Frank Corridore v. Heidi Washington ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0131p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
FRANK CORRIDORE,
│
Petitioner-Appellant, │
> No. 22-1301
│
v. │
│
HEIDI E. WASHINGTON, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:21-cv-10834—Paul D. Borman, District Judge.
Argued: March 15, 2023
Decided and Filed: June 23, 2023
Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Rohit Rajan, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN,
Grand Rapids, Michigan, for Appellant. Eric R. Jenkins, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Rohit Rajan, Miriam
J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids,
Michigan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF
MICHIGAN, Detroit, Michigan, Yazmine Nichols, Allison Frankel, Trisha Trigilio,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for
Appellant. Eric R. Jenkins, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. Devi M. Rao, RODERICK & SOLANGE MACARTHUR JUSTICE
CENTER, Washington, D.C., Jonathan Manes, RODERICK & SOLANGE MACARTHUR
JUSTICE CENTER, Chicago, Illinois, for Amici Curiae.
NALBANDIAN, J., delivered the opinion of the court in which THAPAR, J., joined.
MOORE, J. (pp. 14–27), delivered a separate dissenting opinion.
No. 22-1301 Corridore v. Washington Page 2
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. A Michigan jury convicted Frank Corridore of second-
degree sexual criminal conduct for sexually abusing his granddaughter. Corridore appealed his
conviction in state court but to no avail. By the time he filed a habeas petition in federal district
court, he had been released from prison and discharged from parole. So the district court
dismissed the petition, explaining that Corridore was no longer in custody and therefore could
not meet the requirements of 28 U.S.C. § 2254. Corridore appeals, arguing that he is subject to
lifetime sex-offender registration and electronic monitoring—requirements that he says meet the
custody requirement. We disagree and affirm.
I.
In 2017, a Michigan jury convicted Frank Corridore of sexually abusing his
granddaughter, and he was sentenced to 19 months to 15 years in prison. Along with a prison
sentence, he became subject to mandatory lifetime electronic monitoring (“LEM”) via a
permanent ankle bracelet and sex offender registration under Michigan’s Sex Offenders
Registration Act (“SORA”). Corridore appealed his conviction in the Michigan Court of
Appeals. And that court affirmed his conviction. See People v. Corridore, No. 338670, 2019
WL 2711227, at *1 (Mich. Ct. App. June 27, 2019). He also sought and was denied leave to
appeal to the Michigan Supreme Court. See People v. Corridore, 941 N.W.2d 53 (Mich. 2020)
(order).
Corridore then filed his habeas petition in federal district court. By then, Corridore had
been released from prison. And his LEM and SORA requirements had kicked in. He argued that
these “twin burdens” rendered him in custody—a fact he had to prove for the district court to
have jurisdiction over his habeas petition. (R. 1, Habeas Petition, p. 10.); see 28 U.S.C.
§ 2254(a) (explaining that a district court can “entertain an application for a writ of habeas
corpus . . . only on the ground that [a petitioner] is in custody in violation of the Constitution or
laws or treaties of the United States” (emphasis added)). And he noted that while the Sixth
No. 22-1301 Corridore v. Washington Page 3
Circuit had declined to find that Ohio’s SORA met the “in custody” requirement, whether LEM
constituted being “in custody” was an open question. (R. 1, Habeas Petition, p. 11.) And his
petition addressed only the LEM requirements—not Michigan’s SORA requirements. The State
moved to dismiss. It argued that Corridore was no longer in custody and therefore that the
district court didn’t have jurisdiction.
The district court explained that “[t]he critical question . . . is whether being subjected
to LEM qualified as custody under the habeas statutes.” (R. 8, Opinion, p. 7.) While
acknowledging that LEM is “uncomfortable, burdensome, and embarrassing to wear at times,”
the district court said that LEM did not restrain Corridore’s physical liberty—and thus was not
“custodial.” (Id. at 9 (citation omitted).) Instead, the district court held, LEM is a “collateral
consequence” of conviction. (Id. at 10.) So because Corridore failed to meet the custody
requirement under the district court’s analysis, the district court dismissed for lack of jurisdiction
but granted a certificate of appealability “as to whether [Corridore] is in custody for purposes of
habeas relief.” (Id. at 11.) Corridore timely appealed.
II.
We review the dismissal of a habeas petition based on a lack of subject matter
jurisdiction de novo. Hautzenroeder v. DeWine, 887 F.3d 737, 740 (6th Cir. 2018). And
Corridore bears the burden of proving that he is in custody. See id. (citing Brott v. United States,
858 F.3d 425, 528 (6th Cir. 2017)).
Corridore makes two arguments on appeal. First, he says that Michigan’s LEM renders
him “in custody.” Second, he argues that even if LEM alone doesn’t satisfy the custody
requirement, SORA either alone or along with LEM does.
First, a word on what it means to be “in custody” under 28 U.S.C. § 2254. Then we’ll
take each of Corridore’s arguments in turn.
A.
Start with the custody requirement. Since the Founding, Congress has limited the federal
courts’ power to grant the writ of habeas corpus only to those who are “in custody.”
No. 22-1301 Corridore v. Washington Page 4
Judiciary Act of 1789, 1 Stat. 73, 82 (1789). And that holds true today. Under the modern
habeas statute, we can only review petitions of those who are “in custody.” See 28 U.S.C.
§ 2254(a).
Historically, “in custody” meant physical restraint or imprisonment. And that makes
sense. Habeas corpus literally means in Latin “(that) you have the body.” See Clements v.
Florida, 59 F.4th 1204, 1218 (11th Cir. 2023) (Newsom, J., concurring); id. at 1220 (“If there
was any single feature that characterized the writ of habeas corpus in both its early statutory and
common-law forms, it was the requirement that adult prisoners be subject to an immediate and
confining restraint on their liberty.” (quoting Dallin H. Oaks, Legal History in the High Court—
Habeas Corpus, 64 Mich. L. Rev. 451, 469 (1966))).
But the Supreme Court broadened the conception of “in custody” in two cases: Jones
v. Cunningham, 371 U.S. 236 (1963), and Hensley v. Municipal Court, 411 U.S. 345 (1973). In
Jones, the Court started by explaining that “[h]istory, usage, and precedent can leave no doubt
that, besides physical imprisonment, there are other restraints on a man’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.” 371 U.S. at 240. Then the Court held that Virginia’s
parole regime rendered a petitioner in custody. Id. at 243.
As a result of his parole, the petitioner in Jones was “confined . . . to a particular
community, house, and job at the sufferance of his parole officer.” Id. at 242. He couldn’t
“drive a car without permission” and had to “report to his parole officer, permit the officer to
visit his home and job at any time, and follow the officer’s advice” to “keep good company and
good hours, work regularly, keep away from undesirable places, and live a clean, honest, and
temperate life.” Id. And if he didn’t follow these conditions, he could have been “rearrested at
any time . . . and thrown back in jail to finish serving the allegedly invalid sentence with few . . .
procedural safeguards.” Id.The Court held that all these requirements showed that the petitioner was “in custody,”
even though he was not physically confined in, for instance, a prison. See id. at 243 (“While
petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions
No. 22-1301 Corridore v. Washington Page 5
which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’
of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.”).
And, following up on Jones, in Hensley, the Court held that a recognizance bond1
counted as being “in custody” where the petitioner had to “appear at all times and places as
ordered by the court” and where the court could “revoke the order of release” if he failed to
appear. See Hensley, 411 U.S. at 348. That’s because the petitioner couldn’t “come and go as he
please[d]” and “[h]is freedom of movement rest[ed] in the hands of state judicial officers, who
[could] demand his presence at any time and without a moment’s notice.” Id. at 351.
