Federal Habeas Relief if Conditions Not Custodial?

If one is a convicted sex offender and must register as such for life (subject perhaps to modification by Senate Bill 384 in California), can one challenge the registration obligation as cruel and unusual punishment under a petition for writ of habeas corpus after one is out of prison or off parole? 

Such an obligation is continuing control over one’s freedom and there can be little debate it is punishment although courts have carefully characterized it as only regulatory.

This issue was recently put to the test in an appeal to the United States Circuit Court of Appeals for the Ninth Circuit, which controls California.

In 2002, Peter Munoz digitally penetrated his daughter.  A few years later, he pled guilty to attempted lewdness with a child under the age of fourteen under Nevada law at Nevada Revised Statute §§ 193.330 and 201.230. 

In his plea agreement, Munoz acknowledged that “the Court will include as part of [his] sentence . . . lifetime supervision commencing after any period of probation or any term of imprisonment and period of release upon parole.”  The state court then sentenced Munoz to 48 to 144 months of imprisonment, required him to register as a sex offender, and imposed a special sentence of lifetime supervision.  See Nev. Rev. Stat. § 176.0931(1) (“If a defendant is convicted of a sexual offense, the court shall include in sentencing . . . a special sentence of lifetime supervision.”).

Nevada law further specified that the Parole Board was to establish “a schedule of fees to the defray the costs of supervision,” which were $30 per month for life for Munoz.  Nevada law also imposed several additional conditions of lifetime supervision, including electronic monitoring and certain residency approval requirements and prohibitions.  See id., §§ 213.1243(3) – (5). 

As anyone required to register as a sex offender in California under Penal Code § 290, there can be and often are similar residency restrictions and there can be continued electronic monitoring, too.

In 2011, and while still incarcerated, Munoz filed a federal petition for writ of habeas corpus challenging, among other things, the new conditions of the $30 monthly fee, lifetime electronic monitoring through an ankle monitor and residency restrictions.

In 2013, with the petition for writ of habeas corpus still pending, Munoz was released from custody and his lifetime supervision began, including seventeen separate conditions, many of which were not listed in the statute.

In 2014, Munoz amended his petition for writ of habeas corpus to allege that the lifetime supervision conditions violated the Ex Post Facto Clause as adding punishment after he had already been sentenced without such conditions. 

In 2017, the State of Nevada filed its opposition to Munoz’s habeas petition, arguing that because Munoz is no longer in prison, he is not “in custody” under 28 U.S.C. § 2254 as is a threshold requirement for habeas relief.  Therefore, the U.S. Ninth Circuit lacked jurisdiction to hear the petition.  Indeed, historically, the “chief use of habeas corpus” was “to seek the release of persons held in actual physical custody in prison or jail.”  Jones v. Cunningham (1963) 371 U.S. 236, 238.

The State of Nevada cited to § 2254(a), which states, federal courts “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”  A claim is “within the core of habeas” when, if successful, it “terminates custody, accelerates the future release from custody, or reduces the level of custody.”  Nettles v. Grounds (9th Cir., 2016) (en banc) 830 F.3d 922, at 930, quoting Skinner v. Switzer (2011) 562 U.S. 521, 534.

The Ninth Circuit acknowledged that Munoz met the “in custody” requirement at the time his original petition for writ of habeas corpus was filed because he was in prison.  Then, after being released and on parole, Munoz’ petition still met the jurisdictional requirement of being “in custody.”  Jones, supra, at 242.

The issue of whether the various conditions imposed on sex offenders being “in custody” even after discharge from parole has been extensively litigated.  The leading precedent in this area is Williamson v. Gregoire (9th Cir., 1986) 151 F.3d 1180, which considered whether a convicted child molester who had completed his prison sentence, but who must register as a sex offender under Megan’s Law is “in custody” for purposes of federal habeas corpus.  Id., at 1181.

Williamson characterized many examples of conditions that are “merely a collateral consequence of conviction and do not meet the ‘in custody’ requirement.” For instance, “the imposition of a fine,” the revocation of a professional license or a driver’s license, and “the inability to vote, engage in certain businesses, hold public office , or serve as a juror” are generally collateral consequences of a conviction that do not render a person “in custody” under the federal habeas statute.

Within that framework, Williamson addressed whether Washington’s sex offender registration law was a “genuine restraint on liberty” or “merely a collateral consequence” of conviction.  The Ninth Circuit then found that the sex offender conditions (which included a residency approval restriction) under Washington’s law were not “custodial" and therefore could not be challenged in a federal habeas petition.  See also Maciel v. Cate (9th Cir., 2013) 731 F.3d 928 (California’s law requiring electronic tracking via GPS and prohibiting residency within 2,000 feet of a school or park where children gather for life of certain sex offenders was not custodial in nature).

Turning to Munoz’s conditions and applying Maciel and Williamson, the Ninth Circuit found Munoz’s conditions were also not custodial in nature, so the Ninth Circuit lacked jurisdiction and dismissed his petition for a writ of habeas corpus as well.

We present this summary because the issue of 290 registration requirement is often seen as punishment, which we agree with, but courts have not so far.

The citation for ruling from the U.S. Court of Appeals for the Ninth Circuit discussed above is In re Peter Munoz, Jr. (9th Cir., 2021) ___ F. 3d ___.

For more information about qualifying for habeas relief, please click on the following articles: