The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
BRIAN SCOTT BROWN, )
Petitioner, )
) Civil Action No. 7:21cv00043
v. )
) By: Elizabeth K. Dillon
ERIN FERGUSON, Commissioner, ) United States District Judge
Respondent. )
MEMORANDUM OPINION
Petitioner Brian Scott Brown, a Virginia inmate proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his civil commitment as a
sexually violent predator under Virginia Code §§ 37.2-900–920. Respondent has filed a motion
to dismiss, and the matter is now ripe for disposition. After careful review of the record, the
timeline, and applicable law, the court concludes that this petition must be dismissed for the
reasons stated below.
I. BACKGROUND
On December 20, 2007, Brown pled guilty in Pulaski County Circuit Court to forcible
rape in violation of Virginia Code § 18.2-61, a sexually violent offense as defined in Code
§ 37.2-900. The court imposed a sentence of 30 years, with 17.5 years suspended. While
incarcerated, Brown completed his GED, maintained various jobs in the prison, and completed
training and certification as a roofer and siding installer. During his incarceration, he incurred
minimal infractions, none involving violence. During his final two years, Brown participated in
the Sexual Offender Residential Treatment (SORT) program in the penitentiary. Two years
before his release, as required by Virginia Code § 37.2-903, the Department of Corrections
notified the Commitment Review Committee at the Department of Behavioral Health and
Developmental Services (DBHDS) of Brown’s anticipated release date, and the Committee
arranged for a sexually violent predator (SVP) evaluation pursuant to Virginia Code § 37.2-904.
Michelle Sjolinder, a licensed clinical psychologist, conducted the evaluation, including a
clinical interview of Brown at Greensville Correctional Center on December 30, 2015. During
the interview, she administered several tests, including the Wechsler Abbreviated Scale of
Intelligence-second edition, the Millon Clinical Multiaxial Inventory-third edition, Hare
Psychopathy Checklist-Revised second edition, Static99R Sex Offender Risk Assessment,
Sexual Violence Risk-20, and the Bumby Cognitive Distortions Scale (rape and molestation
scales). She also reviewed the investigative and court records from the criminal case, the
presentence report, Brown’s juvenile records, and prison records, including medical and mental
health records.
Dr. Sjolinder prepared her report on January 16, 2016, diagnosing Brown with
narcissistic personality disorder, with strong obsessive-compulsive traits and historical antisocial
features, and autism spectrum qualities. She also noted that he is considered high risk for
reoffending, based on his Static 99R Score and his age (29 at the time of the evaluation).
Notwithstanding the diagnoses and recidivism risk, Dr. Sjolinder opined that Brown did not meet
the definition of an SVP, that is, a “person who (i) has been convicted of a sexually violent
offense . . . and (ii) because of a mental abnormality or personality disorder, finds it difficult to
control his predatory behavior, which makes him likely to engage in future sexually violent
acts.” Va. Code § 37.2-900 (emphasis added). She acknowledged that he had been convicted of
a sexually violent offense and that he had a personality disorder; however, she noted that the
personality disorder “in and of itself is not necessarily connected with violence, much less sexual
violence, unless certain other factors” are present. CCR at 527.1 She found no evidence of a
paraphilia or similar mental health factor that would causally connect Brown’s personality
disorder to difficulty controlling predatory, violent sexual behavior. Accordingly, she did not
recommend commitment because he did not meet the definition of an SVP.
Upon receiving the evaluation report pursuant to the statute, DBHDS had another
licensed clinical psychologist, Dr. Glenn Miller, review all records and test results from Dr.
Sjolinder’s evaluation.2 Dr. Miller ultimately diagnosed antisocial personality disorder and
“other specified paraphilic disorder (nonconsent).” CCR at 502. Dr. Miller opined that Brown
qualified as an SVP, and the attorney general’s office elected to file a petition for civil
commitment. With the filing of the petition in April 2016, the court entered a hold order in order
to maintain Brown in custody after his release date until the conclusion of the commitment
proceedings, and counsel was appointed to represent him. CCR at 22 – 27.
Brown’s counsel obtained yet another evaluation by a board-certified clinical
psychologist, Dr. Alan von Kleiss. Dr. von Kleiss opined that Brown did not suffer from any
mental abnormality or personality disorder, nor did he suffer from any lack of ability to control
his behavior. Accordingly, he opined that Brown is not an SVP within the definition provided by
Virginia law. CCR at 553.
The parties apparently agreed to have the matter tried by a jury rather than the court.