Following the Supreme Court’s lead, we’ve typically found that a petitioner is “in
custody” when “the government exercise[s] direct control” over a petitioner’s actions—even
when the petitioner isn’t behind bars. Hautzenroeder, 887 F.3d at 741. For instance, “500 hours
of community service” plus “one year non-reporting probation” satisfied the in-custody
requirement. Lawrence v. 48th Dist. Ct., 560 F.3d 475, 479–81 (6th Cir. 2009). And a stayed
one-year probation sentence also met the “in custody” requirement. McVeigh v. Smith, 872 F.2d
725, 727 (6th Cir. 1989); see also Malinovsky v. Ct. of Common Pleas, 7 F.3d 1263, 1265 (6th
Cir. 1993) (holding that because the petitioner was “released on a personal recognizance bond”
he met the “in custody” requirement). We recognized that in each of those situations the
petitioner was “subject to restraints not shared by the public generally,” specifically because the
petitioner was subject to direct governmental control and couldn’t “come and go” as he pleased.
Lawrence, 560 F.3d at 480.
But not all restraints on liberty are severe enough to meet the “in custody” requirement.
That’s because “the collateral consequences of [a] conviction are not themselves sufficient to
render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Hautzenroeder,
887 F.3d at 740 (quoting Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam)). Losing the
right to vote, not being able to serve on a jury, not being able to engage in certain businesses, and
having to comply with certain sex-offender registration requirements—like not being able to live
1
After the petitioner’s conviction in state court, he “ha[d] been enlarged on his own recognizance” at “all
times,” meaning that after “giving bail” he had been “release[d]” subject to complying with the recognizance statute.
Hensley, 411 U.S. at 347–48.
No. 22-1301 Corridore v. Washington Page 6
within 1,000 feet of a school or having to register as a sex-offender—are all collateral
consequences of conviction. See id. at 740–42; Carafas v. LaVallee, 391 U.S. 234, 237 (1968).
And in the sex-offender context, we’ve rejected arguments that consequences like social
stigma from the dissemination of sex-offender registration information to the public or criminal
consequences for failure to comply with reporting requirements render a petitioner “in custody.”
Hautzenroeder, 887 F.3d at 744. That’s because those obligations don’t exert direct government
control over a petitioner’s movement.
And whether a requirement is “punitive . . . leaves unanswered the ‘in custody’ question.”
Id. We evaluate the punitive nature of a requirement when we’re doing an Ex Post Facto Clause
analysis. See Does #1–5 v. Snyder, 834 F.3d 696, 700–01 (6th Cir. 2016). But the “in custody”
analysis “does not hinge on the punitive nature of the statute.” Hautzenroeder, 887 F.3d at 744.
So keeping the main thing the main thing—whether a petitioner’s movement is limited
because of direct government control and therefore amounts to a severe restraint on liberty—we
turn back to Corridore’s obligations under LEM and SORA.
B.
LEM first. Michigan’s LEM scheme is undoubtedly intrusive. Corridore’s movements
have been tracked since his release from prison and will be tracked for the rest of his life—all via
a chargeable ankle bracelet. See Mich. Comp. Laws § 791.285(1)(a)–(b). He is tracked in real
and recorded time. Id.The device isn’t battery operated. And Corridore has to charge it “on a standard 110 volt
electrical current outlet for two (2) continuous hours in each 24 hour period.” See Mich.
Dep’t Corrections, Lifetime Electronic Monitoring Program Participant Agreement,
https://bit.ly/3bumWWu. If the device vibrates or activates one of its LED lights, Corridore
must “[r]espond . . . as directed by” the Michigan Department of Corrections (“MDOC”). Id.The LED light turns red when the device loses GPS connectivity. Id. In that circumstance,
Corridore must “[w]alk outside . . . to an area with a clear view of the sky.” Id. A “clear view of
the sky” means he can’t “stand under trees, building awnings, etc.” Id. Then, he must wait for
No. 22-1301 Corridore v. Washington Page 7
the light to turn off. MDOC also instructs him not to “[d]escend[] in excess of 60 feet below the
surface of any body of water.” Id.Upon MDOC’s request, Corridore must allow personnel “to visually inspect the
electronic monitoring ankle bracelet and/or electronic monitoring charging cord.” Id. And if
MDOC needs to “change or replace” the device, Corridore must “make [himself] immediately
available to [MDOC] staff.” If Corridore damages the device, he must reimburse MDOC. Id.Corridore must “monitor the [MDOC] internet website . . . at least monthly for special
instructions and/or financial information regarding the cost of [his] electronic monitoring.” Id.And he must pay a $60 monthly fee to upkeep the device. If he doesn’t pay, he could spend up
to two years in prison and could have to pay a fine of up to $2,000.2 Mich. Comp. Laws
§§ 750.520n(2)(a)–(c),791.285(2). Corridore argues that all the obligations of LEM add up to
being “in custody.”
Most would agree that these requirements are intrusive and beyond what the typical
person is subjected to. But that’s not the question. The question is whether all these
requirements limit Corridore’s physical movement to the point that they are severe restraints on
liberty. See Hautzenroeder, 887 F.3d at 741. They’re not. They are simply collateral
consequences of conviction. And our caselaw shows why.
In Hautzenroeder, we evaluated Ohio’s similar sex-offender registration laws.3 Because
of Hautzenroeder’s offense, she had to live more than 1,000 feet away from school premises.
See Ohio Rev. Code § 2950.034(A)–(B). She had to personally register with the sheriff of the
county in which she lived, worked, and went to school. Id. § 2950.04. And as a Tier III sex
offender in Ohio, Hautzenroeder’s in-person registration process restarted every ninety days—
meaning Hautzenroeder had to check in with the sheriff four times a year. Id. § 2950.06(A),
2
Corridore makes no specific argument as to the $60 monthly fee, but we note that even if we conceived of
the fee as a fine, a “monetary fine is not a sufficient restraint on liberty to meet the ‘in custody’ requirement for
§ 225[4] purposes.” United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995) (citation omitted).
3
We evaluated an earlier version of Ohio’s sex-offender registration requirements in Leslie v. Randle. See
296 F.3d 518, 522–23 (6th Cir. 2002) (deciding that those requirements were “more analogous to collateral
consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole”).
No. 22-1301 Corridore v. Washington Page 8
(B)(3), (C)(1). Hautzenroeder also had to provide a host of information for Ohio’s internet
registry—things like travel documents, license plate numbers, DNA specimen, and mental health
treatment. Id. §§ 2950.04(B), (C), 2950.13(A), 2950.14(B). And the sheriff was required by
statute to let the surrounding community know that Hautzenroeder was a sex offender. Id.
§ 2950.11(A). And if Hautzenroeder violated these requirements, she faced potential prison
time. Id. § 2950.99(A)(1).
Even in the face of all these requirements, we said that Ohio’s sex-offender registration
requirements were collateral consequences of conviction rather than severe restraints on liberty.
