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August 15, 2012

Divided Fourth Circuit decides sex offender restrictions are not "custody" for habeas purposes

A Fourth Circuit panel has a fascinating set of opinions concerning a fascinting habeas issue in Wilson v. Flaherty, No. 11-6919 (4th Cir. Aug. 15, 2012) (available here).  Here are the players and their roles in this ruling: "Judge Niemeyer wrote the opinion, in which Judge Davis joined. Judge Davis wrote a separate concurring opinion. Judge Wynn wrote a dissenting opinion."  And here is how the majority opinion starts:

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.

August 15, 2012 at 06:22 PM | Permalink


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This is an injustice. A far greater one than the execution of even someone with mild mental retardation.

Somehow I doubt all the anti-DP people in here will see it that way.

And I could see how the "in custody" requirements are not satisfied--but if the basis of that conclusion is that the sex offender registry is not a significant restriction on liberty, well, that's just plain nonsense.

Posted by: federalist | Aug 15, 2012 9:49:51 PM

This is just Bullsh*t. Nothing more. We have eyes judges and justices. We know what your doing. The pendulum can only swing so far until it comes back. This type of injustice is not just perpetrated on SO´s. It´s used against all who support the Constitution.

BTW....Trolls can comment elsewhere.

Posted by: Book38 | Aug 15, 2012 10:10:13 PM

The opinion argues that the convicted rapist here is challenging his conviction & the "in custody" requirement is tied to the sentence, citing USSC precedent (parole as an example of "custody"). Since that was served out, he was released from "custody."

Registration requirements that are "collateral consequences" don't count here, again pursuant to precedent. This doesn't mean the requirements are trivial (contra the dissent, that doesn't seem to be what the majority is saying) or provide no "significant restriction on liberty," but they are not the "discernible impediment to movement" to be "in custody."

This seems reasonable but not being an expert in the field, I will remain agnostic about it. The dissent is specifically concerned about the person not having a means of relief, but the majority disputes the point. The concurrence firmly agrees the person should have a forum to make his case but it is not clear that there truly wouldn't be. I welcome f's concern for convicted individuals, even those convicted of heinous crimes, but (as usual) not quite as assured of things.

Posted by: Joe | Aug 15, 2012 10:55:40 PM

I dont see, joe, how I am assured of all that much. The plain language is a problem for the convict's position. I noted that. But if the idea is that we are going to concede that some impositions on liberty are sufficient to trigger the "in custody" requirement, then it seems that being on a sex offender registry is a pretty substantial one. In other words, it's logical to say that being on a sex offender registry isn't being jailed or imprisoned---but once you go past that to say that "in custody" really means having a substantial imposition on your liberty, I think it nonsense to argue that being on a sex offender registry is not that.

Posted by: federalist | Aug 16, 2012 12:47:01 AM

Not too surprising from the 4th Circuit justices on the panel.

Posted by: Gray R. Proctor | Aug 16, 2012 8:30:35 AM

BTW....Trolls can comment elsewhere.

Then why are you commenting here, ""Book 38"" ?

Posted by: Adamakis | Aug 16, 2012 8:53:52 AM

Then why are you commenting here, ""Book 38"" ?

Typical !

This is what I am talking about.

Posted by: Book38 | Aug 16, 2012 10:15:21 AM

Habeas/in custody are inseparable:
"A writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention
is not illegal"—Black's

=--= Incarceration, parole, probation, civil confinement, mental hospital = greater restraints by magnitudes above the Sex Offender Registry.

=--= Sex registry = e.g. notify landlord, mayn't live by school, report annually, &ct.
a.k.a. does not equal "sufficiently substantial restraints on his liberty"

From our facility, convicted jokers use our resources to flood the courts with farcical Habeas petitions. Could not this convicted--and probably appealed and upheld—Rapist Wilson, be disingenuously asserting "INNOCENCE" because he wants off the registry?

Too bad; not so sad.

