For a federal court to consider a habeas petition, the petitioner must be “in custody” at the time the petition is filed. Past cases have found custody to include parole restrictions, own-recognizance release pending appeal, and community service obligations.
Today, the Third Circuit held that the requirements that come with registration under Pennsylvania’s Sex Offender Registration and Notification Act satisfy the habeas custody requirement because SORNA restricts registrants’ physical liberty in various ways, including banning computer internet access and requiring them to appear frequently at a state police barracks, in person. The court distinguished rulings from other Circuits involving other, less-restrictive sex-offender-registry statutes. Full Report
Opinion – US Court of Appeals, 3rd Circuit
Opinion Summary: We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction. We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.
So isn’t having to inform the government of travel under IML like informing your probation officer you are leaving the county.?
The commentary is nice, but reading the actual opinion provides some interesting insights regarding ex post facto.
In terms of requiring someone presence, there by ristricting their liberty, under Snora, an example was made of the 3 day requirement to register temporary lodging or vehicle used. If one registered a temporary address, say across the country, only to arrive and find out it was full, one would have to travel back to the police barracks within 3 days to update their status.
Same with a rental car, how would one know the vin and license plate without first traveling to the destination?
It’s custody, containment and confinement. Not to mention more harmful than intentionally being exposed to second-hand cigarette smoke on a daily basis.
Well this case certainly gives good for thought concerning questions I intend to ask at this year’s FTR case I am purposely pursuing. SOR AGENT will be on the stand and I very much look forward to pinning the state regime down. Unfortunately my requirement to register came completely apart from the original 5 year judgment for child sex assault conviction. This fact is a barrier to habeas complaint in my situation. Still this case expressed the federal courts are coming around to realization concerning SORNAS real intent.
I see this as another nail in the coffin of registry laws.
This is a case to keep track of to see if it is appealed into the Court of Appeals quite simply it is because the courts have just admitted that the registry is in fact punishment that is the only way that you can file a habeas corpus is if you are restricted in your liberty in some way and the only way you can be restricted in your liberty is via judicial decree coming from a judge a legislative body cannot inflict punishment. And when the legislatures attempt to punish a person by restricting their liberty they are violating both state and federal constitutions by creating special/local laws and/or by creating a bill of attainder.
This is just another nail in the coffin when you consider that shaming is a form of punishment as described in court cases and that a person’s reputation and standing in the community is a protected liberty interest. Now we have the court saying that it is enough of a punishment to be on the registry that a person is entitled to a federal habeas corpus. We have a number of states courts admitting that there is an ex post facto violation pertaining to the registry which also indicates that it is punishment as well as the court saying that the Colorado registry violates the eighth amendment.
Little by little we are getting the courts to admit that it is punishment and since that punishment is coming directly from a legislative body and not the judiciary no matter what the intent of the legislative body was if it is a form of punishment they have violated both state and federal constitutions. it is important to note that anybody that chooses to challenge the registry as a bill of attainder needs to do so with an extremely competent legal representation this is not something that should be handled pro se it could blow the whole thing up for all of us.
Just read through the full opinion. Seems like there are a fair amount of parallels between the Federal SORNA and CA’s current and upcoming SOR. Everyone has to register once a year, some four times (is one or four times relevant?). We all have a deadline to register when moving, and to register temporary floggings when traveling. We must notify when we’re leaving the state. CA requires us to provide information on our employers and vehicles (I’m unclear though if CA requires us to update this information as it happens or at the time of our annual/quarterly registration?) Most don’t need to report internet identifiers, but two years ago a new law was passed that some people going forward will have to report these. And, the upcoming SOR also removes many peoples current ability to end registration by removing the COR path and replacing with a scheme which takes many of the same charges from a good-to-go via COR to an absolute NO (similar to how in PA he and others were given 10 years but then were moved to a lifetime with SORNA. I’m not sure if the technicality of CA being “lifetime” now but with a path out via COR will work in a similar way PA imposed the 10 year timeline).
