SCOTUS: Florida man subject to lifetime sex-offender registration requirements argues that he is “in custody” for purposes of federal post-conviction laws

By Kalvis Golde

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.  

A person held in state prison can challenge the constitutionality of their criminal conviction in federal court through a legal tool known as a writ of habeas corpus. Habeas relief is available to anyone “in custody,” which the Supreme Court has interpreted to mean not only physical confinement but also other restrictions such as parole and release pending trial. This week, we highlight petitions that ask the court to consider, among other things, whether someone who is subject to sex-offender registration requirements for the rest of his life can be considered “in custody” and therefore eligible to seek federal habeas relief.

Louis Clements is a Florida resident and registered sex offender. He was placed on the state’s sex-offender registry for life in 2008, when he pleaded guilty in state court – under pressure from his lawyer and family, he maintains – to a charge of “lewd and lascivious conduct.” As a registered sex-offender, Clements faces a variety of reporting requirements. He must report to his local sheriff’s office twice per year, notify the state within 48 hours of any changes in his employment, residence, or out-of-state travel plans, and live at least 1,000 feet away from places frequented by children. The failure to comply with these requirements is a felony under Florida law.

In 2017, Clements went to federal court, seeking to challenge the constitutionality of his conviction. But the district court dismissed his case, agreeing with the state that it did not have the power to hear his case because he was not “in custody.”

The U.S. Court of Appeals for the 11th Circuit upheld that dismissal. It acknowledged that, starting in the 1960s, the Supreme Court has expanded the meaning of custody for habeas purposes beyond physical confinement. But those expansions, the 11th Circuit explained, were for people on parole or pretrial release who face extensive limits on personal freedom and movement. Conceding that its own cases and Supreme Court precedent made this “a hard question to answer,” the court of appeals reasoned that Florida’s sex-offender reporting requirements are not severe enough to constitute custody.

In Clements v. Florida, Clements asks the justices to grant review and reverse the 11th Circuit’s ruling. He argues that there is a divide among the courts of appeals over whether similar sex-offender regimes place registrants “in custody” for purposes of the habeas statute. In support, Clements points to a 2019 ruling by the U.S. Court of Appeals for the 3rd Circuit, which held that registered sex-offenders in Pennsylvania  are entitled to seek habeas relief. Pennsylvania’s law governing requirements for registered sex-offenders, he writes, “is in all relevant respects the same as Florida’s.”




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In seeing the summary in Clemet’s response on the last page or second to last paragraph “This petition in no way challenges the validity of sex offender registration laws or the need to assure community safety. Sex offenses sometimes warrant curtailing freedoms. But for precisely that reason, it is imperative that accused sex offenders be able to challenge their convictions through habeas corpus review”
So, if the summary is what I think I get out of it this, is merely he is asking for a review to challenge
your lifetime status and not a sure path off the registry. Or is he asking for
a federal agreement across all 50 states? Or is he merely asking once off
probation you should be able to get off the registry, correct?
But if you live under the thumb off a very vocal community council who know that they can enforce
certain ordinances to control the lives of registrants it has to amount to custody. I really hope the 11th ask for guidance from the Supreme Court instead of some lame excuse in how the 11th is different than the 3Rd when in fact the 11th is home of Florida, Georgia and Alabama who have some of the worst laws on the books, just look how they treated the plaintiff in the McGuire case it took 7 years just to tell him no,also a bogus 11th discussion on top of that. Lifetime sex offender has to amount to custody when they can just religiously pass new laws each year because it’s a civil matter, its not a civil matter when in results in felony prosecution. We are under the constant threat of new sanctions that they just are allowed to keep continuously place on us, they just claim that its collateral damage from your sentence allowing the punishment to multiply over time. Hopefully the 11th boxs itself in to a corner in its reply next month.          
So does anyone one to take a shot in the dark as to what four justices might agree to hear
this case. Does anyone think this is the case that they deside to hear. Or must we continue to seek the perfect plaintiff and circumstances of a case? I believe he has a strong argument being that this case started in Florida but again we are at the mercy of the court and so far he has lost evey round but maybe just maybe he will win the most important one.

