Calhoun v. Colorado Attorney General

Filing

[10158284] Affirmed;Terminated on the merits after submissions without oral hearing;Written, signed, published; Judges Kelly (authoring), Anderson and Matheson. Mandate to issue. [13-1047]

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 18, 2014
Elisabeth A. Shumaker
Clerk of Court

FOR THE TENTH CIRCUIT

RONALD C. CALHOUN,
Petitioner - Appellant,
v.

No. 13-1047

THE ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:12-CV-02452-LTB)
Submitted on the briefs: *
Ronald C. Calhoun, Pro se.
John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General,
Appellate Division, Criminal Justice Section, Denver, Colorado, for
Respondent-Appellee.
Before KELLY, ANDERSON, and MATHESON, Circuit Judges.

*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 2

KELLY, Circuit Judge.
Ronald C. Calhoun, proceeding pro se, appeals the district court’s dismissal of
his habeas corpus petition filed under 28 U.S.C. § 2254. 1 The district court held that
Mr. Calhoun was not “in custody,” as required to invoke the jurisdiction of the
federal courts. Mr. Calhoun asserts that he is in custody for the purpose of § 2254
because he must register as a sex offender. This court issued a certificate of
appealability on the following issue: whether Mr. Calhoun’s ongoing registration
obligations under Colorado’s Sex Offender Registration Act satisfy the custody
requirement of § 2254. We affirm the district court’s dismissal for lack of
jurisdiction.
I.

BACKGROUND
In October 2002, Mr. Calhoun entered a guilty plea to a charge of unlawful

sexual contact in violation of Colorado Revised Statute § 18-3-404(1)(a). He was
sentenced to two years of probation, ordered to complete a sex-offense-specific
treatment program, and required to register as a sex offender. In 2003, due to a
probation violation, he was sentenced to two years in prison, but the sentence was
suspended on the condition that he successfully complete two years of

1

The underlying § 2254 petition, filed in September 2012, is Mr. Calhoun’s
third. The district court dismissed his first two.
-2-

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 3

sex-offense-specific probation. His probation was terminated on February 2, 2007,
and in September 2012, he filed the underlying habeas petition asserting nine claims. 2
Because he was convicted of a sex offense, Mr. Calhoun is required to register
pursuant to Colorado’s sex-offender statutes. See Colo. Rev. Stat. § 16-22-103. He
must annually appear in person at the local sheriff’s office to be photographed and
fingerprinted. Id. § 16-22-108(6). In addition, he must provide his address, place of
employment, vehicle information, and email and other internet identifiers. Id.
§ 16-22-109(1). He must also reregister within five days of any change to that
information, id. § 16-22-108(3), and the sheriff must verify his residential address at
least annually, id. § 16-22-109(3.5)(a). He may request release from the duty to
register as a sex offender ten years after the end of his probationary period. See id.
§ 16-22-113(1)(b). Mr. Calhoun asserts that these registration requirements
sufficiently restrict his freedom to meet § 2254’s custody requirement.
II.

DISCUSSION
Section 2254(a) requires a petitioner to be “in custody pursuant to the

judgment of a State court . . . in violation of the Constitution or laws or treaties of the
United States.” “The custody requirement is jurisdictional.” Mays v. Dinwiddie,
2

Mr. Calhoun’s nine claims are: “(1) “Wrongful Termination of Social Security
Disability Benefits by the Colorado District Court,” (2) “Denial of Relief for
Wrongful Prosecution,” (3) “Ineffective Assistance of Counsel,” (4) “Violation of
Due Process in Denial of State Habeas Corpus,” (5) “Violation of the Double
Jeopardy Clause,” (6) “Defamation of Character,” (7) “Violation of Title II of the
Americans With Disabilities Act,” (8) “Fraudulent Record Keeping,” and
(9) “Coerced and Involuntary Confession.” R. at 11-15.
-3-

