Piasecki v. Court of Common Pleas, Bucks Cnty., PA , 917 F.3d 161 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4175
_____________
JASON PIASECKI,
Appellant
v.
COURT OF COMMON PLEAS, BUCKS COUNTY, PA;
DISTRICT ATTORNEY BUCKS COUNTY;
ATTORNEY GENERAL OF THE COMMONWEALTH OF
PENNSYLVANIA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-14-cv-07004)
District Judge: Honorable Legrome D. Davis
_____________
Argued March 6, 2018
____________
Before: McKEE, AMBRO and RESTREPO, Circuit Judges.
(Opinion Filed: February 27, 2019)
______________
Peter Goldberger, Esq.
50 Rittenhouse Place
Ardmore, PA 19003
Matthew Stiegler, Esq. [Argued]
7145 Germantown Avenue
Suite 2
Philadelphia, PA 19119
Attorneys for Appellant
Karen A. Diaz, Esq.
Stephen B. Harris, Esq. [Argued]
Bucks County Office of District Attorney
Bucks County Justice Center
100 North Main Street
Doylestown, PA 18901
Attorneys for Appellee
Aaron J. Marcus, Esq.
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102
Attorneys for Amicus Defender Association of
Philadelphia
Mark B. Sheppard, Esq.
Montgomery McCracken Walker & Rhoads
1735 Market Street, 21st Floor
Philadelphia, PA 19103
Attorneys for Amicus Pennsylvania Association of
Criminal Defense Attorneys
______________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
We are asked to decide whether a habeas corpus
petitioner who was subject only to registration requirements
under Pennsylvania’s Sex Offender Registration and
Notification Act (“SORNA”) when he filed his petition was “in
custody pursuant to the judgment of a State Court,” as required
for jurisdiction. We hold that the registration requirements
were sufficiently restrictive to constitute custody and that they
were imposed pursuant to the state court judgment of sentence.
2
Accordingly, we will reverse the District Court and remand for
further proceedings.
I.
Following a bench trial in the Court of Common Pleas
of Bucks County, Jason Piasecki was convicted of fifteen
counts of possession of child pornography. On April 26, 2010,
the court sentenced him to a term of three years’ probation. At
sentencing, the court informed Piasecki:
So as to counts 16 through 30, as
to each count the defendant is
sentenced to 36 months’ county
probation. The conditions of his
sentence are that he undergo sex
offender supervision, that he be
subject to ten-year registration,
that he have no unsupervised
contact with minor children under
the age of 18, excluding your son
and your girlfriend’s son, without
written permission of Bucks
County Adult Probation and
Parole.
You’re to have no computer
Internet use. You’re to continue in
treatment with Dean Dixon and
Dr. Nover. You’re not to drink,
and you’re to take medications as
directed. You’re ordered to pay
court costs.
I’m going to have you sign the
mandatory sex offender
conditions. 1
At the time of sentencing, Pennsylvania sex offenders
were subject to registration requirements under a statutory
scheme referred to as Megan’s Law III. 2 But in December of
1
App. 150–52.
2
18 Pa.C.S. § 4915(a)(1) et seq. (expired Dec. 20, 2012).
3
2012, as Piasecki pursued appellate and collateral relief in state
court, the Pennsylvania legislature permitted its Megan’s Law
statute to expire and replaced it with SORNA. It was enacted
to “bring the Commonwealth into substantial compliance with
the Adam Walsh Child Protection and Safety Act of 2006.” 3
Any state that did not implement restrictions similar to those
set forth in the Adam Walsh Act stood to lose ten percent “of
the funds that would otherwise be allocated for that fiscal year
[under] . . . the Omnibus Crime Control and Safe Streets Act
of 1968.” 4 When Piasecki filed his petition under 28 U.S.C. §
2254, SORNA applied retroactively to any Megan’s Law
registrant who lived in the Commonwealth. 5 An offender who
had been required to comply with Megan’s Law III was
therefore automatically subject to SORNA’s increased
registration and reporting requirements.
Piasecki was a Tier III offender under the provisions of
SORNA. Accordingly, he was required to register in-person
with the State Police every three months for the rest of his life. 6
The statute also required him to appear, in-person, at a
registration site if he were to:
• Change his name;
• Change his residence or become transient;
• Begin a new job or lose previous
employment;
• Matriculate or end enrollment as a student;
• Add or change a phone number;
• Add, change, or terminate ownership or
operatorship of a car or other motor vehicle,
and, as part of that visit, provide his license
3
42 Pa.C.S. § 9799.10 (citing P.L. 109-248, 120 Stat. 587).
4
P.L. 109-248, 120 Stat. 587 34, § 125 (implemented as 34
U.S.C. § 20927).
5
42 Pa.C.S §§ 9799.12–9799.14.
6
42 Pa.C.S. §§ 9799.15(a)(3), 9799.15(e)(3). A Tier III
SORNA registrant could petition a court to exempt him or her
from the registration requirements after twenty-five years
provided that the registrant satisfied certain criteria and
satisfy a threat assessment board. Id. § 9799.15(a.2)(1)-(9).
4
plate number, VIN number, and location
where the vehicle will be stored;
• Commence or change “temporary lodging;” 7
• Add, change, or terminate any email address
or other online designation; or
• Add, change, or terminate any information
related to an occupational or professional
license. 8
If Piasecki were to become homeless, he was required to
“appear in person monthly and to be photographed.” 9 Prior to
any international travel, Piasecki had to “appear in person at an
approved registration site no less than 21 days” before his
anticipated departure. 10 Failure to abide by any of these
reporting requirements exposed Piasecki to criminal
prosecution. 11
The parties do not dispute that Piasecki was subject to
these restrictions—and only these restrictions—when he filed
his § 2254 petition on December 4, 2014. 12 His probation and
its attendant conditions of supervision had expired on April 26,
2013. Piasecki’s habeas petition attacked his underlying
conviction on four grounds, none of which are relevant to the
issues before us. 13
7
Temporary lodging is defined as “[t]he specific location,
including street address, where a sexual offender is staying
when away from the sexual offender’s residence for seven or
more days.” 42 Pa.C.S. § 9799.12.
