Baker v. Brown
RECOMMENDED DISPOSITION recommending that 3 Baker's Petition for Writ of Habeas Corpus and 7 Amended Petition for Writ of Habeas Corpus be denied, and this case be dismissed, with prejudice; and that a Certificate of Appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 11/13/2017. (kdr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CHRIS BROWN, Sheriff,
Cleburne County, Arkansas;
ARKANSAS ATTORNEY GENERAL
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge James M. Moody Jr. You may file written objections
to all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal questions of
Pending before the Court is a 28 U.S.C. § 2254 Petition for a Writ of Habeas
Corpus filed by Petitioner, Justin Baker (“Baker”). Docs. 3 & 7. Before addressing
Baker’s claims, the Court will review the procedural history of the case in state court.
On February 4, 2003, Baker appeared in White County Circuit Court and
pleaded guilty to one count of sexual indecency with a child. He was sentenced to
four months of imprisonment, followed by five years of supervised probation. Doc.
12-2. His Judgment and Disposition Order states: “Defendant is a Sex or Child
Offender as defined in A.C. A. 12-12-903, and is ordered to complete the Sex
Offender Registration Form.” Id. at 2.
On December 9, 2003, the State filed a Petition for Revocation of Probation.1
On May 27, 2004, Baker pleaded guilty to violating his probation; his probation was
revoked and then reinstated; and he was ordered to continue reporting to his
probation officer and to “not violate his probation in any manner.” Doc. 12-3.
On November 22, 2004, the State filed a second Petition to Revoke
Probation.2 Doc. 12-4. On April 28, 2005, Baker appeared in the trial court and
pleaded guilty to violating his probation. The trial court revoked his probation and
sentenced him to thirty-six months in the Arkansas Department of Correction
(“ADC”) on the 2003 White County conviction for sexual indecency with a child.
The Petition alleged that Baker: (1) failed to report for office visits; (2) was delinquent on
his court-ordered payments; (3) failed to maintain employment and notify his probation officer of
a change of address; (4) failed to attend sex offender counseling as directed; and (5) tested positive
for THC. See Doc. 12-4 at 3.
The Petition alleged that Baker: (1) failed to report to his probation officer and provide a
valid address; (2) was delinquent on court-ordered payments; (3) failed to attend sex offender
counseling as directed; (4) failed to maintain employment; and (5) failed to complete his courtordered community service. Doc. 12-4 at 1, 3.
Doc. 12-5. The Judgment and Commitment Order requires him to register as a sex
offender under the Arkansas statutes. Id. at 2.
On October 9, 2007, Baker was paroled from the ADC. Docs. 12-6, 12-7. On
February 6, 2008, he was discharged from parole supervision. Doc. 12-7.
In December 2010, Baker was convicted of failure to register as a sex offender
and was sentenced to eighteen months in the ADC. Doc. 12-7 at 1; Doc. 12 at 3 n.1.
On June 20, 2011, he was released on parole; on April 17, 2012, he was discharged
from supervision. Doc. 12-7 at 1.
On November 23, 2016, Baker filed this federal habeas action. Doc. 3. At the
time of filing, he was incarcerated in the Cleburne County Jail on a new charge of
failure to register as a sex offender that “stem[med] from” his 2003 White County
conviction for sexual indecency with a child.3 Id. at 1. He alleged: (1) he was being
“illegally restrained of his liberty” on the failure-to-register charge from Cleburne
County Circuit Court; (2) the White County Circuit Court lacked subject matter
jurisdiction to convict him of sexual indecency because, at the time of the offense,
Baker was a minor; and (3) the White County judgment is “invalid on its face” and
violates due process. Id. at 3-4.
Baker repeatedly gives “January 2002” as the date of the White County conviction. Doc.
3 at 1, 3; Doc. 7 at 1. Nothing in the record supports this date.
On December 12, 2016, Baker filed an Amended § 2254 Petition. Doc. 7. As
the “judgment of conviction you are challenging,” Baker listed the White County
conviction for sexual indecency with a child, for which he received five years of
probation in February 2003. Doc. 7 at 1. He alleged that he was “only 17 when the
incident occurred” and he was “now facing a Class C felony for not registering when
the charge that the requirement stems from was unlawful.” Id. at 5. He asked to “be
relieved of the obligation to register [as a sex offender] and [for] dismiss[al of] this
new charge.” Id. at 13.