CCR at 99. All three psychologists testified at the trial in accord with their reported opinions.
1 Citations herein to the circuit court record from Pulaski County Circuit in the Case Commonwealth v.
Brown, No. CL 16000379-00, are abbreviated “CCR” at the page number located in the lower right corner of each
page in the record.
2 The Commonwealth filed a motion to allow Dr. Miller to interview Brown before the commitment trial,
but the circuit court denied the motion, given that Brown had already fully cooperated with the evaluation by Dr.
Sjolinder, who was also selected by the Commonwealth. Therefore, Dr. Miller’s report and opinion were based on
the record review without personally interviewing Brown.
On June 23, 2017, the jury found Brown to be an SVP. CCR at 163. The court denied Brown’s
motion to set aside the verdict, and by order dated July 18, 2017, the court committed Brown to
the custody of DBHDS for inpatient treatment in a secure facility designated by the
Commissioner. CCR at 169 – 171. Brown did not appeal from this judgment. Further, he has
never filed a state habeas petition challenging his detention as an SVP.
Brown began treatment at the Virginia Center for Behavioral Rehabilitation on August 1,
2017. On July 18, 2019, the court entered an order for preparation of a conditional release plan,
based upon the annual review report of Dr. Mario Dennis, dated April 27, 2018, and the letter
from Dr. Dennis, dated June 18, 2019, recommending conditional release. The order recites that
“the parties stipulate and the court FINDS” that Brown remains a sexually violent predator as
defined by the Virginia Code, but that he meets the criteria for conditional release. Order,
7/18/19, Ex. B, Gov’t Br. Supp. Mot. Dismiss, Dkt. No. 21-2. On March 10, 2020, the court
entered an order approving a lengthy conditional release plan for Brown. Order, 3/10/20, Ex. C,
Gov’t Br. Supp. Mot. Dismiss, Dkt. No. 21-3. Brown did not appeal either of these orders, nor
did he file any habeas petition in the Virginia state courts. He was released from the Virginia
Center for Behavioral Rehabilitation on April 16, 2020, to begin his probation and his
conditional release.
On September 15, 2020, the court entered an emergency custody order for Brown,
alleging that he violated his probation and his conditional release terms by absconding from
supervision and removing his GPS monitoring equipment. Further, Brown was alleged to have
admitted having a gun in his possession on September 14, 2020. Ex. D, Gov’t Br. Supp. Mot.
Dismiss, Dkt. No. 21-4.3 While he was in custody waiting for his probation violation hearing
and his revocation of conditional release, Brown mailed his § 2254 petition to this court on
January 20, 2021, raising the following claims:
(1) His continued custody by the DBHDS violates the Fourth, Fifth, Eighth, and
Fourteenth Amendments of the United States Constitution; and
(2) Ineffective assistance of counsel in failing to make these constitutional arguments at
the time of his commitment.
The respondent asserts that this petition is untimely and, alternatively, that the issues were never
presented to the Supreme Court of Virginia and are now simultaneously exhausted and defaulted.
II. DISCUSSION
A. Procedural Standards
A federal court may grant a petitioner habeas relief from a state court judgment “only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act placed several
procedural limitations on the habeas corpus process. First, the petitioner must file his claim
timely, generally within one year from the date on which the state court judgment became final.
28 U.S.C. § 2244(d)(1)(A). A federal district court reviewing a § 2254(a) petition is also limited
by the separate but related doctrines of exhaustion, procedural default, and independent and
adequate state law grounds. These procedural limitations promote the principles of finality,
comity, and federalism, recognizing the state’s legitimate interests in enforcing its laws,
preventing disruption of state judicial proceedings, and allowing states the first opportunity to
3 According to the Virginia Case Information System online, the court sentenced Brown to three years in
prison on March 30, 2021, for the probation violation. His appeal to the Court of Appeals of Virginia was denied
November 23, 2021. There is no indication that he has appealed to the Supreme Court of Virginia. In the civil case,
the court re-committed Brown as a sexually violent predator on August 31, 2021, and a notice of appeal was filed on
September 20, 2021. The Circuit Court docketed an entry on November 23, 2021, that the court of appeals denied
the appeal, but the only record found for the court of appeals pertained to the criminal probation violation case.
address and correct alleged violations of rights of persons in state custody. Coleman v.
Thompson, 501 U.S. 722, 730–31 (1991).