We explained that “Hautzenroeder’s freedom of movement [wa]s unconstrained, her registration
and reporting obligations notwithstanding.” Hautzenroeder, 887 F.3d at 741. We compared
Ohio’s laws to the parole in Jones and the recognizance bond in Hensley and held that “[t]hough
registration obligations present a serious nuisance,” they don’t get at the heart of “in custody”
like the requirements in Jones and Hensley. That’s because Hautzenroeder’s requirements didn’t
amount to the government’s “direct control over [her] movements.” Id. Hautzenroeder didn’t
need permission to move about or live or work where she pleased. Id. Any restrictions on
movement—such as not being able to live near a school or social stigma—were collateral
consequences of her conviction. Id. at 742; cf. Westberry v. Keith, 434 F.2d 623, 625 (5th Cir.
1970) (per curiam) (holding that the revocation of a petitioner’s driver’s license did not render
her “in custody” because to hold otherwise “would go far beyond that degree of confinement
found sufficient in Jones”).
Addressing Hautzenroeder’s arguments, we noted that any criminal conviction resulting
from violating the registration requirements would be a separate criminal violation—not a
continuation of the initial sex offense. Hautzenroeder, 887 F.3d at 743 (explaining that this was
not “reimprisonment stemming from her original conviction”). And the fact that the
requirements were part of the sentence didn’t tell us anything about the “in custody”
requirement. Id. at 744 (“Whether a registration scheme is punitive for ex post facto purposes
leaves unanswered the ‘in custody’ question.”).
Now to Corridore’s case. Corridore argues that because his device must be charged for
two hours every day he is prevented from “traveling to or staying in any location that does not
No. 22-1301 Corridore v. Washington Page 9
have reliable access to electricity.” (Appellant’s Br. at 25.) He explains that he can’t go
camping or engage in “occupations such as long-haul truck driving.” (Id.) He also says that he
is “effectively barr[ed] . . . from swimming,” for fear that he would damage his device (although
the Government disputes this characterization). (Id. at 26.) He also argues that he is limited to
spaces that have internet connectivity because his device requires constant connectivity.4 And he
says that the Michigan Supreme Court has characterized LEM as punitive, so we should treat it
as custodial. He also argues that he must now live with the stigma of having to wear a GPS
device, which ostracizes him from social and civic life. Finally, he says that he must live in fear
of violating Michigan’s LEM requirements and facing prosecution.
Corridore’s LEM requirements fail to meet the “in custody” requirement for the same
reason the sex-offender registration requirements in Hautzenroeder did: they’re collateral
consequences of conviction rather than severe restraints on liberty.
Starting with the restraints on his movement, the LEM requirements do not allow the
government to exercise “direct control” over Corridore’s movements. Hautzenroeder, 887 F.3d
at 741; see also Munoz v. Smith, 17 F.4th 1237, 1245 (9th Cir. 2021) (holding that lifetime
electronic monitoring did not render the petitioner in custody because it did “not limit his
physical movement”). Under LEM, Corridore must wear the device. But by the terms of
Michigan’s statutory scheme and LEM agreement, Corridore can go where he wants, so long as
he keeps the device charged and tracking. Cf. Nowakowski v. New York, 835 F.3d 210, 217 (2d
Cir. 2016) (explaining that a petitioner was in custody when he was under a “one-year
conditional discharge” with one day of community service because his “physical presence [was
required] at particular times and locations, both for community service and court appearances”).
Corridore can charge on any standard outlet he wants. And he can do it while he’s sleeping or
4
Corridore’s habeas petition does not address any circumstances where these fears have manifested. He
doesn’t say that his device has ever malfunctioned or that he has had a problem bathing or swimming. He doesn’t
say that he tried long-haul truck driving and found it infeasible or that the device’s connectivity has been unreliable
in practice. He only suggests what might happen in the future because of LEM’s general conditions. See Munoz
v. Smith, 17 F.4th 1237, 1246 (9th Cir. 2021) (explaining that “regardless of whether a . . . requirement could in
some particularly inhibiting circumstances create a severe or significant restraint on an offender’s physical liberty,
. . . [petitioner] ha[d] not shown that his . . . [wa]s a ‘custodial’ one under § 2254” (citation omitted)).
No. 22-1301 Corridore v. Washington Page 10
watching television or eating breakfast. That’s not the kind of direct control on movement that
meets the “in custody” requirement.
True, the device’s connectivity requirement might keep Corridore from going to areas
without electricity for extended periods of time, prevent him from diving below 60 feet of water,
or prohibit him from long-haul truck driving. But those kinds of restraints on movement are
incidental rather than direct, like the restriction in Hautzenroeder that sex offenders couldn’t live
within 1,000 feet of a school or like statutes that prohibit certain offenders from having a driver’s
license. See Hautzenroeder, 887 F.3d at 742; Westberry, 434 F.2d at 624–25. Such restrictions
are collateral consequences because they don’t involve “direct control” by the government—the
key analysis of the parole requirements in Jones and the recognizance bond in Hensley.
Hautzenroeder, 887 F.3d at 741. An incidental effect on movement is not severe enough to meet
the “in custody” requirement.5
Turning to Corridore’s other arguments, he says that LEM is punitive and therefore
contributes to a finding that LEM is custodial. We disagree. We’ve already addressed this
argument in Hautzenroeder. Whether an LEM regime is punitive matters for an Ex Post Facto
5
We’re only aware of one other circuit to have addressed LEM. In Munoz v. Smith, the Ninth Circuit
agreed that LEM requirements similar to those in our case do not meet the “‘in custody’ requirement” because they
“neither target[] petitioner’s movement in order to impose special requirements, nor do[] [they] demand his physical
presence at any time or place.” 17 F.4th at 1245 (cleaned up). “[They] also [don’t] prevent him from going
anywhere.” Id. (cleaned up). Even though the petitioner had to “appear in person ‘every few months’ to register”
his LEM and had to obtain approval for where he lived from the state, the Ninth Circuit held that these were not a
“severe, immediate restraint on his physical liberty.” Id. at 1246. Corridore neither has to report in person regularly
nor seek approval for any of his life decisions under LEM. So his requirements are even less restrictive than those
in Munoz. And we join the Ninth Circuit in holding that in the face of these de minimis burdens on movement,
Corridore is not in custody.
Corridore argues that Munoz is inapposite. Instead, he asks us to adopt the Third Circuit’s view of custody
as expressed in Piasecki v. Court of Common Pleas—a sex-offender registration case. See 917 F.3d 161 (3d Cir.
2019). There, the petitioner was required to register as a sex offender under Pennsylvania law and had to check in
every three months with the state police for the rest of his life. See id. at 164. He also had to appear in person if he
changed his name, address, employment, student status, phone number, vehicle, lodging, email address, or
professional license. Id. at 164–65. He also had to report in person 21 days before international travel. Id. at 165.
And the Third Circuit, relying heavily on its precedent and acknowledging that it was departing from the view of
other circuits (including ours), held that the petitioner was in custody—even if the government played only an
“oversight” function. Id. at 171–72 & n.83 (citation omitted). Setting aside that Corridore’s LEM does not have all
the requirements listed in Piasecki, in Hauztenroeder we addressed Ohio’s substantially similar sex-offender
registration statute and came out the opposite way—partially because we require more than government “oversight”
to meet the “in custody” requirement. Id. at 172 (citation omitted). We require direct government control over
movement. Hautzenroeder, 887 F.3d at 741. So we find Corridore’s argument based on Piasecki unpersuasive.
No. 22-1301 Corridore v. Washington Page 11
Clause analysis. See Does #1–5, 834 F.3d at 700–01. But “[w]hether a registration scheme is
punitive for ex post facto purposes leaves unanswered the ‘in custody’ question.”
