Supreme Court: Stallworth Does Not Have to Register as a Sex Offender

4-16-15 Mississippi:

The Mississippi Supreme Court ruled today that a Jackson pastor, who was convicted of a sex crime in another state but had the conviction expunged, does not have to register as a sex offender in Mississippi.

Jeffrey A. Stallworth pleaded guilty to a misdemeanor sexual assault of a woman in Maryland in 2002, requiring him to register as a sex offender.

Later, in 2010, a Maryland judge expunged the conviction. Stallworth argued that he should not have to appear on the Mississippi sex offender registry. The Mississippi attorney general's office, which is representing the state, disagreed with Stallworth's argument.

In a split decision, the state supreme court agreed with Stallworth's interpretation.

Carriere man gets life without parole in sex-offender registry case

4-17-2014 Mississippi:

Donald Caves prosecuted as habitual offender

A Carriere man has been sentenced to life without parole for conviction of failing to register as a sex offender, District Attorney Hal Kittrell said Tuesday.

Donald Allen Caves, 45, was found guilty April 9. Judge Anthony Mozingo deferred sentencing for a pre-sentence investigation.

Kittrell said a Pearl River County jury believed testimony that Caves changed his address and failed to notify authorities.

He was convicted of touching a child for lustful purposes in 1990, accessory after the fact to auto burglary in 1998 and felon in possession of a weapon in 2005.

His latest felony investigated by the Pearl River County Sheriff's Office and prosecuted by Assistant District Attorneys Kim Harlin and Lauren Harless.

"Repeat offenders such as Donald Caves pose a threat to the safety of our community and should be sentenced to life without the possibility of parole," Kittrell said in a news release. ..Source.. by ROBIN FITZGERALD

US v Arnold

Notice what the court DID NOT address. Why?

1-24-2014 Mississippi:

US v Arnold

Luther Arnold appeals pro se the denial of his 28 U.S.C. § 2255 motion, claiming that the registration requirements of the Sex Offender Registration and Notification Act ("SORNA") compel his speech in violation of the First Amendment. We affirm.

n 1994, Arnold pleaded guilty of rape, incest, and homosexual acts in Madison County, Tennessee. As a result of the convictions, he was required to register as a sex offender pursuant to SORNA.1 In 2011, he moved from Marshall County, Mississippi, to Tennessee but did not (a) notify Marshall County of his move, (b) update his registration with Mississippi, or (c) register as a sex offender in Tennessee. Shortly thereafter, he was charged, and pleaded guilty of, failure to register as a sex offender in violation of 18 U.S.C. § 2250(a).2

Arnold did not file a direct appeal but collaterally challenged his sentence using § 2255.3 We granted a certificate of appealability, allowing Arnold to argue on appeal that "SORNA is unconstitutional because the registration requirements violate his right to free speech . . . ."4

We have not addressed whether SORNA's registration requirements violate the First Amendment's prohibition of compelled speech.5 [(5)Cf. Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 765 (5th Cir. 2008) ("The First Amendment protects compelled speech as well as compelled silence."). We therefore begin by discussing West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) and Wooley v. Maynard, 430 U.S. 705 (1977), the relevant Supreme Court precedent on compelled speech. We then turn to related circuit-court precedent.

... ... ...

Arnold has not urged that SORNA either requires him (a) to affirm a religious, political, or ideological belief he disagrees with or (b) to be a moving billboard for a governmental ideological message. In fact, it appears that Congress enacted SORNA as a means to protect the public from sex offenders by providing a uniform mechanism to identify those convicted of certain crimes.10 Barnette and Maynard do not therefore require us to conclude that the government has unlawfully compelled Arnold's speech.

Our limited sister-court precedent further supports this view. The logic of Sindel extends to the present case: When the government, to protect the public, requires sex offenders to register their residence, it conducts an "essential operation[] of [the] government," just as it does when it requires individuals to disclose information for tax collection. And as Cutshall notes, the Constitution does not provide Arnold "with a right to keep his registry information private."

The judgment based on the order denying Arnold's § 2255 motion is AFFIRMED.

Arnold's motion for appointment of counsel is DENIED.

Federal reinstates child porn conviction

1-14-2014 Mississippi:

JACKSON, Miss. — The 5th U.S. Circuit Court of Appeals (USA v James William Smith) has reinstated the conviction of a Tupelo, Miss., man on federal child pornography charges.

A three-judge panel of the 5th Circuit issued the decision Tuesday and returned the case to Mississippi for sentencing.