It’s really frustrating when 100% layman would agree that ANY SOR scheme is very much punitive but have the courts brush it off as no big deal because you’re technically not “restricted”. It’s like, sure, that swimming pool is full of sharks and we just dumped a bucked of blood into it, but we’re not restricting you from swimming across it.
I think the robes will have to soon decide within 3-5 years as the AL. case will be appealed by both parties. then the Recently filed Fl. Case’s
While this ruling is a huge leap forward in the development of a more intelligent registery it still leaves a lot of open doors, loopholes, and empty hope. The bottom line is that judges routinely deny Habeas Corpus Petitions on various grounds. Look at Progress CCC and the 2016/ 2017 petitions. 42 individuals there posted Habeas Corpus petitions because parole had placed them in the secure, prison style, lockdown without a gagnon hearing. One person filed in 3 different counties and two different courts. The end result? The bulk of petitions sat in a court office till the people were released rendering them resolved. The court secretary having told some callers that she had set up a special desk and pile for Progress CCC petitions. Some of the remainder were thrown out for lack of jurisdiction. The Remaining 4 ended in a showdown where 2 were released to other open halfway houses and the last 2 were ended in stalemate when the facility promised to fix the issues argued in the petitions and only corrected a few of them after maxing out the sentences of the last two petitioners completely eliminating the entire pile. The moral? Judges dont have to answer a Habeas Corpus in any sort of reasonable time frame or in a favorable way. Sure they have rules that hold them to it but as the Progress CCC petitioners found out the rule complaints can simply be ignored.
This ruling is fruitful as it expands the potentials for people to get off the registry but any sort of productive ruling down the road needs to focus on removing bulk groups from the registry without the need for those removed ot have to file petitions. Rather then waiting on a judge to answer or not answer a Habeas Corpus.
Janice I remember you mentioned you are looking for a new venue to fight IML the third district is looking promising.
Having just finished reading the Opinion, I’m left with a question. What happens if someone receives the exact same sentence at the exact same time in a non-3rd-Circuit State (i.e. registration as part of judgment) and then moves to PA? Would the migrant be “in custody” too, or could PA impose the restrictions because the judgment was not in a PA court? What if the registration term has expired in the convicting State (thus no longer “in custody” no matter what)? Can PA impose the new requirements? Wouldn’t that be taking someone “in[to] custody”…without trial or due process?
This case is a very interesting one indeed! My fear is that we may “lose” if it goes to SCOTUS…if they agree with the Decision or don’t see a burning issue, they will simply deny cert., leaving a whole bunch of RCs out in the cold. Then again, perhaps this could be a Circuit split SCOTUS decides it must resolve. After all, the jurists in this Opinion outright say they have ruled contrary to sister circuits–though different facts presented.
This Opinion made…and makes..me smile. As someone else said, another nail in the coffin. And let’s not forget, losing parties in lawsuits typically have to pay the winner’s court costs and attorney fees. I wonder how many expensive cases States like PA and MI want to take on. Maybe they should start thinking things through. Here’s an idea…86 the whole BS thing. Or if not ready for that leap, make it LE-only info and not on DLs, IDs, websites, postings, mailings, newspaper ads, signs on public property, billboards, etc. Naw….86 it.
Guess that was not such a ridiculous argument after all. That is crazy, in Juvenile Male they were arguing the something, but the 9th did not buy it. Was not argued correctly really. Every time a case is not argued correctly just makes it harder for the next guy….
“it is important to note that anybody that chooses to challenge the registry as a bill of attainder needs to do so with an extremely competent legal representation this is not something that should be handled pro se it could blow the whole thing up for all of us.”