Hautzenroeder, 887 F.3d at 744. So Michigan’s punitive label doesn’t affect our “in custody”
analysis.
Corridore also says that LEM “severely burdens participation in civic and social life.”
(Appellant’s Br. at 27.) But that has never been a factor in our analysis of “in custody” cases, as
we made clear in Hautzenroeder. 887 F.3d at 741–42 (rejecting the argument that sex-offender
registration requirements would “chill[] registrants’ freedom of movement” and “transform[] her
conviction into a scarlet letter” in the community). We have often acknowledged that collateral
consequences can be burdensome. Yet they remain just that—collateral consequences. See id.Finally, Corridore argues that he must live in fear of facing criminal charges for accidentally
messing up his GPS device in some way. But we’ve shut down that argument before because
“any repercussions [for statutory violations] would stem not from [the] original conviction but
from a new, separate criminal proceeding.” Id. at 743.
So none of Corridore’s LEM arguments gets him from a collateral consequence to a
severe restraint on liberty.
C.
Now we turn to SORA. Corridore argues that even if LEM alone doesn’t meet the “in
custody” requirement, SORA alone or along with LEM does. But not so fast to the merits.
Corridore devoted a single line to SORA in his habeas petition: “Petitioner remains under twin
burdens for life: lifetime electronic monitoring (LEM) and sex offender registration (SOR).”
(R. 1 Petition, p. 10.) Then based on our holding in Hautzenroeder, Corridore stated that our
Circuit “has held that SOR does not constitute custody.” (Id. at 11 (citing Hauztenroeder,
887 F.3d at 740).) He then spent ten pages of his petition on how LEM meets the “in custody”
requirement. He closed with this: “This Court should find that requiring Petitioner to wear a box
attached to his body for his whole life, while undergoing warrantless transmission of his location
information every second, causes Petitioner to suffer a sufficiently severe deprivation of liberty
that it constitutes custody for purposes of federal Habeas Corpus.” (Id. at 10.)
No. 22-1301 Corridore v. Washington Page 12
The district court’s dismissal order interpreted Corridore’s habeas petition as posing
“[t]he critical question . . . whether being subjected to LEM qualifies as custody under the habeas
statutes.” (R. 8, Opinion, p. 7.) In dismissing the petition and granting a certificate of
appealability, the district court never addressed SORA—likely because Corridore never raised an
affirmative argument on SORA in his petition.
Corridore, who was represented by counsel below, argues that the single line in his
petition referencing the “twin burdens” of LEM and SORA preserved his SORA arguments on
appeal. But a “one sentence argument . . . is . . . insufficient to preserve [an] argument on
appeal.” Moore v. Lafayette Life Ins., 458 F.3d 416, 448 (6th Cir. 2006); see also United States
v. Mullet, 822 F.3d 842, 849 (6th Cir. 2016) (“To preserve an argument, it does not suffice to
mention a point obliquely, then focus the rest of the brief on other arguments.”); cf. Davis v.
Cintas Corp., 717 F.3d 476, 494 (6th Cir. 2013) (“Such a perfunctory, unsubstantiated statement
does not preserve the issue for appeal.”). So Corridore forfeited any argument he had on SORA
by not raising it below.
But even if we reached his arguments on SORA, we’d come out the same way. Start
with the SORA requirements. Corridore must report changes to his address, employment, name,
and schooling in person within three business days. Mich. Comp. Laws §§ 28.724a, 28.725.
And if he changes his vehicle, email address, or telephone number, he must notify MDOC by
mail. Id. § 28.725(2)(a). If he plans to travel for more than seven days, he must report that
information. Id. § 28.725(2)(b). And he must report in person four times a year to the local
department. Id. § 28.725a(3)(c). If local law enforcement receives a tip that he is not complying
with the sex-offender registration requirements, officers may search his home.6 See People
v. Betts, 968 N.W.2d 497, 510 (Mich. 2021). And Corridore is subject to criminal penalties of up
to ten years if he violates SORA. Mich. Comp. Laws § 28.729.
6
Corridore says that “[r]egistrants are also subject to ongoing supervision, including home visits and
compliance sweeps.” (Appellant’s Br. at 34.) But that’s only the case when the registrant is on parole. See Mich.
Comp. Laws § 791.236(19) (“The parole order must require the parolee to provide written consent to submit to a
search of his or her person or property upon demand by a peace officer or parole officer . . . . Consent to a search as
provided under this subsection does not authorize a search that is conducted with the sole intent to intimidate or
harass.”). Compliance sweeps are just a feature of parole—not a feature of lifetime electronic monitoring.
No. 22-1301 Corridore v. Washington Page 13
If all these requirements sound familiar, it’s because they are. We analyzed Ohio’s
almost identical regime in Hautzenroeder and found that the petitioner there still wasn’t “in
custody.” Corridore can’t point to any significant differences in Michigan’s scheme that would
lead us to come out the other way in his case. See Clements, 59 F.4th at 1215 (determining that
Florida’s similar sex-offender registration statute—with in-person reporting requirements—did
not amount to being “in custody”).
Corridore makes the alternative argument that even if SORA alone or LEM alone isn’t
enough to meet the “in custody” requirement, the combination of the two is. We find that
argument unpersuasive because neither LEM nor SORA encompasses custodial requirements.
So the combination of LEM and SORA—both collateral consequences—doesn’t do much to get
Corridore closer to the mark. That’s because each requirement in a habeas analysis is either
custodial or a collateral consequence of conviction. In other words, a series of collateral
consequences doesn’t equal the “in custody” requirement because none of the items in that series
are severe restraints on the petitioner’s liberty. See Maleng, 490 U.S. at 492 (“[O]nce 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 purposes of a
habeas attack on it.”); Hautzenroeder, 887 F.3d at 741 (“[E]ven grievous collateral consequences
stemming directly from a conviction cannot, without more, transform the absence of custody into
the presence of custody.” (citation omitted)); cf. Gorence v. Eagle Food Ctrs., Inc., 242 F.3d
759, 763 (7th Cir. 2001) (“[I]t is simply not true, we want to emphasize, that if a litigant presents
an overload of irrelevant or nonprobative facts, somehow the irrelevancies will add up to
relevant evidence . . . . They do not; zero plus zero is zero.”).
III.
For these reasons, we affirm.
No. 22-1301 Corridore v. Washington Page 14
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. At every stage, Frank Corridore
has diligently and timely pursued his state and federal remedies to challenge his conviction and
sentence through the direct appeal and postconviction process. Prior to filing his federal habeas
petition, however, Corridore was released from prison and discharged from formal parole.
Corridore nevertheless remains subject to electronic monitoring and sex-offender registration for
the remainder of his life. These punishments—mandatorily imposed as part of Corridore’s
sentence—create substantial restraints on his liberty that the average person would consider to be
onerous and oppressive. Lifetime electronic monitoring ensures that Corridore’s every
movement will be tracked by the state for the rest of his life; that he cannot participate in certain
employment or recreational activities; that the state can demand his immediate physical presence
at any time; and that one month out of every year of his life will be spent physically tethered to
an electrical outlet, charging his monitoring device.
The majority decides that these significant burdens on Corridore’s liberty and freedom of
movement are insufficient to place him “in custody” within the meaning of 28 U.S.C.
§§ 2241(c)(3), 2254(a), and that therefore the district court lacked jurisdiction to adjudicate his
habeas petition. Because Corridore has demonstrated that the burdens of lifetime electronic
monitoring and sex-offender registration pose significant restraints on his liberty, I cannot agree.
