Thomas Matherly v. Justin Andrews, 2016 U.S. App. LEXIS 4807

Matherly pled guilty in 2003 to possession of child pornography and, after revocation of supervised release, was serving an aggregate federal prison term projected to expire November 23, 2006 (with BOP scheduling an early release on November 22, 2006).
On November 22, 2006 the government filed a § 4248 certification under the Adam Walsh Act (AWA) that Matherly was a “sexually dangerous person,” which automatically stayed his release; after a hearing the district court committed him and this Court previously affirmed that commitment.
In a § 2241 habeas petition Matherly argued (1) the AWA was impermissibly applied retroactively to him, and (2) the government lacked authority to file the § 4248 certification because the BOP had already released him from custody at the time of filing.
The district court granted summary judgment for the government on both claims; on appeal Matherly challenged both rulings and counsel was appointed.
This panel affirmed the district court as to the retroactivity (Landgraf/ex post facto) challenge but reversed and remanded the custody-timing issue for further factual development, finding the record ambiguous about whether the BOP had relinquished legal custody prior to the certificate filing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Retroactive application of the Adam Walsh Act	AWA impermissibly applied to Matherly because his convictions and confinement predated the Act	AWA is civil, addresses present/future dangerousness, and does not impose punishment or impermissible retroactivity	Affirmed — AWA was not impermissibly retroactive
Whether Matherly was "in the custody of the Bureau of Prisons" when § 4248 certification filed	BOP had already released him (documents show a departure at 8:00–9:20 a.m. and certificate filed later) so BOP lacked legal custody when certificate filed	BOP retained legal authority through the last day of sentence; certificate filed while sentence still running, so timely	Reversed and remanded — genuine factual dispute exists; district court must further develop record and make findings

Kansas v. Hendricks, 521 U.S. 346 (1997) (civil commitment statute addressed present dangerousness and does not constitute retroactive punishment)
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (three-step test for retroactivity and presumption against retroactive application)
United States v. Comstock, 627 F.3d 513 (4th Cir. 2010) (AWA uses past acts for evidentiary purposes to show current dangerousness)
United States v. Timms, 664 F.3d 436 (4th Cir. 2012) (AWA commitment proceedings are civil, not criminal)
United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (§ 4248’s “custody” means legal custody; BOP must have ultimate legal authority)
United States v. Wetmore, 700 F.3d 570 (1st Cir. 2012) (timing of § 4248 filing is timely if made during the last day of sentence; challenges to release-date calculation rejected)
Vartelas v. Holder, 132 S. Ct. 1479 (2012) (laws addressing post-enactment dangers do not operate retroactively)