Eric Wilson v. W. Flaherty

CORRECTED OPINION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERIC C. WILSON, 
Petitioner-Appellant,
v.
W. STEVEN FLAHERTY,  No. 11-6919
Superintendent, Virginia
Department of State Police,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
John A. Gibney, Jr., District Judge.
(3:10-cv-00536-JAG)
Argued: March 22, 2012
Decided: August 15, 2012
Opinion header corrected: August 17, 2012
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Davis joined. Judge Davis wrote a
separate concurring opinion. Judge Wynn wrote a dissenting
opinion.
2 WILSON v. FLAHERTY
COUNSEL
ARGUED: George A. Somerville, TROUTMAN SANDERS,
LLP, Richmond, Virginia, for Appellant. Virginia Bidwell
Theisen, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Stephen A. Northup, Anthony F. Troy, Joshua D. Heslinga,
TROUTMAN SANDERS, LLP, Richmond, Virginia, for
Appellant. Kenneth T. Cuccinelli, II, Attorney General of Vir-
ginia, Benjamin H. Katz, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Five years after Eric Wilson fully served his sentence for
a Virginia state rape conviction, he filed this habeas corpus
petition under 28 U.S.C. § 2254, challenging his conviction.
To satisfy § 2254’s jurisdictional requirement that he be "in
custody" at the time he filed his petition, see 28 U.S.C.
§ 2254(a) (granting jurisdiction to the district courts to enter-
tain "an application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State court"
(emphasis added)), Wilson alleged that the sex offender regis-
tration requirements of Virginia and Texas law impose suffi-
ciently substantial restraints on his liberty so as to amount to
custody.
The district court dismissed Wilson’s petition for lack of
jurisdiction, holding that because Wilson had fully served the
sentence for his rape conviction, he was no longer "in cus-
tody," as required by § 2254(a).
We affirm. While it appears that Wilson has mounted a
serious constitutional challenge to his conviction, in which he
WILSON v. FLAHERTY 3
vigorously asserts his innocence, we conclude that the sex
offender registration requirements of Virginia and Texas are
collateral consequences of his conviction that are indepen-
dently imposed on him because of his status as a convicted
sex offender and not as part of his sentence. We also note that
the sex offender registration requirements and related conse-
quences do not impose sufficiently substantial restraints on
Wilson’s liberty so as to justify a finding that he is in the cus-
tody of state officials.
I
Wilson was one of the "Norfolk Four," a group of four
young Navy sailors who were convicted of the rape and/or
murder of Michelle Bosko, the wife of another Navy sailor.
Wilson himself was acquitted of murder but convicted of rape
in 1999 and sentenced to eight and one-half years’ imprison-
ment. Wilson was released from custody in 2005 after having
fully served his sentence, and he returned to his parents’ home
in Texas.
Following the convictions, the investigation and prosecu-
tion of the Norfolk Four were called into question by new evi-
dence, including allegations of fraud on the part of the lead
investigator and a DNA match to another individual who con-
fessed to and was later convicted of the rape and murder of
Bosko. We recently set forth the facts relating to the Bosko
murder, the investigation, trials, and exculpatory new evi-
dence in detail, affirming the district court’s grant of the
habeas petition of Derek Tice, another member of the Norfolk
Four. See Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011).
In 2004, a year before Wilson was released from prison, he,
along with the other three members of the Norfolk Four, peti-
tioned the Governor of Virginia for an absolute pardon on the
grounds of innocence, pursuant to Article V, § 12, of the Vir-
ginia Constitution and Virginia Code § 53.1-229. Ultimately,
in 2009, Virginia Governor Tim Kaine, after reviewing the
4 WILSON v. FLAHERTY
pardon applications anew, concluded that the Norfolk Four
"had raised substantial doubt about the validity of their con-
victions but had not conclusively established their innocence."
He thus issued conditional pardons to the three members of
the Norfolk Four who were still incarcerated, freeing them
from prison, but keeping their convictions in place. He denied
any relief to Wilson because Wilson had already been
released.
Because of his conviction for rape, Wilson was required to
and did register with the Virginia State Police as a sex
offender, pursuant to Virginia’s Sex Offender and Crimes
Against Minors Registry Act, Va. Code § 9.1-900, et seq. As
required by that law, he registered before leaving prison. Wil-
son was also required to reregister for any significant changes
in residence, employment, online contact information, or
vehicle ownership while a Virginia resident, Va. Code § 9.1-
903, and, because his rape conviction was considered a "sexu-
ally violent offense," was required to reregister and confirm
all of his identifying information every 90 days, id. § 9.1-904.
Upon moving to Texas, Wilson was also required to register
there in a manner similar to that required by Virginia. In addi-
tion, Wilson has asserted that he cannot, based on other regu-
lations, adopt his stepson or work as an electrician at sites that
require clearance, among other things.
Wilson filed this petition for a writ of habeas corpus in
March 2010, some five years after his sentence was fully
served, alleging that he is actually innocent; that the Com-
monwealth of Virginia suppressed exculpatory evidence; and
that he was the victim of a corrupt investigative process.
Naming as the respondent W. Steven Flaherty, the Superin-
tendent of the Virginia Department of State Police, Wilson
alleged that he was being unlawfully restrained by the Vir-
ginia State Police in its administration of the Virginia Sex
Offender and Crimes Against Minors Registry Act because he
was unlawfully convicted and subjected to registration
requirements. For relief, he requested that his rape conviction
WILSON v. FLAHERTY 5
be declared null and void; that he be immediately released
from his violent sex offender status; and that Virginia
expunge any and all records relating to his conviction. Wilson
also filed a motion to stay and abey his petition to permit his
exhaustion in the Virginia state courts of his corrupt-
investigative-process claim.
In response, the Superintendent of the State Police con-
tended that the district court should deny the motion to stay
and abey because Wilson was not "in custody for purposes of
federal habeas corpus and thus [the district court] lack[ed]
jurisdiction to consider his current habeas case." See 28
U.S.C. § 2254(a); see also Maleng v. Cook, 490 U.S. 488,
490-91, 494 (1989) (per curiam) (holding that a habeas peti-
tioner must be "‘in custody’ under the conviction or sentence
under attack at the time his petition is filed" and that the fail-
ure to establish the in custody requirement deprives a federal
habeas court of subject matter jurisdiction).
The district court agreed with the Superintendent and dis-
missed Wilson’s petition, based on a lack of subject matter
jurisdiction. Because Wilson had made a substantial showing
of the denial of a constitutional right, however, the court
issued a certificate of appealability "as to the specific issue
regarding whether Wilson is considered ‘in custody,’ such
that the relief afforded by habeas corpus is available to him."