Posted by: Adamakis | Aug 16, 2012 11:21:15 AM

The basic premises of the majority opinion are fairly uncontroversial. 1. Habeas is a remedy for those "in custody" under the conviction and sentence they're challenging. 2. "In custody" means either in jail, or subject to conditions that would send you back to jail on that sentence--i.e., parole or supervised release. 3. After you're out and no longer subject to supervision on that sentence, you don't have habeas anymore. If you're still subject to collateral consequences, the correct remedy is a writ of error coram nobis.
4. The SO consequences here, like registration, are collateral, and are not part of the original sentence of conviction. So--coram nobis, not habeas, is your remedy.

Technical, yes, but also traditionally correct.

The two wrinkles here are: A. Virginia has construed coram nobis very narrowly in a way that would make it inapplicable here, and B. Modern SO laws are much more comprehensive and invasive than other traditional collateral consequences (like voting rights or gun possession)--in effect, they've become much like parole or supervised release, just divorced from the original sentence.

It seems like the best avenue for relief for this guy is to try federal coram nobis. As with habeas, if the state collateral process doesn't afford sufficient relief, try for the federal equivalent (after exhausting the state one). The 9th Circuit's opinion in the Gordon Hirabayashi case (about Japanese internment) explains why coram nobis is an important fail-safe, in the rare and compelling case, for vacating unjust convictions years after the fact.

The other avenue would be redefining "custody" to encompass supervision imposed by a different statutory scheme apart from the judgment of conviction. But that's a bigger deal than just one judge using common sense. For one thing, "custody" is in the jurisdictional statute. For another, the Supreme Court has interpreted "custody" pretty restrictively. Fixing this prong--which seems to be the focus of most posters here--would take Supreme Court or legislative action.

Virginia difficulties notwithstanding, going for coram nobis seems the more conventional and straightforward approach. (Or--have another run at executive clemency. To my knowledge, nothing bars a repeat petition to the Virginia governor.)

Posted by: Def. Atty. | Aug 16, 2012 11:30:23 AM

Federalist, I am not as assured as you that "This is an injustice."

I think the opinion is not about significant restraints on liberty, full stop, but that in context of "custody" related restraints, and as the opinion noted, in that sense of the term, I don't think it is "plain nonsense" to not think it significant, even if they were wrong to hold it.

But, if you are assured, no need to walk back. Be assured.

Posted by: Joe | Aug 16, 2012 2:00:52 PM

Def. Atty -

What would be the basis for federal jurisdiction in federal coram nobis after an unsuccessful state coram nobis effort?

Posted by: arfarf | Aug 16, 2012 4:49:59 PM

oh goodie! more criminal stupidity out of the mouths of a FUCKTARD govt stooge!

This big of stupidity is right up there with.

"even thoght you have been slammed to the ground and handcuffed and now sitting on the curb! YOUR NOT UNDER ARREST"

as for his best chance for relief!

That would probably be to get 800,000 of brothers and sisters on the registry to mass and mob washingtion!

MAYBE that would wake the FUCKTARDS up!

Posted by: rodsmith | Aug 16, 2012 5:35:22 PM

Let´s put this all into prospective:

Lawyers, Professors and Judges: You all agree that the wrong document was presented and the wrong legal term was used to seek relief. It should have been ¨this¨ instead of ¨that¨.

Layperson´s and American Citizens: We don´t care about using the correct document or term. We see and injustice. We see that the ¨law¨ is breaking the ¨law¨. RECOGNIZE IT and do what is right.

Our country got to it´s present position because the one´s who could (and should) have prevented the law from being broken ¨didn´t¨.

Posted by: Book38 | Aug 16, 2012 6:18:05 PM

Interesting, but very disturbing.

It appears plain to me that there are two sides to this issue. Those who believe that (1) restrictions on liberty can be granted on Americans. That these restrictions on liberty can be imposed due to a violation of law as decided by the Judicial group, on laws proposed by congress. Further more, they can be called "non-restrictive restrictions". This is because having to register, and where one can live, and to have the government notification of neighbors is not restrictive (in various levels). Then there are those who believe that (2) any restriction on liberty is a restriction on liberty.