The result of the majority’s opinion is that an individual subject to highly invasive lifetime
supervision resulting from a constitutionally defective conviction or sentence will have no
recourse to vindicate their rights in federal court. Such a result is legally intolerable. I would
reverse the district court’s judgment dismissing Corridore’s habeas petition for lack of
jurisdiction and remand for further proceedings. I therefore respectfully dissent.
I. THE “IN CUSTODY” REQUIREMENT
Before turning to the specifics of Corridore’s case, I start with a review of the “in
custody” requirement. Federal courts “shall entertain an application for a writ of habeas corpus
No. 22-1301 Corridore v. Washington Page 15
[o]n behalf of a person in custody pursuant to the judgment 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.”
28 U.S.C. § 2254(a) (emphases added). This circuit has held that “[t]his language is
jurisdictional: if a petitioner is not ‘in custody’ when she files her petition, courts may not
consider it.” Hautzenroeder v. DeWine, 887 F.3d 737, 740 (6th Cir. 2018).
The Supreme Court has held that a petitioner is in custody if they are subject to
conditions that “significantly restrain petitioner’s liberty to do those things which in this country
free men are entitled to do.” Jones v. Cunningham, 371 U.S. 236, 243 (1963). This is because
the writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy; its
scope has grown to achieve its grand purpose—the protection of individuals against erosion of
their right to be free from wrongful restraints upon their liberty.” Id. Habeas jurisdiction is
therefore not limited to those who are imprisoned or otherwise physically detained. Id. at 240.
Not all consequences that flow from a conviction, however, suffice to bestow federal habeas
jurisdiction: “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 purposes of a habeas attack upon it.” Maleng v. Cook, 490 U.S. 488, 492 (1989) (per
curiam) (emphasis added).
Federal courts have held that an array of conditions suffice to confer federal habeas
jurisdiction. See Nowakowski v. New York, 835 F.3d 210, 216 (2d Cir. 2016) (collecting cases).
In Jones, for example, the Supreme Court held that a person on parole in Virginia was in custody
for purposes of federal habeas jurisdiction. 371 U.S. at 243. The Court has also held that a
person released on bail or on their own recognizance is in custody. Hensley v. Mun. Ct., San
Jose-Milpitas Jud. Dist., 411 U.S. 345, 353 (1973). Other examples of conditions that federal
courts have held are custodial include probation, community service, post-release supervision,
and mandatory programs. Lawrence v. 48th Dist. Ct., 560 F.3d 475, 480–81 (6th Cir. 2009)
(non-reporting probation and community service); In re Stansell, 828 F.3d 412, 418 (6th Cir.
2016) (supervised release); Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (post-release
supervision); Dow v. Cir. Ct. of 1st Cir. Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993) (per
curiam) (mandatory fourteen-hour alcohol rehabilitation program).
No. 22-1301 Corridore v. Washington Page 16
In discerning whether certain conditions constitute a significant restraint on the
petitioner’s liberty, this court looks at whether they are “more analogous to collateral
consequences such as the loss of the right to vote than to severe restraints on freedom of
movement such as parole.” Hautzenroeder, 887 F.3d at 740 (quoting Leslie v. Randle, 296 F.3d
518, 522–23 (6th Cir. 2002)). One factor that this court has relied on in making this
determination is “whether the legal disability in question somehow limits the putative habeas
petitioner’s movement.” Leslie, 296 F.3d at 522 (quoting Williamson v. Gregoire, 151 F.3d
1180, 1183 (9th Cir. 1998)). Another factor is whether the relevant statute “is remedial as
opposed to punitive in nature,” because another court’s determination that the statute “is a form
of civil regulation provides additional support” for a conclusion that the restraint is more
analogous to a collateral consequence. Id. at 522–23. This factor is not dispositive, however,
because “the ‘in custody’ requirement may be satisfied by restraints other than criminal
punishment.” Id. at 523 (quoting Williamson, 151 F.3d at 1184).
Other circuits have also looked at whether the “restrictions were imposed as part of [the
petitioner’s] sentence,” because that negates an inference that the restraints “were merely
collateral consequences” of the underlying conviction. Piasecki v. Ct. of Common Pleas, 917
F.3d 161, 173 (3d Cir. 2019). Likewise, ongoing or continuing governmental supervision is
often an indication of a custodial restraint. See Barry v. Bergen Cnty. Prob. Dep’t, 128 F.3d 152,
161 (3d Cir. 1997).
II. LIFETIME ELECTRONIC MONITORING
A. Michigan’s Lifetime Electronic Monitoring Program
Under Michigan law, lifetime electronic monitoring (“LEM”) is a mandatory component
of Corridore’s sentence. Mich. Comp. Laws Ann. §§ 750.520c(2)(b), 750.520n(1). The
Michigan Department of Corrections (“MDOC”) has “exclusive jurisdiction” over the
administration of the LEM program. Id. § 791.204(d). The LEM program “must accomplish”
the following objectives:
(a) By electronic means, track the movement and location of each individual from
the time the individual is released on parole or from prison until the time of the
individual’s death.
No. 22-1301 Corridore v. Washington Page 17
(b) Develop methods by which the individual’s movement and location may be
determined, both in real time and recorded time, and recorded information
retrieved upon request by the court or a law enforcement agency.
Id. § 791.285(1). Any person who is “sentenced to” LEM “shall wear or otherwise carry an
electronic monitoring device as determined by [MDOC] . . . in the manner prescribed.” Id.
§ 791.285(2). Those who have been discharged from parole but are still subject to LEM—like
Corridore—must reimburse MDOC sixty dollars per month for the program. Id. Failure to do so
constitutes “a felony punishable by imprisonment for not more than 2 years or a fine of not more
than $2,000.00, or both.” Id. § 750.520n(2)(c). Likewise, “[i]ntentionally remov[ing],
defac[ing], alter[ing], destroy[ing], or fail[ing] to maintain the electronic monitoring device in
working order” and failing “to notify [MDOC] that the electronic monitoring device is damaged”
are also felonies punishable by up to two years’ imprisonment. Id. § 750.520n(2)(a), (b).
MDOC also has additional requirements for those sentenced to LEM, outlined in the
LEM program participant agreement. MDOC, Lifetime Electronic Monitoring Program
Participant Agreement (“LEM Rules”), https://www.michigan.gov/corrections/-
/media/Project/Websites/corrections/LG/Lifetime_GPS_Agreement_Form_050911_353535_7.p
df?rev=7a99b1e7142346c3b89f75ebac873c03&hash=D1DF30F1B55F5D194AAAC052193B2B
A2 (last visited May 19, 2023). The LEM device must be charged “for two (2) continuous hours
in each 24 hour period.” Id. at 2. Because people subject to LEM must “not remove or attempt
to remove the electronic monitoring tracking device from [their] ankle at any time,” id. at 1,
charging the LEM device requires the person to be physically tethered to an electric outlet for
two hours out of every twenty-four hour period. A person subject to LEM must “make
[themselves] immediately available” to MDOC staff in the event that the device needs to be
changed or replaced and must also allow MDOC staff or law enforcement to “visually inspect”
the device or charger upon request. Id. at 2. If a person subject to LEM leaves Michigan, they
“may be required to return to the State of Michigan to have the electronic monitoring equipment
inspected” by MDOC staff. Id. at 1. They are also required to respond to vibrations and flashing
LED lights on the LEM device, which indicate problems with the device or the need to contact
MDOC. Id. at 1, 4. If the GPS LED flashes red, the person must “[w]alk outside with the
[device] uncovered to an area with a clear view of the sky,” which means that the person should
No. 22-1301 Corridore v. Washington Page 18
not “stand under trees, building awnings,” or similar obstructions until the GPS LED turns off, so
that the device can reconnect to GPS. Id. at 4. If all three LEDs flash red, an “agent has sent an
alert for [the person] to contact them” and the person must press the acknowledge button on the
LEM device and then contact the agent at a designated phone number. Id.
