USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 1 of 29

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7138

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

THEODORE MACON CARRINGTON, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:21-cr-00005-UA-1)

Argued: September 20, 2023 Decided: January 23, 2024

Before RICHARDSON and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Dismissed by published opinion. Judge Richardson wrote the opinion, in which Judge Heytens and Senior Judge Floyd joined.

ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 2 of 29

RICHARDSON, Circuit Judge:

Theodore Carrington appeals the district court’s order finding him “subject to the

[civil-commitment] provisions of

.” J.A. 301. He argues that (1) the

order is invalid because he was no longer in the Attorney General’s legitimate, time-

sensitive custody when the court made this finding, and (2) he received ineffective

assistance of trial counsel. But we lack jurisdiction to hear Carrington’s claims on the

merits. The district court’s order is neither a final judgment nor an appealable collateral

order. So, for these reasons, we dismiss his appeal. 1

I. Legal Framework

Carrington’s appeal deals with the unfortunate reality that some criminal defendants

are mentally incompetent to stand trial and are thus committed to specialized government

institutions pretrial. And some of those defendants have persistent mental illnesses that

make them dangerous enough to warrant their long-term commitment, even if they are not

convicted of a crime. But the Constitution rightly prohibits a person from being detained

indefinitely just because he falls into the former category. Jackson v. Indiana,

(1972). So, to commit a criminal defendant beyond the time needed to determine

whether his competency to stand trial may be restored, the government must institute civil-

commitment proceedings to establish that he falls into the latter category.

1 Carrington filed this appeal in conjunction with another appeal from his civil- commitment proceedings. We address this second appeal in an unpublished opinion issued today. See United States v. Carrington, No. 23-6348 (4th Cir. Jan. 23, 2024) (unpublished).

2 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 3 of 29

Two federal statutes implement these principles:

and 4246. The

first establishes procedures for holding a criminal defendant in custody pending a

determination of his competency to stand trial. The second addresses the separate civil

proceedings the government must institute in order to commit him outside of § 4241’s

limits. The interplay between these statutes requires some unpacking.

A. Section 4241

During a criminal prosecution, either the defendant or the government may request

a hearing to determine the defendant’s mental competency. § 4241(a). The court must

order this hearing “if there is reasonable cause to believe that the defendant may presently

be suffering from a mental disease or defect” rendering him incompetent to stand trial.

§ 4241(a). Before the hearing, the court may order a psychiatric or psychological

evaluation of the defendant. § 4241(b). And, at the hearing itself, the defendant is entitled

to representation by counsel and is allowed to testify, present evidence, subpoena

witnesses, and confront and cross-examine any witnesses who appear.

§§ 4241(c), 4247(d).

After the hearing, if the court finds by a preponderance of the evidence that the

defendant is mentally incompetent to stand trial, it “shall commit the defendant to the

custody of the Attorney General.” § 4241(d). Section 4241(d) then provides:

The Attorney General shall hospitalize the defendant for treatment in a suitable facility—

(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward; and

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(2) for an additional reasonable period of time until—

(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or

(B) the pending charges against him are disposed of according to law;

whichever is earlier.

Id. Finally, the statute stipulates: “If, at the end of the time period specified, it is

determined that the defendant’s mental condition has not so improved as to permit the

proceedings to go forward, the defendant is subject to the provisions of sections 4246 and

4248.” 2 Id. (emphasis added).

B. Section 4246

Section 4246 picks up where § 4241 leaves off by providing for civil commitment

of certain mentally ill persons who are a danger to the community. If the “director of a

facility in which a person is hospitalized certifies” that such person is “presently suffering

from a mental disease or defect as a result of which his release would create a substantial

risk of bodily injury to another person or serious damage to property of another, and that

suitable arrangements for State custody and care of the person are not available,” then the

director may seek his civil commitment by filing a certificate in the court for the district

where the person is confined. § 4246(a). The court that receives the certificate must then

2 Section 4248 provides for the civil commitment of sexually dangerous persons. It is similar to § 4246 in all relevant respects, including its interplay with § 4241. United States v. Curbow,

(4th Cir. 2021). 4 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 5 of 29

hold a hearing to verify the director’s finding.

In the meantime, the filing of the

certificate immediately stays the person’s release until § 4246 proceedings are completed.

Id. And once the hearing is completed, if “the court finds by clear and convincing evidence

that the person is presently suffering from a mental disease or defect as a result of which

his release would create a substantial risk of bodily injury to another person or serious

damage to property of another, the court shall commit the person to the custody of the

Attorney General.” § 4246(d).

As the statute makes clear, not every hospitalized person may face civil-

commitment proceedings. Rather, § 4246 only applies to someone (1) who is “in the

custody of the Bureau of Prisons whose sentence is about to expire,” (2) who “has been

committed to the custody of the Attorney General pursuant to section 4241(d),” or

(3) “against whom all criminal charges have been dismissed solely for reasons related to

the mental condition of the person.” § 4246(a). So the subject of a civil-commitment

certificate may challenge the certificate in the civil-commitment court on the grounds that

he didn’t fit within one of these three categories at the time the certificate was filed. If he’s

right, then the certificate must be dismissed for failing to satisfy the necessary elements of

a § 4246 civil-commitment claim. See Curbow,

. But § 4246(a) doesn’t

govern subject-matter jurisdiction; a person can waive the argument if he doesn’t raise it.