This reminds me of how things are done here, in Communist China. All that is required to put someone in prison or to have them killed, is to have them violate a "non-law law". The Nazi's did it, in Spane and in Germany. And now it is going on in the USA. It is a sad sad day for the United States. Just like the Nazi's forced the registration of Jews because they created crime, mental illness, fostered the hoarding of wealth, created depressions, and contributed to the destruction of society, the Americans are doing this for any one who violated a crime classified as a sex crime. Can you not see, where this will take the USA?

Why can not anyone see this?

Posted by: 高搏鸿 | Aug 16, 2012 8:37:07 PM

My question to Def. Atty. was not rhetorical. I genuinely would like to see any information about the basis for federal coram nobis jurisdiction after an unsuccessful state coram nobis effort.

And if there is federal jurisdiction to review an error in a state trial, I'd also like to see any information about the basis for requiring exhaustion of state coram nobis remedies. Exhaustion is a statutory requirement for habeas, but what is the source of a parallel requirement for coram nobis?

Thanks for any insight.

Posted by: arfarf | Aug 16, 2012 9:12:01 PM

only one problem arfar.

Our infamous federal neo-nazi leadership has been taking the LEAD in the continual passing of illegal ex post laws covering sex crimes for almost 20years.

So asking THEM for any kind of relief should be considered a JOKE! and not a very funny one. I've never understood how that could even be legal. Talk about a CONFLICT of INTEREST!

Your asking ONE federal court to slap another! YEA RIGHT!

Posted by: rodsmith | Aug 16, 2012 10:33:25 PM

Dobrý den, mám tě rád stránku. Jsem rád, že Yahoo upozornil mě na to. Byl jsem schopen se dostat know-how jsem hledal tak špatně dní now.Thank vám děkuji za vaši opravdu dobré webové stránky. Hezký den.

Posted by: casquette red bull | Aug 17, 2012 3:36:42 AM

The majority's efforts to distinguish parole are weak. Employment restrictions imposed by law and the draconian consequences of one slip-up are present with these sex offender restrictions. If the rule is bright-line, fine, but it is not. And if I have to petition the government before I go somewhere, my liberty is restrained.

In any event, no matter what the law is, this is an injustice. Of that, I am assured.

Posted by: federalist | Aug 17, 2012 9:07:32 AM

how true federalist!

The ONLY differences between this and regular LEGAL parole/probation are

regular probation/parole are LEGAL

since they are part of a normal COURT ORDERED sentence!

under our current sex crimes ILLEGAL retroactive probation/parole the only things that change are WHERE and WHEN you report.

Posted by: rodsmith | Aug 17, 2012 10:03:03 AM

Interestingly, the Virginia Supreme Court appears to have potentially opened the door for a state habeas claim by holding that sex offender registration requirements are sufficient to not render a habeas petitition moot. From E.C. v. Virginia Dept of Juvenile Justice, 283 Va. 522, 722 S.E.2d 827 (2012):

After consideration of our jurisprudence on mootness, as well as that of other state and federal jurisdictions, the habeas corpus statutes, their remedial purpose and prior applications, we conclude that collateral consequences of a conviction challenged in a habeas corpus proceeding may be considered in determining whether the proceeding is moot. Release from confinement, probation or parole during the pendency of the proceeding does not automatically render the proceeding moot.

This holding does not dramatically expand habeas corpus jurisdiction. The predicate to establish habeas corpus jurisdiction remains; the petitioner must have been detained at the time the petition is filed and the petition must be filed within a discrete time period. Code § 8.01–654(A)(1), (2). Not all collateral consequences of a conviction will be sufficient to avoid a finding that the case is moot.

Whether the collateral consequences claimed by the petitioner are sufficient to preclude a finding that the case is moot will be made on a case by case basis.

Turning to the facts of this case, we hold that the collateral consequences imposed on E.C. [specifically sex offender registration] by the convictions [rape and breaking and entering with intent to commit rape] he is challenging are sufficient to sustain a continued controversy. The relief from these consequences that E.C. seeks is a determination that the convictions which imposed them are invalid because of the ineffective assistance of counsel and that he is entitled to a new trial. If successful, the relief he seeks can be afforded by the court exercising its habeas corpus jurisdiction.