B. Lifetime Electronic Monitoring and the “in Custody” Requirement
Considering the factors identified above, LEM constitutes a significant restraint on
Corridore’s liberty. LEM certainly “limits the putative habeas petitioner’s movement.” Leslie,
296 F.3d at 522 (quoting Williamson, 151 F.3d at 1183). Because the device must be charged for
two hours out of every twenty-four hour period, a person subject to LEM must be physically
tethered to an electrical outlet, uninterrupted, for two hours per day. Put differently, one month
out of every year of the person’s life will be spent connected to an electrical outlet. Those
subject to LEM cannot travel to places lacking reliable access to electricity or GPS signal. Riley
v. N.J. State Parole Bd., 98 A.3d 544, 559 (N.J. 2014); see also id. (holding that New Jersey’s
equivalent of LEM deprives the people subject to it “of freedom of movement and the ability to
live and work as other citizens, with no supervision” (quotation marks omitted)). This places
substantial limitations on a person’s freedom of movement by preventing them from engaging in
certain recreational activities like camping, or from accepting certain types of employment, such
as long-haul truck driving or working in a concrete warehouse with poor GPS reception. The
majority argues that such restrictions are insufficient to be custodial because “Corridore can go
where he wants, so long as he keeps the device charged and tracking.” Maj. Op. at 9. But that
ignores the fact that keeping the device charged and connected to GPS creates substantial
restraints on Corridore’s freedom of movement.
The Supreme Court, moreover, has concluded that if government officers “may demand
[a person’s] presence at any time and without a moment’s notice,” then that person is subject to
severe restraints on their liberty. Hensley, 411 U.S. at 351. A person subject to LEM must
“make [themselves] immediately available” to MDOC staff in the event that certain problems
occur with the device, many of which may be beyond the person’s control. LEM Rules at 2
(emphasis added). This is almost indistinguishable from the restraint described as custodial in
No. 22-1301 Corridore v. Washington Page 19
Hensley. And it is certainly more than a mere “incidental effect on movement,” as the majority
claims. Maj. Op. at 10.
Additionally, in Lawrence, this court concluded that, for the purposes of determining
what constitutes being in custody, the difference between reporting and non-reporting probation
“is a distinction without a difference,” because both give the government “supervisory authority
over a petitioner.” 560 F.3d at 480 n.5. The same is true for LEM: continuous and permanent
real-time monitoring of a person’s every movement constitutes supervisory authority over that
person, particularly given that failure to comply with the requirements of LEM constitutes a
felony. Mich. Comp. Laws Ann. § 750.520n.
Other factors also demonstrate that LEM is not—as the majority claims—merely a
collateral consequence of Corridore’s conviction. LEM was imposed as a mandatory part of
Corridore’s sentence, because Michigan law states that a court “shall sentence the defendant to
lifetime electronic monitoring” for a conviction of second-degree criminal sexual conduct “if the
violation involved sexual contact committed by an individual 17 years of age or older against an
individual less than 13 years of age.” Mich. Comp. Laws Ann. § 750.520c(2)(b) (emphasis
added). The Michigan Supreme Court has confirmed that LEM is part of a defendant’s sentence
and, in doing so, also confirmed that LEM meets another factor that this court has previously
considered: whether the relevant statute is remedial or punitive in nature. People v. Cole, 817
N.W.2d 497, 503 (Mich. 2012). In Cole, the state supreme court held that LEM is “a punishment
and part of the sentence itself” and thus constitutes a “direct consequence” of a conviction, not a
mere collateral consequence. Id. The court had been asked to consider whether a trial court is
required by due process to inform a defendant that mandatory LEM is a consequence of a guilty
plea, and thus the court had to determine whether LEM is a direct or merely collateral
consequence of a plea. Id. at 501. The Michigan Supreme Court’s characterization of Michigan
law is deserving of deference and militates in favor of finding that LEM constitutes a significant
restraint on liberty that is therefore custodial.
Other courts have also noted “the additional punitive effect” of social stigma, shame, and
ostracism resulting from wearing an LEM device, which is a visible marker of a person’s
connection with crime. Commonwealth v. Goodwin, 933 N.E.2d 925, 935 (Mass. 2010) (quoting
No. 22-1301 Corridore v. Washington Page 20
Commonwealth v. Cory, 911 N.E.2d 187, 196 n.18 (Mass. 2009)); see also Commonwealth v.
Norman, 142 N.E.3d 1, 9 (Mass. 2020); Riley, 98 A.3d at 559 (“The tracking device attached to
Riley’s ankle identifies Riley as a sex offender no less clearly than if he wore a scarlet letter.”).
People subject to LEM are therefore required to submit to conditions that “significantly restrain
[their] liberty to do those things which in this country free men are entitled to do,” and are
therefore in custody for the purposes of federal habeas jurisdiction. Jones, 371 U.S. at 243.
The majority believes that whether the statute is punitive in nature does not affect our “in
custody” analysis. But that plainly misreads this court’s precedents. This court has previously
looked at whether the relevant statute “is remedial as opposed to punitive in nature,” because
another court’s determination that the statute “is a form of civil regulation provides additional
support” for a conclusion that the restraint is more analogous to a collateral consequence. Leslie,
296 F.3d at 522–23. It is true that the analysis for an ex post facto challenge considers different
factors than the “in custody” analysis for federal habeas jurisdiction, and this court previously
has declined to conflate the two lines of cases. See Hautzenroeder, 887 F.3d at 744 (“[T]he two
issues pose different legal questions.”). But that does not mean that the question of whether the
statute is punitive in nature is irrelevant to this court’s custody requirement analysis. It simply
means that although a prior ex post facto decision may inform an analysis of the factors for
determining custody, the ultimate holding is not dispositive of the current question.
In reaching its decision to the contrary, the majority relies in part on a Ninth Circuit case,
Munoz v. Smith, 17 F.4th 1237 (9th Cir. 2021), which considered whether Nevada’s LEM
program was custodial for purposes of federal habeas jurisdiction. But Munoz is inapposite for
several reasons. First, Munoz did not involve restraints stemming from both LEM and the sex-
offender registry, as is the case here. Second, the court in Munoz discussed Piasecki, a Third
Circuit case that held that the restrictions of Pennsylvania’s sex-offender registry were custodial,
and determined that “Piasecki’s analysis was consistent” with that of the Munoz court. 17 F.4th
at 1244. Because Michigan’s Sex Offenders Registration Act (“SORA”) is analogous to the
Pennsylvania act, see infra Part III.C, that statement suggests that the Munoz court would have
found the combined restrictions of LEM and a statute similar to SORA to be custodial.
No. 22-1301 Corridore v. Washington Page 21
Additionally, Munoz did not examine certain factors that this court has considered in
determining whether restraints are custodial, such as whether the relevant statute “is remedial as
opposed to punitive in nature,” and thus Munoz is inconsistent with this court’s prior precedents.