This appeal followed.
II
Recognizing that he filed his petition only after fully serv-
ing his sentence, Wilson contends nonetheless that he remains
"in custody" of the Virginia State Police because of the "sub-
stantial restraints on his liberty" that the State Police are
imposing on him by enforcing Virginia’s sex offender regis-
tration statute. He does not dispute the proposition that the
collateral consequences of a conviction do not generally suf-
fice to find one "in custody" but argues that, as a sex offender,
6 WILSON v. FLAHERTY
he suffers from far more substantial restraints than the normal
consequences of a felony conviction. In addition to the gen-
eral registration obligations, which he must fulfill in person
and which require him to provide a wide "array of physical
and other personal identifying information," he notes that he
has to reregister every 90 days because his offense was a
"sexually violent offense," see Va. Code 9.1-904. He also
must reregister in person for any changes in residence,
employment, vehicle ownership, or online contact informa-
tion. See id. § 9.1-903. Moreover, before moving from Vir-
ginia to Texas, Wilson was required to notify the Virginia
State Police, who in turn notified the designated law enforce-
ment agency in Texas. See id. § 9.1-903(D). He asserts that
when he moved to Texas, he was and continues to be subject
to similar registration requirements. See Tex. Code Crim.
Proc. Ann. art. 62.001, et seq. In addition, he claims that
under Texas law he must carry a sex offender identification
card at all times and renew his driver’s license every year
rather than every six years and must do so in person.
Wilson also points to other constraints resulting from his
status as a sex offender that are not imposed by the registra-
tion statutes. He claims that he is unable to work as an electri-
cian at particular jobs, such as at government buildings, or to
enroll in electrician school to advance his career because he
cannot pass the required background checks. He claims that
he has been unable to adopt his eight-year-old stepson; that,
to visit his stepson in school, he must submit to a humiliating
background check; that, for an unexplained reason, he was not
permitted to travel to Canada for his honeymoon; and that he
must notify authorities if he is going to be away from home
for more than 24 hours.
Finally, Wilson points out that his failure to comply with
the state registration requirements subjects him to criminal
penalties, both under state and federal law.
Based on these restraints on his liberty, Wilson contends
that he remains "in custody," thereby satisfying the "in cus-
WILSON v. FLAHERTY 7
tody" jurisdictional requirement of 28 U.S.C. § 2254 and
enabling the federal habeas court to consider his challenges to
his rape conviction.
Section 2254 provides that a federal court or judge
shall entertain an application for a writ of habeas
corpus in 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) (emphasis added). The Supreme Court
has construed this provision to be jurisdictional and to require
that "the habeas petitioner be ‘in custody’ under the convic-
tion or sentence under attack at the time his petition is filed."
Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (emphasis
added). Moreover, the Court has held that "in custody" does
not refer just to physical confinement but also to parole served
as part of a sentence involving physical confinement. See
Jones v. Cunningham, 371 U.S. 236 (1963).
In Jones, the Court held that a prisoner who had been
released on parole remained "in custody" because "the cus-
tody and control of the Parole Board involve[d] significant
restraints on petitioner’s liberty," including confinement "to a
particular community, house, and job, at the sufferance of his
parole officer," periodic reporting requirements, and restric-
tions on certain activities. 371 U.S. at 242. The Court
observed that because of these restrictions, the parolee "must
live in constant fear that a single deviation, however slight,
might be enough to result in his being returned to prison to
serve out the very sentence he claims was imposed upon him
in violation of the United States Constitution." Id.; see also
Hensley v. Mun. Court, 411 U.S. 345, 351 (1973) (holding
that a defendant released on his own recognizance before
beginning his sentence was "in custody" because he was "sub-
ject to restraints not shared by the public generally" in that he
8 WILSON v. FLAHERTY
had an "obligation to appear at all times and places as ordered
by any court or magistrate of competent jurisdiction" and his
"freedom of movement rest[ed] in the hands of state judicial
officers, who may demand his presence at any time and with-
out a moment’s notice" (internal quotation marks and alter-
ations omitted)).
Despite the limited expansion of the strict historical mean-
ing of "in custody" brought about by Jones and later cases, the
Supreme Court later cautioned that it had "never held . . . that
a habeas petitioner may be ‘in custody’ under a conviction
when the sentence imposed for that conviction has fully
expired at the time his petition is filed." Maleng, 490 U.S. at
491. Maleng recognized that although a petitioner is subject
to the "collateral consequences" of a prior conviction, such as
a sentencing enhancement in connection with a subsequent
offense, he "suffers no present restraint from a conviction"
and therefore is not in custody after fully serving his sentence.
Id. at 492. As the Court explained, "once the sentence
imposed for a conviction has completely expired, the collat-
eral consequences of that conviction are not themselves suffi-
cient to render an individual ‘in custody’ for the purposes of
a habeas attack upon it." Id. It observed that a contrary ruling
"would mean that a petitioner whose sentence has completely
expired could nonetheless challenge the conviction for which
it was imposed at any time on federal habeas. This would read
the ‘in custody’ requirement out of the statute . . . ." Id.In this case, it is undisputed that Wilson fully served his
sentence and was unconditionally released from custody in
2005. Thus, there was no term or condition of his sentence
that could subject him to reincarceration or impose any other
restraint on his liberty. Instead, all of the registration require-
ments on which Wilson relies to argue that his liberty is being
substantially restrained arise from the collateral, independent
requirements imposed by the sex offender registration statutes
in Virginia and Texas, as well as by the federal statute. While
it is true that the triggering fact for these statutes is Wilson’s
WILSON v. FLAHERTY 9
rape conviction, the registration requirements are not imposed
as a sentence for his rape but rather as a collateral conse-
quence of his having been convicted of rape. If we were to
find that the requirements of those statutes were not in fact
collateral consequences, then we would be holding that any
convicted sex offender could challenge his conviction "at any
time on federal habeas," with the consequence that the in-
custody jurisdictional requirement of § 2254 would be read
out of the statute. Maleng, 490 U.S. at 492. Maleng unam-
biguously rules out such a result.1
Not only has the Supreme Court never held that a defendant
is in custody for habeas purposes when the sentence imposed
for the conviction has fully expired at the time his petition is
1
The dissent relies on what it terms a "pertinent line of precedents
issued after Maleng" to claim that the Supreme Court has suggested that
"there are instances in which a fully served sentence may be collaterally
challenged" and that, in cases of actual innocence, we should not "elevate
procedural requirements over more fundamental concerns." Post, 17-20.