That would be fine if someone would have the guts or the cash or the intelligence to do so, but guess what???? I have yet to see any real challenge at all to the registry. Even the stupid ex post facto arguments are stupid baby steps that have actually achieved nothing more than setting a stage for real suits. Look, even where they have won on the issues no one is getting relief, legislatures or judges are just ignoring the rulings or working around them and manipulating every one involved. Pro se have been successful in cases, and even though it is a uphill battle it is achievable. Will Bassler, you are a hell of a smart guy and you have written some excellent arguments which are incorporated into part of my suit. Have faith. I think the 9th circuit is going to see it differently than the lower court on the bill of attainder issue I argued. The reputation issue that was just recommended by the Magistrate recently to dismiss is still in the hands of the real judge so we will have to see what he thinks, and than it is off to the 9th we those claims as well. It would be nice to see some real effort by others when I do get to the 9th, but guess what, NO it will not happen. You know why??? I am just going to say it whether you or anyone else likes me or the truth. None of you give a rats ass. You all talk a good story about how this should be or that should happen, while you are sitting at home on your frigging comps. doing ????shit instead of researching and drafting or editing or suggesting or helping in any way. I have had the help of two people Mainly. AJ and Chris F. Sure, a couple of others have pitched in here and there, but no other warriors. No orgs. will touch it, no help researching as the AG has her entire team of attorneys and unlimited funding. I need people to go on Ross and put it in your favorites, and search every case that I need researched in order to get this done. Think it will happen, Hell no….. None of you give a rats ass. Even if I lose and set a bad precedent I am not even going to blame myself. I blame each and everyone of you…. I am doing my part………..Peace………..
Here is the link for Ross just an case any of you want to man or woman up when I need you…
https://app.rossintelligence.com/?&_ga=2.224866012.774452204.1551515146-1876229496.1546029975#/answers/case-law
We could have a legal team here that would put the AG’s to shame if we all wanted to and tried. Many of us on here are much smarter, and have skin in the game, than their team.
Very easy, all you do is copy and paste whatever case I post and read that particular case and report back to me. Simple as hell. That is all the frigging help I ask of anyone. Some of you people on here are smart ass hell. Every case that I research that is cited by any of these lame ass judges or the AG or whomever I look at the case and they are lying about what the case actually states. I do not think that is to much to ask for fighting for all of us. Will it happen??????????? Doubt it. Look at my latest brief, everyone on e of the 9th cases I have researched that the Magistrate and AG have cited have been debunked and shown their irrelevance or false use of authority or straight lies on what was stated. I cannot look at them all. I am in college doing major science degrees and fighting this and being a father, grandfather, husband, brother, uncle, and friend all at the same time, including spending bank. What are you people doing????
You guys are pretty awesome there at ACSOL I have to admit. Thank you, and for what it is worth, tell Janice personally thank you.
So, I just realized the AG did not even care to respond to my objections. Either she is so confident that she felt she need not respond as she did to the last objections, or shamed by what I stated about how she should admire, let me state exactly what I stated,
“Plaintiff wishes to include key statements by Attorney General Dana Nessel from the State of Michigan challenging Michigan’s Sex Offender Registry. With all due respect, Defendant should admire Attorney General Nessel’s courage, and the courage of Solicitor General Fadwa A. Hammoud’s, and Assistant Solicitor General Ann M. Sherman’s, to admit the truth, and to attempt to do something about it.”
or she could not defend against what I wrote and the debunking of every case she or the Magistrate brought.. We will see……
Please post this ACSOL as Tired Old Man is asking for explanation apparently.
How about the case I just cited there? I spelled it out before but ACSOL did not post it. Let me try a scaled down model so you can see specifically what I am talking about since you obviously do not comprehend off of what I already just showed you. And whomever write the @Tired Old Man defending my right to an opinion. 🙂
Now,
Litmon is citing Juvenile Male as analogous, which in turn cites Henry as analogous for restrained liberties. These are apples and oranges and a false use of authority because Henry is NOT analogous to either of those cases. Let me prove this point, and hopefully they will post this, I am going to scale this down to just the relevant statements and hopefully you can follow along.
