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Fourth Circuit: Sex Offender Registration Not "Custody" for Section 2254 Jurisdiction

Fourth Circuit: Sex Offender Registration Not "Custody" for Section 2254 Jurisdiction

On August 15, 2012, the Fourth Circuit held that sex offender registration requirements do not amount to being "in custody" for purposes of invoking federal habeas corpus jurisdiction.

Eric C. Wilson was one of four young Navy sailors, dubbed the "Norfolk Four," who were charged with the 1997 rape and murder of another sailor's wife, Michelle Moore-Bosko. All had confessed under coercive questioning by a police detective, though their "confessions" were inconsistent and did not match evidence at the crime scene. The detective, Robert Glenn Ford, was subsequently convicted of extortion and making false statements to the FBI in an unrelated case and sentenced to 12 years in federal prison.

In 1999, Wilson was acquitted of murder but convicted of rape and sentenced to eight-and-a-half years in a Virginia state prison. The other three Norfolk Four defendants received life sentences. After serving seven years, Wilson was released and relocated to Texas.

New evidence, including the DNA of another man, Omar Ballard, who confessed to the rape and murder of Moore-Bosko, called the convictions of the Norfolk Four into question. See: Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011).

In 2004, each of the Norfolk Four petitioned Virginia's governor for an absolute pardon due to their innocence. Five years later, Governor Tim Kaine issued conditional pardons to the three Norfolk Four defendants who remained incarcerated, finding that they "raised serious doubt about the validity of their convictions but had not conclusively established their innocence." The pardons freed them from prison but left their convictions in place. As Wilson had already been released, Kaine did not grant him a conditional pardon. Since his release, Wilson has been subject to Virginia and Texas sex offender registration requirements due to his rape conviction.

Five years following the expiration of his sentence, in March 2010, Wilson filed a federal habeas corpus petition asserting actual innocence. The district court dismissed the petition, finding that it lacked subject matter jurisdiction because Wilson was no longer "in custody" within the meaning of 28 U.S.C. § 2254(a).

The Fourth Circuit agreed. Although the Supreme Court previously held in Jones v. Cunningham, 371 U.S. 236 (1963) that "in custody" includes parole as well as physical confinement, the Fourth Circuit found that Wilson was released unconditionally and thus "there was no term or condition of his release that could subject him to reincarceration or impose any other restraint on his liberty."

The appellate court noted that the registration requirements "arise from the collateral, independent requirements imposed by the sex offender statutes in Virginia and Texas, as well as by the federal statute." Although Wilson's rape conviction was the triggering event for those requirements, the Court of Appeals held that if it "were to find that the requirements of those statutes were not in fact collateral consequences," it "would be holding that any convicted sex offender could challenge his conviction 'at any time on federal habeas,' with the consequence that the in-custody jurisdictional requirement of § 2254 would be read out of the statute."

The Fourth Circuit also noted that "every court of appeals to have considered whether the registration requirements imposed on sex offenders place the sex offender in custody for purposes of habeas jurisdiction has concluded that they do not." See, e.g., Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008); Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002); Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999); and Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998).

"Wilson has not demonstrated that he is 'in custody' so as to satisfy the jurisdictional requirement for a federal habeas case under 28 U.S.C. § 2254," the Court of Appeals concluded. "To rule otherwise would drastically expand the writ of habeas corpus beyond its traditional purview and render § 2254's 'in custody' requirement meaningless."

The appellate court was not unsympathetic to Wilson's plight, acknowledging that he "forcefully argues that his petition presents a compelling claim of actual innocence and that a writ of habeas corpus is necessary for him to press his challenges in state court." Nevertheless, "the strength of his claim on the merits cannot confer subject matter jurisdiction on a federal habeas court."

The Fourth Circuit suggested that "Wilson might be able to invoke the writ of coram nobis in state court, which 'affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody.'"

Circuit Judge James A. Wynn, Jr. dissented. "I am deeply troubled that our legal system would be construed to prevent a person with compelling evidence of his actual innocence and wrongful conviction from accessing a forum in which to clear his name, while, at the same time, restrain the liberty of such a person under a regime created to surveil society's most disdained criminal offenders," he stated. "That Wilson's completion of an arguably undeserved sentence is the condition that the majority opinion contends serves to seal off the courts is especially egregious. It is in effect an additional punishment that the majority opinion inflicts upon Wilson."

Wilson filed a petition for writ of certiorari with the U.S. Supreme Court, which was denied on June 24, 2013. Virginia's attorney general initially did not bother to file a brief, until the Supreme Court directed him to do so. See: Wilson v. Flaherty, 689 F.3d 332 (4th Cir. 2012), cert. denied.

Additional source: New York Times

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Wilson v. Flaherty