The dissent is unmistakably correct that procedural barriers may be over-
come by compelling claims of actual innocence and that prior convictions
may, in some circumstances, be collaterally challenged. But the Supreme
Court has never suggested that jurisdictional barriers should be ignored
based on the merits of the claim, and the cases on which the dissent relies
reaffirm Maleng’s core holding that a habeas petitioner cannot directly
challenge a sentence that he has fully served. In both Daniels v. United
States, 532 U.S. 374 (2001), and Lackawanna County District Attorney v.
Coss, 532 U.S. 394 (2001), the habeas petitioners were in physical custody
pursuant to sentences enhanced, based on prior convictions. To find juris-
diction, the Coss Court construed the habeas petition, as did the Maleng
Court earlier, as "‘asserting a challenge to the [current] sentence, as
enhanced by the allegedly invalid prior conviction.’" 532 U.S. at 401-02
(quoting Maleng, 490 U.S. at 493 (alterations omitted)). In so doing, it
reaffirmed that because "Coss is no longer serving the sentences imposed
pursuant to his 1986 convictions . . . , [he] therefore cannot bring a federal
habeas petition directed solely at those convictions." Id. at 401 (emphasis
added). Because Wilson, unlike the petitioners in the cases cited by the
dissent, cannot mount a direct challenge to any conviction or sentence he
is currently serving, these precedents are not "pertinent" as the dissent
claims, but are singularly inapplicable.
10 WILSON v. FLAHERTY
filed, but no court of appeals has so held either.2 More partic-
ularly, every court of appeals to have considered whether the
registration requirements imposed on sex offenders place the
sex offender in custody for purposes of habeas jurisdiction
has concluded that they do not. See, e.g., Virsnieks v. Smith,
521 F.3d 707 (7th Cir. 2008); Leslie v. Randle, 296 F.3d 518(6th Cir. 2002); Henry v. Lungren, 164 F.3d 1240 (9th Cir.
1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir.
1998). We will not depart from this unanimous body of law.
See Virsnieks, 521 F.3d at 718 ("[G]iven the habeas statute’s
‘in custody’ requirement, courts have rejected uniformly the
argument that a challenge to a sentence of registration under
a sexual offender statute is cognizable in habeas").
Our sister circuits have recognized that "[i]n Jones and
other cases expanding the definition of custody, the
[Supreme] Court emphasized the physical nature of the
restraints on liberty that satisfied the custody requirement."
Virsnieks, 521 F.3d at 718. And they have all agreed that sex
offender registration requirements, whether they require in-
person registration or allow registration by mail or electronic
means, do not constitute such physical restraints. See, e.g.,
Leslie, 296 F.3d at 522 (holding that Ohio’s sex offender reg-
istration, requiring in-person registration, did not constitute
custody); Henry, 164 F.3d at 1242 ("Registration, even if it
must be done in person at the police station, does not consti-
tute the type of severe, immediate restraint on physical liberty
necessary to render a petitioner ‘in custody’ for the purposes
of federal habeas relief"). The only present physical restraints
Wilson complains about in his declaration are the Texas law
2
The dissent, continuing the error it makes in interpreting Daniels and
Coss, ante, 9 n.1, disputes this statement, citing Zichko v. Idaho, 247 F.3d
1015 (9th Cir. 2001). Post, at 16 n.2. In Zichko, however, the defendant
had been arrested and incarcerated for failing to register as a sex
offender. See id. at 1019. The Ninth Circuit relied on that present custody,
and, in so doing, reaffirmed that "merely being subject to a sex offender
registry requirement does not satisfy the ‘in custody’ requirement after the
original rape conviction has expired." Id. (emphasis added).
WILSON v. FLAHERTY 11
requirements that he appear in person each year to register as
a sex offender and that he appear in person to renew his driv-
er’s license so that he can get a new picture made. He also had
to register in person with Virginia authorities upon release
and during his residency there. Unlike the physical restraints
imposed on the petitioners’ freedom of movement in Jones
and Hensley, however, these sex offender registration require-
ments do not impair Wilson’s "ability to move to a different
community or residence" or condition such movements "on
approval by a government official." Leslie, 296 F.3d at 522.
Nor do they "prohibit[ ] [him] from engaging in any legal
activities." Id. Further, the laws do not disincentivize moving
by making it more onerous for Wilson to live in other places
because the registration and notification requirements are the
same whether Wilson moves or remains in his present loca-
tion at all times. See Williamson, 151 F.3d at 1184 ("Certainly
the loss of a driver’s license amounts to a much greater limita-
tion on one’s freedom of movement than does the . . . sex
offender law, but the former does not satisfy the ‘in custody’
requirement either"). "In short, the constraints of this law lack
the discernible impediment to movement that typically satis-
fies the ‘in custody’ requirement." Id.To be sure, Wilson points to other particular consequences
flowing from his conviction. For example, he claims that he
cannot adopt his stepson and that he cannot work on certain
governmental projects requiring clearance. But these restric-
tions are simply particularized collateral consequences stem-
ming from the way States and individuals have reacted to
persons who have been convicted of sex offenses, just as stat-
utes impose other collateral consequences generally on per-
sons convicted of a felony. See Maleng, 490 U.S. at 492.
At bottom, we agree with the district court that Wilson has
not demonstrated that he is "in custody" so as to satisfy the
jurisdictional requirement for a federal habeas case under 28
U.S.C. § 2254. To rule otherwise would drastically expand
the writ of habeas corpus beyond its traditional purview and
12 WILSON v. FLAHERTY
render § 2254’s "in custody" requirement meaningless. As the
First Circuit has eloquently explained:
Adverse occupational and employment conse-
quences are a frequent aftermath of virtually any fel-
ony conviction. Government regulation, in the nature
of the imposition of civil disabilities—say, loss of
voting rights or disqualification from obtaining a gun
permit—often follows a defendant long after his sen-
tence has been served. To hold that the custody
requirement is so elastic as to reach such sequellae
would be to stretch the concept of custody out of all
meaningful proportion, to render it limp and
shapeless—in the last analysis, to make habeas cor-
pus routinely available to all who suffer harm ema-
nating from a state conviction, regardless of actual
custodial status. We abjure such an expansive rule.
Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987).
III
Wilson forcefully argues that his petition presents a com-
pelling claim of actual innocence and that a writ of habeas
corpus is necessary for him to press his challenge in state
courts. But the strength of his claim on the merits cannot con-
fer subject matter jurisdiction on a federal habeas court. See
Maleng, 490 U.S. at 494 (ruling on the "narrow issue" of
"‘custody’ for subject-matter jurisdiction of the habeas court"
and expressing no view on the merits (emphasis added)).