Leslie, 296 F.3d at 523. Finally, unlike LEM in Michigan, the Munoz court determined that
Nevada’s electronic monitoring “does not limit [the petitioner’s] physical movement, nor does it
require him to go anyplace.” 17 F.4th at 1245. As mentioned above, in addition to the physical
limitations stemming from the charging and GPS connectivity requirements, a person subject to
LEM in Michigan must “make [themselves] immediately available” to MDOC staff under certain
circumstances. Munoz’s analysis therefore does not undermine my conclusion that Michigan’s
LEM program constitutes a significant restraint on Corridore’s liberty and is thus custodial.
LEM Rules at 2 (emphasis added). I would therefore hold that being subject to LEM alone, even
absent the burdens of SORA, is sufficient to place an individual “in custody” for purposes of
federal habeas jurisdiction.
III. SEX OFFENDER REGISTRATION IN MICHIGAN
A. Forfeiture and Certificate of Appealability
The majority argues that Corridore forfeited the portion of his argument regarding SORA
and that the district court’s certificate of appealability applies to only the issue of whether LEM
constitutes custody for purposes of federal habeas jurisdiction. Maj. Op. at 11–12. This
misconstrues both Corridore’s arguments in the district court and the district court’s certificate of
appealability.
First, Corridore argued in his petition that he would be in custody for the rest of his
lifetime because he “remains under twin burdens for life: lifetime electronic monitoring (LEM)
and sex offender registration (SOR).” R. 1 (Habeas Pet. Br. at 10) (Page ID #28). Although
Corridore stated in his brief in support of his petition that the Sixth Circuit had found that the
requirements of Ohio’s sex offender registry did not constitute custody, citing Hautzenroeder,
887 F.3d at 740, he did not concede that the burdens of SORA in combination with LEM do not
constitute custody. Id. at 11 (Page ID #29). Thus, at most Corridore forfeited the argument that
SORA alone constituted custody.
No. 22-1301 Corridore v. Washington Page 22
Likewise, nothing in the text of the district court’s certificate of appealability suggests
that Corridore’s argument about the combined restraints of LEM and SORA is not properly
before this court. See R. 8 (Op. & Order at 11) (Page ID #1920). The entirety of the district
court’s order on that point states: “The Court, nevertheless, GRANTS a certificate of
appealability on Petitioner’s first claim as to whether Petitioner is in custody for purposes of
habeas relief and whether this Court properly granted Respondent’s motion to dismiss the
petition.” Id. The certificate of appealability thus encompassed the entirety of Corridore’s claim
about custody, which included his argument regarding the twin burdens of LEM and SORA.
This court therefore can consider Corridore’s argument about the combined restraints of LEM
and SORA. Although for the reasons stated above I believe that the restraints of LEM alone
suffice to constitute custody for the purposes of federal habeas jurisdiction, and I would decide
this case solely on that issue, I address Corridore’s arguments regarding the combined restraints
of LEM and SORA in order to respond to the majority’s misperceptions of SORA and this
court’s related caselaw.
B. Michigan’s Sex Offenders Registration Act
The Michigan Supreme Court has described SORA as “a publicly accessible database
that impose[s] significant restrictions on the lives of registrants” and that “bears significant
resemblance to the traditional punishments of banishment, shaming, and parole because of its
limitations on residency and employment, publication of information and encouragement of
social ostracism, and imposition of significant state supervision.” People v. Betts, 968 N.W.2d
497, 501, 510 (Mich. 2021). We have also described SORA as “a byzantine code governing in
minute detail the lives of the state’s sex offenders.” Does #1–5 v. Snyder, 834 F.3d 696, 697 (6th
Cir. 2016).
SORA registrants who are classified as tier III offenders must report in person four times
a year according to a fixed schedule based on the registrant’s birth month in order to verify
certain personal information and ensure that a current photograph exists on file. Mich. Comp.
Laws Ann. §§ 28.725a(3)(c), (5). In addition to the scheduled reporting, registrants must report
changes to their name, residence, domicile, place of employment, and enrollment status in higher
No. 22-1301 Corridore v. Washington Page 23
education in person to the Michigan State Police (“MSP”)1 within three business days of the
change. Id. §§ 28.725(1), 28.724a. Registrants must also report changes to vehicle information,
email addresses, internet identifiers,2 or telephone numbers either registered to or used by the
registrant within three business days. Id. § 28.725(2)(a). Likewise, if a registrant “intends to
temporarily reside at any place other than his or her residence for more than 7 days,” they must
report such information to MSP within three business days. Id. § 28.725(2)(b). If a registrant
wishes to change their domicile or residence to another state, they must report to MSP in person
three days prior to the change. Id. § 28.725(7). A registrant must report to MSP in person
twenty-one days prior to traveling to another country for more than seven days or changing their
domicile or residence to another country. Id. § 28.725(8).
A substantial portion of the information that must be reported is also made publicly
available on a website maintained by MSP. Id. § 28.728(2). Publicly available information
about a tier II or tier III registrant includes: legal name, aliases, nicknames, former names, date
of birth, residential address, employer’s address, the address of schools being attended or that the
individual plans to attend, license plate number and description of any vehicle owned or operated
by the individual, summary of convictions, complete physical description, photograph,
registration status, and the provision defining the offense for which the individual is registered.
Id.
In addition to the reporting requirements, SORA registrants must maintain a valid
Michigan driver’s license or state personal identification card, unless the registrant is homeless,
as defined by the statute. Id. § 28.725a(7). A willful violation of most SORA provisions
constitutes a felony offense. Id. § 28.729(1). The first conviction for a SORA violation is
punishable “by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or
both.” Id. § 28.729(1)(a). A second conviction is punishable “by imprisonment for not more
than 7 years or a fine of not more than $5,000.00, or both,” and any subsequent conviction is
1
SORA defines “department” as referenced in section 28.725 as “the department of state police.” MICH.
COMP. LAWS ANN. § 28.722(c).
2
SORA defines “internet identifier” as including “all designations used for self-identification or routing in
internet communications or posting.” MICH. COMP. LAWS ANN. § 28.722(g).
No. 22-1301 Corridore v. Washington Page 24
punishable “by imprisonment for not more than 10 years or a fine of not more than $10,000.00,
or both.” Id. § 28.729(1)(b)–(c). A willful failure to comply with the requirement to report in
person four times a year constitutes a misdemeanor offense punishable “by imprisonment for not
more than 2 years or a fine of not more than $2,000.00, or both.” Id. § 28.729(2). Willful
violations of SORA also result in the mandatory revocation of probation or rescission of parole,
if applicable. Id. § 28.729(5), (7). Tier III offenders like Corridore must comply with SORA
until they die. Id. §§ 28.722(u)(ii), 28.722 (v)(v), 28.725(13).
C. SORA and the “in Custody” Requirement
SORA’s requirements, in combination with LEM, constitute a significant restraint on
Corridore’s liberty and thus he is “in custody” for purposes of federal habeas jurisdiction. The
extensive reporting requirements mandated by SORA represent physical restraints on a
registrant’s liberty in the same way that probation and parole do. Cf. Does #1–5, 834 F.3d at 703(“SORA’s requirements are more intrusive and more difficult to comply with than . . .
probation.”). As the Michigan Supreme Court has explained:
[I]t belies common sense to suggest that a . . . lifetime obligation to report to a
police station every ninety days to verify one’s identification, residence, and
school, and to submit to fingerprinting and provide a current photograph, is not a
substantial disability or restraint on the free exercise of individual liberty.