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 4

580 F.3d 1136, 1139 (10th Cir. 2009). We review de novo the legal question “as to
the proper interpretation of the ‘in custody’ requirement of 28 U.S.C. § 2254.”
Id. at 1138. We liberally construe Mr. Calhoun’s pro se filings. See Ledbetter v. City
of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
A petitioner must satisfy the custody requirement at the time the habeas
petition is filed. Spencer v. Kemna, 523 U.S. 1, 7 (1998). He need not, however,
show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491
(1989) (per curiam). Habeas corpus is available for prisoners released on parole or
personal recognizance. Jones v. Cunningham, 371 U.S. 236, 242-43 (1963) (parole);
Hensley v. Municipal Court, 411 U.S. 345, 346, 353 (1973) (personal recognizance).
It is also available to prisoners serving consecutive sentences, Garlotte v. Fordice,
515 U.S. 39, 46-47 (1995), as well as to aliens seeking entry into the United States,
Jones, 371 U.S. at 240 & n.9, and persons “questioning the legality of an induction or
enlistment into the military service,” id. at 240 & n. 11. Commitment to a mental
institution or incarceration as the result of a civil contempt order may also meet the
custody requirement. Duncan v. Walker, 533 U.S. 167, 176 (2001).
The writ is available in situations where a state-court criminal conviction has
subjected the petitioner to “severe restraints on [his or her] individual liberty.”
Hensley, 411 U.S. at 351. A restraint is severe when it is “not shared by the public
generally.” Jones, 371 U.S. at 240. But the remedy of a writ of habeas corpus is not
“generally available . . . for every violation of federal rights.” Lehman v. Lycoming
-4-

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 5

Cnty. Children’s Servs. Agency, 458 U.S. 502, 510 (1982). “Thus, the collateral
consequences of a conviction, those consequences with negligible effects on a
petitioner’s physical liberty of movement, are insufficient to satisfy the custody
requirement.” Virsnieks v. Smith, 521 F.3d 707, 718 (7th Cir. 2008) (collecting
cases). For example, “the payment of restitution or a fine, absent more, is not the
sort of significant restraint on liberty contemplated in the custody requirement of the
federal habeas statutes.” Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788
(10th Cir. 2008) (internal quotation marks omitted). Other circumstances that have
been held to be collateral consequences of conviction, rather than a restraint on
liberty, are the “inability to vote, engage in certain businesses, hold public office, or
serve as a juror,” Maleng, 490 U.S. at 491-92, revocation of a driver’s license,
medical license, or a license to practice law, and disqualification as a real estate
broker and insurance agent, Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.
1998) (collecting cases).
Mr. Calhoun argues that he can be taken into custody if he violates the
registration requirements. We agree with the courts holding that “the future threat of
incarceration for registrants who fail to comply with the [sex-offender registration]
statute[s] is insufficient to satisfy the custody requirement.” Virsnieks, 521 F.3d
at 720 (collecting cases). Moreover, the Colorado sex-offender registration
requirements are remedial, not punitive. People v. Sheth, 318 P.3d 533, 534 (Colo.
Ct. App.) (“The purpose of [sex-offender] registration is not to punish the defendant,
-5-

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 6

but to protect the community and to aid law enforcement officials in investigating
future sex crimes.” (internal quotation marks omitted)), cert. denied, 2013 WL
6795156 (Colo. 2013).
It is undisputed that Mr. Calhoun was unconditionally released from the
obligations of his probation before he filed his § 2254 petition. Accordingly, there is
no condition of his sentence that could subject him to reincarceration or place another
restraint on his liberty. He is free to live, work, travel, and engage in all legal
activities without limitation and without approval by a government official.
Consequently, we conclude that the Colorado sex-offender registration requirements
at issue here are collateral consequences of conviction that do not impose a severe
restriction on an individual’s freedom. Therefore, they are insufficient to satisfy the
custody requirement of § 2254. Permitting a petitioner whose sentence has
completely expired and who “suffers no present restraint from [the] conviction” to
challenge the conviction at any time on federal habeas “would read the ‘in custody’
requirement out of the statute.” Maleng, 490 U.S. at 492.
Therefore, we join the circuits uniformly holding that the requirement to
register under state sex-offender registration statutes does not satisfy § 2254’s
condition that the petitioner be “in custody” at the time he files a habeas petition.
See Wilson v. Flaherty, 689 F.3d 332, 335, 338-39 (4th Cir. 2012) (considering
Virginia and Texas sex-offender-registration statutes; petitioner moved from
Virginia to Texas), cert. denied, 133 S. Ct. 2853 (2013); Virsnieks, 521 F.3d at 720
-6-

Appellate Case: 13-1047

Document: 01019219162

Date Filed: 03/18/2014

Page: 7

(Wisconsin statute); Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir. 2002), (Ohio
statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam) (Oregon
statute); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California
statute); Williamson, 151 F.3d at 1184 (Washington statute).
III.

CONCLUSION

Mr. Calhoun was not in custody when he filed his § 2254 petition. Therefore,
the district court was without jurisdiction to consider the merits of the petition. The
judgment of the district court is affirmed.

-7-