In Henry,
“The laws are very similar in their essentials, each requiring a convicted sex offender to provide address and other background information, fingerprints, and a photograph to the local law enforcement authority. >>>>California law is more restrictive in requiring annual registration (i.e once a year)<<>>Washington requires a one-time registration upon release from custody, coupled with an annual address verification procedure. (procedure, not even in-person)<<<>>>>>>>>>Both states require an individual to reregister upon change of address. (change of address only)<<<<<<<<<>>>>>>>>>>The >>>minimal differences<<<>>do not justify<<< a different result for Henry.<<<<<<<<<<<<<>>does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner “in custody” <<>>>>>Both states require an individual to reregister upon change of address.<<<<<<<<<>>>2 obligations at most.<<<>> as is, and as in juvenile Male<<< about in-person reporting requirements (much more requirements by order of magnitude) as explained by the Opinion – US Court of Appeals, 3rd Circuit- which is actually not materially different and is analogous to CA's SORA, and in federal SORNA that was at issue in Juvenile Male. Not to mention tiered system and were dealing with juveniles (adults have very different situations and fundamental rights that matybe abridged than juveniles whom cant even be married, have children, homes, jobs, a plethora of other differences, were tier III offenders, and proportional limited duration requirements).
But let me keep just this to be as brief as possible.
"• Change his name;
• Change his residence or become transient;
• Begin a new job or lose previous
employment;
• Matriculate or end enrollment as a student; (this alone requires me to report in-person LE 3 more times a year)
• Add or change a phone number;
• Add, change, or terminate ownership or
operatorship of a car or other motor vehicle,
and, as part of that visit, provide his license
plate number, VIN number, and location
where the vehicle will be stored;
• Commence or change “temporary lodging;”
• Add, change, or terminate any email address
or other online designation; or
• Add, change, or terminate any information
related to an occupational or professional
license.
If Piasecki were to become homeless, he was required to
“appear in person monthly and to be photographed.” Prior to
any international travel, Piasecki had to “appear in person at an
approved registration site no less than 21 days” before his
anticipated departure."
Now if you cannot see a material distinction from the statute in Henry and CA statute than I do not know what to tell you other than I feel for ya.
This does not even encompass every time I must register in-person. I counted 32 different obligations as compared to the law in Henry that required 2.
This is exactly what I mean by lying i.e false use of authority.
This is exactly why the 3rd circuit here found that the statute does reach the threshold of in-costudy as the 9th circuit should have found in Litmon (which we absolutely have a fundamental right to jury trial and all the protections of the constitution before having in-custody obligations placed upon us) except that it used the false use of authority to uphold a significantly different statute by order of magnitude (I like those words because they are fitting).
Hope that clears it up for you…. If you want to see this spelled out in more detail and see the multiple times (that I have had a chance to discover because I get very little to no help except from the ones mentioned, and do not have a team of attorneys) the 9th has done this look at my latest brief if you have not.
https://ufile.io/2u462
And if I had the time to really research and locate my re-sentencing where I got my 85% time reduced to 50% I could show you that, or my accompanying 602 appeal that was approved by the Warden at prison adjusting my good time credits and release date. If I had time to dig up my demur that I beat a DUI with I could show you that, that included at DMV as well during arbitration. Or how about the time I sued a business for 5 grand because of a sidewalk in front of their business that was out of whack by about 5 inches and won, I could show you that. I could go on but whatever, like stated I do not have to justify my opinions especially when addressed like you did @TiredOldMan… What is up with the attitudes on here all the time. Is TiredOldMan really USA again???? LMAO….
Oh and my apology for being so harsh and rude must have got deleted some how. I was just hell of mad but I should not be rude to others. I am trying my best to be civil. Even my wife has to remind me sometimes when I get angry not to act uncivilized. Lmao. I just grew up where if you had something to say or a problem you dealt with it in any manner necessary. Many times it was with violence back in the day. At least is it just words I use now. 🙂 Shit everyone I grew up with including all my older brothers friends and just everyone was violent back then.