Id.

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C. Moving from § 4241 to § 4246

Often litigated is the question of whether someone fits into the second category of

hospitalized people in § 4246(a). In other words, what does it mean to say that a person

“has been committed to the custody of the Attorney General pursuant to section 4241(d)”?

We’ve interpreted it to mean that, at the time the § 4246 certificate is filed, a “person

is presently committed to the Attorney General’s custody.” United States v. Wayda,

(4th Cir. 2020). To be presently committed to the Attorney General’s

custody, a person must have been committed by the criminal court pursuant to § 4241(d).

Id. And the commitment order must be legitimately in effect when the certificate is filed,

which in turn depends on whether the time limits in § 4241(d) have expired. See § 4241(d)

(stating that a (d)(1) custody order lasts for four months and a (d)(2) custody order lasts for

“an additional reasonable period of time” until a person’s condition improves, if the court

deems this likely, or pending charges are dismissed, “whichever is earlier”); Wayda,

(explaining that an additional period of time is reasonable when the government

“strive[s] to certify” a person in a way that “eliminates or at least minimizes” his wait for

a § 4246 determination). So if the § 4246 certificate is filed after the period of lawful

custody expires, then a person may move for, and the civil-commitment court must order,

the dismissal of the certificate as untimely.

When the criminal court issued only one § 4241(d) custody order, the question for

the civil-commitment court is straightforward: Is that order still in effect? But it gets more

complicated when the criminal court issued multiple custody orders. In that case, may a

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person challenge the duration of any custody period, or only the most recent one (at least

in the civil-commitment court)?

We have opted for the latter approach. See Curbow, 16 F.4th at 114–17. When a

person challenges a § 4246 certificate’s timeliness in the civil-commitment court, the only

question before that court is whether he is presently committed to the Attorney General’s

custody under § 4241(d). So if there is a § 4241(d) order on the books, and that order is

still in effect, then present custody is conclusively established. Any challenges to delays

in prior periods of custody, or to the criminal court’s authority to issue the operative

custody order, must be raised in the criminal court itself. In effect, this means that the

civil-commitment court may only hear challenges to the period of custody that immediately

precedes the civil-commitment proceedings.

To illustrate how this works, consider our two recent cases: United States v. Wayda,

, and United States v. Curbow,

.

After Wayda was charged with federal sex offenses, the criminal court held a § 4241

competency hearing and found Wayda incompetent to stand trial. Wayda,

.

Over the next two years, the court entered three commitment orders. The first committed

Wayda to the Attorney General’s custody to undergo hospitalization “for a reasonable

period of time, not to exceed four months,” to determine the chances of restoring his

competency for trial (pursuant to § 4241(d)(1)). Id. After six months passed, the court

entered a second order committing Wayda for no more than four months to again determine

the chances of restoring him (presumably pursuant to § 4241(d)(2)(A)). Id. Then, after

many more months passed, the court finally found Wayda incompetent and unrestorable

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and entered its third order committing him to the Attorney General’s custody to determine

whether he qualified for civil commitment under §§ 4246 or 4248 (presumably pursuant to

§ 4241(d)(2)(B)). Id. at 299–300.

Six months later, the government filed a § 4248 certificate. Id. at 300. Wayda then

moved to dismiss the certificate as untimely. Id. The civil-commitment court granted

Wayda’s motion. Id. The government appealed, and we affirmed. We agreed with the

civil-commitment court that, for a person to be eligible for civil commitment under

§ 4248(a), the government must file a certificate during its time-limited § 4241(d) custody;

otherwise, the certificate is untimely. Id. at 304–05. But rather than focusing on the delays

following the first or second commitment orders, we examined whether the certificate was

filed within a reasonable time after the third and final commitment order. Id. at 303. And

we determined that Wayda’s continued confinement for six months after this last order and

before the certificate’s filing was unreasonably long. Id. at 308; § 4241(d)(2) (limiting

custody to “an additional reasonable period of time” (emphasis added)). Because of this

unreasonable delay, we held that Wayda was no longer legitimately committed to the

Attorney General’s custody under § 4241(d) when the certificate was filed, and

consequently dismissed the certificate as untimely. Wayda,

.

In Curbow, we explained further why Wayda focused on the custody period between

the criminal court’s last commitment order and the certificate’s filing. Like Wayda,

Curbow’s federal prosecution was also interrupted for competency proceedings. Curbow,

. After an initial hearing, the criminal court determined that Curbow was

incompetent and committed him to the Attorney General’s custody “for a period not to

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exceed four months” to determine the likelihood of restoring his competency and to assess

his dangerousness under § 4246 (pursuant to § 4241(d)(1)). Id. at 101. Then, after roughly

six months and the filing of the government’s competency report, the court issued another

order finding that Curbow remained incompetent to stand trial but that there was a

substantial probability of restoring him soon. Id. So it committed Curbow to the Attorney

General’s custody for a second reasonable period, not to exceed four months (pursuant to

§ 4241(d)(2)(A)). Id. Four more months passed, and the government eventually

determined that Curbow was incompetent and unrestorable. Id. But it requested a thirty-

day extension for further evaluation, which the court granted by issuing a third custody

order (presumably pursuant to § 4241(d)(2)(A)). Id.

