Opinion
CIVIL ACTION NO. 06-40082-GAO.
September 26, 2007
OPINION AND ORDER
The petitioner, Coy Phelps, is confined at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). In 1986 he was found not guilty only by reason of insanity in the United States District Court for the Northern District of California on charges of possessing, manufacturing, and placing pipe bombs at five San Francisco locations, in violation of 26 U.S.C. § 5861(d) and (f), and 18 U.S.C. § 844(f) and (I). Subsequently, Phelps was civilly committed to the custody of the Attorney General following a hearing pursuant to 18 U.S.C. §§ 4243 and 4247. Since that time, Phelps has been housed at and transferred between the FMCs in Springfield, Missouri; Rochester, Minnesota; and Butner, North Carolina, until his most recent transfer to FMC Devens in November, 2004.
On April 21, 2006, Phelps filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. He claims: (1) that the Federal Bureau of Prisons ("BOP") does not have lawful custody over him under 18 U.S.C. §§ 4243 and 4246; (2) that Sara Rasmussen, a social worker at FMC Devens is improperly allowing the United States Probation Office to determine release conditions for § 4243 civilly committed persons; and (3) that 18 U.S.C. § 3603(8) which provides that a probation officer, "when directed by the court," to "keep informed as to the conduct and provide supervision of a person conditionally released under provisions of section 4243 or 4246 of this title" and "immediately report any violation on the conditions of release to the court and the Attorney General . . ." is unconstitutional.
The reason that § 3603(8) is unconstitutional, according to Phelps, is that "it is contrary to the intent of Congress and it is contrary to the provisions of the federal mental health laws." (Pet. for Writ of Habeas Corpus at 4). Inasmuch as his argument directed at § 3603 is simply a corollary of his first claim, that he is not in lawful custody of the BOP because he is not a "prisoner," this claim has already been determined in cases brought by Phelps. See Phelps v. United States Bureau of Prisons, 62 F.3d 1020, 1023 (8th Cir. 1995) (holding that a federal medical center is a "suitable facility" for Phelps within the meaning of 18 U.S.C. 4243 and 4247); Phelps v, United States, 831 F.2d 897, 898 (9th Cir. 1987) (holding that § 4243 is not unconstitutionally vague and overbroad). Title Twenty-Eight of the U.S. Code § 2244(a) states that "[n]o circuit or district judge shall be required to entertain an application for a writ of habeas corpus . . . if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ. . . ." To the extent it is even necessary to reach the merits of this claim, the result reached in Phelps' previous cases is the correct one, and a BOP facility is not, categorically, unsuitable for a civilly committed person such as Phelps. See Phelps, 62 F.3d at 1023;Phelps, 831 F.2d at 898.
As to Phelps' second claim, that probation officers are being improperly allowed to determine release conditions, Phelps lacks standing because this claim is not ripe. For this Court to exercise jurisdiction, there must be an actual "case" or "controversy." U.S. Const. Art. III, § 2; Flast v. Cohen, 392 U.S. 83, 94-97 (1968). Ripeness is determined by a two-part test. Stern v. U.S. Dist. Ct. for Dist. of Mass., 214 F.3d 4, 10 (1st Cir. 2000). First, the issue presented must be fit for judicial review, an inquiry that "`typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends on facts that may not yet be sufficiently developed.'"Id. (quoting Ernst Young v. Depositors Econ. Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995)). The second inquiry is the extent to which withholding judgment will impose a hardship, which "turns on whether the challenged action creates a `direct and immediate' dilemma for the parties." Id. (quoting W.R. Grace Co. — Conn. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992)).
An alleged injury that is speculative or may never occur does not meet this test for ripeness. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974). The alleged injury "must be both `real and immediate,' not `conjectural' or `hypothetical.'" Id. (quotingGolden v. Zwickler, 394 U.S. 103, 109-10 (1964)). In this case, Phelps is not being conditionally released under 18 U.S.C. §§ 4243 or 4246. Accordingly, the potential future problem of a probation officer exercising the allegedly illegal authority over Phelps is not ripe and dismissal is proper.
For the foregoing reasons, the respondents' motion to dismiss (dkt. no. 5) is GRANTED. There being no remaining claims in this case, respondents' motion to consolidate cases (dkt. no. 10) is therefore MOOT.
It is SO ORDERED.