Anyways I apologize, but the facts remain the same…
This 3rd Circuit decision is covered in detail on Registry Matters podcast #66 which comes out tomorrow. It is covered in the last 20 minutes of the podcast. Some of the points brought out: The decision only covers Federal habeous corpus proceedings; not individual States. The decision only applies to Pennsylvania. It only allows him to proceed with habeous. Will it get to SCOTUS ? Anyway, the twenty minute discussion is well worth listening to.
So my question would be this. Now that it is becoming more clear the the registry itself is punitive, when are all the other state activists going to challenge CLASS ACTION? It is ridiculous that after 20+ years of studies and empirical evidence and facts that only residency restrictions or education restrictions are addressed.
I’m not getting any younger. My son is getting older. 20 years on this hit list is long enough. I WILL BE THE FIRST TO PUT MY NAME ON A CLASS ACTION CHALLENGE TO THE REGISTRY USING HABEAS CORPUS AS THE ARGUMENT.
Using the judgement of the 3rd circuit will give a precedent ruling. No excuses anymore for this not to happen. Anyone else?
Man they are just screwing us every which way because no one questions their citations. Absolutely insane. They just pick a case that states sex offender in it and make up any BS they want.
The AG cites Doe v. Harris,640 F.3d 972 (9th Cir. 2011) as somehow authority. This case is a plea agreement contract argument and has absolutely nothing to do with Hatton, or any other issue outside of a plea bargain agreement issue.
Here is what the question was,
“The question of law to be answered is:
Whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law.”
This is why Ross is so important. I cannot find this actual case except on Ross, the AG surely knows this and does not figure I am smart enough or have the resources to access exact cases that are not readily available through Google.
Here is what the AG cited in one of her responses to the first Objection to the MFR when i was arguing against Hatton, you see there is no 9th circuit CA case upholding CA’s internet publication and this B*^%^*% is using this as authority.
“Because the Supreme Court has already upheld an identical requirement, there is no reason to believe that the Ninth Circuit would have decided Hatton differently if, at that time, Megan’s Law imposed an Internet publication requirement. In addition, the Ninth Circuit did not deviate from Hatton in Doe v. Harris, 640 F.3d 972 (9th Cir. 2011), a 2011 decision post-dating the amendment to Megan’s Law in 2004. Harris, 640 F. 3d 972,975 n.3;Cal. Pen. Code $290.46; Assemb. B. 488, 2003 2004 Reg. Sess. (Cal. 2004).”
Hatton explains in half the opinion how CA’s 290 was not on the internet,
“By contrast, § 290 does not allow dissemination of registration information on the Internet, nor does it allow dissemination of information about registrants’ employers.3 See Cal.Penal Code §§ 290(m)(4), 290.4. The California statute also regulates public inquiries to the registry. See id. § 290.4. Unlike other states that post their entire registries on Internet websites, California allows public inquires to the registry in only two ways: through toll calls to a telephone number or in person at a local police station. See id. § 290.4(a)(3)-(4). The California statute requires members of the public to satisfy certain conditions in order to obtain access, and it restricts what information will be released to members of the public.” https://caselaw.findlaw.com/us-9th-circuit/1370148.html
Even if the case was analogous and included an internet notification requirement (which it did not) it indeed deviated from Hatton BIG time. Just a little different than today’s CA SORA I would say…
This is just another example of this false use of authority over and over and over and over again……..BS man……… They are creating case law with legal manipulations and straight up lies………… Oh I am going to slam the 9th hard for what it is worth. This shit needs to brought to the attention of legal scholars and constitutionalist orgs. and the the State Bar. Something has to be done about this. And @Tiredoldman (or USA, LMAO) says lawyers are god. Shit, they are scandalous as hell and are blatantly violating the canons and foundations of jurisprudence and constitutional law.
Bump
Was this decision used anywhere else besides PA? Can any other state use similar reasoning that the registry resembles being “in custody”, especially if the LEO does compliance checks on a person supposedly no longer under custody, but also has specific restrictions of where one can live or work along with informing LEO of any extended travel?