On February 13, 2017, the Court received a letter from Baker. Doc. 10. In the
letter, Baker stated that, on February 6, 2017, he had “accepted a plea bargain of 7
years probation because [he] in fact was guilty of failing to comply with registration
requirements” in the Cleburne County failure-to-register case. Id. He asked if this
would “affect the habeas petition on the underlying charge out of White County.”
On February 24, 2017, Respondent Arkansas Attorney General Leslie
Rutledge filed a Response. Doc. 12. Construing Baker’s habeas action as challenging
only the White County sexual indecency conviction, Respondent argued that the
action should be dismissed because: (1) he was not “in custody” for the White
County conviction or sentence, nor was he at the time of initiating this action; and
(2) his claims challenging that conviction are untimely.4 Although directed to file a
Reply addressing Respondent’s arguments, Baker elected not to do so. Doc. 13.
For the reasons that follow, the Court recommends that Baker’s Petition and
Amended Petition be denied, and that the case be dismissed, with prejudice.
To satisfy the jurisdictional requirements of the federal habeas corpus statutes,
a prisoner must establish that he is “in custody pursuant to the judgment of a State
court” in violation of the United States Constitution, federal laws or treaties. 28
U.S.C. § 2254(a). A prisoner seeking habeas relief must be “in custody” under the
challenged conviction or sentence at the time his application is filed. Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). A petitioner is not “in custody” under a
conviction “when the sentence imposed for that conviction has fully expired at the
time his petition is filed.” Id. at 491 (emphasis in original); see also Lackawanna
Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001) (petitioner who “is no longer
serving the sentences imposed” pursuant to prior convictions “cannot bring a federal
habeas petition directed solely at those convictions”).
Respondent Chris Brown, Cleburne County Sheriff, was also served with a copy of the
Petition, but did not file a responsive pleading. Docs. 8 & 9.
In this case, the Court construes Baker’s habeas papers as challenging only
his 2003 White County conviction for sexual indecency with a child. It is clear that
the sentence for this conviction fully expired on February 6, 2008, when he was
discharged from parole supervision. At the time of filing this habeas petition, he was
incarcerated in the Cleburne County Jail on a separate charge of failing to register
as a sex offender, not the 2003 White County conviction.
The fact that Baker is required to register as a sex offender, because of the
White County conviction, is insufficient to meet the custody requirement for
initiating a habeas action challenging that conviction. Although the Eighth Circuit
Court of Appeals has not addressed the issue, other federal circuit courts have
uniformly held that sex offender registration requirements are merely “collateral
consequences” of a conviction which do not impose a “significant restraint” on an
individual’s liberty and thus do not satisfy the custody requirements of § 2254.
Johnson v. Davis, 2017 WL 3700981, at *1 (5th Cir. Aug. 25, 2017); Bonser v.
District Att’y Monroe County, 659 Fed. Appx. 126, 128 (3d Cir. 2016); Calhoun v.
Att’y General of Colorado, 745 F.3d 1070, 1074 (10th Cir.), cert. denied, 135 S. Ct.
376 (2014); Wilson v. Flaherty, 689 F.3d 332, 337-38 (4th Cir. 2012); Virsnieks v.
Smith, 521 F.3d 707, 720 (7th Cir. 2008); Leslie v. Randle, 296 F.3d 518, 522-23
(6th Cir. 2002); Williamson v. Gregoire, 151 F.3d 1180, 1183-84 (9th Cir. 1998);
see also Kasel v. Kansas, 2017 WL 2618839, *2-4 (D. Kan. June 16, 2017)
(collecting and discussing cases); Hansen v. Marr, 594 F. Supp. 2d 1097, 1100-01
(D. Neb. 2009).
Where a state’s sex offender registration statutes are remedial, rather than
punitive, “the registration requirements resemble more closely those collateral
consequences of a conviction that do not impose a severe restriction on an
individual’s freedom of movement” and thus do “not satisfy the ‘in custody’
requirement.”5 Virsnieks, 521 F.3d at 720. Further, the “future threat of
incarceration” for failure to comply with the registration requirements is insufficient
to create an “in custody” situation. Bonser, 659 Fed. Appx. at 128; Calhoun, 745
F.3d at 1074; Virsnieks, 521 F.3d at 719-20; Williamson, 151 F.3d at 1184.