Thirty days later, the government found that Curbow remained incompetent, that

there was not a substantial likelihood of restoring him, and that he satisfied § 4246’s

dangerousness requirement. Id. at 101–02. After passing the report through two more

levels of review, the government filed a § 4246 civil-commitment certificate nineteen days

later. Id. at 102. The filing of the certificate stayed Curbow’s release from custody, as

provided for in § 4246(a). Id.

Thus Curbow had endured three commitment orders, each with its own argument of

impermissible delay. So he filed a motion to dismiss in the civil-commitment court,

arguing that he was not “committed to the custody of the Attorney General” under

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§ 4246(a) 3 and that the civil-commitment certificate should be dismissed as a result. Id.

Curbow’s argument rested both on the alleged delay between the third commitment order

and the filing of the civil-commitment certificate and on the delays that preceded it—i.e.,

the delays following the first and second commitment orders. Id. at 102, 106. According

to Curbow, the fact that these earlier periods of custody exceeded the applicable § 4241

time limits meant that the Attorney General’s legitimate custody over him had expired,

depriving the criminal court of authority to issue the subsequent commitment orders. See

id. at 106, 113–15.

The civil-commitment court denied Curbow’s motion, and we affirmed. Id. at 118.

To start, we held that the period of custody immediately preceding the filing of the civil-

commitment certificate—i.e., the period between the third and final commitment order and

the filing of the certificate—was reasonable. Id. at 109–10. That meant the most-recent

commitment order was still in effect when the civil-commitment certificate was filed, and

Curbow therefore was “committed to the custody of the Attorney General” for the purposes

of § 4246(a). Id.

We then declined to consider whether potential delays in the earlier periods of

custody meant that the Attorney General’s custody over Curbow expired before the

3 Curbow and the government agreed that he would not qualify for civil commitment under the other two categories of § 4246(a). Curbow,

. So the parties and the court only addressed whether he had been “committed to the custody of the Attorney General.” Id. As we will discuss, Carrington’s appeal similarly only raises the issue of whether he fits within that particular portion of § 4246(a). 10 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 11 of 29

criminal court issued its third custody order. Id. at 114–17. 4 Doing so would have required

us to hold that, upon review of the civil-commitment court’s denial of a motion to dismiss,

the criminal court lacked authority to issue more commitment orders based on past delays.

Id. at 115, 116 n.11 (declining “to entertain Curbow’s theory, as it would require review of

orders issued in criminal proceedings . . . by a different district court”). After all, appellate

courts typically do not pass on the validity of one court’s orders while on appeal from an

entirely different court.

But that did not leave Curbow without recourse for delays following the first two

commitment orders. It simply meant he had to challenge the alleged delays in the criminal

court. Id. at 115. In fact, we gave an example of how Curbow could have done so: He

could have requested the criminal court release him on account of the delays; and if the

4 In this way, our approach is slightly different from the one adopted by the Eighth Circuit in United States v. Ryan,

(8th Cir. 2022). There, the court categorically held that “[a] defendant waives the right in his § 4246 proceeding to challenge the lawfulness of his § 4241(d) custody by not raising it” in the criminal court. Id. at 722. The court in Ryan claimed to cite Curbow for the proposition that: “[T]he proper time and place to contest the alleged unreasonable delays in . . . § 4241(d) custody [i]s during the [proceedings in the court that ordered § 4241(d) custody].” Id. (alterations and omission in original) (quoting Curbow,

). But this edited quote elides necessary context from Curbow’s holding. The actual quote from Curbow reads: “[T]he proper time and place to contest the alleged unreasonable delays in the first and second periods of Curbow’s § 4241(d) custody was during the [criminal] proceedings and in the [criminal] court.”

(emphasis added). This responded to Curbow’s contention that delays in the first and second periods precluded the criminal court from ordering a third period of custody. But both Wayda and Curbow did consider the reasonableness of delays in the custody period immediately preceding the filing of the §§ 4246 and 4248 certificates. So while the Eighth Circuit seems to categorically bar civil-commitment courts from considering the reasonableness of the Attorney General’s § 4241(d) custody, we permit litigants to challenge the period of custody immediately preceding the filing of the certificate. 11 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 12 of 29

court denied that request, then he could have invoked the collateral order doctrine to get

our review of the denial. Id. Unfortunately for Curbow, though, he never raised these

delays after the first two commitment orders in the criminal court. Id. at 115–16. So he

forfeited these arguments in that court. 5 Id. And he couldn’t revive them in a challenge to

the civil-commitment certificate’s validity. Id.