Individuals in Wilson’s position are not, however, without
remedies to clear their names. Wilson might be able to invoke
the writ of coram nobis in state court, which "affords a rem-
edy to attack a conviction when the petitioner has served his
sentence and is no longer in custody." Estate of McKinney v.
United States, 71 F.3d 779, 781 (9th Cir. 1995); see also
United States v. Sandles, 469 F.3d 508, 517 (6th Cir. 2006)
WILSON v. FLAHERTY 13
("The proper means of attacking the validity of a sentence
which has already been served . . . is by writ of error coram
nobis" (alterations omitted)). The court in Estate of McKinney
explained that coram nobis "provides a remedy for those suf-
fering from the lingering collateral consequences of an
unconstitutional or unlawful conviction based on errors of fact
and egregious legal errors." Estate of McKinney, 71 F.3d at
781 (emphasis added) (internal quotation marks omitted).3
In making these observations, however, we do not pass on
the merits of Wilson’s claim, nor do we suggest the outcome
of any further proceeding. We simply and narrowly affirm the
district court’s conclusion that Wilson is not "in custody"
within the meaning of 28 U.S.C. § 2254(a) and that therefore
the district court lacked subject matter jurisdiction to entertain
his habeas petition.
AFFIRMED
DAVIS, Circuit Judge, concurring:
I join Judge Niemeyer’s well-reasoned opinion in full and
write briefly to offer these observations. The majority opinion
shows with perfect clarity why the authorities relied on by the
dissent cannot do the work assigned them in this case. See
Maj. Op. nn. 1 and 2. The plain fact is that the district court
3
Although the dissent may be correct that Virginia has limited the appli-
cation of the writ of coram nobis, see post, at 22-23 n.4, the writ remains
available for "an error of fact not apparent on the record, not attributable
to the applicant’s negligence, and which if known by the court would have
prevented rendition of the judgment." Commonwealth v. Morris, 281 Va.
70, 78 (2011) (quoting Dobie v. Commonwealth, 198 Va. 762, 769
(1957)). The dissent goes to great lengths to highlight the exceptional
nature of Wilson’s claim, even asking this court to make an exception to
a jurisdictional rule in order to entertain the petition. Although we find
such an exception unsupportable in light of clear Supreme Court prece-
dent, we surmise that Wilson can undoubtedly rely on these same favor-
able facts in pursuing other remedies, including coram nobis, within the
state judicial and political systems.
14 WILSON v. FLAHERTY
and this court lack jurisdiction over this action under 28
U.S.C. § 2254(a).
What is surely equally certain is that when Congress
enacted and the President signed the bill in which § 2254(a)
is now codified, modern violent sex offender statutes were not
remotely within anyone’s contemplation. The requirements
these statutes impose are sui generis. But viewed pragmati-
cally, as they should be, the requirements operate de facto as
probationary terms, the violation of which are expected to
lead to the imposition, upon conviction, of custodial sen-
tences.* Indeed, in federal court, judges routinely impose sex
offender registration requirements at sentencing as a manda-
tory condition of supervised release. See 18 U.S.C. § 3583(d)
("The court shall order, as an explicit condition of supervised
release for a person required to register under the Sex
Offender Registration and Notification Act, that the person
comply with the requirements of that Act."); U.S.S.G.
§ 5D1.3(a)(7) (requiring registration for persons convicted of
sexual offenses as a mandatory condition of supervised
release). Neither the formalism of the extant legal arrange-
ment crafted in the modern state statutes, nor resort to abstrac-
tions such as "collateral consequences," obscures this reality.
Wilson has alleged compelling claims that significant legal
burdens and disabilities imposed on him are wholly unjusti-
fied by any legitimate governmental interest; morally and
legally, he is clearly entitled, in my judgment, to a judicial
forum to test the accuracy of his claims. If, as the dissent pos-
its, Virginia law would foreclose access to such a judicial
*Cf. Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting)
("Furthermore, the [Alaska Sex Offender Registration] Act’s requirements
resemble historically common forms of punishment . . . . Its registration
and reporting provisions are comparable to conditions of supervised
release or parole; its public notification regimen, which permits placement
of the registrant’s face on a webpage under the label ‘Registered Sex
Offender,’ calls to mind shaming punishments once used to mark an
offender as someone to be shunned." (citation omitted)).
WILSON v. FLAHERTY 15
forum under coram nobis or some other extraordinary proce-
dure, I believe a due process claim under 42 U.S.C. § 1983would raise grave issues of profound moment deserving of
serious judicial examination. All that said, however, I am con-
strained to agree that within the unmistakable confines of the
Supreme Court’s controlling precedents in its interpretation of
Congress’s grant of subject matter jurisdiction in cases of this
type, the district court lacks the power to adjudicate Wilson’s
claims.
WYNN, Circuit Judge, dissenting:
Wilson has alleged compelling claims that signifi-
cant legal burdens and disabilities imposed on him
are wholly unjustified by any legitimate governmen-
tal interest; morally and legally, he is clearly entitled
. . . to a judicial forum to test the accuracy of his claims.1
Petitioner Eric Wilson was convicted in 1999 in Virginia
following an investigation and trial that have subsequently
been shown to be rife with gross police misconduct; indeed,
as conceded by the majority opinion, Wilson has a "compel-
ling claim of actual innocence" of the crimes for which he has
fully served the sentence imposed. Notwithstanding that fact,
and based solely on what now seems almost certainly to be a
wrongful underlying conviction, Wilson remains subject to
significant restraints on his liberty. For the duration of his life,
depending on the state and jurisdiction in which he lives, Wil-
son will be required to regularly report in-person to the police
and prevented from being present in any location generally
frequented by children—even though he is almost certainly
innocent of the sex offenses that would normally require such
measures.
The majority opinion today concludes that Wilson, a person
with a compelling claim of innocence, has no recourse in fed-
1
Ante at 14-15 (Davis, J., concurring).
16 WILSON v. FLAHERTY
eral court to test the accuracy of his claim because the depri-
vations on liberty incident to sexual offender registration are
too trivial and too collateral to satisfy the requirement that a
habeas petitioner be in custody. But it is well settled that the
writ of habeas corpus, with "its grand purpose—the protection
of individuals against erosion of their right to be free from
wrongful restraints upon their liberty," Jones v. Cunningham,
371 U.S. 236, 243 (1963), is not so narrow, static, or formalis-
tic as to permit the violation of our Constitution by allowing
an innocent person to endure severe deprivations of liberty
imposed by the government. Because I find that our Constitu-
tion, prior jurisprudence, and habeas statutes should not be
read to compel such an unjust result, I must respectfully dis-
sent.
