Kevin Stanbridge v. Gregory Scott , 791 F.3d 715 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-1548 & 14-2114
KEVIN W. STANBRIDGE,
Petitioner-Appellant,
v.
GREGORY SCOTT,
Respondent-Appellee.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 12-cv-3067 — Colin S. Bruce, Judge.
____________________
ARGUED APRIL 22, 2015 — DECIDED JUNE 29, 2015
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Kevin Stanbridge is currently con-
fined in a secured facility pursuant to a commitment order
under the Illinois Sexually Violent Persons Commitment Act,
725 Ill. Comp. Stat. 207/1 et seq., which allows for the civil
commitment of individuals who have been convicted of a
sexually violent offense and who suffer from a mental disor-
der that predisposes them to future acts of sexual violence.
Stanbridge filed a petition for a writ of habeas corpus in the
2 Nos. 14-1548 & 14-2114
Central District of Illinois, where he is confined. His petition
does not attack any aspect of his current confinement; rather,
it challenges a 2005 criminal conviction for aggravated crim-
inal sexual abuse. At the time the petition was filed, Stan-
bridge had already served his full sentence for his 2005 con-
viction. The district court, therefore, dismissed Stanbridge’s
petition, concluding that it lacked jurisdiction to consider
claims related to Stanbridge’s criminal conviction because he
is no longer “in custody pursuant to [that] judgment.” 28
U.S.C. § 2254(a).
Stanbridge argues on appeal, as he did below, that he
remains “in custody” pursuant to his sexual abuse convic-
tion because that conviction serves as a necessary, though
not sufficient, predicate for his current confinement. We con-
clude, however, that Stanbridge’s civil commitment is merely
a collateral consequence of his criminal conviction, and thus
insufficient to render Stanbridge in custody pursuant to that
conviction. We therefore affirm the district court’s dismissal
of the petition.
I. Background
In 1999, Kevin Stanbridge was charged with aggravated
criminal sexual abuse in Illinois. See 720 Ill. Comp. Stat. 5/12-
16(d) (1998). The charge stemmed from an incident with his
friend’s fourteen-year-old son, the details of which are not
relevant to our analysis. Stanbridge was initially convicted in
2001, but that conviction was reversed by the Illinois Appel-
late Court. People v. Stanbridge, 810 N.E.2d 88 (Ill. App. Ct.
2004). He was retried before a jury in April 2005 and found
guilty. On May 3, Stanbridge was sentenced to seven years in
prison, with credit for time served, to be followed by two
years of mandatory supervised release. Stanbridge again ap-
Nos. 14-1548 & 14-2114 3
pealed, but this time his conviction was upheld. People v.
Stanbridge, No. 4-05-0585 (Ill. App. Ct. July 14, 2007) (un-
published order).
In May 2005, while Stanbridge’s criminal appeal was
pending, the State filed a petition to have him civilly com-
mitted under the Sexually Violent Persons Commitment Act.
725 Ill. Comp. Stat. 207/1 et seq. Under that Act, a person may
be civilly committed if found to be a “sexually violent per-
son,” meaning that he or she has been found guilty of a sex-
ually violent offense and “is dangerous because he or she
suffers from a mental disorder that makes it substantially
probable that the person will engage in acts of sexual vio-
lence.” Id. 207/5(f). Stanbridge was served with the State’s
petition on May 5, 2005. On May 10, Stanbridge completed
his term of incarceration. (Almost all of the term had been
served before he was sentenced after retrial.) Rather than be-
ing released, however, he was transferred that day into the
custody of the Illinois Department of Human Services
(“IDHS”), as a judge had concluded that there was probable
cause to believe that he was a sexually violent person. See id.
207/30(c) (“If the court determines after a hearing that there
is probable cause to believe that the person named in the pe-
tition is a sexually violent person, the court shall order that
the person be taken into custody … [and] transferred within
a reasonable time to an appropriate facility … .”). Stanbridge
was confined to a secure IDHS facility for the duration of his
two-year term of supervised release, which expired on May
10, 2007. At that point, Stanbridge’s sentence for the aggra-
vated assault conviction was completely discharged. Stan-
bridge, however, continued to be confined in an IDHS facili-
ty pursuant to the probable cause determination.