* * *

That was a lot. So before we move on, let’s summarize. Section 4241(d) authorizes

a criminal court to order a defendant into the government’s custody for an evaluation of

his competency and restorability. If the government certifies that a person in its § 4241(d)

custody is dangerous, then § 4246 allows the government to seek his civil commitment

from the court of the district where he is confined.

Yet § 4241(d) establishes time deadlines which circumscribe the competency and

restorability evaluation period. If a person is no longer in the Attorney General’s legitimate

custody by the time the government files the civil-commitment certificate, then he can raise

the delay in the civil court via a motion to dismiss the certificate. However, as Curbow

illustrates, delays in periods of custody that preceded the most-recent § 4241(d) order

cannot be raised in the civil court. Those must be raised in and addressed by the criminal

court. And if they aren’t, then they’re forfeited.

5 Although we used the language of forfeiture, which might imply that we could excuse it in “exceptional circumstances,” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co.,

, 603 (4th Cir. 2004), we clarified that even then “we would [ ] decline to entertain Curbow’s theory, as it would require review of orders issued in criminal proceedings separate from these civil commitment proceedings, by a different district court, and by a district court that is in another circuit.” Curbow,

n.11. 12 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 13 of 29

II. Background

Now we can turn to the facts of Carrington’s case. On November 6, 2020, Theodore

Carrington sent a threatening email to Senator Ron Johnson’s whistleblower email address.

Carrington later admitted doing so. So on January 4, 2021, a federal grand jury for the

Middle District of North Carolina indicted Carrington for transmitting a threatening

communication in interstate commerce, in violation of

(c).

At his detention and arraignment hearing in January 2021, Carrington made several

bizarre claims, including that he had been “poisoned” and hit with a “microwave weapon,”

and that the government was “persecuting [him] and making [him] . . . agitated and trying

to defend [him]self for something that isn’t real.” J.A. 42–56, 59. At the close of the

hearing, the district court ordered Carrington detained, noting that his release would “pose

a risk of danger to the community.” J.A. 72.

Shortly after the hearing, the defense moved for, and the court ordered, a

competency evaluation of Carrington under § 4241(a) and (b). The government completed

the evaluation in June 2021 and concluded that Carrington was incompetent to stand trial.

So it asked the district court to hold a hearing to determine whether Carrington should be

committed to the Attorney General’s custody and hospitalized, pursuant to § 4241(d)(1),

to attempt to restore his competency for trial.

The court agreed and convened a hearing on August 20, 2021. At the hearing, the

government presented expert testimony that Carrington suffered from delusional disorder

and recommended that he be hospitalized under § 4241(d)(1) for treatment and restoration

of competency. The government’s expert also explained that there was a five-month

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waiting period to enter federal medical centers and estimated that the restoration period

would take four months. Carrington’s counsel responded by expressing concern that the

government would not complete its competency evaluation within the required four-month

statutory window. Nevertheless, the district court found that Carrington was incompetent

to stand trial, so it ordered him committed to the Attorney General’s custody for

hospitalization and treatment “for a reasonable period of time not to exceed four months.”

J.A. 150. The district court also noted that if the government could not meet the four-

month deadline, it could contact the court and provide more information. The court later

entered an order on August 23, 2021, summarizing its conclusions and formally

committing Carrington to the Attorney General’s custody.

Though the court issued its custody order in August, Carrington was not admitted

to the Federal Medical Center in Butner, North Carolina, until January 18, 2022. The

government later completed and filed its competency and restorability evaluation on May

20, 2022. 6 It concluded that Carrington was still incompetent to stand trial due to his

delusional disorder. And it judged that because he was not a suitable candidate for

involuntary medication, there was not a substantial likelihood that his competency could

be restored. The report also noted that Carrington met the criteria for § 4246 commitment

and that the government would go forward with that process. The government then filed a

§ 4246 certificate on May 26, 2022, in the Eastern District of North Carolina. And, per the

6 The report and cover letter are dated May 2 and May 5, respectively, but they were not filed with the district court until May 20. 14 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 15 of 29

government’s request, the Eastern District issued a stay of the civil action, pending

completion of the Middle District’s criminal competency proceedings.

The Middle District eventually conducted a competency and restorability hearing

on August 26, 2022. The government’s expert, who had prepared the restorability report,

testified to her conclusions about Carrington’s condition and the unlikelihood of restoring

him. But at the close of evidence, Carrington’s counsel asked to “put on the record”

Carrington’s objections to a delay in his evaluation process. J.A. 268. She noted Curbow

and stated:

Essentially the objection for the record is this, Your Honor: The Defendant does not waive and objects to the period between August 23, 2021, which would be the Court’s order at D-35 transporting him for evaluation, and the end period of that report of May 15, 2022, for the purpose of review of the [A]ttorney [G]eneral’s subject matter jurisdiction over the Defendant and on the issue of unreasonable delay.

J.A. 269. She pointed out that Curbow found a defendant had waived his objections to

custody delays by not raising them in the criminal court and then again stated that she

wanted to present the issues to the Middle District in case Carrington’s lawyer in the civil

proceedings wanted to make timeliness objections in the Eastern District. J.A. 269–70.