This conclusion is not changed where, as here, the threat of future
incarceration for non-compliance has materialized into actual physical incarceration.
As the Third Circuit explained in Bonser:
Being subject to registration requirements is itself a collateral
consequence, and so too are any penalties – including conviction and
incarceration – that result from the violation of such requirements.
Bonser’s present incarceration is punishment for failing to comply with
a collateral consequence of his 2006 conviction. His current custodial
status “is not a continuation of the expired sex offense sentence …, but
rather is pursuant to an entirely separate conviction” for failing to
register. In other words, because Bonser’s 2006 conviction had “fully
expired … when the 2013 sentence was imposed, it is pursuant to that
conviction, not the 2006 conviction, that he is incarcerated and is
The Arkansas Supreme Court has held that Arkansas’s sex offender registration statute is
“essentially regulatory and therefore non-punitive in nature.” Kellar v. Fayetteville Police Dept.,
339 Ark. 274, 287, 5 S.W.3d 402, 410 (1999).
therefore ‘in custody.’” Bonser thus does not satisfy the “in custody”
requirement and cannot obtain review of his prior conviction.
Moreover, concluding that a conviction for violating registration
requirements it not a collateral consequence “would read the ‘in
custody’ requirement out of the statute” and reward law-breakers,
because sex offenders who fail to register would have an additional
opportunity to challenge their underlying convictions – no matter how
old – while individuals who abide by registration requirements would
forgo such an opportunity. Furthermore, allowing a petitioner in
custody for a later conviction to challenge an earlier, expired conviction
would countenance “end runs around statutes of limitations and other
procedural barriers that would preclude the movant from attacking the
prior conviction directly.”
In short, the registration requirement and resulting incarceration
for noncompliance are collateral consequences of Bonser’s expired
2006 conviction and they do not render him in “custody” on that
Bonser, 659 Fed. Appx. at 128-30 (citations and internal alterations omitted).6
In his habeas papers, Baker clearly challenges the validity of his underlying,
expired White County conviction for sexual indecency with a child. Under the
governing law, he cannot bring a habeas action directed at that conviction because
he is no longer serving the sentence for it. His ongoing duty, under Arkansas law, to
register as a sex offender resulting from the White County conviction is a collateral
Only the Ninth Circuit “has accepted the view that a petitioner is ‘in custody’ ‘for the
purpose of challenging an earlier, expired rape conviction, when he is incarcerated for failing to
comply with a state sex offender registration law because the earlier rape conviction is a necessary
predicate to the failure to register charge.’” Bonser, 659 Fed. Appx. at 129 n.4 (quoting Zichko v.
Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001)). No courts outside the Ninth Circuit have followed
Zichko and several district courts have explicitly rejected it. Id.; see, e.g., Kasel, 2017 WL
2618839, at *3-4 (rejecting Zichko, and “finding the Bonser case persuasive”).
consequence of the conviction and does not render him “in custody” for purposes of
challenging the conviction through a federal habeas action. His conviction and
incarceration for violating the duty to register is also a collateral consequence of the
original White County conviction. Thus, this Court does not have jurisdiction to
reach the merits of Baker’s habeas claims because he is not “in custody” under the
conviction or sentence he attacks.7
Accordingly, the Court recommends that this case be dismissed for lack of
IT IS THEREFORE RECOMMENDED THAT:
Baker’s 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus and
Amended Petition, Docs. 3 & 7, be DENIED, and this case be DISMISSED, WITH
A Certificate of Appealability be DENIED, see 28 U.S.C. § 2253(c); §
2254 Rule 11(a).
DATED this 13th day of November, 2017.
UNITED STATES MAGISTRATE JUDGE
Because the Court has construed this habeas action as challenging only Baker’s 2003
White County Circuit Court conviction for sexual indecency, this dismissal does not affect his
right to bring a habeas action challenging his subsequent, separate conviction for failure to register
as a sex offender.
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