                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 23, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-4063
          v.                                               (D. Utah)
 SCOTT K. COMBE,                               (D.C. No. 1:04-CR-00051-TS-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Defendant and appellant Scott K. Combe appeals the district court’s order

denying his motion to clarify his supervised release terms and conditions. For the

following reasons, we dismiss this appeal as not ripe for judicial review.



                                 BACKGROUND

      On November 2, 2004, Mr. Combe pled guilty to one count of possession of

firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was

sentenced to thirty months’ imprisonment, followed by thirty-six months of

supervised release. His convicted felon status stemmed from a 1987 conviction in

Idaho for lewd contact with minor children under the age of 16.

      On January 26, 2007, an agent of the Federal Bureau of Prisons (“FBI”)

certified Mr. Combe as sexually dangerous, based upon the Idaho conviction, his

psychological diagnosis of Pedophilia, Sexually Attracted to Males, and his risk

assessment, which indicated that “he will have serious difficulty refraining from

sexually violent conduct or child molestation if released.” R. Vol. 1 at 111. This

had the effect of automatically staying Mr. Combe’s release from custody,

pursuant to 18 U.S.C. § 4248. Thus, although Mr. Combe was scheduled to be

released from prison three days later (on January 29), because of his certification

as sexually dangerous, he was not released, and he remains in custody, housed

apparently in the civil commitment unit. He has not yet, however, been formally

determined to be sexually dangerous. The government has described his civil

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commitment hearing to make that determination as “upcoming.” Br. for United

States at 11.

      Mr. Combe then filed a motion to dismiss the certification petition in the

Eastern District of North Carolina, arguing that 18 U.S.C. § 4248 is

unconstitutional for many reasons, including that it violates due process and

presents ex post facto challenges. The district court initially granted Mr. Combe’s

motion, but his release was immediately stayed and the order was ultimately

vacated by the Fourth Circuit Court of Appeals. United States v. Broncheau, 759

F. Supp. 2d 682 (E.D.N.C. 2010), vacated, 2011 WL 2043956, at *8 (4th Cir.

May 26, 2011).

      Additionally, on February 5, 2010, Mr. Combe filed a writ of habeas corpus

under 28 U.S.C. § 2241, in which he claimed, inter alia, due process and ex post

facto problems. His habeas petition was denied without prejudice as moot after

Mr. Combe had received his order for release in Broncheau, which has since been

vacated. The upshot is that Mr. Combe remains incarcerated in North Carolina.

      On March 1, 2009, Mr. Combe wrote a letter to the sentencing court in the

District of Utah asking when his term of supervised release was supposed to start

running. There apparently is no response to that letter. On February 18, 2010,

Mr. Combe wrote to the Office of Probation and Pretrial Services for the District

of Utah, also asking whether his term of supervised release had started. On

April 26, 2010, a probation officer responded to Mr. Combe’s inquiry, stating that

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his “36-month term of supervised release will not commence until you are

released from federal custody or the start of a civil commitment in federal

custody.” R. Vol. 1 at 106. Quoting an opinion written by a member of the

General Counsel of the Administrative Office of the Courts, the probation officer

explained that when the government initiates a § 4248 civil commitment

proceeding by certifying that an offender is sexually dangerous, the prisoner’s

release is stayed. Accordingly, the term of supervised release does not

commence, “because the offender has not been released from imprisonment.” R.

Vol. 1 at 105 (further quotation omitted).

      On August 25, 2010, Mr. Combe filed a motion asking the sentencing court

to clarify when his term of supervised release would start. The sentencing court

evidently interpreted his motion as seeking a declaration that his term of

supervised release had expired. On March 18, 2011, the sentencing court denied

his motion, concluding that his term of supervised release had not commenced

because he had not yet been released from imprisonment. This appeal followed.



                                   DISCUSSION

      The Adam Walsh Child Protection and Safety Act, Pub. L. 109-248,

provides in part that “[An] individual authorized by . . . the Director of the

Bureau of Prisons, may certify that [a person in custody] is a sexually dangerous

person. [Such a] certificate . . . shall stay the release of the person pending [a

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court’s hearing to determine the person’s dangerousness.]” 18 U.S.C. § 4248(a).

It appears that Mr. Combe has not yet had that hearing. As a result, we do not

know whether Mr. Combe will be determined to be a sexually dangerous person

or not, under 18 U.S.C. § 4247. The government concedes that, if he is not found

to be sexually dangerous, he will be “freed from confinement.” Br. of United

States at 13.

      At that point, the issue of whether Mr. Combe is subject to supervised

release, or should be deemed to have already effectively endured his supervised

release, will be squarely presented. As of now, any ruling on his supervised

release is premature.

      Article III restricts the jurisdiction of federal courts to actual controversies

and prohibits mere advisory opinions. Clark v. State Farm Mut. Auto. Ins. Co.,

590 F.3d 1134, 1138 (10th Cir. 2009). “Ripeness doctrine is rooted both in the

jurisdictional requirement that Article III courts hear only ‘cases and

controversies’ and in prudential considerations limiting our jurisdiction.” Alto

Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170, 1173 (10th Cir.

2011). We have stated that the “[r]ipeness doctrine addresses a timing question:

when in time is it appropriate for a court to take up the asserted claim.” Kansas

Judicial Review v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008).

      “Generally, we apply a two-factor test to determine whether an issue is

ripe. We evaluate ‘the fitness of the issue for judicial resolution and the hardship

                                          -5-
to the parties of withholding judicial consideration.’” Id. (quoting Sierra Club v.

Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990)). We have characterized the

fitness inquiry as “whether the case involves uncertain or contingent future events

that may not occur as anticipated, or indeed may not occur at all.” Salt Lake

Tribune Publishing Co. v. Management Planning, Inc., 454 F.3d 1128, 1140 (10th

Cir. 2006) (further quotation omitted). The hardship inquiry involves “whether

the challenged action creates a direct and immediate dilemma for the parties.” Id.

(further quotation omitted).

      In this case, what remains unresolved is whether Mr. Combe will be

determined to be sexually dangerous, or whether he will be freed from

confinement. “Whether a judicial determination of the starting date of his

supervised release affects [Mr. Combe’s] legal rights depends upon how those

questions are answered.” United States v. Seger, 2011 WL 3555670, at *4 (D.

Maine, Aug. 8, 2011). Furthermore, as in Seger, with respect to hardship, “no

matter the Court’s ruling, [Mr. Combe] will remain in custody pending his § 4248

hearing and, therefore, the Court’s order would have no immediate effect on

[Mr. Combe].”

      Finally, we note that, according to the government and as explained above,

Mr. Combe has, in essence, filed 28 U.S.C. § 2241 habeas petitions in the court of

the jurisdiction where he is confined (the Eastern District of North Carolina),

arguing that his confinement violates his constitutional rights. See Br. of United

                                         -6-
States at 12 n.6. The exact status of those petitions and/or proceedings as of now

is unclear, but that is the proper venue for Mr. Combe to challenge his

confinement pursuant to the Adam Walsh Act.

      In short, we find his motion here to be premature, and not ripe for review.

We accordingly dismiss it without prejudice for lack of jurisdiction.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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