8
42 Pa.C.S. § 9799.15(g)(1)-(9).
9
42 Pa.C.S. § 9799.15(h)(1).
10
Id. § 9799.15(i).
11
42 Pa.C.S. § 9799.21(a); see also 18 Pa.C.S. § 4915.1
(relating to failure to comply with registration requirements).
12
Br. for Appellant 12; Br. for Appellee 13–15.
13
Specifically, Piasecki alleged that the incriminating
statements that were admitted at trial were given in violation
of Miranda; the evidence was insufficient to support the
verdict; the Commonwealth failed to preserve electronic
5
The District Court referred the matter to a Magistrate
Judge, who recommended that the petition be dismissed for
lack of jurisdiction. The Magistrate Judge acknowledged that
Pennsylvania’s SORNA statute made “sex offenders’
registration obligations considerably more burdensome,” but
ultimately concluded that Piasecki was “free to live, work,
travel, or engage in any legal activity without the approval of a
government official.” 14 The Magistrate Judge also concluded
that Pennsylvania’s sex offender registration requirements
were “collateral consequences and not direct consequences of
the petitioner’s conviction.” 15 Accordingly, the court reasoned
that they were not part of the judgment of the state court and
could not support habeas corpus jurisdiction.
In overruling objections that Piasecki filed to the Report
and Recommendation, the District Court emphasized that
Piasecki’s sentence had expired, and that the registration
requirements were “merely collateral consequences of a
conviction.” 16 It also noted that Piasecki’s reporting
requirements were not explicitly included in the state court’s
judgment and that the requirements were “remedial rather than
punitive.” 17 Consequently, the court held that they could not
support habeas jurisdiction because they did not constitute
custody.
We granted a certificate of appealability, and this timely
appeal followed.
II. 18
evidence that was favorable to his defense; and that his
attorney was ineffective for failing to raise these issues.
14
App. 13a–14a.
15
App. 15a.
16
App. 3a.
17
App. 4a.
18
This Court has appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 (granting jurisdiction over appeals from all final
decisions of the District Court) and § 2253 (subjecting the
final order in a habeas corpus proceeding to review). We
granted a certificate of appealability pursuant to 28 U.S.C. §
6A federal court has jurisdiction to entertain a petition for
a writ of habeas corpus under § 2254 only if the petitioner was
“in custody pursuant to the judgment of a State court” when
the petition was filed. 19 “Thus, custody is the passport to
federal habeas corpus jurisdiction.” 20 The jurisdictional
requirement has two components—“custody” that arises
“pursuant to the judgment of a state court” that is under
attack. 21 Put differently, the habeas jurisdictional provision
requires that the petitioner be subject to a “non-negligible
restraint on physical liberty” that is a “direct consequence of
[the] conviction” being challenged. 22 Therefore, we must
examine these elements separately to determine if
Pennsylvania’s SORNA requirements were sufficiently
restrictive to constitute custody. If they were, we must
determine if they were directly imposed pursuant to the
judgment of a state court.
A. “In Custody”
Over the past half-century, courts have addressed the
issue of habeas custody in an effort to determine when various
state-imposed restrictions were sufficiently onerous to
constitute “custody” for purposes of habeas jurisdiction. It is
now beyond dispute that custody is not limited to “actual
physical custody.” 23 Rather, for the purposes of habeas
jurisdiction, a petitioner is “in custody” if he or she files while
subject to significant restraints on liberty that are not otherwise
experienced by the general public. 24
2253(c)(2) & (3). We review the District Court’s dismissal of
a habeas petition on jurisdictional grounds de novo. We
review the denial of an evidentiary hearing for abuse of
discretion.
19
28 U.S.C. § 2254(a).
20
United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557,
560 (3d Cir. 1971).
21
28 U.S.C. § 2254(a).
22
Stanbridge v. Scott, 791 F.3d 715, 719 (7th Cir. 2015).
23
Jones v. Cunningham, 371 U.S. 236, 239 (1963).
24
Id.; see also Lehman v. Lycoming Cty. Children Servs.
Agency, 458 U.S. 502, 510 (1982) (“[P]ast decisions have
limited the writ’s availability to challenges to state-court
7
In Jones v. Cunningham, the Supreme Court considered
whether a parolee was “in custody” for the purposes of habeas
jurisdiction under 28 U.S.C. § 2241. 25 The conditions of
Jones’s parole required him to live with his family in Georgia;
obtain permission to leave the community, change residence,
and own or operate a car; and make monthly visits to his parole
officer. 26 Additionally, he was required to permit parole
officers to come into his home or place of employment, “follow
the officer’s instructions and advice,” and be subject to
“revocation and modification at any time.” 27
Jones held that these parole restrictions were
sufficiently restrictive to render the petitioner “in custody.” It
rooted its analysis in the historical development of the custody
requirement. The Court acknowledged that “the chief use of
habeas corpus statutes has been to seek release of persons held
in actual, physical custody in prison or jail.” 28 However, the
Court also noted that courts had “long recognized the writ as a
proper remedy even [when] the restraint [was] something less
than close physical confinement.” 29 For example, English
courts permitted the use of habeas corpus where “a woman
alleged to be the applicant’s wife was being constrained by her
guardians to stay away from her husband against her will.” 30
The test employed in England was “simply whether she was ‘at
judgments in situations where–as a result of a state-court
criminal conviction–a petitioner has suffered substantial
restraints not shared by the public generally.”); Hensley v.