I.
A.
The majority opinion concedes that Wilson’s claims of
actual innocence, prosecutorial misconduct, and police cor-
ruption amount to "a serious constitutional challenge to his
conviction." Ante at 2. Nonetheless, relying on Maleng v.
Cook, 490 U.S. 488 (1989) (per curiam), the majority opinion
denies Wilson the right to proceed on a writ of habeas corpus
because "the Supreme Court [has] never held that a defendant
is in custody for habeas purposes when the sentence imposed
for the conviction has fully expired at the time his petition is
filed, [and] no court of appeals has so held either."2 Ante at
2
Despite the majority opinion’s contention to the contrary, a court of
appeals—specifically, the Ninth Circuit—has held that a defendant is in
custody for habeas purposes even when the sentence imposed for the orig-
inal conviction has fully expired at the time his petition is filed. Zichko v.
Idaho, 247 F.3d 1015 (9th Cir. 2001). It is true, as the majority opinion
notes, ante at 10, n.2, that the petitioner in Zichko was incarcerated for
failure to register as a sex offender at the time he filed his petition. But
this does not change the fact that the Ninth Circuit allowed the defendant
WILSON v. FLAHERTY 17
9-10. Yet that observation does not compel the result the
majority opinion reaches because a pertinent line of prece-
dents issued after Maleng recognizes an exception for a peti-
tioner with compelling evidence of actual innocence and no
available forums for redress.
In Daniels v. United States, 532 U.S. 374 (2001), the
Supreme Court considered whether an individual may use a
writ of habeas corpus to challenge an enhanced federal sen-
tence on the ground that his prior convictions were unconsti-
tutionally obtained. Id. at 376. Although the Supreme Court
held that "as a general rule" the petitioner could not challenge
these fully expired prior convictions,3 the Supreme Court
acknowledged that "[t]here may be rare circumstances in
which [habeas relief] would be available, but we need not
address the issue here." Id. The Supreme Court further
expressed its concerns as follows:
to use a habeas petition to collaterally "challeng[e] an earlier, expired rape
conviction." Zichko, 247 F.3d at 1019. The clear implication of the major-
ity opinion’s attempt to distinguish Zichko leads to the untenable conclu-
sion that Wilson could meet the custody requirements for filing his § 2254
petition by intentionally violating his sex offender registration require-
ments and causing his own arrest.
3
Notably, the Supreme Court’s holding in Daniels was not based on a
determination that the petitioner had failed to satisfy the custody require-
ment of § 2255 or that the habeas statute was insufficiently robust to allow
for a collateral attack of an expired sentence through a challenge to an
enhanced sentence. See 532 U.S. at 383 ("To be sure, the text of § 2255
is broad enough to cover a claim that an enhanced federal sentence vio-
lates due process."). Instead, the Supreme Court’s holding in Daniels
rested on the "the goals of easy administration and finality," which alone
"justif[ied] foreclosing relief under § 2255." Id. However, even these
grounds were based on an assumption that "[the] prior conviction used to
enhance [the] federal sentence is no longer open to direct or collateral
attack in its own right because the defendant failed to pursue those reme-
dies while they were available (or because the defendant did so unsuccess-
fully), [such] that defendant is without recourse." Id. at 382 (emphasis
added).
18 WILSON v. FLAHERTY
We recognize that there may be rare cases in which
no channel of review was actually available to a
defendant with respect to a prior conviction, due to
no fault of his own. The circumstances of this case
do not require us to determine whether a defendant
could use a motion under § 2255 to challenge a fed-
eral sentence based on such a conviction. Cf., e.g.,
28 U.S.C. § 2255 (1994 ed., Supp. V) (allowing a
second or successive § 2255 motion if there is
"newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
dence that no reasonable factfinder would have
found the movant guilty of the offense"); ibid. (toll-
ing 1-year limitation period while movant is pre-
vented from making a § 2255 motion by an
"impediment . . . created by governmental action in
violation of the Constitution or laws of the United
States").
Id. at 383-84.
On the same day that the Supreme Court issued Daniels,
the Supreme Court also issued its decision in Lackawanna
County Dist. Att’y v. Coss, 532 U.S. 394 (2001). In Coss, the
Supreme Court considered "whether federal [habeas] postcon-
viction relief is available when a prisoner challenges a current
sentence on the ground that it was enhanced based on an
allegedly unconstitutional prior conviction for which the peti-
tioner is no longer in custody." Id. at 396. As such, the
Supreme Court in Coss addressed "the question we explicitly
left unanswered in Maleng: ‘the extent to which the [prior
expired] conviction itself may be subject to challenge in the
attack upon the [current] senten[ce] which it was used to
enhance.’" Id. at 402 (quoting Maleng, 490 U.S. at 494)
(alterations in original). As in Daniels, the Supreme Court in
Coss held:
WILSON v. FLAHERTY 19
[O]nce 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
unsuccessfully), the conviction may be regarded as
conclusively valid. If that conviction is later used to
enhance a criminal sentence, the defendant generally
may not challenge the enhanced sentence through a
petition under § 2254 on the ground that the prior
conviction was unconstitutionally obtained.
Id. at 403-04 (emphasis added) (internal citation omitted).
However, the Supreme Court again recognized that certain
exceptions to this general rule exist, specifically for compel-
ling claims of actual innocence coupled with an absence of
available forum for redress:
We stated in Daniels that another exception to the
general rule precluding habeas relief might be avail-
able, although the circumstances of that case did not
require us to resolve the issue. We note a similar sit-
uation here.
The general rule we have adopted here and in Dan-
iels reflects the notion that a defendant properly
bears the consequences of either forgoing otherwise
available review of a conviction or failing to suc-
cessfully demonstrate constitutional error. It is not
always the case, however, that a defendant can be
faulted for failing to obtain timely review of a con-
stitutional claim. For example, . . . . after the time for
direct or collateral review has expired, a defendant
may obtain compelling evidence that he is actually
innocent of the crime for which he was convicted,
and which he could not have uncovered in a timely
manner. . . .
In such situations, a habeas petition directed at the
enhanced sentence may effectively be the first and
20 WILSON v. FLAHERTY
only forum available for review of the prior convic-
tion. As in Daniels, this case does not require us to
determine whether, or under what precise circum-
stances, a petitioner might be able to use a § 2254
petition in this manner.