4 Nos. 14-1548 & 14-2114
Stanbridge’s civil commitment trial occurred in October
2007, after which a jury found him to be a sexually violent
person. In February 2008, Stanbridge was ordered commit-
ted to a secure facility for institutional care and treatment
until such time that he is no longer a sexually violent person.
His commitment was confirmed on direct appeal. In re Kevin
S., No. 4-08-0163 (Ill. App. Ct. Nov. 19, 2008) (unpublished
order). Stanbridge remains in the custody of the Illinois De-
partment of Human Services. 1
In February 2012, Stanbridge filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. In the petition, Stan-
bridge identified the 2005 conviction for aggravated criminal
sexual abuse as the judgment of conviction that he was chal-
lenging. The petition raised seven claims pertaining to his
criminal trial; the only claim that remains on appeal is Stan-
bridge’s assertion that, during closing arguments, the prose-
cutor made multiple improper statements that violated
Stanbridge’s right to due process. Respondent Gregory Scott
moved to dismiss the petition for lack of jurisdiction, argu-
ing that Stanbridge was no longer in custody on his sexual
abuse conviction. The district court agreed and dismissed
the petition due to a lack of subject matter jurisdiction. We
granted Stanbridge a certificate of appealability, finding that
“Stanbridge ha[d] made a substantial showing of the denial
1 Stanbridge also filed a petition for postconviction relief in state court in
March 2008, in which he attacked his aggravated criminal sexual assault
conviction. That petition was dismissed because the court determined
that Stanbridge had no right to pursue relief under the Illinois Post-
Conviction Hearing Act, as he had fully served his criminal sentence by
the time he filed his petition. People v. Stanbridge, No. 04-08-0956 (Ill.
App. Ct. June 23, 2013) (unpublished order).
Nos. 14-1548 & 14-2114 5
of a constitutional right as to whether the prosecutor’s clos-
ing arguments were improper.” Stanbridge v. Scott, No. 14-
1548 (7th Cir. June 13, 2014). We instructed the parties to also
address the issue of whether Stanbridge is in custody such
that he may challenge his aggravated criminal sexual abuse
conviction.
II. Discussion
We review de novo a district court’s dismissal of a habeas
petition for lack of subject matter jurisdiction. Bhatt v. Reno,
204 F.3d 744, 746 (7th Cir. 1999). Federal courts have jurisdic-
tion over a habeas petition only if the petitioner is “in custo-
dy pursuant to the judgment of a State court.” 28 U.S.C.
§ 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490 (1989)
(holding that the custody requirement is jurisdictional). Im-
portantly here, the petitioner must be “‘in custody’ under the
conviction or sentence under attack at the time his petition is
filed.” Id. at 490–91 (emphasis added). As a general matter, if
a petitioner “is no longer serving the sentences imposed
pursuant to” the conviction challenged in a petition, he
“cannot bring a federal habeas petition directed solely at”
that conviction. Lackawanna Cnty. Dist. Attorney v. Coss, 532
U.S. 394, 401 (2001).
In Maleng v. Cook, the Supreme Court held that a peti-
tioner does not remain “‘in custody’ under a conviction after
the sentence imposed for it has fully expired, merely because
of the possibility that the prior conviction will be used to en-
hance the sentences imposed for any subsequent crimes of
which he is convicted.” 490 U.S. at 492. That is because a sen-
tence enhancement is a collateral consequence of a prior
conviction, and “once the sentence imposed for a conviction
has completely expired, the collateral consequences of that
6 Nos. 14-1548 & 14-2114
conviction are not themselves sufficient to render an indi-
vidual ‘in custody’ for the purposes of a habeas attack upon
it.” Id. In the instant case, Stanbridge’s sentence for his crim-
inal conviction has completely expired. Furthermore, re-
spondent argues, civil commitment under Illinois’s Sexually
Violent Persons Commitment Act is much like the sentence
enhancement at issue in Maleng: both require the existence of
a prior criminal conviction, but both are collateral, as op-
posed to direct, consequences of that prior conviction.