They left out quite a few conditions that happen spontaneously by being placed on the registry. There are many camps, especially in Florida, where registrants must live since they can’t find housing. If you do find housing then neighbors will in short find out and begin the process of pushing the registrant out. The same goes for a job. It is very difficult to have any job dealing with the public or working with coworkers because eventually someone will find out and then the complaints to the management will begin, the harassment, or even picket lines. Therapists say having a good social life is imperative to preventing relapse, but just try dating while on the registry. Today, one of the first things a woman will do is look you up “just in case.” You often don’t even have time to make a good impression, also there is a risk she will get triggered and report you even though you did nothing inapproproate, you just are on the registry. So many people end up with no housing, no job, no relationship and living in a squalid camp, or any combination of those things. So tell me again how this isn”t as bad as being in custody.

Is he asking if we are still in custody?I feel like if the Supreme Court would rule that SROs are considered in custody than that opens a whole can of worms.. on one hand maybe we could file double jeopardy? Maybe we can be like our probation ended thus registry ends.. but that’d be another court battle.. and while those battles are going on.. a sherriff sees.. oh they are still in custody.. I can do whatever i want to them as if they are in my custody… I’m just saying this looks like a double edge sword… I hope for the best.. but I hope we don’t shoot ourselves in the foot.

When the courts and lawmakers deem an individual’s freedom as a “conditionary privilege” as the result of a conviction, then what you have amounts to quasi-freedom with strings attached. It is a form of custody as it mimics weaponized probation. The “civil in nature” clause is the ONLY thing holding the entire ball of crud together in an attempt to keep the non-punitive lie going.

The biggest insult and slap in the face is how they think we should be “grateful” and stop complaining about the restrictions, requirements and guidelines – which are in fact 100% unassailable as punitive

Last edited 2 months ago by Facts should matter

The onerous language used in the registry does translate to it being a sentence. It’s an imposition that has no “opt-out.” So the registry can be argued it is a form of custody.

At this point Janice and some affiliated lawyer from the Southeast US should submit individual briefs in support.

Here is registry matters take on it
as usual Larry seems pessimistic about the case.

It’s almost a year old but here is his 11th oral arguments

IMO, those who have to register are in custody and here is how:

From Oxford Languages:


noun: custody

  1. the protective care or guardianship of someone or something.

Similar: responsibility

LE has decided to serve and protect the public. Legislatures and Congress have decided to help LE serve and protect when it comes convicted sex offenders.

To serve and protect the public against convicted sex offenders who must register, i.e., registrants, LE requires the registrant’s personal information, which is part of the person, and maintain protective care, i.e., custody, of the registrant’s personal information in their information systems. This personal information must be reported by the registrant and updated, i.e., registered in the registry, by LE as required to notify the public of this information through various means of dissemination.

Personal Information inherently belongs to the person, i.e., the registrant, as property given by Our Creator and defined by the government (state and fed) and state constitutions, which one can sue for and defend in court. Personal information also relates to the rest of the data registrant’s provide, e.g., POC for next of kin notification.

Therefore, the registrant’s registered personal information is in custody of LE and, by extension, the registrant specifically is in non-physical custody as well with restricted liberties, e.g., non-entrance to some international destinations due to registration or residential restrictions, and additional civil requirements which will result in criminal punishment if not followed, i.e., civil custodial control of the registrant with criminal punishing outcomes.

One may freely give of it as they chose or they may be forced by law to give it to which LE is then in custody of it, but personal information still belongs to the person in either case. If the personal information is illegally obtained by a breach of the custodial information systems, then LE is held responsible for the breach and all after care of the personal info therein, e.g., credit and information monitoring for a select duration.

That is my argument and I am sticking to it. Even a Judge or Justice would see this, especially if and when they realized it applies to them as well.

I’m reading the Petitioner’s Response. Page 4, #2 3uich I will paraphrase: Yes, Registries are punishment!!

I may be biased – it seems a very interesting case and, hopefully, the SCOTUS Justices will agree. Unfortunately, SCOTUS receives approximately 10,000 requests for certiorari each year. 🤷🏻‍♂️

I thought this article was relevant with the Supreme Court scheduled to decide if they want to pick up the case or not Friday.

even though the list is shrinking, seems to be a silver lining in that the state waved on initial response and the Supreme Court moved to go to conference, then asked for the state response, so the case at least has merit, or one of the justices is keen to put it to a vote otherwise they could of dismissed the petition as the state assumed it would. Hopefully this case lands in the 3 percent of the cases that are granted cert.