Id. at 405-06 (internal citations omitted).
Thus, the Supreme Court’s opinions in Coss and Daniels
strongly suggest that there are instances in which a fully
served sentence may be collaterally challenged through a writ
of habeas corpus. Furthermore, the Supreme Court’s decision
to explicitly note that exceptions should be available in cases
of actual innocence demonstrates a serious underlying con-
cern that the Coss and Daniels opinions would be miscon-
strued to elevate procedural requirements over more
fundamental, substantive concerns.
The majority opinion makes much of the fact that "the
Supreme Court has never suggested that jurisdictional barriers
should be ignored based on the merits of the claim." Ante at
9 n.1. But the requirement that the petitioner be in "custody"
is not the sole jurisdictional barrier to considering a habeas
petition. A petitioner seeking relief under § 2254 must be not
only "in custody," but in custody "pursuant to the judgment of
a State court." 28 U.S.C. § 2254(a) (emphasis added). Simi-
larly, § 2255, which applies to federal prisoners seeking
habeas relief, requires that a petitioner in federal custody must
attack the federal judgment under which he is in custody. 28
U.S.C. § 2255(a). Thus, under the habeas statutes, a petitioner
is required, as a jurisdictional matter, to be in custody under
the specific court judgment the petitioner seeks to attack via
habeas.
In Daniels, however, the petitioner was in federal custody,
but his motion to vacate challenged his prior robbery convic-
tions, which were obtained in state court. 532 U.S. at 377. As
already discussed, although the Supreme Court denied the
WILSON v. FLAHERTY 21
petitioner’s habeas petition on other grounds, the Supreme
Court allowed that such a petition could be brought in certain
circumstances. 532 U.S. at 383-84. The circumstances identi-
fied by the Supreme Court in Daniels—"newly discovered
evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and con-
vincing evidence that no reasonable factfinder would have
found the movant guilty of the offense," 532 U.S. at 384—are
precisely the circumstances present in the instant case.
Moreover, the lower court proceedings in Maleng reveal
that the petitioner was in federal custody and yet filed a
motion under § 2254 challenging a previous state conviction
used to enhance a later state conviction, the sentence for
which the petitioner had not yet begun to serve. Cook v.
Maleng, 847 F.2d 616, 617 (9th Cir. 1988), aff’d 490 U.S. 488(1989). The Supreme Court nevertheless held that the peti-
tioner was "in custody" under the pending state sentences
"even though he [was] not presently serving them," because
the Supreme Court interpreted the detainer placed on the peti-
tioner by the state of Washington as satisfying the jurisdic-
tional "custody" requirement. Maleng, 490 U.S. at 493.
Through these rulings, the Supreme Court has certainly not
ignored the jurisdictional requirements of § 2254 and § 2255
in Maleng and Daniels. Rather, the Supreme Court has "very
liberally construed the ‘in custody’ requirement for purposes
of federal habeas," although it has "never extended it to the
situation where a habeas petitioner suffers no present restraint
from a conviction." Maleng, 490 U.S. at 492. This case like-
wise requires no such extension, as the panel agrees that the
sexual offender registration requirements do unjustifiably
restrain Wilson.
Indeed, the Supreme Court has consistently affirmed the
indispensable precept that "‘the principles of comity and
finality informing’" procedural restrictions on habeas pro-
ceedings "‘must yield to the imperative of correcting a funda-
22 WILSON v. FLAHERTY
mentally unjust’" scheme of punishment. Schlup v. Delo, 513
U.S. 298, 320-21 (1995) (quoting Murray v. Carrier, 477 U.S.
478, 495 (1986)). Accordingly, the writ "must retain the ‘abil-
ity to cut through barriers of form and procedural mazes’ . . . .
‘to insure that miscarriages of justice within its reach are sur-
faced and corrected.’" Hensley v. Mun. Court, 411 U.S. 345,
350 (1973) (quoting Harris v. Nelson, 394 U.S. 286, 291
(1969)) (citations omitted). The Supreme Court has "rejected
interpretations of the habeas corpus statute that would suffo-
cate the writ in stifling formalisms or hobble its effectiveness
with the manacles of arcane and scholastic procedural require-
ments," id., and such constructions would be particularly
inappropriate in the context of compelling cases of actual
innocence.
Consequently, although generally a petitioner who has
completely served a sentence for a particular offense is pre-
cluded from challenging that fully expired conviction through
a writ of habeas corpus, the majority opinion overstates this
rule. The Supreme Court recognized in Coss that, when a
defendant "obtain[s] compelling evidence that he is actually
innocent of the crime for which he was convicted," a defen-
dant may proceed on a writ of habeas corpus to collaterally
attack a prior conviction for which the defendant had already
served the sentence. 532 U.S. at 405. Importantly, in these sit-
uations, the Supreme Court explained that a habeas petition in
federal court "may effectively be the first and only forum
available for review of the prior conviction." Id. at 406. In
these situations, federal habeas proceedings are the appropri-
ate means of "providing . . . a meaningful avenue by which
to avoid a manifest injustice." Schlup, 513 U.S. at 327.
Here, Wilson presents a compelling case for his actual
innocence and appears to have no recourse available to him
at this stage in Virginia.4 In my view, the general rule articu-
4
The majority suggests that Wilson may be able to state a coram nobis
claim in Virginia State Court. Ante at 12-13. However, this does not seem
WILSON v. FLAHERTY 23
lated and refined by the Supreme Court in Maleng, Daniels,
and Coss precluding a petitioner from challenging a fully
expired prior conviction does not preclude Wilson from chal-
lenging his Virginia conviction. Instead, "the goals of easy
administration and finality" underlying the Supreme Court’s
general rule, see Daniels, 532 U.S. at 383; Coss, 532 U.S. at
403-04, must give way in this case because Wilson "can [not]
be faulted for failing to obtain timely review of [his] constitu-
tional claim[s]" under circumstances where "after the time for
direct or collateral review has expired, [Wilson] obtain[ed]
compelling evidence that he is actually innocent of the crime
for which he was convicted." Coss, 532 U.S. at 405. As the
Supreme Court explained in Coss, "[i]n such situations, a
habeas petition . . . may effectively be the first and only forum
available for review of the prior conviction." Id. at 406.