Mun. Court, San Jose v. Mipitas Judicial Dist., Santa Clara
Cty., Cal., 411 U.S. 345 (1973) (“The custody requirement of
the habeas corpus statute is designed to preserve the writ of
habeas corpus as a remedy for severe restraints on individual
liberty.”).
25
Jones, 371 U.S. at 238.
26
Id. at 237.
27
Id. at 238.
28
Id.29
Id.30
Id. at 238–39 (citing Rex. v. Clarkson, 1 Str. 444, 93 Eng.
Rep. 625 (K.B. 1722)).
8
her liberty to go where she pleased.’” 31 Jones noted that United
States courts have historically found that “the use of habeas
corpus has not been restricted to situations in which the
applicant is in actual, physical custody.” 32 Rather, “[h]istory,
usage, and precedent can leave no doubt that, besides physical
imprisonment, there are other restraints on [a person’s] liberty,
restraints not shared by the public generally, which have been
thought sufficient in the English-speaking world to support the
issuance of habeas corpus.” 33
Turning to the specific conditions of Jones’s parole, the
Court found that they constituted custody because they
“significantly restrain[ed] petitioner’s liberty to do those things
which in this country free men [were] entitled to do.” 34 Indeed,
the parole restrictions were myriad and demanding. The parole
order confined Jones to “a particular community, house, and
job at the sufferance of his parole officer.” 35 He could not drive
a car without permission, and he was required to open his home
and place of employment to his parole officer at any time.
Additionally, his parole officer required him to “keep good
company and good hours,” stay away from “undesirable
31
Id. (quoting Clarkson, 93 Eng. Rep. at 625); accord Rex v.
Delaval, 3 Burr. 1434, 97 Eng. Rep. 913 (K.B. 1763)
(ordering an indentured girl “discharged from all restraint,
and be at liberty to go where she will” after her “master”
assigned her to another man for “bad purposes”).
32
Jones, 371 U.S. at 239.
33
Id. at 240.
34
Id. at 243. The Court also observed that the Virginia statute
that governed Jones’s supervision explicitly provided that a
“paroled prisoner shall be released ‘into the custody of the
Parole Board,’ and the parole order itself placed Jones under
the ‘custody and control of the Virginia Parole Board.’” Id. at
241–42 (quoting Va. Code Ann. § 53-264). While not
dispositive, the Court was informed by the plain language of
the statute and the order to which Jones was subject. As we
discuss below, Pennsylvania’s sex offender registration
requirements were included in the state court’s judgment of
sentence here.
35
Id. at 242.
9
places,” and “to live a clean, honest, and temperate life.” 36 Any
failure to follow these provisions, however slight, could have
resulted in Jones being returned to prison.
Under these circumstances, the Court concluded that
even though Jones has been “release[d] from immediate
physical imprisonment,” his parole conditions “significantly
confine[d] and restrain[ed] his freedom.” 37 That was “enough
to keep him in the ‘custody’ of the members of the Virginia
Parole Board within the meaning of the habeas corpus
statute[.]” 38
After Jones, the Supreme Court decided Hensley v.
Municipal Court. 39 There, it considered whether a similar—
but slightly less—restrictive scheme than the one in Jones
could support habeas jurisdiction to adjudicate a § 2254
petition of a petitioner who was released on his own
recognizance pending appeal. 40 The relevant bail statute
required Hensley to appear “at all times and places as ordered
by the court or magistrate releasing him and as ordered by any
court in which, or any magistrate before whom, the charge
[was] pending.” 41 Finally, any court could “revoke the order of
release and either return him to custody or require that he give
bail or other assurance of his appearance.” 42
The Court held that these conditions supported habeas
jurisdiction even though Hensley was subject to less restrictive
supervision requirements than Jones. 43 Despite the less
intrusive requirements, Hensley was still subject to “restraints
36
Id.
37
Id. at 243.
38
Id.
39
411 U.S. 345 (1973).
40
Hensley, 411 U.S. at 351.
41
Id. at 348. Additionally, if he failed to “appear and [was]
apprehended outside of the State of California” he waived his
right to an extradition hearing. Id.42
Id.43
Id. at 348 (“It is true, of course, that the parolee is generally
subject to greater restrictions on his liberty of movement than
a person released on bail or his own recognizance.”).
10
‘not shared by the public generally,’” as Jones had been. 44
Hensley was obligated to appear wherever and whenever a
court ordered him. 45 He could not “come and go as he
please[d]” because his “freedom of movement rest[ed] in the
hands of state judicial officers, who [could have] demand[ed]
his presence at any time without a moment’s notice.” 46 The
Court also noted that any failure to abide by these conditions
was, itself, a criminal offense. 47 He was, therefore, “in
custody.” 48
We have also held that the jurisdictional “custody”
requirement can be satisfied by restrictions other than physical
confinement. 49 In Barry v. Bergen County Probation
Department, 50 we were asked to decide whether a sentence of
community service was sufficiently onerous to qualify as
custody under § 2254. Barry’s probationary sentence had
44
Id. (quoting Jones, 371 U.S. at 240).
45
Id.46
Id. at 351.
47
Id. Hensley also found it compelling that the petitioner’s
liberty only resulted from a judicial order staying his
sentence—which the government had twice tried to lift. In
other words, incarceration was not a “speculative possibility.”
Rather, Hensley had been forced to “fend off the state
authorities,” and this “need to keep the stay in force [was]
itself an unusual and substantial impairment of his liberty.”
Finally, the Court also noted that its holding “did not interfere
with any significant interest of the State” because even if it
had concluded that Hensley was not in custody, it would only
delay the filing of the petition until he was incarcerated after
the stay was lifted.
48
Id. at 351.