The Middle District, confused by this assertion, asked what Carrington’s attorney

was arguing and how it related to the criminal case. She rephrased her Curbow-related

statements several times, but the district court still didn’t understand. So it instructed

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Carrington to file a motion explaining the position and deferred ruling on Carrington’s

competency. 7

Carrington’s counsel filed a “notice” with the Middle District soon after, clarifying

the objections raised at the hearing. She explained the case’s procedural posture and the

alleged delay in her client’s § 4241(d) evaluation process. She then argued that because of

this delay, the Eastern District did not have jurisdiction to commit Carrington under § 4246,

or, in the alternative, that the Eastern District should dismiss the certificate for failure to

state a claim. But at no point did Carrington’s counsel request any form of relief from the

Middle District or even explain the effect of these delays on the criminal case. Instead, her

brief was directed to preserving arguments to be made in the Eastern District at a future

date. J.A. 292 (“Mr. Carrington respectfully herein Notices in the criminal trial court his

objection to the delays . . . for the purpose of further motion properly filed in the E.D.N.C.

civil proceedings, maintaining and not waiving objection thereto . . . .” (emphasis added)).

The government made no formal response to the filing since it appeared that Carrington

was not requesting any relief from the Middle District.

On September 15, 2022, the Middle District entered an order concluding that

Carrington was incompetent to stand trial and that there was not a substantial probability

of restoring his competency. It therefore found him “subject to the provisions of 18 U.S.C.

7 Later in the hearing, the court seems to have thought it was also determining whether Carrington should be civilly committed. But the government clarified that the court would only be determining the question of competency, restorability, and involuntary medication, and that the civil-commitment proceedings would take place in the Eastern District. 16 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 17 of 29

§ 4246.” J.A. 301. In a footnote, the court addressed his timeliness objections. It observed

that Carrington’s argument “does not appear to require any action on the part of this court.”

J.A. 302 n.1. Yet the court stated that it would “note that Defendant has not waived any

time periods in this court, the waiver which might implicate the opinion and holdings

expressed in [Curbow].” Id. But it left the “resolution of these issues to the Court in the

Eastern District of North Carolina.” Id.

One day later, the government moved to dismiss the indictment against Carrington

without prejudice. The Middle District granted the motion, and Carrington filed the instant

appeal.

The government later asked the Eastern District to lift the stay on the civil-

commitment proceedings. After conducting a § 4246 hearing, the Eastern District ordered

Carrington into the Attorney General’s custody on March 20, 2023. He timely appealed

that order, too.

III. Discussion

In this appeal from the criminal court (i.e., the Middle District), Carrington argues

that the Middle District erred in finding him “subject to the provisions of 18 U.S.C. § 4246”

because of an unreasonable delay that allegedly occurred during his § 4241(d) evaluation

process. He therefore asks us to vacate this order. And he alleges that he received

ineffective assistance of trial counsel. But before considering these claims on the merits,

we must ensure we have jurisdiction. See Va. Dep’t of Corr. v. Jordan,

(4th Cir. 2019). Carrington argues that we have jurisdiction under the final judgment rule

17 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 18 of 29

or, in the alternative, under the collateral order doctrine. But neither avenue opens the door

for our review. Accordingly, we must dismiss this appeal for lack of jurisdiction.

A. Final Judgment Rule

Section 1291 gives federal courts jurisdiction over “final decisions of the district

courts.”

. A final judgment is the quintessential “final decision” because

it “ends the litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Caitlin v. United States,

(1945); Abney v. United States,

(1977) (noting how final judgments are always final decisions). In criminal

cases, “final judgment means conviction and sentence.” United States v. Under Seal,

(4th Cir. 2017) (quoting United States v. Lanham,

(4th

Cir. 1980) (per curiam)); Midland Asphalt Corp. v. United States,

(1989). The dismissal of an indictment without prejudice “is clearly neither,” meaning

“the appropriate time to review a dismissal [without prejudice] is after reindictment and

conviction.” Under Seal,

(quoting Lanham,

). 8

These principles preclude our review of Carrington’s case as a final judgment.

Carrington appeals from the Middle District’s dismissal of his indictment without

prejudice. That’s not a conviction and sentence; so it’s not a final judgment.

8 The government may, of course, appeal the dismissal of an indictment. Yet this is not because such dismissals are final judgments, but rather because Congress has provided for our jurisdiction over such appeals through a separate statutory provision. See

(“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” (emphasis added)). 18 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 19 of 29

Carrington seems to acknowledge he is fighting an uphill battle; yet he still contends

that the dismissal of a criminal indictment without prejudice is an appealable final

judgment because of our recent decisions in Bing v. Brivo Systems, LLC,

(4th

Cir. 2020), and Britt v. DeJoy,

(4th Cir. 2022) (en banc). In Bing, we held

that the dismissal of a civil complaint without prejudice for failure to state a claim qualifies

as a final judgment if “the grounds for dismissal clearly indicate that no amendment in the

complaint could cure the defects in the plaintiff’s case.” 959 F.3d at 610 (quoting Domino

Sugar Corp. v. Sugar Workers Loc. Union 392,

(4th Cir. 1993)). And

in Britt, our en banc court went a step further and established a bright-line rule that “[w]hen

a district court dismisses a complaint or all claims without granting leave to amend, its

order is final and appealable.”

. Carrington believes these decisions indicate

that the dismissal of a criminal indictment without prejudice is an appealable final

judgment, at least when the district court fails to specify whether further amendment of the

indictment is possible.

But Carrington’s argument misses the key distinction between those cases and his

own: Bing and Britt involved dismissals of civil complaints in civil cases. Neither decision

purported to alter the fundamental jurisdictional principles that govern criminal cases. Nor

could they have—the criminal final judgment rule comes from binding Supreme Court

precedent. See Midland Asphalt,

(“In criminal cases, [§ 1291] prohibits

appellate review until after conviction and imposition of sentence.”); see also Sell v. United

States,

(2003). Altering it is above our pay grade. Besides, principles

of finality in criminal cases have never been treated as coextensive with principles of

19 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 20 of 29

finality in civil cases. Criminal administration demands stricter adherence to rules of

finality. See, e.g., Di Bella v. United States,

, 126 (1962); United States v.

MacDonald,

, 853–56 (1978); Cobbledick v. United States,

(1940) (noting that the policies behind finality “are especially compelling in the

administration of criminal justice”). So there’s no indication that Bing and Britt have any

bearing on whether the district court’s dismissal of Carrington’s criminal indictment is a

final judgment. Accordingly, we’re left with the conclusion that it is not one.

B. Collateral Order Doctrine

That said, the Supreme Court has long recognized a narrow exception to the final

judgment rule, known as the collateral order doctrine, which regards certain non-final

judgments as “final decisions” sufficient to trigger § 1291. See Cohen v. Beneficial Indus.

Loan Corp.,

, 545–46 (1949). This exception allows us to review an

otherwise-not-final judgment if the decision “(1) conclusively determine[s] the disputed

question, (2) resolve[s] an important issue completely separate from the merits of the

action, and (3) is effectively unreviewable on appeal from a final judgment.” Sell,

(alterations in original) (internal quotation marks omitted). 9

Few orders qualify for this exception. And even fewer do so in criminal cases,

because the compelling interest in speedy criminal trials requires us to interpret the

9 Carrington also appeals from the Middle District’s September 14, 2022, denial of certain pro se motions he filed. See Opening Br. at 18. But that order isn’t a final order for the same reasons the dismissal of the indictment isn’t one (i.e., it is not a conviction and sentence). And Carrington acknowledges that, if we proceed under the collateral order doctrine, his appeal of the district court’s September 14 order is untimely and therefore unreviewable. See Opening Br. at 18 n.1. 20 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 21 of 29

collateral order exception “with the utmost strictness.” Midland Asphalt,

(quoting Flanagan v. United States, 465 U.S 259, 265 (1984)). Hence, the Supreme Court

has applied the exception to only four types of orders in criminal cases: orders denying

motions to reduce bail, see Stack v. Boyle,

(1951); orders denying motions to

dismiss on Double Jeopardy grounds, see Abney v. United States,

(1977);

orders denying motions to dismiss under the Speech and Debate Clause, see Helstocki v.

Meanor,

, 507–08 (1979); and orders authorizing forced medication of

criminal defendants, see Sell,

.

But this Court has identified other such orders. Most relevant here, we have held

that § 4241(d) custody orders are appealable collateral orders. See Curbow,

(finding that a § 4241(d) commitment order is an appealable collateral order); see also

United States v. Tucker,

(4th Cir. 2023) (same). And for good reason.

Whether a defendant was rightfully committed pretrial is separate from the merits of his

criminal prosecution and is resolved once the district court issues a § 4241(d) order. See,

e.g., United States v. Gold,

, 238–39 (2d Cir. 1986). And this issue is

sufficiently important because such a custody order threatens his liberty.

Lastly, a

§ 4241(d) order is effectively unreviewable after final judgment: Either a defendant will

never regain competency, in which case the decision will never be reviewed; or he will

regain competency and be acquitted, in which case he will not appeal; or he will regain

competency and be convicted, in which case he can raise the issue on appeal, but any relief

would be moot. Id. at 239. So § 4241(d) custody orders are rightly treated as appealable

collateral orders.

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Carrington argues that, because § 4241(d) orders are reviewable under the collateral

order doctrine, the Middle District’s September 15 order is too. But the problem is that

this order is not a custody order.

Recall that the order followed a hearing convened to determine whether Carrington

remained incompetent and unrestorable for trial. So the order stated the Middle District’s

findings that Carrington was incompetent to stand trial and that there was no substantial

probability that his competency could be restored such that the trial could proceed. After

making these findings, the order summarily stated that Carrington was “subject to the

provisions of

.” J.A. 301.

But the mention of § 4246 did not transform the September 15 order into a custody

order. On its face, the order says nothing about committing Carrington for further custody.