B. Analysis
1. Custody
Brown expressly states that he is not challenging his criminal incarceration in this
petition. Pet. at 7, Dkt. No. 1. Rather, he alleges that his civil commitment violates the United
States Constitution. Even though civil commitment is not incarceration and is remedial rather
than punitive, it is still involuntary custody pursuant to a state order, and habeas review under
§ 2254 is available to challenge the legality of such custody. Duncan v. Walker, 533 U.S. 167,
176 (2001).
Respondent asserts that Brown is currently serving a criminal sentence and therefore not
in the custody of DBHDS. The trial court’s entry of an order revoking Brown’s conditional
release and committing him as a sexually violent predator upon completion of his probation
violation sentence undermines the argument. The Supreme Court has long held that a federal
district court may consider the petition of a prisoner incarcerated under consecutive sentences
who claims that the sentence he is scheduled to serve in the future is constitutionally invalid.
Peyton v. Rowe, 391 U.S. 54, 64–65, 67 (1968). The situation here is no different. Brown is
serving a custodial sentence to be followed by a custodial commitment. Therefore, he is in
custody within the meaning of § 2254(a).
2. Timeliness
Under 28 U.S.C. § 2244(d)(1), a petitioner has one year in which to file a federal habeas
corpus petition. This statute of limitations runs from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2244(d)(1).
The original judgment committing Brown to the custody of DBHDS was entered July 18,
2017. At that time, appellate jurisdiction for civil matters, including commitment hearings, lay
with the Supreme Court of Virginia, and a litigant had 90 days in which to appeal from a circuit
court judgment. Va. Code §§ 8.01-670–671 (2017). The one-year statute of limitations to
challenge that order under subsection (A) began to run on October 17, 2017, 90 days after entry
of the judgment in circuit court, because Brown did not appeal and the time for appealing
expired on that date. Under this subsection, the deadline for Brown to file his § 2254 petition
was October 17, 2018. The petition, mailed January 20, 2021, is more than two years overdue
under that provision.
The rights asserted by Brown have long been recognized by the Supreme Court. The
cases cited in his petition were decided well before 2017. See, e.g., Kansas v. Crane, 534 U.S.
407 (2002); Kansas v. Hendricks, 521 U.S. 346 (1997). Accordingly, subsection (C) does not
apply. Further, the factual predicate for Brown’s claims was known to him before the judgment
order was entered. He raised the same arguments in a pro se motion to dismiss the commitment
petition in July 2018. CCR at 736 – 744. Thus, subsection (D) does not apply.
Subsection (B) applies if state action prevented Brown from timely filing his petition.
The closest allegation Brown makes is that his court-appointed counsel advised him that there
was no habeas remedy for this type of case. Assuming this to be true, that does not rise to the
level of preventing Brown from filing a petition. Rather, it falls under the category of attorney
negligence. The courts have long recognized that attorney negligence is not sufficient to excuse
an untimely petition. Lawrence v. Florida, 549 U.S. 327, 336 (2006); Harris v. Hutchinson, 209
F.3d 325, 330 (4th Cir. 2000).
Three avenues exist for a petitioner to avoid the harsh effect of the statute of limitations:
statutory tolling, equitable tolling, or miscarriage of justice (actual innocence). For the reasons
stated below, none of these will save Brown’s untimely petition in this case.
Statutory tolling applies when a “properly filed application for State post-conviction or
other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). Brown has not filed a state
petition for habeas corpus to challenge the commitment order of July 8, 2017. Therefore, none
of the one-year limitation was tolled.
The “miscarriage of justice exception” to the statute of limitations attempts to balance the
“societal interests in finality, comity, and conservation of scarce judicial resources with the
individual interest in justice that arises in the extraordinary case.” McQuiggin v. Perkins, 569
U.S. 383, 393–95 (2013). The exception can only be considered when a litigant presents new
evidence, such that, absent constitutional error, “no reasonable juror would have convicted” the
defendant. Id. Of course, in this case, Brown is not challenging a criminal conviction, but a civil
commitment order. If the court analogizes Brown’s argument that he is not an SVP as defined
by Virginia law with a claim of actual innocence, then the miscarriage of justice exception might
be a reasonable approach to consider. However, Brown has not presented any new evidence to
establish that he was not an SVP when the order was entered. New evidence can be “exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence,” but it must
be evidence that was not available at the original trial. The opinions of Dr. Sjolinder and Dr. von
Kleiss, which disagreed with Dr. Miller’s opinion, were not only available at the original hearing
but were introduced into evidence. Accordingly, the miscarriage of justice exception, if
applicable in this context, does not apply to this case.