49
See, e.g. Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988)
(finding that habeas jurisdiction continued “at least until the
expiration of Barry’s probationary term”); Pringle v. Court of
Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984) (“Custody,
however, has been liberally defined to include persons on
parole, those released on their own recognizance pending
appeal, and those who have been released from confinement
pursuant to [a ‘good behavior’ time credit statute].”).
50
128 F.3d 152 (3d Cir. 1997).
11
expired when he filed his petition, but the sentencing court had
also ordered him to complete 500 hours of community service
over a period of three years. 51 The community service
requirement was imposed in lieu of a fine, which the
sentencing court concluded Barry was unable to pay.52
We held that the community service obligation
constituted custody even though the “State did not monitor or
restrict Barry’s every act” because his sentence nevertheless
required him “to be in a certain place—or in one of several
places—to attend meetings or to perform services.” 53 Thus, he
was “clearly subject to restraints on his liberty not shared by
the public generally.” 54 As a result, Barry’s community service
sentence constituted custody that was sufficiently restrictive to
support habeas jurisdiction. 55
In reaching that decision, we relied on Dow v. Circuit
Court of the First Circuit, a per curiam decision from the Court
51
Id. at 159, 161.
52
Id. at 158–59.
53
Id. at 161.
54
Id. at 161 (citing Dow v. Circuit Court of the First Circuit,
995 F.2d 922 (9th Cir. 1993) (per curiam)).
55
We rejected the state’s argument that Barry was not in
custody because he was not “supervised on a continuous
basis.” Barry, 128 F.3d at 161 (citing Poodry v. Tonawanda
Band of Seneca Indians, 85 F.3d 894 (2d Cir. 1996)). A per
curiam opinion issued by this Court in 2003, Obado v. New
Jersey, 328 F.3d 716 (3d Cir. 2003) (per curiam), cited Barry
for the proposition that “some type of continuing
governmental supervision” was required to support habeas
jurisdiction. However, Obado cited the portion of Barry that
discussed the state’s argument concerning habeas jurisdiction.
Obado, 328 F.3d at 717 (citing Barry, 128 F.3d at 160). The
very paragraph in Barry that Obado cites ends with the
conclusion “that the state has read § 2254’s custody
requirement too narrowly,” Barry, 128 F.3d at 160. In fact,
Barry conclusively rejects that argument. Id. at 161 (“Equally
unavailing is the State’s contention that Barry was not ‘in
custody’ because he was not supervised on a continuous
basis.”).
12
of Appeals for the Ninth Circuit, which we found to be “quite
compelling and analogous” to the question before us in
Barry. 56 Dow’s sentence for DUI required him to attend
fourteen hours of alcohol rehabilitation classes. 57 He had the
option of scheduling the classes over a three- or five-day
period. 58 Dow filed a § 2254 petition after his probationary
sentence was completed but before he attended the classes. The
court concluded that Dow’s in-class obligation supported
habeas jurisdiction. The sentence required Dow’s “physical
presence at a particular place” and “significantly restrain[ed]
[his] liberty to do those things which free persons in the United
States are entitled to do.” 59 His mandated presence at the
classes meant that he could not “come and go as he
please[d].” 60 Therefore, the Court held that the sentence “must
be characterized, for jurisdictional purposes, as ‘custody.’” 61
More recently, in United States v. Ross, 62 we considered
whether a $100 “special assessment” that accompanied a
conviction for possessing a machine gun constituted “custody”
for the purposes of § 2255. 63 Relying on the precedent we have
described above, Ross set forth a three-part test for answering
that question. 64 We held that a restriction is custodial if it
56
Barry, 128 F.3d at 160.
57
Dow, 995 F.2d at 922.
58
Id. at 922–23.
59
Id. at 923.
60
Id (quoting Hensley, 411 U.S. at 351).
61
Id.62
801 F.3d 374 (3d Cir. 2015).
63
Ross, 801 F.3d at 379. Ross arose in a slightly different
context, but it is still helpful. In Ross, the government alleged
that the petitioner was ineligible for relief under § 2255
because that statute could only afford relief to a “prisoner in
custody . . . claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution
or laws of the United States[.]” Id. at 378 (quoting 28 U.S.C.
§ 2255a)). The issue in Ross was, therefore, about “custody,”
but not jurisdiction. Nevertheless, we addressed the definition
of “custody” for the purposes of habeas corpus. Accordingly,
we think that its analysis is helpful to our inquiry here.
64
Id. at 379.
13
provides for restraints that are “(1) severe, (2) immediate (i.e.
not speculative), and (3) not shared by the public generally.” 65
Applying this test to Ross’s special assessment, we
concluded that a fine is not the type of obligation that can
support habeas jurisdiction. We noted that the Supreme Court
has “emphasized the physical nature of the restraints” when
defining custody. 66 Ross’s fine imposed no analogous
restriction on his freedom of movement and thus could not be
viewed as “severe.” 67 Thus, Ross could not challenge a special
assessment under § 2255. The decision was consistent with our
own precedent and decisions of our sister circuit courts of
appeals. Courts consistently conclude that the “monetary
component of a sentence is not capable of satisfying the ‘in
custody’ requirement of federal habeas statutes.” 68
Given this precedent, the question of whether Piasecki’s
registration requirements were sufficiently restrictive to
constitute custody is easily answered. They were. At a
minimum, Piasecki was required “to be in a certain place” or
“one of several places”—a State Police barracks—at least four
times a year for the rest of his life. 69 The state’s ability to
compel a petitioner’s attendance weighs heavily in favor of
concluding that the petitioner was in custody. 70 Further,
Piasecki was not free to “come and go as he please[d].” 71 Any
change of address, including any temporary stay at a different
residence, required an accompanying trip to the State Police
barracks within three business days. 72 He was even required to
regularly report to police if he had no address and became
homeless. In addition, Piasecki could have no “computer
65
Id. (parenthetical in original).
