Clair v. Maynard
Clair v. Maynard
Opinion of the Court
MEMORANDUM
The court-ordered response to the above-captioned petition for writ of habeas corpus was filed on July 13, 2011, asserting petitioner is not entitled to habeas relief because he is no longer in custody and his petition is time-barred. ECF No. 4. Petitioner filed a reply (ECF No. 6) and this court required a further response regarding the status of any probation and parole supervision to which petitioner is subject (ECF No. 7). The supplemental response was filed on September 20, 2011. ECF No. 9. After review of the papers filed, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing
Petitioner Charles L. Clair, Sr. (“Clair”), was charged with second-degree assault and second-degree sex offense on February 23, 2001. ECF No. 1 at p. 8. On May 8, 2002, Clair entered an Alford plea
Clair was released from prison under parole supervision on April 18, 2005. ECF No. 9 at Ex. 2. The executed portion of his sentence, four years, expired on December 9, 2006, and Clair’s parole supervision case was closed. His probationary term of five years was monitored by the Maryland Department of Parole and Probation from July 21, 2005 through July 21, 2010. Id. As of July 10, 2010, Clair’s sentence expired and he is no longer monitored by the Department of Parole and Probation. The instant petition was filed on June 9, 2011.
Clair was required, as a part of his sentence, to register as a sex offender. ECF No. 1 at Attach. 1, p. 2; ECF No. 4 at Ex. 1, p. 13. Clair states he is required to make an appointment with the Sheriffs department
Relief under 28 U.S.C. § 2254 is available to “a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(d). This court’s authority to grant habeas relief under § 2254 is limited. See Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Clair is no longer serving a sentence and he is no longer serving a probationary term; nor is he subject to parole
It has been widely held that sex offender registration does not meet the requirements of custody for purposes of federal habeas relief; rather, it is a collateral consequence “The sex offender registration requirement is merely a collateral consequence of conviction, and does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner ‘in custody’ for the purpose of federal habeas corpus review.” Davis v. Nassau County 524 F.Supp.2d 182, 188 (E.D.N.Y. 2007), see also Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir. 2002) (Ohio sex offender registration does not satisfy custody requirement); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (Oregon’s sex offender registration law); Henry v. Lungren, 164 F.3d 1240, 1242 (9th Cir. 1999) (California’s sex offender registration law); Williamson v. Gregoire, 151 F.3d 1180, 1185 (9th Cir. 1998) (same holding under Washington’s sex offender registration law). Similar to other collateral consequences of a felony conviction, sex offender registration is simply not a restraint on Clair’s physical liberty. “Once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purpose of a habeas attack upon it.” Maleng v. Cook, 490 U.S. 488, 492-93, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (applying “collateral consequences” doctrine to possibility of enhanced sentence if petitioner is sentenced under “habitual offender” statute); see also Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (loss of license to practice medicine resulting from conviction is collateral consequence which does not constitute custody).
Clair claims that if he fails to comply with the sex offender registration requirements the unsuspended portion of this sentence may be imposed. EOF No. 1 at Attachment 1. At this time, however, Clair is no longer on probation and is not subject to imposition of the unsuspended portion of his sentence. See ECF No. 9 at Ex. 2. If Clair fails to comply with the registration requirements, he will be subject to the penalties set forth in Md.Code Ann., Crim Proc. § 11-721.
When a district court dismisses a habeas petition solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The petition shall be dismissed and a certificate of appealability denied by separate order which follows.
ORDER
For the reasons stated in the foregoing Memorandum, it is this 22nd day of September, 2011, by the United States District Court for the District of Maryland, hereby ORDERED that:
1. The petition for writ of habeas corpus IS DISMISSED;
2. A certificate of appealability IS DENIED;
3. The Clerk SHALL PROVIDE a copy of the foregoing memorandum and a copy of this order to petitioner and to counsel; and
4.The Clerk SHALL CLOSE this case.
. The plea permits a criminal defendant to enter the equivalent of a guilty plea by admitting there is enough evidence to convict him at trial, but maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
. Respondents explain that the Department of Public Safety administers the sex offender registration requirement, but an offender like Clair whose sentence has expired, must register with a local law enforcement unit.
.Clair concedes his petition has been filed beyond the one-year filing deadline, but since the custody requirement is dispositive, this court will not address the timeliness of the petition or whether Clair has presented an adequate basis for equitable tolling of the limitations period. See ECF No. 6 at pp. 9-10.
. The provision governing failure to register provides in full that:
(a) A registrant may not knowingly fail to register, knowingly fail to provide the notice required under § 11-705 of this subtitle, knowingly fail to provide any information required to be included in a registration statement described in § 11-706 of this subtitle, or knowingly provide false information of a material fact as required by this subtitle.
(b) A person who violates this section:
(1) for a first offense, is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both; and
(2) for a second or subsequent offense, is guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both.
Md.Code Ann., Crim. Proc. § 11-721.
Reference
- Full Case Name
- Charles L. CLAIR, Sr. v. Sec. Gary D. MAYNARD and The Attorney General of the State of Maryland
- Cited By
- 1 case
- Status
- Published