Although the relevant facts in Daniels and Coss did "not
require [the Supreme Court] to determine whether, or under
what precise circumstances, a petitioner might be able to use
a § 2254 petition in this manner," id., Wilson’s case does
necessitate such a determination, in the interests of fairness
and to avoid manifest injustice. Because § 2254’s "custody"
requirement should be "liberally construed" in Wilson’s
case—a case that combines undisputed deprivations on Wil-
son’s liberty, compelling claims of his actual innocence, and
an absence of forum to redress Wilson’s constitutional chal-
likely; Virginia has limited the reach of this writ to the correction of cleri-
cal errors. See Va. Code Ann. § 8.01-677; Neighbors v. Commonwealth,
650 S.E.2d 514, 518 (Va. 2007) (noting that coram nobis is not available
"to serve as a writ of error to bring the original judgment under review"
when there is newly discovered evidence); accord Commonwealth v. Mor-
ris, 705 S.E.2d 503, 506 (Va. 2011) (indicating that the writ is available
only in event of "error[s] of fact . . . [that] would have prevented rendition
of the judgment" by taking away the court’s power to hand down a particu-
lar verdict) (emphasis in original). "[S]uch errors of fact include cases
‘where judgment is rendered against a party after his death, or who is an
infant.’" Morris, 705 S.E.2d at 507 (quoting Dobie v. Commonwealth, 96
S.E.2d 747, 753 (explaining that the writ "does not lie to correct any error
in the judgment of the court . . .")).
24 WILSON v. FLAHERTY
lenges—in my view, the formalist concerns of the majority
opinion should yield to the correction of fundamentally unjust
punishments.
B.
I take further issue with the majority opinion’s contention
that the deprivations on liberty incident to Wilson’s sexual
offender registration requirements are too trivial and too col-
lateral to satisfy the requirement that a habeas petitioner be in
custody. This question is yet to be addressed in the Fourth
Circuit, and, in my view, the majority opinion has erroneously
relied on non-binding cases from our sister circuits that con-
sidered state sex offender registration requirements materially
distinguishable from the registration requirements imposed on
Wilson in Virginia and Texas.
The Supreme Court has long made it "clear that the use of
habeas corpus has not been restricted to situations in which
the applicant is in actual, physical custody." Justices of Bos-
ton Mun. Court v. Lydon, 466 U.S. 294, 300 (1984) (quotation
omitted); see also Jones, 371 U.S. at 240 ("History, usage,
and precedent can leave no doubt that, besides physical
imprisonment, there are other restraints on a [person’s] lib-
erty, restraints not shared by the public generally, which have
been thought sufficient in the English-speaking world to sup-
port the issuance of habeas corpus.").
In Jones, for example, the Supreme Court held that a paro-
lee continues to be in custody for habeas purposes because
parole "imposes conditions which significantly confine and
restrain [a person’s] freedom." Id. at 243. In subsequent cases,
the Supreme Court extended this holding to petitioners
released after conviction on their own recognizance, Hensley,
411 U.S. at 351-52, as well as on bail, Lefkowitz v. Newsome,
420 U.S. 283, 291 n.8 (1975). The Supreme Court explained
that the writ of habeas corpus "is not now and never has been
a static, narrow, formalistic remedy; [but that] its scope has
WILSON v. FLAHERTY 25
grown to achieve its grand purpose–the protection of individ-
uals against erosion of their right to be free from wrongful
restraints upon their liberty." Jones, 371 U.S. at 243.
Our sister circuits apply Jones and analyze the satisfaction
of the custody requirement by looking to the severity of
restraints upon personal liberty. Compare Lillios v. New
Hampshire, 788 F.2d 60, 61 (1st Cir. 1986) (per curiam)
("[F]ines and [driver’s license] suspensions . . . are not the
sort of severe restraint on individual liberty for which habeas
corpus relief is reserved." (quotation marks omitted)); with
Dow v. Circuit Court of First Circuit, 995 F.2d 922, 923 (9th
Cir. 1993) (per curiam) (custody requirement satisfied when
petitioner sentenced to 14 hours of attendance at alcohol reha-
bilitation program).
In Dow, the Ninth Circuit held that a petitioner was in cus-
tody by virtue of a sentence requiring only "fourteen hours of
attendance at an alcohol rehabilitation program . . . [which]
could be scheduled [anytime] over [ ] a three-day or five-day
period." Id. at 922-23. The court reasoned that: "[t]he sen-
tence in this case, requiring [petitioner’s] physical presence at
a particular place, significantly restrains [petitioner’s] liberty
to do those things which free persons in the United States are
entitled to do and therefore must be characterized, for juris-
dictional purposes, as ‘custody.’" Id. at 923.
Here, Wilson is subject to a litany of in-person reporting
requirements in both Virginia and Texas that demand his
presence at a particular place and particular time, and such
obligations will extend the duration of Wilson’s natural life.5
In Virginia, Wilson is required to reregister in person with
Virginia police: if he moves to a new residence, Va. Code
5
Indeed, Wilson will be required to comply with similar, if not more
severe, restraints on his liberty in all jurisdictions of the United States. See
Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.
§§ 16901, et. seq.
26 WILSON v. FLAHERTY
Ann. § 9.1-903(d); following any change of his place of
employment, id. § 9.1-903(e); following any change of own-
ership information to a motor vehicle, watercraft and aircraft,
id. § 9.1-903(f); and following any change in his enrollment
or employment status with an institution of higher learning,
id. § 9.1-906(a).6
Likewise, in Texas, Wilson is required to report in person
to the Texas police: once each year to verify his registration
information, Tex. Code Crim. Proc. Ann. art. 62.058(a);
within seven days before and after any change of address, id.
at 62.060, 62.051(a); and on an annual basis to renew his driv-
er’s license, id. at 62.060. Wilson is also required to comply
with any request from Texas authorities for a DNA specimen.
Id. at 62.061.7
Notwithstanding the severe restraints on Wilson’s liberty
occasioned by these sex offender registration requirements,
the majority opinion states that "every court of appeals to
have considered whether the registration requirements
imposed on sex offenders place the sex offender in custody
for purposes of habeas jurisdiction has concluded that they do
not." Ante at 10. Based on this assertion, the majority opinion
concludes that it "will not depart from this unanimous body
of law." Id. However, the four circuit court opinions compris-
ing this so-called "unanimous body of law" include three
cases that are materially distinguishable from the present case,
and one case that, in my view, was wrongly decided.
6
Wilson is also required to: submit in person to be photographed by the
Virginia police every two years, Va. Code Ann. § 9.1-904(c); and rereg-
ister in person or electronically with Virginia police within 30 minutes fol-
lowing any change of his electronic mail address information, any instant
message, chat or other Internet communication name or identity informa-
tion that he uses or intends to use. Id. § 9.1-903(f).
7
If Wilson were to be homeless for more than seven days, he would be
required to report to a supervising legal officer on a weekly basis. See Tex.