In 2012, James William Smith sought a new trial in a child pornography case arguing that the court made numerous errors. Instead, U.S. District Judge Sharion Aycock in Aberdeen, Miss., threw out the conviction and acquitted Smith of the charges.

Smith had been convicted of one count of possessing child pornography. The indictment in the case said Smith had movies of child porn on his work computer in Tupelo in 2011.

Aycock said the government failed to prove Smith knew the images were on the computer.

The government failed to prove beyond a reasonable doubt that Smith knowingly possessed the illegal materials found on his computer, Aycock said, adding it is just as likely that the other person downloaded the child pornography onto the computer, as Smith did.

Smith faced up to 10 years in prison upon conviction.

The 5th Circuit panel said the evidence supported the Mississippi jury's guilty verdict.

"We conclude that the prosecution presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that Smith downloaded the files and knew what he was downloading. Given that the nature of the files and the interstate transport are not in dispute, the evidence is thus sufficient to sustain a conviction of knowing possession of child pornography," the panel said.

The panel said courts have found that even when a computer is shared and illegal files are found a jury could reasonably conclude that the owner and possessor of the computer would be aware of at least some of the images on his computer. ..Source.. by SunHerald.com

Appeals Panel Orders New Sentencing For Sex Offender

11-5-2013 Mississippi:

Jackson - A federal appeals court (USA v Nelson) has ordered a Mississippi judge to resentence convicted sex offender Tony Lashawn Nelson because one of the conditions on Nelson's supervised release was unreasonable.

Nelson was sentenced to 18 months in prison for failing to register as sex offender to be followed by 10 years of supervised release. Nelson was released from prison in June.

Nelson was convicted of sexual battery in 1995.

A three-judge panel of the 5th U.S. Circuit Court of Appeals found a Mississippi judge's order that prohibited Nelson from all "direct or indirect contact with any non-biological children" is unreasonable. In an earlier case, a panel ruled such a condition created an "unnecessary deprivation of appellant's liberty."

The panel ordered Nelson resentenced with that condition removed from his supervised release. ..Source.. by WJTV.com

US v Windless

6-12-2013 Mississippi:

US v Windless

A federal district court may not rely on "bare arrest records" when sentencing a defendant. The district court believed that it could rely on those records when crafting conditions of supervised release. We disagree.

... ... ...

We VACATE imposition of the mental-health treatment condition and REMAND for resentencing. We REVERSE imposition of the "no direct or indirect contact" condition, which the district court may not impose (as currently phrased) on remand.

---

New sentence ordered for sex offender who failed to register after coming to Miss. from Minn.

JACKSON, Miss. — A convicted sex offender has won a new sentencing hearing for failing to register in Mississippi because a federal judge erred in putting conditions on his supervised release, a federal appeals court panel has ruled.

Calvin Windless pleaded guilty in 2011 to failing to register as a sex offender in Mississippi. He was sentenced to two-and-a-half years in prison plus 10 years of supervised release.

Windless did not challenge the lengths of the prison sentence and supervised release. He argued the conditions put on his supervised release were unreasonable.

A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals earlier this month agreed with Windless.

Court records show Windless was convicted in 1993 in Cook County, Ill. Windless, then 15, kidnapped a 7-year-old girl and twice forced her to perform oral sex. He was convicted of aggravated kidnapping and two counts of aggravated criminal sexual assault. He was paroled in 1997 and, after a brief return to prison, was released finally in 1999.

At some point after his release, Windless moved to Minnesota, where he was convicted of failing to register in 2008. Court records show he maintained his registration until he failed to notify Minnesota authorities when he moved to Belzoni, Miss., in 2010.

Windless was arrested by U.S. marshals on a warrant from Minnesota and was indicted when he admitted he had not registered in Mississippi. He pleaded guilty in October of 2011 to failing to register and was sentenced in April 2012 in Aberdeen, Miss.

Windless argued failing to register was not a sex crime and conditions on supervised release for one convicted of a sex crime should not apply to him.

U.S. District Judge Sharion Aycock specified Windless could not have direct or indirect contact with anyone younger than 18 unless accompanied and supervised by an adult who has been approved in advance by his probation officer.

"In essence, Mr. Windless could not leave the confines of his home without violating the terms of his supervised release," his attorneys argued in court documents.

Aycock also ordered Windless to undergo mental health treatment. Windless' attorneys argued he would have to live in Mississippi forever because no other state would want to have to provide mental health treatment for him.

Prosecutors said when the judge considered Windless' crime, ongoing criminal history and failure to register, the special conditions on his release "were necessary and did not constitute an unnecessary deprivation of appellant's liberty."

The 5th Circuit panel, in a ruling written by Judge Patrick Higginbotham, threw out the prison term and conditions tied to supervised release.

Higginbotham said the restrictions were overly broad and, for example, would prohibit him from going to a grocery store unaccompanied.

"Circumstances may, of course, permit a sentencing court to limit an offender's access to places where children are likely to be unsupervised or poorly supervised. It may be reasonable to bar an offender from initiating unsupervised or poorly supervised contact with others' children and reasonable to require him to report contact that children initiate," Higginbotham wrote.

"But to forbid all 'indirect' contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence," the judge wrote. ..Source.. by JACK ELLIOTT JR

Cosner v State

Folks need to remember, just because his appeal was denied, doesn't mean the court ruled a FTR Charge can be considered a sex crime, the court did not rule on the merits of the issues. The court ruled he failed to follow his administrative remedies, so the issues are still open for later review (if necessary) after he completes an administrative appeal with the DOC (He needs to review that DOC Policy).

3-12-2013 Mississippi:

Cosner v State
No. 2012-CP-00101-COA.

Chris Cosner appeals the circuit court's dismissal of his second motion for post-conviction collateral relief (PCR). Cosner argues the Mississippi Department of Corrections (MDOC) erred when it deemed his failure to register as a sex offender as a "sex crime" and his conviction of possession with intent as a crime of violence. Cosner argues that this treatment makes his sentence mandatory day-for-day and makes him ineligible for parole, meritorious earned time, and trusty status. His second PCR motion is based on the same grounds as his first PCR motion, but with different named defendants. We find no error and affirm.

FACTS
¶2. On February 6, 2009, Cosner pled guilty to three charges: (1) possession of greater than 500 grams of marijuana (schedule I) with intent to sell, transfer, or distribute; (2) possession of greater than 100 dosage units of Alprazolam (schedule IV) with intent to sell, transfer, or distribute; and (3) failure to register as a sex offender.

¶3. Cosner filed his first PCR motion on December 7, 2009. In this motion, Cosner argued that he would not have pled guilty if he had been told that he would have to serve day-for-day and that his charges were considered violent. He also argued he was under mental duress at the time of his plea and that his counsel was ineffective. An evidentiary hearing was scheduled for August 13, 2010. On the morning of the hearing, Cosner decided to withdraw his motion before the hearing began.

¶4. Cosner then filed his federal habeas petition on November 15, 2010. He admitted that he had "not pursued an appeal or completed post-conviction remedies available to him in state court."

... ... ...

¶14. Cosner claimed a denial of "due process of law rights and double jeopardy for punitive punishment for a crime already consummated." Cosner's sentence expiration argument is a challenge to MDOC's policies. Practically speaking, Cosner requested a review of his inmate classification. "For many such questions regarding confusion about the operation of the state's system of incarceration, the proper procedure is for a prisoner to seek relief through the administrative processes of the Department of Corrections." Burns v. State, 933 So.2d 329, 331 (¶9) (Miss. Ct. App. 2006) (citing Miss. Code Ann. §§ 47-5-801 — 47-5-807 (Rev. 2004)).

¶15. Agency procedures first, rather than post-conviction collateral relief, govern certain issues like inmate classification. Id. (citing Lewis v. State, 761 So.2d 922, 923 (¶¶3-4) (Miss. Ct. App. 2000)). Classification of inmates is not an issue properly brought in a PCR motion; rather, it is within the administrative purview of the MDOC. Cosner should pursue administrative remedies available through the procedures of the MDOC. Therefore, we find no error and affirm.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

---

Article: Inmate loses appeal in classification dispute

US v Davis

6-19-2012 5th Circuit:

US v Davis

Robert A. Davis, III, pleaded guilty, pursuant to a conditional guilty plea, to failure to register as a convicted sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), reserving his right to appeal the challenges to SORNA made in his motion to dismiss the indictment. The district court sentenced Davis to 37 months in prison to be followed by a life term of supervised release.