66
Id. at 379–80 (citing Hensley, 411 U.S. at 351; Peyton v.
Rowe, 391 U.S. 54, 66–67 (1934); Jones, 371 U.S. at 242).
67
Id. at 379.
68
Id. at 380 (citations omitted).
69
Barry, 128 F.3d at 161; 42 Pa.C.S. § 9799.15(a)(3).
70
Dow, 995 F.2d at 923; Barry, 128 F.3d at 160–61.
71
Hensley, 411 U.S. at 351.
72
42 Pa.C.S. § 9799.15(g)(2), (3), (4), (7).
14
internet use.” 73 The SORNA statute also compelled Piasecki to
personally report to the State Police if he operated a car, began
73
Such prohibitions on computer and internet access are
relatively common. Yet, it is not at all clear that the judges
imposing such sweeping and unconditional bans appreciate
the impact they would have if literally interpreted and
enforced. A literal enforcement of such provisions would
subject one to violation for using an ATM, using a
“smartphone,” seeking directions from any device that
utilizes GPS navigation, or even driving a relatively late
model car—most, if not all, of which are equipped with
computers that are an integral part of the car’s functioning.
See United States v. Voelker, 489 F.3d 139, 148 n.8 (3d Cir.
2007) (noting that modern cars “contain at least one
computer” and “might have as many as 50 microprocessors”)
(citations omitted). As a result, many courts have struck down
statutes or vacated sentences that impose broad bans on
computer and internet usage. See, e.g., Packingham v. North
Carolina, 137 S. Ct. 1730, 1738 (2017) (holding that a statute
that prevented sex offenders from accessing social media
websites violated the First Amendment); United States v.
Holena, 906 F.3d 288, 295 (3d Cir. 2018) (vacating a
sentence that banned a defendant from possessing or using a
computer or other electronic communication device and
prohibited him from using the internet without his probation
officer’s approval); Voelker, 489 F.3d at 144 (vacating a
sentence that imposed “an absolute lifetime ban on using
computers and computer equipment as well as accessing the
internet”); United States v. Miller, 594 F.3d 172, 188 (3d Cir.
2010) (vacating a sentence that prohibited an offender from
using a computer with internet access “unless he received
approval from his probation officer to use the internet and
other computer networks”); United States v. Albertson, 645
F.3d 191, 194, 200 (3d Cir. 2011) (vacating a sentence that
barred an offender from using a computer with online access
without preapproval from a probation officer and holding
that, “in a time where the daily necessities of life and work
demand not only internet access but internet fluency,
sentencing courts need to select the least restrictive
alternative for achieving their sentencing purpose”); United
States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003) (“We find
15
storing his car in a different location, changed his phone
number, or created a new email address. 74 These are
compulsory, physical “restraints ‘not shared by the public
generally.’” 75 Unlike the special assessment considered in
Ross, these restraints compelled Piasecki’s physical presence
at a specific location and severely conditioned his freedom of
movement. They were more severe than the community service
requirement in Barry or the mandatory alcohol classes
considered in Dow.
Moreover, any failure to abide by the restrictions was
“itself a crime,” just like the situation facing the petitioner in
Hensley. 76 If Piasecki failed to report to the State Police
barracks within three days of any triggering event listed in the
SORNA statute, he could be charged with a felony of the
second degree. 77 In Pennsylvania, such felonies are punishable
by up to ten years’ imprisonment. 78 If Piasecki provided
inaccurate information, he faced prosecution for a felony of the
first degree and incarceration of up to twenty years. 79 Given
the level of restriction imposed by the registration
requirements and the harsh consequences that would result
from failing to adhere to them, we easily conclude that the
restrictions placed on Piasecki were “severe.” 80
The remaining two prongs of the test we announced in
Ross are also easily satisfied. The restrictions were “immediate
(i.e. not speculative)” 81—neither side disputes that Piasecki
was subject to all of SORNA’s requirements when he filed the
petition at issue. Finally, and as explained above, these
that to the extent that the condition is intended to be a total
ban on Internet use, it sweeps more broadly and imposes a
greater deprivation on Holm’s liberty than is necessary[.]”).
74
42 Pa.C.S. § 9799.15(g).
75
Hensley 411 U.S. at 351 (quoting Jones, 371 U.S. at 240).
76
Id.77
42 Pa.C.S. § 9799.21; 18 Pa.C.S. § 4915.1(c)(1).
78
18 Pa.C.S. § 106(b)(3).
79
42 Pa.C.S. § 4915.1(c)(3); 18 Pa.C.S. § 106(b)(2).
80
Ross, 801 F.3d at 379.
81
Id.
16
restrictions were obviously “not shared by the public
generally.” 82
We recognize that several of our sister circuit courts of
appeals have found that various sex offender registration
schemes were not sufficiently restrictive to constitute
“custody.” 83 As we explain below, many courts have held that
registration requirements cannot support habeas jurisdiction
because they were collateral consequences of a conviction that
were not imposed pursuant to the judgment of a state court. 84
Others have held that sex-offender registration conditions do
not impose a severe restriction on an individual’s freedom. 85
We do not find those cases compelling for two reasons.
First, many of our sister circuit courts of appeals that
have found sex offender registration requirements could not
support habeas jurisdiction reached that conclusion when
considering restrictions imposed under pre-SORNA statutes. 86
82
Id.
83
See, e.g., Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir.
2012); Virsnieks v. Smith, 521 F.3d 707, 719 (7th Cir. 2008);
Leslie v. Randle, 296 F.3d 518, 521–23 (6th Cir. 2002);
Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001).
84
See infra Part II.B.