Betts, 968 N.W.2d at 511–12 (alteration in original) (quoting State v. Letalien, 985 A.2d 4, 24–
25 (Me. 2009)). And “[g]iven the ubiquity of the Internet in daily life, th[e] requirement [to
report changes to email addresses and internet identifiers] might . . . be[] triggered dozens of
times within a year.” Id. at 511.
The Third Circuit’s decision in Piasecki is particularly instructive in analyzing the
restraints imposed by SORA. In Piasecki, the Third Circuit considered Pennsylvania’s Sex
Offender Registration and Notification Act, which imposes substantially similar registration
requirements on registrants to Michigan’s SORA. 917 F.3d at 164–65. Like SORA,
Pennsylvania law requires tier III offenders to register in-person four times a year for the rest of
their lives. Id. at 164. Pennsylvania registrants must also appear in person to report changes to
the same categories of information as required by SORA. Id. Likewise, Pennsylvania registrants
No. 22-1301 Corridore v. Washington Page 25
must report international travel in person at least twenty-one days prior to their departure. Id. at
165. The sole additional Pennsylvania requirement not imposed by SORA is that, if a registrant
becomes homeless, they must appear in person monthly to be photographed. Id. SORA,
however, imposes additional burdens on registrants not imposed on the petitioner in Piasecki, by
making substantial portions of the registrant’s information publicly available, and by requiring
registrants to maintain a Michigan driver’s license or state ID card. Compare id. (“The parties
do not dispute that Piasecki was subject to these restrictions—and only these restrictions—when
he filed his § 2254 petition.”), with Mich. Comp. Laws Ann. §§ 28.728(2), 28.725a(7). The
petitioner in Piasecki also was not subject to the additional burdens of LEM. The Third Circuit
nevertheless held that the registration requirements of Pennsylvania’s statute sufficiently
restrained the petitioner’s liberty such that he was “in custody” for purposes of federal habeas
jurisdiction. Piasecki, 917 F.3d at 177.
In reaching its conclusion, the Third Circuit found that the question of custody was
“easily answered” as a result of the four times per year lifetime reporting requirement, because
“[t]he state’s ability to compel a petitioner’s attendance weighs heavily in favor of concluding
that the petitioner was in custody.” Id. at 170. Additionally, the extensive in-person reporting
requirements regarding the petitioner’s personal information constituted “compulsory, physical
‘restraints “not shared by the public generally.”’” Id. at 171 (quoting Hensley, 411 U.S. at 351).
The Third Circuit “easily conclude[d] that the restrictions . . . were ‘severe’” because, as with
Michigan’s SORA, a failure to comply with Pennsylvania’s registration requirements constituted
a felony offense, which the court analogized to the restrictions in Hensley. Id. The Third Circuit
conceded that although several other circuits had previously held that the requirements of sex-
offender registry statutes were not custodial, newer statutes like Pennsylvania’s act had
increasingly “onerous” requirements that were not previously mandated. Id. at 172. Likewise,
many of those decisions were based in part on the fact that “the respective state courts ha[d]
determined that their state registration schemes [were] remedial, not punitive,” whereas
“Pennsylvania courts have concluded otherwise.” Id. at 173–74. Given the overwhelming
similarities between the statutes, Piasecki’s well-reasoned conclusions apply with equal force to
Michigan’s SORA.
No. 22-1301 Corridore v. Washington Page 26
The majority’s reliance on Hautzenroeder is inapposite. It is true that Hautzenroeder
held that the restrictions of Ohio’s sex offender registry statute were not custodial. 887 F.3d at
741. Hautzenroeder, however, did not consider the cumulative burdens of sex-offender registry
and LEM. And the petitioner in Hautzenroeder claimed only that the requirements of registry
“chill[] registrants’ freedom of movement,” id., whereas Corridore has demonstrated that both
LEM and the reporting requirements of SORA represent physical restraints on his liberty.
Ohio’s sex-offender registration scheme, as reviewed in Hautzenroeder, is not “almost identical”
to SORA as the majority claims, Maj. Op. at 13, because the Ohio scheme did not involve in-
person reporting requirements, unlike the burdensome in-person reporting requirements of
SORA. And at least one other circuit has recognized that the conditions imposed by
Pennsylvania’s act—and therefore also by Michigan’s SORA—were substantially more onerous
than those addressed in prior sex-offender registry cases. Munoz, 17 F.4th at 1244 (“Piasecki
involved much more burdensome conditions than those addressed in our prior cases. . . .
Piasecki’s analysis was consistent with our own precedent, but simply confronted far more
severe restrictions than those we have addressed in our past cases.”).
Additionally, Michigan courts have held that although “sex offender registration is not a
criminal sanction, . . . it is a particularly severe penalty.” People v. Fonville, 804 N.W.2d 878,
894 (Mich. Ct. App. 2011). In holding that defense counsel must inform their clients that sex-
offender registration will be a consequence of a guilty plea, the Michigan Court of Appeals
concluded that “sex offender registration is ‘intimately related to the criminal process,’” and that
“[t]he ‘automatic result’ of sex offender registration for certain defendants makes it difficult ‘to
divorce the penalty from the conviction.’” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 365–
66 (2010)). The court thus distinguished “the unique and mandatory nature of the specific
consequence of the sex-offender-registration requirement from the common, potential, and
incidental consequences associated with criminal convictions.” Id. at 895. As with the Michigan
Supreme Court’s conclusions regarding LEM, this suggests that SORA registration too is more
than a mere collateral consequence of a conviction.
Our decision in Does #1–5 also supports such a conclusion. In that case, we considered a
prior version of SORA that was substantially similar to the current version, with the sole
No. 22-1301 Corridore v. Washington Page 27
additional restriction preventing registrants from “living, working, or ‘loitering’ within 1,000 feet
of a school.” Does #1–5, 834 F.3d at 698. We concluded that “SORA . . . resembles the
punishment of parole/probation,” that “it meets the general definition of punishment,” and that
its “restrictions put significant restraints on how registrants may live their lives.” Id. at 703.
Thus, “Michigan’s SORA imposes punishment.” Id. at 705. Our precedents thus bolster my
conclusion that SORA is not a mere collateral consequence, but a significant restraint on
registrants’ liberty. The Michigan Court of Appeals reached the same conclusion when
considering the current version of SORA, holding that “the 2021 SORA’s aggregate punitive
effect negates the Legislature’s intention to deem it a civil regulation. As a result, requiring an
individual to comply with the 2021 SORA imposes a criminal punishment on a registrant.”
People v. Lymon, ——N.W.2d——, No. 327355, 2022 WL 2182165, at *14 (Mich Ct. App.
June 16, 2022), leave to appeal granted, 983 N.W.2d 82 (Mich. 2023). Thus, considering the
cumulative burdens of LEM and SORA registration, I believe that Corridore has demonstrated
that there are significant restraints on his liberty such that he is “in custody” for the purposes of
federal habeas jurisdiction.
IV. CONCLUSION
The majority’s opinion wrongfully forecloses Corridore from raising challenges to the
constitutionality of his conviction and sentence in federal habeas proceedings. Accordingly,
I would reverse the district court’s judgment dismissing Corridore’s habeas petition and remand
for further proceedings. Because an individual should not be subject to the significant restraints
on their liberty posed by LEM and lifetime registration as a sex offender without recourse to a
writ of habeas corpus to challenge whether those restraints were constitutionally applied,
I respectfully dissent.