not preclude civil
commitment due to the existence of a state detainer);
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