Clements Loses Habeas Petition in the Middle District
A disappointing opinion came out of the Middle District of Florida for the Petitioner, Louis Clements.
Clements pleaded guilty in 2008 to lewd and lascivious conduct under § 800.04(6) and got five years of sex-offender probation, which ended around 2013. His first § 2254 petition was dismissed because he wasn’t “in custody.” Clements I (11th Cir. 2023) affirmed, holding that registration and reporting alone don’t create “custody”.
He filed his second petition in 2024, lost, and appealed again. The Eleventh Circuit remanded in Clements II (2025) for the court to decide whether residency restrictions render him “in custody”. Unfortunately, the original judge, Judge Steele died, so the case went to Judge Chappell. Today Judge Chappell rendered a decision holding it does not and dismissed the Habeas Petition without prejudice.
While this is disappointing, it has little impact on FAC v Glass. “In custody” under § 2254 is a jurisdictional test about physical restraint. Closing the habeas route for people whose sentences have ended, has no bearing on a civil rights action as a vehicle through which to challenge residency restrictions.
OPINION: Clements_Opinion And Order
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FEAR NOT. Neither the State or the Judge followed the assignment handed to them by the 11th cir. The 11th Circuit’s explicit remand directive in Clements II was a specific instruction: build a factual record regarding Florida’s residency buffer zones to see if the physical restrictions on your liberty “push the scale” over the threshold into a restriction on movement severe enough to constitute custody.
By retreating into old, generic arguments about “collateral consequences” and AEDPA time gaps, Judge Chappell did not rule on the specific assignment she was given. She essentially recycled the state’s boilerplate immunity arguments instead of conducting the targeted, reality-based “effects” analysis the appellate panel demanded. Clements II forced the state and a federal judge to bend over backward using procedural technicalities just to avoid looking at the raw, punitive reality of what they are enforcing. When federal District Judges are faced with a chance to make sweeping, ground-breaking constitutional law, their default institutional reflex is almost always to find a procedural off-ramp and pass the buck back up to the Court of Appeals. The District Court treated this as “above my pay grade”. Had it been filed in the Northern District of Florida where the FAC case was filed (not allowed by statute) things may have been different.
FAC
Yes, I was referring to Florida’s situation. There have been removals in Florida, most by Lawyer Ron, but it is hit or miss in Florida depending on the judge and the circumstances of our crime (s). I know several that have petitioned and not been removed.
Also I have heard from two different experts and some say if you get denied you can never re-petition and someone on FAC a while back stated they had gone 3 times and the third time was a charm. So it has to not be the law, but the judge you get?
In my opinion, not only is having one’s residency restricted “being in custody”, but also being required to report in person to a jail facility (when one is under no criminal sanction nor any credible suspicion of a crime) is certainly “being in custody”.
Furthermore, one has no right to silence during these forced interrogations. Silence will get you a felony failure to register.
So, they force us to report into custody and then interrogate us with no right of silence! Some one of these happy lil’ ole’ days someone’s going to object most strenuously! This is, after all, virtually the textbook definition of tyranny.
Dear JJJJ,
I have always wondered about the 5th amendment issue you mentioned. We don’t provide our information to law enforcement voluntarily. We do it under threat of arrest and prosecution. The 11th Circuit has said en banc that the touchstone of the 5th amendment is compulsion. See https://case-law.vlex.com/vid/u-s-v-gecas-892567390. We are compelled by law and/or court orders to provide our information, but no lawyers seem to raise this issue. If they have, I missed it.
Silence is the activation of your 5A right (if appropriate) and your 1A right to not speak overall. Either of these cannot be held you against if the atty is worth their salt since the govt (i.e., LE) cannot compel you to speak in violation of 1A overall regardless. People have not been willing to challenge 1A due to the hassle it would come with.
Of course the ENTIRE registry scheme is a form of custudy because you cannot opt-out.
Someone correct me if I’m wrong, but aren’t you in custody when you being subjected to giving your fingerprints under constraint with no opt-out? Last time I checked, the only time your “booked” (which fingerprinting falls under that procedure) is when you are in custody.
Even if that’s ONLY 1% custody out of the year, it’s still a result of the registry being a catalyst for that custody which means the registry IS a valid form of custody.
Facts
I have to register 4 times a year and get my fingerprints four times a year and maybe more if I go in for any changes (I do not trust the on the computer changes and I also want paperwork proof I was there).
What is funny, I register four times a year, but I get a home visit 1 or 2 times a year. It is quick and professional and none of the deputies give me grief, unlike a city I used to live in and was a living hell.
Most of the people at the registration office are nice unless you give them grief, which I have seen some registrants cuss out the workers right there in the lobby then storm out. Not sure how that ended, as the workers are just doing there job, not their fault we are on the registry.
It shows that the majority of justices, are biased, is what it shows.
Tereto
It was once stated:
“With great power there must also come—great responsibility,”.
Not bashing any judge but I think the majority of them do not want to be associated with removing an ex-sex offender. They can get away with it because almost no one wants to associate with us, for obvious reasons. Funny though, if you do get removed, you all of a sudden become a normal citizen again? Like take the magic pill and we are good to go.
Jack, were you aware that in Michigan, more than 20,000 people were removed from the registry last month as the result of a unanimous state supreme court holding?