Stanbridge argues that his current civil confinement is
more than just a collateral consequence under the relevant
definition of that term. He points to our opinion in Virsnieks
v. Smith, 521 F.3d 707, 718 (7th Cir. 2008), in which we re-
ferred to “the collateral consequences of a conviction” as
“those consequences with negligible effects on a petitioner’s
physical liberty of movement.” Stanbridge’s civil confine-
ment, of course, is more than a negligible restraint on his
physical liberty of movement; therefore, he argues, it is more
than a collateral consequence.
We now clarify our earlier statement in Virsnieks, and
hold that a habeas petitioner is not “in custody” pursuant to
a particular conviction unless his physical liberty of move-
ment is limited in a non-negligible way, and that limitation is
a direct consequence of the challenged conviction. Though
“[t]here is some disagreement among the courts over how to
distinguish between direct and collateral consequences,” Pa-
dilla v. Kentucky, 559 U.S. 356, 364 n.8 (2010), in general, “[a]
consequence is direct if it is imposed by the sentencing court
as part of the authorized punishment, and included in the
court’s judgment.” User Guide Frequently Asked Questions,
Nat’l Inventory of Collateral Consequences,
Nos. 14-1548 & 14-2114 7
http://www.abacollateralconsequences.org/user_guide/#q02
(last visited June 26, 2015). In contrast, a consequence is col-
lateral “if it is not included in the court’s judgment,” no mat-
ter whether the consequence “is imposed on a person auto-
matically upon conviction” or serves as a necessary predi-
cate for a subsequent determination by a “court or adminis-
trative agency on grounds related to the conviction.” Id.
The requirement that a consequence must be direct in
order to render a petitioner in custody was necessary to the
Court’s holding in Maleng. There, it was unquestioned that
the petitioner was suffering a significant restraint on his lib-
erty—an enhanced prison term—because of the challenged
conviction. The Court, though, held that the petitioner was
not in custody with respect to the challenged (earlier) con-
viction because his enhanced sentence (from a later convic-
tion) was not a direct consequence of the earlier conviction;
rather, it was “pursuant to the second conviction that the pe-
titioner [was] incarcerated and [was] therefore ‘in custody.’”
Maleng, 490 U.S. at 493.
The rule that a consequence does not render a petitioner
“in custody” pursuant to a conviction unless it is both a di-
rect consequence of that conviction and a non-negligible re-
straint on physical liberty is also consistent with our holding
in Virsnieks, the other cases mentioned in that opinion, and
the cases cited by Stanbridge in his briefs. Collateral conse-
quences, even those that impose a significant restraint on
one’s freedom of movement, such as being placed in federal
detention awaiting deportation, do not render a petitioner
“in custody.” See Ogunwomoju v. United States, 512 F.3d 69, 75
(2d Cir. 2008); Resendiz v. Kovensky, 416 F.3d 952, 956–57 (9th
Cir. 2005), abrogated on other grounds by Padilla, 559 U.S. 356;
8 Nos. 14-1548 & 14-2114
Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004), abro-
gated on other grounds by Padilla, 559 U.S. 356. Similarly, direct
consequences do not render a petitioner in custody where
courts have held that they do not place a significant restraint
on his freedom of movement. See, e.g., Smullen v. United
States, 94 F.3d 20, 25–26 (1st Cir. 1996) (order of restitution);
Harts v. Indiana, 732 F.2d 95, 96–97 (7th Cir. 1984) (suspension
of driving privileges); Hanson v. Circuit Court of the First Judi-
cial Circuit of Ill., 591 F.2d 404, 407 (7th Cir. 1979) (order to
pay fine). And, of course, consequences that are neither di-
rect nor a significant constraint on freedom of movement do
not render a petitioner “in custody.” See, e.g., Virsknieks, 521
F.3d at 719–20 (requirement to register as a sex offender);2
Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (revocation of
medical license).
In contrast, consequences of a conviction that are both di-
rect and a non-negligible restriction on the physical liberty of
movement do render a habeas petitioner “in custody.” For
example, the Third Circuit has held that a sentence of 500
hours of community service satisfies the “in custody” re-
quirement. Barry v. Bergen Cnty. Prob. Dep’t, 128 F.3d 152, 161
(3d Cir. 1997) (“[A]n individual who is required to be in a
certain place … or to perform services[] is clearly subject to
2 In Virsnieks, there was a dispute over whether the petitioner’s require-
ment to register as a sex offender was a direct or collateral consequence
of his guilty plea. 521 F.3d at 716. We declined to definitively answer the
question, instead concluding that the state court’s determination that it
was a collateral consequence was not “contrary to, or … an unreasonable
application of, clearly established Federal law.” See 28 U.S.C.