85
E.g., Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070,
1074 (10th Cir. 2014) (holding that “the Colorado sex-
offender registration requirements at issue here are collateral
consequences of conviction that do not impose a severe
restriction on an individual’s freedom” because the registrant
was “free to live, work, travel, and engage in all legal
activities without limitation and without approval by a
government official”); Virsnieks, 521 F.3d at 719 (“[T]he
Wisconsin sexual offender registration statute does not
impose any significant restriction on a registrant’s freedom of
movement . . . . [It] does not limit where a registrant may
move or travel within Wisconsin, within the United States or
internationally”).
86
See Zichko 247 F.3d at 1019; Leslie 296 F.3d at 521–23;
Wilson 689 F.3d at 338.
17
Those registration requirements were not as onerous as those
imposed under SORNA. 87
Second, we have explicitly departed from the courts that
have held that registration requirements are not custodial
because they do not require pre-approval from the government
before a registrant travels, thus not limiting his or her ability to
move freely. 88 In Barry, we held that custodial “restraint does
not require ‘on-going supervision’ or ‘prior approval.’” 89
Rather, we concluded that even though the government did not
“monitor[] Barry’s every move, [it] nevertheless performed an
oversight function” and that “level of supervision was clearly
adequate” to qualify as custody. 90 Accordingly, we cannot
conclude that Piasecki’s supervision did not amount to custody
based on a “pre-approval” theory.
In sum, we hold that Piasecki was subject to severe
restraints on his liberty not shared by the public generally.
Tasks as banal as changing an e-mail address or taking a
week’s vacation required him to physically appear at a State
Police barracks. Even in the absence of those ostensibly
elective choices, Piasecki was compelled by the state to report
to a police station every three months for the rest of his life.
We hold that those requirements were at least as restrictive as
those encountered in Barry and Dow and clearly rise to the
level of “custody” for purposes of our habeas jurisdiction.
B. “Pursuant to the Judgment of a State Court”
87
See, e.g., Wilson, 689 F.3d at 338 (allowing registration by
mail); Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir.
1998) (same). We take no position on whether we would find
such conditions sufficiently restrictive to constitute custody
for habeas purposes if the issue were presented to us in an
appropriate case.
88
See, e.g., Virsnieks, 521 F.3d at 719; Williamson, 151 F.3d
at 1184 (“Williamson cannot say that there is anywhere that
the sex offender law prevents him from going.”).
89
Barry, 128 F.3d at 161 (citing Poodry v. Tonawanda Band
of Seneca Indians, 85 F.3d 894 (2d Cir. 1996)).
90
Id.18
Even an onerous restriction cannot support habeas
jurisdiction if it is nothing more than a “collateral
consequence” of a conviction. 91 Rather, the custody that is a
condition precedent to our habeas jurisdiction must be a direct
result of “the conviction or sentence under attack” when the
petition is filed. 92 Thus, a court will not have jurisdiction to
rule on a habeas petition if “the sentence imposed for [the
challenged] conviction has fully expired at the time [the]
petition is filed.” 93 This requirement is evident from the plain
text of § 2254, which states that the petitioner must be “in
custody pursuant to the judgment of a State court.” 94
We must therefore decide whether Piasecki’s custodial
restrictions were imposed as part of his sentence or if they were
merely collateral consequences of his underlying child
pornography convictions.
We begin at perhaps the most obvious starting point—
the actual judgment of sentence entered by the state court. Two
documents from the state court record inform and guide our
inquiry—the “Bucks County Criminal Court Sheet” and the
“Bucks County Mandatory Sex Offender Conditions” Order.
Both show that the registration requirements were part of the
judgment of sentence.
The Court Sheet has a handwritten notation under
“Sentence,” stating that, in addition to “Sex Offender
Supervision,” Piasecki was sentenced to “Registration” for “10
yrs.” More compellingly, the Sex Offender Conditions Order
states that Piasecki’s “SENTENCE IS SUBJECT TO THE
FOLLOWING CONDITIONS IN ADDITION TO THOSE
WHICH APPEAR ON THE COURT SHEET.” Under that
heading, the sentencing court checked a box next to “Sex
Offender Registration Pursuant to Megan’s Law” and another
box indicating “10 Year Registration.”
91
Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam).
92
Id. at 490.
93
Id. at 491.
94
28 U.S.C § 2254(a) (emphasis added).
19
These documents weigh strongly in favor of finding that
the sex-offender registration requirements were part of
Piasecki’s sentence and therefore imposed “pursuant to the
judgment of a state court.” 95 Both of the documents plainly
reflect that the registration requirements were a part of the
sentence.
As compelling as this record is, we will not end our
inquiry there. Federal courts confronted with the question of
whether sex offender registration requirements are part of the
state court judgment of sentence also look to state law to see if
the state construes sex offender registration as a punitive aspect
of a criminal sentence or a remedial measure imposed
collaterally. Our sister circuit courts of appeals that have held
registration requirements are not imposed pursuant to the
judgment of sentence have done so, in part, because the
respective state courts have determined that their state
registration schemes are remedial, not punitive. 96
Pennsylvania courts have concluded otherwise. Just two
months before Piasecki filed his habeas petition, the
Commonwealth Court of Pennsylvania decided Coppolino v.
95
28 U.S.C § 2254(a)
96
See Bonser, 659 Fed. App’x at 127 n.1 (quoting
Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super.
Ct. 2011) (noting that Pennsylvania deemed a sexually violent
predator designation as a “collateral consequence of a
conviction” and hence “not a sentence”)); Calhoun, 745 F.3d
at 1074 (citing People v. Sheth, 318 P.3d 533, 534 (Colo.