Equitable tolling is available if the petitioner has pursued his rights diligently and some
extraordinary circumstances prevented his timely filing. Holland v. Florida, 560 U.S. 631, 636,
649 (2010). The court need not address diligence, because there are no extraordinary
circumstances in this case that prevented his timely filing. Ignorance of the law is not an
extraordinary circumstance, nor a basis for equitable tolling, even when a litigant is representing
himself. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Further, a lawyer’s
negligence is not an extraordinary circumstance that tolls the statute of limitations. Holland, 560
U.S. at 651–52; Lawrence, 549 U.S. at 336.
Brown argues that timeliness cannot be an issue in this case because the trial court is
required to determine anew each year whether a litigant remains an SVP subject to commitment.
It is true that annual hearings are required for the first five years after commitment, and biennial
hearings thereafter. Va. Code § 37.2-910(A). The Commonwealth has the burden of proof at
such hearings. Va. Code § 372.-910(C). Each new order of the court committing someone for
another year constitutes a judgment from which either side may appeal. See Va. Code §§ 17.1-
405; 37.2-920. A new time limit starts when a new order becomes final, subject to the same
procedural requirements of custody, timeliness, and exhaustion. The federal statute of
limitations starts running at the expiration of the direct appeal, or when the time to file an appeal
expires, if no appeal is filed, as discussed at the beginning of this section. Brown did not
indicate that this petition was challenging anything other than the order of July 18, 2017. The
time for challenging that order has expired.
3. Exhaustion
A habeas petitioner is required to exhaust his claims in state court before his claims can
be considered in federal court. 28 U.S.C. § 2254(b)(1)(A). To exhaust his claims, a petitioner
must present his federal constitutional claims to the highest state court, on the merits, before he is
entitled to seek federal habeas relief. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Further,
the petitioner must present to the state court the same operative facts and the same controlling
legal principles that he seeks to present to the federal court. Duncan v. Henry, 513 U.S. 364,
365–66 (1995); Kasi v. Angelone, 300 F.3d 487, 501–02 (4th Cir. 2002). Failure to do so
“deprives the state courts of an opportunity to address those claims in the first instance.”
Coleman, 501 U.S. at 732.
Because Brown did not appeal the order to the Supreme Court of Virginia, nor did he file
a state habeas petition in the Supreme Court of Virginia or appeal a habeas petition to that court,
he has not exhausted his state court remedies. Because the time for filing a state habeas petition
regarding the July 18, 2017 commitment order has passed,4 if the current § 2254 petition were
timely, the court would have to treat the issues Brown raises as simultaneously exhausted and
defaulted. A federal court may consider exhausted and defaulted issues only on a showing of
good cause for default and actual prejudice to the petitioner as a result. For the same reasons that
Brown cannot demonstrate extraordinary circumstances to toll the statute of limitations, he
cannot show good cause for procedurally defaulting his claim that his commitment is
unconstitutional. Negligence or inadvertence of trial counsel is generally not adequate cause for
default unless it rises to the level of constitutionally ineffective assistance of counsel. Murray v.
Carrier, 477 U.S. 478, 486 (1986).
Nor can Brown show actual prejudice because, as he notes in his own petition, the court
enters new orders every year, and he can exercise his opportunity to timely exhaust state court
remedies by challenging his continued detention under a more recent order. To hold otherwise
would allow Brown to circumvent the requirement that his arguments be presented to the state’s
highest court before being considered by a federal district court.
III. CONCLUSION
Because Brown’s petition is untimely and his claims have not been exhausted in the
state’s highest court, the court cannot consider Brown’s constitutional claims at this time, and the
court will grant the respondent’s motion to dismiss.
Further, when issuing a final order adverse to a § 2254 petitioner, the court must issue or
deny a certificate of appealability. Fed. R. Gov. § 2254 Cases 11(a). A certificate of
appealability may only issue if the movant has made a substantial showing of the denial of a
4 A petition for a writ of habeas corpus “other than a petition challenging a criminal conviction or sentence,
shall be brought within one year after the cause of action accrues.” Va. Code § 8.01-654(A)(2).
constitutional right. 28 U.S.C. § 2253(c)(2). The movant must show that reasonable jurists
could debate whether the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further. Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). In the
context of a procedural ruling, the movant must demonstrate both that the dispositive procedural
ruling is debatable and that the action states a debatable claim of the denial of a constitutional
right. Gonzales v. Thaler, 565 U.S. 134, 140–41 (2012). Brown has not made such showings in
this case.
An appropriate order will be entered.
Entered: February 3, 2022.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge