Sex Registration Not Severe Restraint, In Custody, for Federal Habeas Purposes
28 U.S.C. § 2254, the Federal habeas corpus statute, requires a petitioner to be “in custody pursuant to the judgment of a State court … in violation of the Constitution or law or treaties of the United States” before he can obtain the writ.
The term “habeas corpus” is Latin for “you have the body.” It is a judicial mandate to a prison custodian, generally the warden, to produce a prisoner before the court for a determination of whether his custody is lawful.
Habeas corpus is an extraordinary remedy whose historical purpose was to safeguard individual freedom from arbitrary and lawless state action. In effect, it is a fundamental instrument to prevent “miscarriages of justice.”
However, in last two decades the U.S. Supreme Court, Congress, and state legislatures have erected procedural barriers to the “great writ” in order to expedite the finality of a criminal conviction. The writ of habeas corpus today no longer resembles the writ the framers intended it to be. The framers intended the “great writ” to be a centerpiece for protecting individual liberties.
The purpose of the writ today is to determine whether a prisoner’s custody is valid as measured by the Constitution. It does not exist to re-litigate state trials. According to the U.S. Supreme Court, a prisoner is entitled to habeas relief only if they can establish that a constitutional violation of their rights had a “substantial and injurious effect or influence in determining the jury’s verdict.”
On March 18, 2014, the Tenth Circuit Court of Appeals in Calhoun v. The Attorney General of the State of Colorado further restricted access to the great writ. The case involved a convicted sex offender named Ronald C. Calhoun who, in October 2002, was convicted through to a guilty plea of unlawful sexual contact in violation of Colorado penal statutes. He was given a two-year probated sentence, ordered to complete sex offender treatment, and required to register as a sex offender. Due to a probation violation, a state district court in 2003 sentenced him to two years in prison but suspended the sentence on the condition that he “successfully complete two-years of sex-offense-specific probation.”
Calhoun’s probation was terminated in February 2007. Five years later (September 2012}, he filed a § 2254 habeas petition, raising nine grounds as a basis for relief. The Tenth Circuit dealt with only one issue: whether the restraints of sex offender registration satisfied the “in custody” requirement of § 2254. The appeals court outlined these restraints:
“Because he was convicted of a sex offense, Mr. Calhoun is required to register pursuant to Colorado’s sex-offender statutes. He must annually appear in person at the local sheriff’s office to be photographed and fingerprinted. In addition, he must provide his address, place of employment, vehicle information, and email and other internet identifiers. He must also register within five days of any change to that information and the sheriff must verify his residential address at least annually. He may request release from the duty to register as a sex offender ten years after the end of his probationary period. Mr. Calhoun asserts that these requirements sufficiently restrict his freedom to meet § 2254’s custody requirement.”
The U.S. Supreme Court in 1989 in Maleng v. Cook held that a § 2254 petitioner need not be in physical custody to obtain habeas relief. In the vein of Maleng, the Supreme Court has held that the § 2254 “in custody” requirement is satisfied when 1) petitioner is on parole, 2) on personal recognizance, 3) attacking a consecutive sentence, 4) an alien seeking reentry into the United States, and 5) attacking legality of induction or enlistment into military service. The high court has also said that commitment to a mental institution “as the result of a civil contempt order may also meet the custody requirement.”
To determine whether a given restraint satisfies the § 2254 custody requirement, the Supreme Court examines the severity of the restraint; specifically, whether the severity of the restraint is “not shared by the public generally.” The court’s analysis always begins with the caveat that habeas corpus is generally not available “for every violation of federal rights.” Thus, the “collateral consequences” of a criminal conviction with only “negligible effects” on a petitioner’s “physical liberty of movement” is not sufficient to satisfy the “in custody” requirement. The Supreme Court and lower courts have found the following restraints fail to meet the severity test: payment of restitution or a fine; inability to vote; engage in certain businesses; hold public office; revocation of driver’s license, medical license or license to practice law; and disqualification as a real estate broker and insurance agent.
Against this legal backdrop, the Tenth Circuit explained why it joined the other Federal circuits which have held sex offender registration does not satisfy the § 2254 custody requirement:
“Mr. Calhoun argues that he can be taken into custody if he violates the registration requirements. We agree with the courts holding that ‘the future threat of incarceration for registrants who fail to comply with the [sex offender registration] statute is insufficient to satisfy the custody requirement.’ Moreover, the Colorado sex-offender registration requirements are remedial, not punitive.
“It is undisputed that Mr. Calhoun was unconditionally released from the obligations of his probation before he filed his § 2254 petition. Accordingly, there is no condition of his sentence that would subject him to reincarceration or place another restraint on his liberty. He is free to live, work, travel, and engage in all legal activities without limitation and approval by a government official. Consequently, we conclude that the Colorado sex-offender registration requirements at issue here are collateral consequences of conviction that do not impose a severe restriction on an individual’s freedom. Therefore, they are insufficient to satisfy the custody requirement of § 2254. Permitting a petitioner whose sentence has completely expired and who ‘suffers no present restraint from [the] conviction’ to challenge the conviction at any time on habeas corpus ‘would read the in custody requirement out of the statute.’”
It would be difficult to imagine a “restraint” outside penal incarceration, with the exception of actual probation or parole, more punitive than sex offender registration. The so-called freedom to “live, work, travel, and engage in all legal activities” is misleading at best.
Individuals living under the requirement of sex offender registration often face intense social scrutiny, due to the online posting of their names and addresses that make efforts at rehabilitation difficult. In some municipalities they face prohibited areas in which they cannot live and certain kinds of employment they cannot hold. In many state’s they can only travel from their homes for limited periods of time before triggering re-registration. At a very minimum, sex offenders are required to re-register with local law enforcement every year, often on their birth day. If those are not “severe” restraints on “individual liberty,” then the traditional definition of “restraint” should be modified.
As we have often stated in this blog, we have no sympathy for those who commit sex crimes, especially those who commit sex crimes against children. But, we are also keenly aware that nowhere in the criminal justice system are the chances of being wrongly accused and convicted as high as they are in cases involving allegations of sex crimes. Refusing to recognize sex offender registration as a restraint resulting from the conviction is a legal fiction, a fiction that prevents access to the courts for those who may have discovered favorable evidence that could support legitimate claims of innocence.
Sex Registration Not Severe Restraint, In Custody, for Federal Habeas Purposes