This is probably because there was no need for another commitment order—the Middle

District had already committed Carrington to the Attorney General’s custody pursuant to

§ 4241(d)(1) in a prior order. And the government had already filed a civil-commitment

certificate in the Eastern District months before the Middle District issued the September

15 order. Under § 4246(a), that civil-court filing immediately stayed Carrington’s release

pending proceedings before the Eastern District. See

; Wayda,

(“[A]ny additional period of confinement beyond the initial four month § 4241(d)(1)

hospitalization to address competency depends on the finding of an additional justification

in either § 4241(d)(2) or the initiation of a civil commitment proceeding . . . .” (emphasis

added)). The September 15 order therefore had no effect on Carrington’s custody. By the

time it was issued, he had already entered the Attorney General’s custody and would

22 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 23 of 29

remain there until the Eastern District disposed of the civil-commitment proceedings. So

the September 15 order is not an appealable custody order.

To his credit, Carrington never explicitly argues that the September 15 order is a

custody order. But he does assert that it is a collateral order because it “conclusively

resolved the question of the applicability of

.” Opening Br. at 18.

Carrington suggests that the Middle District’s order made factual and legal conclusions

that somehow bound the Eastern District to order his commitment. In support of this

conclusion, he points out that the government told the Middle District that it was tasked

with “answering the question of competency in the criminal case . . . and then future

restorability,” and the Middle District acknowledged that, “depending on that answer,”

“[t]he Eastern District would take care of” his civil commitment. J.A. 283. He also notes

that the Eastern District stayed its civil-commitment proceedings until completion of the

criminal proceedings, which Carrington thinks happened in anticipation of the Middle

District’s factual and legal conclusions.

Yet we conclude that the Middle District’s order lacked binding legal effect. This

is for three reasons: First, the criminal court need not find that § 4246 applies before the

civil-commitment court can move forward with its proceedings. Second, the criminal

court’s conclusions about a defendant’s mental state are not binding on the civil-

commitment court’s assessment of that same defendant’s mental state. Third, the Middle

District in this case did not conclusively resolve the timeliness of any delay in Carrington’s

custody.

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Starting with the first, nothing in either §§ 4241 or 4246 indicates that a finding by

the criminal court regarding § 4246’s applicability is necessary before civil-commitment

proceedings can ensue. Section 4241 describes, in several places, the mandatory findings

that the criminal court must make before the competency-evaluation process in the criminal

court can move forward. 10 But the part of § 4241 that seemingly triggers § 4246 says

nothing about a court finding—criminal or civil. It simply says that “if it is determined”

that a defendant remains incompetent, then he is subject to § 4246. See § 4241(d).

And once we hop over to § 4246, it becomes clear that no such judicial finding is

required. Section 4246(a) says that civil-commitment proceedings are commenced once

the “director of a facility in which a person is hospitalized” certifies that a person is

suffering from a mental disease that renders him dangerous to the surrounding community.

See § 4246(a). And once the director files a certificate, the civil court moves forward with

civil-commitment proceedings. Id. Nowhere does the statute mention that this process

requires a finding from the criminal court that § 4246 applies. These provisions designate

the facility director as the bridging force between criminal and civil proceedings, not the

criminal court. So there is no reason to believe that the Middle District’s supposed

determination that Carrington was subject to § 4246 had the effect of green-lighting

Carrington’s civil-commitment proceedings.

10 The criminal court must find there is reasonable cause to believe a defendant is incompetent before ordering a hearing (§ 4241(a)); find him incompetent by a preponderance of the evidence before ordering him into custody (§ 4241(d)); and, if the government wishes to continue holding him until his mental condition improves, find that this is substantially likely to occur within that period (§ 4241(d)(2)(A)). 24 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 25 of 29

Nor were the Middle District’s factual or legal conclusions about Carrington’s

competency to stand trial binding on the Eastern District’s civil-commitment

determinations. They couldn’t have been—the Middle District’s competency

determination was under § 4241, while the Eastern District’s was under § 4246. And “an

evaluation under § 4246 for dangerousness is materially different from an evaluation under

§ 4241 for competency to stand trial.” Curbow,

. The two provisions make

this clear. In order to issue a § 4241(d) custody order, the criminal court must hold a

hearing and determine by a preponderance of the evidence that a defendant is suffering

from a mental disease that renders him mentally incompetent to stand trial. See § 4241(d).

By contrast, to order a defendant’s commitment, the civil-commitment court must hold a

new hearing and determine by clear-and-convincing evidence that he is suffering from a

mental disease that creates a substantial risk of danger to others or their property. See

§ 4246(d). These statutes thus require separate evidentiary hearings, enshrine different

burdens of proof, and demand proof of different elements. So it’s safe to say that the

Middle District’s findings about Carrington’s competency had no bearing on the Eastern

District’s decision to order his civil commitment. Cf. Dowling v. United States,

, 348–49 (1990) (noting the inapplicability of collateral estoppel where a different

burden of proof in the prior proceeding means that “the prior [decision] did not determine

an ultimate issue in the [later] case”).