App. 2013) (“Moreover, the Colorado sex-offender
registration requirements are remedial, not punitive.”));
Virsnieks 521 F.3d at 720 (citing State v. Bollig, 605 N.W. 2d
199, 205 (Wis. 2000) (“[T]he Wisconsin sexual offender
registration is considered remedial, rather than punitive, in
nature.”)); Leslie, 296 F.3d at 522–23 (citing State v. Cook,
700 N.E. 2d 570, 585 (Ohio 1998) (“The Ohio Supreme Court
has also held that the sexual-predator statute is remedial as
opposed to punitive in nature . . . . [This] provides additional
support for our conclusion that the classification, registration,
and community notification provisions are more analogous to
collateral consequences . . . .”)).
20
Noonan, which held that SORNA’s “in-person updating
requirements” were punitive. 97 There, Coppolino filed a writ
of mandamus asking the Commonwealth Court to remove him
from the list of offenders required to comply with SORNA.
Like Piasecki, he had initially been required to register under
Megan’s Law, but became subject to SORNA’s registration
requirements when they took effect in 2012. He alleged that
several of the new registration requirements were punitive and
that subjecting him to the increased punishment violated
principles of double jeopardy.
Coppolino held that the quarterly registration
requirements were not punitive, but the in-person updates
were. The court reasoned that the quarterly registration
requirements were not punitive because they left Coppolino
free to live as he chooses and did not prevent him from
engaging in any given activity.
The in-person updates, however, were punitive because
they imposed “an affirmative disability or restraint on
registrants by inhibiting their ability to travel freely.” 98 The
court specifically pointed to the “temporary lodging” and
“motor vehicle” restrictions that SORNA required registrants
to follow and held that they were particularly restrictive. 99 If,
the court surmised, a hotel where the registrant was planning
to stay was full, “he would have three days to return to
Pennsylvania and report the change in person or risk a five year
prison sentence.” 100 Similarly, it was “unclear how a registrant
travelling to another city would be able to register, prior to
renting a car there, a vehicle’s license plate number and
registration number and other identifier.” 101 If the registrant
were unable to determine such information in advance, he
would have to return within three business days to report the
information in person.” 102 The court noted that this “might be
97
Coppolino v. Noonan, 102 A.3d 1254, 1278 (Pa. Commw.
Ct. 2014).
98
Id. at 1277.
99
Id.100
Id.101
Id.102
Id.21
impossible” depending on “where and how the registrant is
traveling.” 103
Coppolino concluded that, by impairing a citizen’s
“basic right” of “freedom of movement,” the periodic reporting
requirements imposed an affirmative restraint that was
disproportionate to any public purpose that it served. 104 “On
balance, this disproportionality, along with the similarity to the
traditional punishment of parole and the substantial
infringement of a fundamental right” led the court to conclude
that the provisions were punitive. 105 Therefore, the
Commonwealth Court held that those restrictions could not be
applied to Coppolino without violating prohibitions against ex
post facto laws.
The Pennsylvania Supreme Court affirmed Coppolino
in a per curiam opinion. 106 But that was not its final say on
Pennsylvania’s SORNA statute. In Commonwealth v.
Muniz, 107 it held that all of the SORNA registration provisions
were punitive and that applying them retroactively violated the
Pennsylvania Constitution. 108 The OAJC and two concurring
103
Id (internal quotation marks omitted).
104
Id. at 1278.
105
Id.106
Coppolino v. Noonan, 125 A.3d 1196 (Pa. 2015) (per
curiam).
107
164 A.3d 1189 (Pa. 2017).
108
Muniz, 164 A.3d at 1193. Muniz was a divided opinion.
Three justices joined the Opinion Announcing the Judgment
of the Court (“OAJC”) concluding that Pennsylvania’s
SORNA statute violated both the U.S. Constitution and the
Pennsylvania Constitution, which, in their estimation,
provided “even greater [ex post facto] protections than its
federal counterpart.” Id. at 1223. Two justices concurred in
the entirety of the opinion except for the portions that held the
Pennsylvania Constitution provided greater protections than
the U.S. Constitution. In their view, the “state and federal ex
post facto clauses are coterminous.” Id. at 1232 (Wecht, J.,
concurring). The Chief Justice of the Pennsylvania Supreme
Court dissented, finding that “SORNA does not impose
punishment and, thus, does not violate either the federal or
22
justices agreed that the Pennsylvania legislature did not intend
to create a punitive scheme—but nevertheless did so when it
enacted SORNA. 109 Retroactive application of the scheme
therefore violated the Pennsylvania Constitution’s ex post facto
clause.
As a result of Coppolino and Muniz, Pennsylvania
courts have concluded that SORNA’s registration
requirements are punitive, not remedial—unlike the courts in
nearly every other state. This supports Piasecki’s claim that the
registration requirements imposed upon him are punitive
sanctions imposed pursuant to the state court’s judgment of
sentence rather than collateral consequences or remedial
measures.
Moreover, Pennsylvania state court decisions have
historically treated sex offender registration requirements as
part of the judgment of sentence. The Commonwealth
concedes that registrants seeking to challenge their registration
status have traditionally done so by appealing the judgment of
sentence, and Pennsylvania courts treat a registrant’s “status”
under a sex offender registration statute as “a component of the
judgment of sentence.” 110 Challenges to a registration
classification, therefore, must be made in the context of a
challenge to the judgment of sentence itself. 111 Thus, under
state constitutions’ ex post facto clauses.” Id. at 1233 (Saylor,
C.J., dissenting). The net precedential effect of these opinions
was “confined to the determination that SORNA’s
registration requirement is punishment that runs afoul of the
ex post facto clause of the Pennsylvania Constitution when
applied retroactively.” Commonwealth v. Hart, 174 A.3d 660,
667 n.9 (Pa. Super. Ct. 2017).
109
Muniz, 164 A.3d at 1219, 1223; id. at 1224 (Wecht, J.,
concurring).