On appeal, Davis argues that,

• (1) he was never advised of the registration requirements of SORNA, as required by 42 U.S.C. § 16917, in violation of the Due Process Clause;
• (2) the retroactive application of SORNA violates the Ex Post Facto Clause;
• (3) SORNA violates the Tenth Amendment by requiring state officials to administer federal law;
• (4) Congress violated the non-delegation doctrine by giving the Attorney General the power to decide whether SORNA applied retroactively;
• (5) SORNA's registration requirement violates the Commerce Clause by making failure to register a federal crime;
• (6) regulations issued by the Attorney General were given without notice and comment in violation of the Administrative Procedures Act (APA); and
• (7) SORNA does not apply to him because Mississippi has not yet adopted it.

Davis's complaints as to the notice and APA deficiencies, as well as his reliance on the holding in Reynolds v. United States, 132 S.Ct. 975 (2012), are unavailing as he traveled in interstate commerce after the final regulations were issued, which were published with proper notice and comment rulemaking. See 73 Fed. Reg. 38031-01.

His remaining claims are foreclosed by our opinion in United States v. Johnson, 632 F.3d 912 (5th Cir.), cert. denied, 132 S.Ct. 135 (2011). Davis asks us to reconsider the rulings in Johnson, and alternatively, he presents these issues to preserve them for further appellate review. This panel may not reconsider the court's precedent absent an overriding Supreme Court decision, a change in statutory law, or en banc consideration. See United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).

Accordingly, the judgment of the district court is AFFIRMED.

Stallworth v Dept of Public Safety

5-22-2008 Mississippi:

STALLWORTH v. DEPT. OF PUBLIC SAFETY
(986 So.2d 259 (2008)

(NOTE: No longer req. to register in Maryland, then, moved to Mississippi and failed to register)

In early 2002, Jeffery A. Stallworth ("Stallworth"), a resident of Mississippi, was indicted on five separate sex offenses in Prince George's County, Maryland. The indictment charged Stallworth with one count of second-degree rape, one count of second-degree sex offense, one count of second-degree assault, and two counts of fourth-degree sex offense. The victim was an adult resident of Maryland.

On March 4, 2002, Stallworth appeared before the Maryland circuit court and pleaded guilty to one count of fourth-degree sex offense. The other counts on which Stallworth was indicted were nolle prossed. The offense to which Stallworth pleaded guilty is codified in Maryland Code Annotated, Criminal Law Section 3-308(b)(1). Under section 3-308(b)(1), a person is guilty of sexual offense in the fourth degree if that person engages in "sexual contact with another without the consent of the other." Under Maryland law, a fourth-degree sex offense is a misdemeanor and does not require registration as a sex offender.

On May 3, 2002, Stallworth again appeared before the Maryland circuit court and was sentenced by the trial judge to serve one year in prison, but that sentence of incarceration was suspended and Stallworth was placed on supervised probation for two years. It was further authorized by the Maryland court that Stallworth's probation could be transferred to Mississippi.

After being sentenced by the Maryland court, Stallworth returned to Mississippi, whereupon the Mississippi Department of Public Safety ("MDPS") required him to register as a sex offender pursuant to the Mississippi Sex Offender Registration Laws beginning with Mississippi Code Annotated Section 45-33-21 (Rev.2004). Stallworth registered with MDPS on November 18, 2002, and as required by Mississippi Code Annotated Section 45-33-31, Stallworth was required to re-register every ninety days. There is no claim that Stallworth failed to re-register per Mississippi Code Annotated Section 45-33-31.

On October 19, 2005, Stallworth filed a Complaint for Declaratory Judgment in the Circuit Court of the First Judicial District of Hinds County. In his complaint, Stallworth averred MDPS had "illegally required him to register." Stallworth stated a fourth-degree sexual offense in Maryland is not a registerable offense in the State of Mississippi and that he should not be required to continue registration as a sex offender in this state.

Requiring Jeffery Stallworth to register fulfills the spirit and intent of the Legislature in creating the Mississippi Sex Offender Registration Laws. To do otherwise would be an affront to and an intrusion upon the rights of the general public, whom the law seeks to protect.

It is not the duty or within the power of this Court to divine the State of Maryland's intent in allowing Stallworth to plead guilty to a non-registerable offense in Maryland after being charged with multiple sexual offenses. It is our calling to interpret the laws of this state passed by our Legislature to protect the citizens of this state. The Mississippi Sex Offender Registration Laws are designed to warn the public of persons who commit sex offenses.

The facts surrounding Stallworth's conduct and crime prove that he has committed a registerable offense. Stallworth has not satisfied the requirements, nor has he met the burden of proof which would relieve him of his continuing duty to register. For the reasons stated herein, we affirm the ruling of the trial court and Stallworth shall not be relieved of his duty to register. Article: Court: Pastor stays on registry