Code Crim. Proc. Ann. art. 62.051(h).
WILSON v. FLAHERTY 27
In Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998),
the Ninth Circuit, the first federal court of appeals to address
the issue, concluded that Washington’s sex offender registra-
tion statue did not render a defendant "in custody" for the pur-
poses of 28 U.S.C. § 2254 because:
The Washington sex offender law does not require
Williamson even to personally appear at a sheriff’s
office to register; registration can be accomplished
by mail. Thus, the law neither targets Williamson’s
movement in order to impose special requirements,
nor does it demand his physical presence at any time
or place.
Id. at 1184.
In Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002), the Sixth
Circuit relied heavily on the Ninth Circuit’s reasoning in Wil-
liamson in holding that Ohio’s sex offender registration stat-
ute did not render a petitioner "in custody" for habeas
purposes:
The Ninth Circuit has noted that the federal court
"precedents that have found a restraint on liberty rely
heavily on the notion of a physical sense of liberty-
that is, whether the legal disability in question some-
how limits the putative habeas petitioner’s move-
ment." Williamson, 151 F.3d at 1183. . . . The Ohio
sexual-predator statute places no such constraints on
Leslie’s movement. Like the Washington sexual-
predator statute discussed in Williamson, the Ohio
statute applies to Leslie "whether he stays in the
same place or whether he moves," Williamson, 151
F.3d at 1184.
Id. at 522.
Likewise, in Virsnieks v. Smith, 521 F.3d 707 (7th Cir.
2008), the Seventh Circuit considered a "Wisconsin sexual
28 WILSON v. FLAHERTY
offender registration statute . . . [that] d[id] not impose any
significant restriction on a registrant’s freedom of movement"
because "registrants may [register and reregister] by mail" and
"registrant[s] may update the [Department] with any changes
by using a telephonic registration system." Id. at 719-20. The
Seventh Circuit concluded, based on the lack of an in-person
reporting requirement, that "the Wisconsin statute imposes
minimal restrictions on a registrant’s physical liberty of
movement." Id. at 720.
The restraints on liberty suffered by Wilson under the Vir-
ginia and Texas sex offender registration statutes are materi-
ally different than the restraints enforced by mail considered
by our sister circuits in Williamson, Leslie, and Virsnieks.
Consequently, rather than refusing to depart from a "unani-
mous" body of law, the majority opinion has instead decided
to follow the non-binding authority issued by a single panel
of the Ninth Circuit in Henry v. Lungren, 164 F.3d 1240 (9th
Cir. 1999). In Henry, without analysis, the Ninth Circuit con-
cluded that "[r]egistration, even if it must be done in person
at the police station, does not constitute the type of severe,
immediate restraint on physical liberty necessary to render a
petitioner ‘in custody’ for the purposes of federal habeas cor-
pus relief." 164 F.3d at 1242.
I question the majority opinion’s decision to follow the
Ninth Circuit’s decade-old summary decision in Henry.
Uncontestably, the in-person reporting requirements applica-
ble to Wilson in Virginia and Texas "significantly restrain
[Wilson’s] liberty to do those things which in this country free
[people] are entitled to do," and, consequently, the majority
opinion should squarely address the question of whether, in
the Fourth Circuit, "[s]uch restraints are enough to invoke the
help of the Great Writ."8 Jones, 371 U.S. at 243.
8
In addition to in-person reporting requirements, Wilson is subject to
myriad municipal ordinances that restrict the movements of registered sex
offenders. See, e.g., Commerce, Tex., Code of Ordinances ch. 66, art. IV,
WILSON v. FLAHERTY 29
II.
Our hands are not tied here; no precedent forecloses the
relief sought in this case. Rather than blindly adhering to for-
malist procedural concerns, we should instead be guided by
the equitable principles that traditionally govern the law of
habeas corpus, Munaf v. Geren, 553 U.S. 674, 676 (2008),
and by the Supreme Court’s mandate to construe the "cus-
tody" requirement liberally, particularly in cases involving
deprivations on liberty, credible claims of actual innocence,
and an absence of forum for redress.
§ 66-102(2) (2007) (making it an offense to "be present in any college,
school, daycare facility, city park or playground, or any public festival or
celebration"); Killeen, Tex., Code of Ordinances ch. 16, art. VIII, § 16-
141 (2007) (prohibiting the establishment of residence within 2,000 feet
of any premises where children commonly gather); Stephenville, Tex.,
Code of Ordinances tit. XIII, § 130.82 (2007) (making it an offense to loi-
ter within 300 feet of a child safety zone).
Given the Supreme Court’s focus on freedom of movement in its analy-
sis of whether a petitioner has established custody for habeas purposes, it
may be necessary to consider the individual and cumulative impact of all
regulations that restrict Wilson’s movements, including municipal regula-
tions, in a proper analysis of custody. In some jurisdictions, such as Iowa,
Wilson would be prohibited from walking outside certain sex offender
corridors. See Doe v. Miller, 298 F. Supp. 2d 844, 851 (S.D. Iowa 2004)
(explaining that in Des Moines and Iowa City, "two thousand foot circles
[in which sex offenders are prohibited from living] cover virtually the
entire city area" with the exception of industrial areas and some of the cit-
ies most expensive neighborhoods, and that in smaller towns one "school
or child care facility" can leave "the entire town . . . engulfed by an
excluded area"); cf. Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir.
2012) (sex offenders prohibited from entering any public library); People
v. Oberlander, No. 02-354, 2008 WL 3390455, at *1 (N.Y. Sup. June 18,
2008) (convicted sex offender unable to live within walking distance of a
synagogue as required by Orthodox Jewish religious requirements because
he is he is forbidden to "live, work or loiter" within 1000 feet of "a public
or private, elementary, middle or high school, child care facility, park,
playground, public or private youth center, or public swimming pool").
30 WILSON v. FLAHERTY
I am deeply troubled that our legal system would be con-
strued to prevent a person with compelling evidence of his
actual innocence and wrongful conviction from accessing a
forum in which to clear his name, while, at the same time,
restrain the liberty of such a person under a regime created to
surveil society’s most disdained criminal offenders. That Wil-
son’s completion of an arguably undeserved sentence is the
condition that the majority opinion contends serves to seal off
the courts is especially egregious. It is in effect an additional
punishment that the majority opinion inflicts upon Wilson.
Because I believe the law does not compel the result
reached by the majority opinion today, and that this Court has
the authority—indeed, the moral imperative—to grant Wilson
the hearing that he seeks, I respectfully dissent.