Wilson v Flaherty

Interesting case where fellow claimed: Being required to register, is being in custody for the purposes of a habeas corpus petition. How many restraints on one's liberty are needed for the court to consider a person is -in custody- under registration laws?

8-15-2012 Virginia:

Wilson v Flaherty
689 F.3d 332 (2012)

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254's jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson's petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).

We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson's liberty so as to justify a finding that he is in the custody of state officials.

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Recognizing that he filed his petition only after fully serving his sentence, Wilson contends nonetheless that he remains "in custody" of the Virginia State Police because of the "substantial restraints on his liberty" that the State Police are imposing on him by enforcing Virginia's sex offender registration statute. He does not dispute the proposition that the collateral consequences of a conviction do not generally suffice to find one "in custody" but argues that, as a sex offender, he suffers from far more substantial restraints than the normal consequences of a felony conviction. In addition to the general registration obligations, which he must fulfill in person and which require him to provide a wide "array of physical and other personal identifying information," he notes that he has to reregister every 90 days because his offense was a "sexually violent offense," see Va.Code 9.1-904. He also must reregister in person for any changes in residence, employment, vehicle ownership, or online contact information. See id. § 9.1-903. Moreover, before moving from Virginia to Texas, Wilson was required to notify the Virginia State Police, who in turn notified the designated law enforcement agency in Texas. See id. § 9.1-903(D). He asserts that when he moved to Texas, he was and continues to be subject to similar registration requirements. See Tex.Code Crim. Proc. Ann. art. 62.001, et seq. In addition, he claims that under Texas law he must carry a sex offender identification card at all times and renew his driver's license every year rather than every six years and must do so in person.

Wilson also points to other constraints resulting from his status as a sex offender that are not imposed by the registration statutes. He claims that he is unable to work as an electrician at particular jobs, such as at government buildings, or to enroll in electrician school to advance his career because he cannot pass the required background checks. He claims that he has been unable to adopt his eight-year-old stepson; that, to visit his stepson in school, he must submit to a humiliating background check; that, for an unexplained reason, he was not permitted to travel to Canada for his honeymoon; and that he must notify authorities if he is going to be away from home for more than 24 hours.

Finally, Wilson points out that his failure to comply with the state registration requirements subjects him to criminal penalties, both under state and federal law.

Based on these restraints on his liberty, Wilson contends that he remains "in custody," thereby satisfying the "in custody" jurisdictional requirement of 28 U.S.C. § 2254 and enabling the federal habeas court to consider his challenges to his rape conviction.

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Individuals in Wilson's position are not, however, without remedies to clear their names. Wilson might be able to invoke the writ of coram nobis in state court, which "affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir.1995); see also United States v. Sandles, 469 F.3d 508, 517 (6th Cir.2006) ("The proper means of attacking the validity of a sentence which has already been served ... is by writ of error coram nobis" (alterations omitted)). The court in Estate of McKinney explained that coram nobis "provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Estate of McKinney, 71 F.3d at 781 (emphasis added) (internal quotation marks omitted).3

In making these observations, however, we do not pass on the merits of Wilson's claim, nor do we suggest the outcome of any further proceeding. We simply and narrowly affirm the district court's conclusion that Wilson is not "in custody" within the meaning of 28 U.S.C. § 2254(a) and that therefore the district court lacked subject matter jurisdiction to entertain his habeas petition.