Finally, the Middle District’s order did not resolve the timeliness of any alleged

delay in Carrington’s § 4241(d) custody. This is because Carrington did not ask the court

to do so. Recall that Carrington mentioned the possibility of § 4241(d) timeliness

25 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 26 of 29

violations twice: at the August 26 hearing and in his post-hearing filing. But neither time

did he request any relief from the court. At the hearing, he simply asked to “put on the

record” that he “did not waive and object[ed]” to alleged delay in his custody. J.A. 268–

69. And in his filing, he clearly stated that he was flagging the issues solely to preserve

objections to be raised in the Eastern District. See J.A. 292 (“Mr. Carrington respectfully

herein Notices in the criminal trial court his objection to the delays represented in the

competency evaluation period and restoration evaluation period, for the purpose of further

motion properly filed in the E.D.N.C. civil proceedings, maintaining and not waiving

objection thereto . . . .”). In short, Carrington never asked the Middle District to decide

whether the government violated § 4241(d)’s time limits. Cf. Curbow,

(explaining how a defendant can challenge his custody in the criminal court). So the

Middle District never answered that question. Instead, it rightfully concluded that

Carrington’s requests did “not appear to require any action” on its part and noted—

presumably for the Eastern District’s sake—that he had not waived any of his timeliness

objections. J.A. 302.

The Middle District’s notation about Carrington’s objections is not relevant to

whether we have jurisdiction to review this appeal. The Middle District decided nothing

relating to the timeliness of Carrington’s § 4241(d) custody. So there is no way its

September 15 order had any binding effect on the Eastern District’s proceedings. 11 See In

re Microsoft Corp. Antitrust Litig.,

, 326 (4th Cir. 2004) (noting that collateral

Because the Middle District did not determine whether the evaluation process was 11

reasonable in duration, we do not address what would have happened had it done so. 26 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 27 of 29

estoppel only applies to those “issues which have been actually determined and necessarily

decided in prior litigation” (internal quotation marks omitted)).

This all leads to the conclusion that the evidence Carrington points to—namely, that

the Middle District and Eastern District mentioned each other in their respective

proceedings—doesn’t show that the order at issue affected the Eastern District’s legal

determination. That evidence merely shows the two courts recognized that their

proceedings were related. When the Middle District acknowledged that, “depending on”

whether Carrington was incompetent and unrestorable, “[t]he Eastern District would take

care of” his civil commitment, J.A. 283, it was not saying that the Eastern District was

legally dependent on the Middle District’s factual or legal findings. Rather, it was

recognizing that civil commitment might not be necessary depending on how Carrington’s

criminal case was resolved. If the Middle District determined that Carrington was

competent to stand trial, or that he was likely to be restored, then there would be no need

for civil commitment since his trial might eventually proceed. But if the court found him

incompetent and unrestorable—as it did—then the government would need to go forward

with civil commitment. So the Eastern District was only dependent on the Middle District

in the sense that the latter’s findings might render the former’s proceedings unnecessary.

And the fact that the Eastern District issued a stay supports this conclusion,

Carrington’s contentions notwithstanding. Indeed, the government requested that stay

because it recognized that “a finding of competency by the [Middle District] would allow

the criminal proceedings to move forward and negate the need for the [ ] commitment

proceedings.” United States v. Carrington, No. 5:22-hc-01093-BO (E.D.N.C. June 29,

27 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 28 of 29

2022), ECF No. 5. Put differently, the government wanted a stay in the civil proceedings

because the Middle District’s competency and restorability determination might obviate

the need for civil commitment—not because the Eastern District needed to wait for the

Middle District’s factual or legal conclusions before forging ahead.

What, then, was the effect of the Middle District’s statement that Carrington was

“subject to the provisions of 18 U.S.C. § 4246”? From the law’s perspective, the answer

is nothing. The court may have thought that it needed to say this, or maybe even that it

would have some effect on the civil-commitment proceedings. But more likely, the court

was just stating the consequences of its unrestorability finding without expecting its

statement to do anything. Regardless, identifying the district court’s reason for making the

statement is unnecessary. What matters is that, in the eyes of the law, the September 15

order had no legal effect on Carrington’s continued custody or his eventual civil

commitment. And because it did not harm Carrington’s legal interests, it is not an

appealable collateral order. Thus we lack jurisdiction to review it under the collateral order

doctrine. 12

* * *

On appeal from the dismissal of Carrington’s criminal indictment, he asks us to

review the timeliness of his § 4241(d) custody and determine whether he received

ineffective assistance of trial counsel. Yet the district court’s dismissal is neither a final

12 Carrington argues in the alternative that the order qualifies for correction by writ of mandamus. Opening Br. at 28 n.3. But his case does not meet the strict requirements for this drastic remedy. See In re Murphy-Brown, LLC,

(4th Cir. 2018). 28 USCA4 Appeal: 22-7138 Doc: 67 Filed: 01/23/2024 Pg: 29 of 29

order nor an otherwise-reviewable collateral order. So we lack jurisdiction to review the

merits of Carrington’s claims. The appeal is therefore

DISMISSED.

29