110
Br. for Appellee, 20 (quoting Commonwealth v. Harris,
972 A.2d 1196, 1201–02 (Pa. Super. Ct. 2009) (“We agree
that the term ‘judgment’ is not limited to the court’s sentence
of incarceration, but also includes that status determination
under Megan’s Law.”)).
111
Commonwealth v. Leonard, 172 A.3d 628, 631 (Pa Super.
Ct. 2017) (“Appellant challenges the requirements imposed
23
Pennsylvania law, SORNA registration requirements are
imposed pursuant to the state court judgment of sentence.
Nevertheless, we recognize that one factor does support
the contrary view. As the Commonwealth notes, the
registration requirements at issue here were created more than
two years after Piasecki was sentenced. Arguably, then,
Piasecki’s registration requirements were imposed pursuant to
an act of the legislature, not a state court judgment. This
argument has some force, but ultimately we disagree with the
Commonwealth’s position because Piasecki became subject to
SORNA’s registration requirements as a “direct consequence
of [the] conviction” being challenged. 112
Piasecki became subject to SORNA’s registration
requirements by virtue of his conviction and subsequent
judgment of sentence. Under the initial version of SORNA
passed by the Pennsylvania legislature, any person who was
“required to register with the Pennsylvania State Police . . .
prior to the [amendment]” and who had “not fulfilled the period
of registration as of the effective date of this section” became
subject to SORNA’s increased registration requirements. 113 In
other words, Piasecki was subject to SORNA’s registration
requirements because of the sentence imposed pursuant to the
state court judgment.
We therefore conclude that SORNA’s registration
requirements rendered Piasecki “in custody pursuant to the
judgment of a State Court” when he filed his petition.
by the trial court that he register as a sex offender for life
based upon the court’s interpretation of SORNA’s
requirements.”) (emphasis in original); Commonwealth v.
Sauers, 159 A.3d 1, 16 (Pa. Super. Ct. 2017) (noting that a
challenge to a Tier III SORNA classification is a “non-
waivable legality-of-sentence issue,” vacating “the lifetime
registration portion of Appellant’s sentence” and
“remand[ing] for re-sentencing under SORNA”).
112
Stanbridge, 791 F.3d 715, 719 (7th Cir. 2015).
113
42 Pa.C.S. § 9799.13(3) (2012); 2011 Pa. Legis. Serv. Act
2011-111 (S.B. 1183) (PURDON'S)
24
C. The Limits of Our Ruling
Many of our sister circuits have predicted that a ruling
such as the one we announce today would render the “in
custody” requirement of the habeas statute superfluous. 114 Our
decision today raises no such concerns. We do not hold that
any collateral consequence of conviction can support habeas
jurisdiction. Rather, we hold that the custodial jurisdiction
requirement is satisfied by severe, immediate, physical, and
(according to the state’s own definition) punitive restraints on
liberty that are imposed pursuant to—and included in—the
judgment of a state court such as the one here. Truly collateral
consequences—such as the “inability to vote, engage in certain
businesses, hold public office, or serve as a juror” 115—are not
analogous to the restrictive and invasive regime created under
SORNA’s registration requirements. The physical compulsion
of SORNA’s registration requirements and their direct relation
to the judgment of sentence set them apart from consequences
that are truly collateral and noncustodial.
Additionally, this is not a situation where Piasecki was
in custody as a result of an intervening judgment such as a
separate conviction or a civil commitment hearing. 116 In those
cases, a litigant could not challenge a previously expired
conviction that is no longer the source of any restrictions. As
we have explained, Piasecki’s registration requirements were
part of his sentence and continue as such into the future. No
separate order is involved.
114
See, e.g., Calhoun 745 F.3d at 1074 (quoting Maleng, 490
U.S. at 492)(suggesting that a holding that sex offender
registration requirements can give rise to habeas jurisdiction
“would read the ‘in custody’ requirement out of the statute”);
Wilson, 689 F.3d at 339 (“To rule otherwise [and find that
sex-offender registration requirements can support habeas
jurisdiction] would drastically expand the writ of habeas
corpus beyond its traditional purview and render § 2254’s ‘in
custody’ requirement meaningless.”).
115
Maleng, 490 U.S. at 491–92.
116
Stanbridge, 791 F.3d at 719.
25
Finally, nothing we have said should be interpreted as
calling into question the wisdom or propriety of
Pennsylvania’s sex offender registration requirements. That
determination is the province of the legislature, not the
courts. 117 The legislature determined that long-term, in-person
registration and supervision was necessary for those who
commit sexual offenses 118—including those who possess truly
horrific videos such as those possessed by Piasecki. Today, we
hold only that the restrictions that follow from that level of
supervision constitute custody for the purposes of habeas
jurisdiction.
III. CONCLUSION
The writ of habeas corpus “is not now and never has
been a static, narrow, formalistic remedy.” 119 The scope of the
writ has grown in accordance with its purpose—to protect
individuals against the erosion of their right to be free from
wrongful restraints upon their liberty. 120 SORNA’s registration
requirements clearly constitute a restraint upon liberty, a
physical restraint not shared by the public generally. The
restraint imposed on Piasecki is a direct consequence of a state
court judgment of sentence, and it therefore can support habeas
corpus jurisdiction. For all of the reasons set forth above, the
order of the District Court is vacated and the case is remanded
for further proceedings consistent with this opinion.
117
To the extent that we have cautioned against imposition of
overly broad restrictions on internet and computer use, see
supra note 73, we have done so merely to call attention to the
ease with which such restrictions can sweep further than
intended or warranted and to note the unintended
consequences that may follow if they are not appropriately
tailored to focus on the conduct that the court was attempting
to address.
118
42 Pa.C.S. § 9799.11.
119
Jones, 371 U.S. at 243.
120
Id.26