Lifetime Registration for Florida Sex Offenders Isn’t ‘Custody’
The Eleventh Circuit has ruled that the requirement for lifetime registration is not “custody” for purposes of habeas corpus.
The petitioner claimed that requiring registration and reporting after completing probation for a lewd or lascivious charge is illegal custody.
Full order: Eleventh Circuit Ruling – No. 21-12540 – D.C. Docket No. 217-cv-00396-JLB-NPM
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A 46 page report to Classify a person to be fit to live where he or she wants to live considering one has paid their dues either by prison or other means. One would say like one said in Cool Hand Luke.. What we got here is failure to communicate. From the lowest of offenders to the highest. So how cruel is government in this registry ruse.Does a chain gain give many an idea.
Course we are not suppose to judge unless its righteous. Much of this whole registry stinks to a vainglory status of governments self- Deism branding another of the worst kind on many.
Seems to me that the 11th Circuit just painted itself into a corner. Even someone on federal probation is considered “in custody” for the purposes of 28 USC 2255 (the sister law to 28 USC 2254 discussed in this case). My point is, anyone classified as a sex offender while on probation must register or face revocation. This means the 11th Circuit will inevitably have to deal with probationary filing motions under either 2254 or 2255 when challenging the registry requirements.
I just looked at the federal statutes, i.e. 2254 and 2255. The key phrase is in custody “under sentence of a court.” Incarceration, probation and parole all qualify under that standard. If none of these apply, as in this case, then a person is not in custody and habeas relief is unavailable.
Not A Lawyer is correct in saying that the decision may leave courts vulnerable to more habeas motions. The problem is that unless a sentencing court or parole board specifies registration as a condition, habeas motions would likely lose on the custody question. Without a specific condition applied, registration is no more a condition of custody than would be abiding by littering laws. Even if the custody jurisdictional hurdle is cleared, the plaintiff must still make a constitutional or legal case against registration. That is also a formidable hurdle, as we all know.
Caveat, I’m not a lawyer either.
Hope he refiles and use residency restrictions especially if he had not moved since ending probation. thus the in-custody argument might prevail.
https://law.justia.com/cases/federal/appellate-courts/ca11/21-12540/21-12540-2023-02-09.html
“Florida’s sex offender registration and reporting statute also contains several legislative findings. First, sex offenders “often pose a high risk of engaging in sexual offenses even after being released,” on page 18 where are they getting the stats from I don’t see why they keep quoting bad stats?
we conclude—admittedly with some hesitation—that as a whole Florida’s registration and re- porting requirements for sex offenders did not render Mr. Clements “in custody” at the time he filed his habeas corpus petition. Page 22
Seems we are so CLOSE people !
Hensley, 411 U.S. at 351. Compare Romero, 20 F.4th at 1379 (noncitizen subject to removal was “in custody” in part because she was required to “appear in person at
the government’s request”). Under the circumstances, the periodic in-person reporting did not place Mr. Clements “in custody.” Page 23.
Have we not had instances of police cards being posted on registrants doors telling them to call them right away seems the court got that part wrong.
Second, Mr. Clements is not required to live in a certain community or home and does not need permission to hold a job or drive a car. Compare Jones, 371 U.S. at 242. And he can engage in legal activities without prior approval or supervision. See Hau- tzenroeder, 887 F.3d at 741 (pointing out that under Ohio’s sex of- fender registration and reporting statutes the petitioner was not “prohibited from engaging in any legal activities”); Wilson, 689 F.3d at 338 (recognizing the same for the sex offender statutes of Virginia and Texas). On page 23
I wish he didn’t file this by himself because then he could’ve had a lawyer to use Miami Dade county where you can’t live anywhere in the county so yeah you are subject to where you live by being banned from the community there.
All in all a bad decision I think he really hurt himself by not having proper counsel in the beginning but the judges seem to be doing legal gymnastics to keep this in the state of Florida for long as possible. How will this effect us and Does verses Swearinger anybody know?
I’ve read the entire ruling, and it has several rays of sunlight. The Eleventh Circuit seems to be willing to consider that residency restrictions that result in a complete practical ban on living within a jurisdiction, or that movement restrictions such as those imposed by Brevard and Seminole Counties, might constitute a sufficient restraint on liberty to qualify as “custody.” At multiple points in the decision, the court noted that the lack of both of these in the petitioner’s case was relevant to the determination that he was not “in custody.”
Thanks for reading all 46 pages and teasing out that hopeful point. The circuit did not close the door to the custody question, but only said that it did not apply in this particular case. A future case could be carefully chosen and crafted to exploit the circuit’s verbage.
Does this set any bad presidence for the FAC cases currently pending?