§ 2254(d)(1). Regardless, we found that the petitioner was not in custody
in that case because the registration requirement did not interfere with
the petitioner’s freedom of movement.
Nos. 14-1548 & 14-2114 9
restraints on his liberty not shared by the public generally.”).
Likewise, in Jones v. Cunningham, 371 U.S. 236, 242–43 (1963),
the Supreme Court held that a petitioner who had been
placed on parole was still in custody. Parole is a direct con-
sequence of a criminal conviction, as it is served in lieu of the
remainder of a prison sentence, and imposes a significant
restraint on freedom of movement. See id. (“Petitioner is con-
fined by the parole order to a particular community, house,
and job at the sufferance of his parole officer. … [C]onditions
and restrictions such as these … significantly restrain peti-
tioner’s liberty to do those things which in this country free
men are entitled to do.”).
As applied to this case, it is clear that Stanbridge is not in
custody pursuant to his sexual abuse conviction. 3 Although
3 We note that a petition for a writ of coram nobis may sometimes be an
appropriate vehicle to address the constitutionality of a prior conviction,
the sentence for which has been fully served. See Chaidez, 133 S. Ct. at
1106 n.1 (2013) (“A petition for a writ of coram nobis provides a way to
collaterally attack a criminal conviction for a person … who is no longer
‘in custody’ and therefore cannot seek habeas relief under 28 U.S.C.
§ 2255 or § 2241.”); see also United States v. Morgan, 346 U.S. 502, 512
(1954) (holding that federal courts are authorized by the All Writs Act, 28
U.S.C. § 1651, to issue writs of coram nobis). The bar for obtaining such a
writ is high, however—it is “reserved for compelling events” and is usu-
ally limited to “[c]laims that could [not] have been raised by direct ap-
peal.” United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988). Moreover,
the petitioner must be suffering “an ongoing legal disability”—a collat-
eral consequence—and the petition must “present[] questions that could
not have been resolved at the time of conviction.” United States v. Bush,
888 F.2d 1145, 1146 (7th Cir. 1989). Stanbridge has not asked us to con-
strue his petition as a petition for a writ of coram nobis, and, in any event,
the fact that he had the opportunity to raise this issue both at his criminal
trial and on direct appeal would likely preclude the use of this writ.
10 Nos. 14-1548 & 14-2114
his physical liberty of movement is restrained in a non-
negligible way, that restraint is not a direct consequence of
his criminal conviction. Rather, his civil commitment is clear-
ly a collateral consequence of his criminal conviction, as it
was not part of the judgment in the criminal case. See George
v. Black, 732 F.2d 108, 110 (8th Cir. 1984) (holding that the
possibility of confinement pursuant to civil commitment
proceedings after the expiration of a criminal sentence is a
collateral consequence); cf. Chaidez v. United States, 133 S. Ct.
1103, 1108 n.5 (2013) (“[E]ffects of a conviction commonly
viewed as collateral include civil commitment.”).
Stanbridge is, of course, in custody pursuant to his civil
commitment order, meaning that the federal courts would
have subject matter jurisdiction to hear a habeas challenge to
the constitutionality of that custody. See Ambrose v. Roeckeman,
749 F.3d 615, 616 (7th Cir. 2014) (considering on the merits
the habeas petition of a petitioner challenging his civil com-
mitment under the Illinois Sexually Dangerous Persons Act).
Moreover, “a petitioner challenging a current sentence ‘as
enhanced by [an] allegedly invalid prior conviction’ satisfies
the ‘in custody’ requirement of § 2254 even though the sen-
tence imposed for the prior conviction has expired.” Martin
v. Deuth, 298 F.3d 669, 671 (7th Cir. 2002) (quoting Maleng,
490 U.S. at 493). In other words,
Maleng holds that when sentence A has expired
but has been used to augment sentence B, the
prisoner is “in custody” only on sentence B.
