Federal Habeas Relief if Conditions Not Custodial?

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 ___.

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