[End Quote]

I do not know if Mr. Wilson would be able to get in under this holding since E.C. was under probation when he filed his habeas petittion, but the majority may be right that there is a possible state remedy besides Gov. McDonnell doing the right thing and pardoning Mr. Wilson since Virginia Governors have virtually unlimited pardon power. It seems there is a good argument that the Virginia Supreme Court has in fact ruled that sex offender registration is sufficient to sustain a habeas petititon.

Adamakis, please actually be aware of the facts of the case you are commenting on before commenting - Mr. Wilson is one of the Norfolk Four. Look up the Norfolk Four case because there are some excellent articles out there exposing the alarming police and prosecutorial misconduct in that csae which resulted in four innocent people being convicted of an awful crime which someone else did. Mr Wilson is almost undoubtably innocent of any crime based upon DNA evidence showing someone else did the rape, the conviction of the actual rapist and murderer, and that the actual rapist/murderer has confessed to doing the crime by himself. I support harsh penalties for guilty rapists too. Mr. Wilson is simply not guilty.

Federalist is absolutely right that this ruling is an injustice - but it seems there may still be a state door open for Mr. Wilson.

Erika :)

Posted by: Erika | Aug 17, 2012 10:27:54 AM


It would admittedly be somewhat uncharted water. The writ of error coram nobis is a common law writ, not governed by statute. The All Writs Act, 28 USC 1651, gives federal courts the power to issue it. But it's very rarely used and the (somewhat murky) standards are contained in case law, not statute. The Hirabayashi case in the 9th Circuit (from the 80s) is the best general explanation of the coram nobis remedy that I can think of.

Historically, if state prisoners did not get relief on habeas corpus petitions to their state courts, they then filed petitions for habeas corpus in the federal courts. It was roughly the same process--asking the federal court for a common law writ (made available under a different jurisdictional statute, 28 USC 2241), when that writ was not available or had been denied in the state system.

Federal habeas corpus petitions following that practice became so overwhelmingly voluminous that Congress created statutes to govern the process--first 28 USC 2254, for federal habeas corpus for state court prisoners (and its partner, 28 USC 2255, for a similar remedy for federal prisoners), and eventually the Antiterrorism and Effective Death Penalty Act of 1996, which amended 2254 and companion statutes to impose strict limits on the habeas remedy, such as a 1-year statute of limitations, a lifetime limit of 1 petition unless extraordinary circumstances are shown, deferential review of state court decisions, etc. So habeas corpus for state prisoners is now pretty tightly governed by statute and the standards are clear.

The same is not true for coram nobis. There's no statute equivalent to 2254, and no codified procedures, standards, or limitations. It's more like the old days of habeas where the prisoner was simply presenting to the federal district court a petition for the common law writ, which alleged among other things that the relief was not available or had been denied in state court. The standards for seeking/granting it are in what little case law there is, and would have to be developed through new case law.

Posted by: Def. Atty. | Aug 17, 2012 10:31:06 AM

Also, exhaustion of state court habeas remedies was a requirement imposed by Supreme Court case law before it was codified in the habeas statutes. I am not aware of a specific exhaustion requirement for coram nobis but I think it would be close to a no-brainer for a federal court reviewing a coram nobis petition from a state prisoner to analogize to that old case law requiring exhaustion in habeas, and hold that it's required for coram nobis as well.

Posted by: Def. Atty. | Aug 17, 2012 10:35:05 AM

Book 38, I'm sympathetic, but it's the system we have and the distinctions matter. They were imposed by courts and legislators who felt that endless habeas petitions from prisoners (who have plenty of time to file them) were clogging the courts and keeping society from having some finality to convictions and sentences.

Posted by: Def. Atty. | Aug 17, 2012 10:38:19 AM

Erika, thanks as always for the Virginia law details.

Posted by: Def. Atty. | Aug 17, 2012 10:41:16 AM

I normally prefer reading news paper every day, but one fine day while checking my e-mails, one of my friends ping me your article. I wasn’t very keen in reading thinking that it would be a trash, but later after reading it I realized that I was wrong and your article was just out of the world. I should thank my friends now!!!

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