The consequences of sentence A for sentence B
do not yield continued “custody” on sentence A,
the Court concluded. [However,] a person in
custody on sentence B may contend that that
Nos. 14-1548 & 14-2114 11
custody violates the Constitution if it was
augmented because of an invalid sentence A.
… Whether the federal court with jurisdiction
over the custodian holding the prisoner on sen-
tence B may inquire into the validity of sen-
tence A is a matter of comity and the rules of
preclusion, not of “custody.”
Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990).
The district court in this case would, therefore, have ju-
risdiction to consider Stanbridge’s petition if it were con-
strued as an attack on his current civil custody—Stanbridge’s
civil confinement being analogous to “sentence B” in the
above hypothetical. At oral argument, however, Stanbridge’s
counsel asked that we not construe his petition in that man-
ner. There is a strategic reason behind this request: if we con-
strued Stanbridge’s petition as an attack on the civil com-
mitment judgment, the district court would have jurisdiction
over the petition but would be barred from addressing the
merits of his claim that his civil commitment is predicated
on an invalid prior conviction. That is because the question
that we left open in Crank—“[w]hether the federal court with
jurisdiction over the custodian holding the prisoner on sen-
tence B may inquire into the validity of sentence A”—was
definitively answered in the negative by the Supreme Court
in Lackawanna County District Attorney v. Coss, 532 U.S. 394
(2001). There, the Court held that “once a state conviction is
no longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while
they were available (or because the defendant did so unsuc-
cessfully), the conviction may be regarded as conclusively
valid.” Id. at 403. “If that conviction is later used to enhance
12 Nos. 14-1548 & 14-2114
a criminal sentence, the defendant generally may not chal-
lenge the enhanced sentence through a petition under § 2254
on the ground that the prior conviction was unconstitution-
ally obtained.” Id. at 403–04.
There is at least one exception to that rule: a petitioner
may challenge the prior conviction when it “was obtained
where there was a failure to appoint counsel in violation of
the Sixth Amendment.” Id. at 404. That exception would be
inapplicable here because Stanbridge was assisted by coun-
sel throughout his criminal case. The Supreme Court in Coss
mentioned the possibility of a further exception where “a
habeas petition directed at the enhanced sentence may effec-
tively be the first and only forum available for review of the
prior conviction.” Id. at 406. But again, we need not decide
today whether such an exception exists, as Stanbridge asks
us not to construe his petition as an attack on his civil com-
mitment. 4
4 Stanbridge, we note, had ample opportunity to—and actually did (albe-
it unsuccessfully)—contest his criminal conviction on direct appeal. It is
true that Stanbridge did not have the opportunity to seek federal habeas
review of his criminal conviction while he was still “in custody,” as the
Illinois Court of Appeals did not rule on his direct appeal until after he
had completed his prison sentence and his term of supervised release.
Nothing in Coss, however, suggests that the opportunity for direct re-
view in state court is inherently inadequate. Rather, the Coss opinion re-
fers to specific situations in which direct review may be inadequate, such
as when a state court, without justification, refuses to rule on a properly
presented constitutional claim, or when newly obtained evidence, una-
vailable to the state appellate court, strongly suggests that the petitioner
is innocent. 532 U.S. at 405. The Court’s use of those examples suggests
that, in the absence of such defects, the opportunity for direct review in
state court would preclude a petitioner from invoking the second, hypo-
thetical Coss exception. Cf. Abdus-Samad v. Bell, 420 F.3d 614, 630–31 (6th
Nos. 14-1548 & 14-2114 13
No matter how Stanbridge’s petition is characterized,
then, he cannot be successful in this case. Stanbridge asks
that we characterize his petition as an attack only on his
criminal conviction, and so we must affirm the district
court’s dismissal for lack of jurisdiction.
III. Conclusion
We AFFIRM the district court’s dismissal of Stanbridge’s
petition for a writ of habeas corpus for a lack of jurisdiction.
Cir. 2005) (holding that the “first and only forum available for review”
exception could not be invoked where petitioner’s claim had been re-
viewed by a state court, but not a federal court, on collateral review).