McManis v. Colorado Department of Corrections

Filing 11

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/6/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00808-GPG
TERRANCE McMANIS, No. 152307,
Applicant,
v.
CASE MANAGER, Crowley Correction Office,
Respondent.

ORDER OF DISMISSAL

Applicant Terrance McManis, acting pro se, initiated this action on April 16, 2015,
by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF
No. 1. In his Application, Mr. McManis is complaining that, because of his conviction in
Idaho in 2006 of Indecent Exposure, he is required under Colorado law to register as a
sex offender under C.R.S. § 16–22–108. On June 15, 2015, Magistrate Judge Gordon
P. Gallagher ordered Mr. McManis to show cause why the habeas corpus application
should not be denied and the instant action dismissed because he failed to assert a
basis for granting habeas corpus relief. Subsequently, on July 15, 2015, Applicant filed
a pleading titled, “Motion to Correct an Illegal Sentence,” ECF No. 10. In the Motion to
Correct, Applicant makes the same claim, i.e., that his indecent exposure conviction
should not be construed as the basis for requiring him to register as a convicted sex
offender. For the reasons stated below, the Court dismisses the case for lack of subject
matter jurisdiction.
Pursuant to 28 U.S.C. § 2241, the writ of habeas corpus shall not be granted
unless a person is “in custody in violation of the Constitution or laws of Treaties of the

United States.” An individual seeking habeas corpus relief must be in custody under the
challenged conviction or sentence at the time the application is filed. Maleng v. Cook,
490 U.S. at 490-91 (citing Carafas v. LaVellee, 391 U.S. 234, 238 (1968)). Relief
generally is unavailable through a writ of habeas corpus when an applicant seeks to
challenge a prior conviction for which the person no longer is in custody. See
Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
The custody requirement extends beyond physical custody to encompass severe
restraints on an individual’s liberty imposed because of the individual’s criminal
conviction, which are not shared by the public generally. See e.g. Hensley v. Municipal
Court, 411 U.S. 345, 351 (1973) (finding that convict released on his own recognizance
pending execution of his sentence is in custody because he is obligated to appear at
times and places ordered by the court) (emphasis added); Jones v. Cunningham, 371
U.S. 236, 240-43 (1963) (holding that parolee was in custody under his unexpired
sentence because his release from physical confinement was conditioned on his
reporting regularly to parole officer, remaining in a particular community, residence and
job, and refraining from certain activities); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir.
1992). Once the sentence imposed for a conviction has expired, however, “the
collateral consequences of that conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at
492.
Applicant admits that he has completed his sentence in Idaho Case No. CR.
2006-0019202-N (ECF No. 1, p.5). The United States Court of Appeals for the Tenth
Circuit has determined that an individual subject to Colorado’s sex offender registration

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statute, but whose conviction and sentence have expired, cannot challenge the
registration requirements in a habeas corpus proceeding. See Calhoun v. Attorney
General of Colorado, 745 F.3d 1070 (10th Cir.) (holding that the future threat of
incarceration for registrants who fail to comply with the sex-offender registration statutes
is insufficient to satisfy the custody requirement), cert denied, 135 S.Ct. 376 (2014). In
this regard, the Court of Appeals reasoned that the Colorado statute does not restrict an
individual’s ability to travel or move. Rather, it requires that an individual register initially
with the local law enforcement office where the individual resides, register at the most
every ninety days, and advise the local law enforcement office of any changes in certain
personal information including change of address. See C.R.S. § 16-22-108 (2012).
Thus, the Court concluded that Colorado’s sex offender registration requirements are
remedial, not punitive, and, therefore, are collateral consequences of Applicant’s
conviction and have a negligible effect on his physical liberty or movement. Calhoun,
745 F.3d at 1074.
Based on the discussion above, Applicant, has failed to demonstrate that he is in
custody as required under 28 U.S.C. § 2241. Thus, the Court lacks subject matter
jurisdiction over this action. Accord Calhoun, 745 F.3d at 1074.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $455.00 appellate filing fee or
file a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is

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ORDERED that the Application is denied and the action is dismissed for lack of
subject matter jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
Dated at Denver, Colorado, this

6th

day of August, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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