Burks v. Julian
MEMORANDUM OPINION AND ORDER adopting 8 Report and Recommendation. This action is dismissed with prejudice. The Court will not issue a Certificate of Appealability in this matter. (Written Opinion) Signed by Judge Susan Richard Nelson on 07/31/2017. (SMD) (cc: Burks) Modified on 7/31/2017 (AKL).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Desmon Demond Burks,
Case No. 17-cv-539 (SRN/SER)
Desmon Demond Burks, Federal Correctional Institution Terre Haute, Terre Haute,
Indiana, pro se.
Edwin William Stockmeyer, III, Minnesota Attorney General’s Office, 445 Minnesota
Street, Suite 1800, St. Paul, Minnesota 55101, Peter J. Orput, Hennepin County
Attorney’s Office, 300 South Sixth Street, Suite C-2100, Minneapolis, Minnesota 55487,
SUSAN RICHARD NELSON, United States District Judge
This matter is before the undersigned United States District Judge for
consideration of Petitioner Desmon Demond Burks’s Objections [Doc. No. 10] to United
States Magistrate Judge Steven E. Rau’s Report and Recommendation (“R&R”), dated
May 15, 2017 [Doc. No. 8]. The magistrate judge recommended that Burks’s 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 1]
(“Habeas Pet.”) be denied, and this action be dismissed.
Pursuant to statute, this Court reviews de novo any portion of the magistrate
judge’s opinion to which specific objections are made, and “may accept, reject, or
modify, in whole or in part, the findings or recommendations” contained in that opinion.
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). Based
on that de novo review, and for the reasons set forth below, the Court overrules
Petitioner’s objections and adopts the R&R in its entirety.
Burks is currently incarcerated at the Federal Correctional Institute in Terre Haute,
Indiana, having been convicted in this Court for conspiracy to commit bank fraud, aiding
and abetting bank fraud, and aggravated identify theft. See United States v. Burks, No.
11-cr-369(4) (PAM/FLN) (D. Minn.). However, Burks’s petition does not relate to his
federal incarceration. Rather, Burks challenges the validity of a sentence imposed in
Minnesota state court in 2002. (See Habeas Pet. at 6.) See Burks v. State, No. A15-1416,
2016 WL 3375956 (Minn. Ct. App. June 20, 2016). In that case, Burks pleaded guilty to
one count of terroristic threats, and was given a stayed sentence of 21 months, subject to
a five-year term of probation. Id. at *1. Burks’s probation ended in 2007, but as a result
of his conviction, he is required by Minnesota law to register as a predatory offender. See
Minn. Stat. § 243.166.
Burks now brings the present habeas corpus petition to challenge the registration
requirement, arguing that it violates the Ex Post Facto Clause of the United States
Constitution, and that in any event he was not convicted of an enumerated offense
requiring registration. (See Habeas Pet. at 6.) See U.S. Const. art. I, § 10, cl. 1. Pursuant
to statute and the local rules of this Court, Burks’s petition was first referred to the
magistrate judge for review. See 28 U.S.C. § 636; D. Minn. LR 72.1. The R&R
submitted to this Court did not consider the merits of Burks’s claims, however, because
Judge Rau concluded as a threshold matter that the petition is procedurally improper
because Burks is not “in custody” as that term is construed for purposes of § 2254
petitions. (See R&R at 2-3.) See 28 U.S.C. § 2254(a); accord 28 U.S.C. § 2241(c)(1)(3).
In particular, although the magistrate judge recognized that Burks is currently
incarcerated for a federal crime, he is no longer subject to any restraint as a result of his
state court terroristic threats conviction, besides the ongoing requirement to register as a
predatory offender. Judge Rau concluded that this collateral consequence does not rise to
the level of being “in custody,” and thus Burks’s petition must fail. (See R&R at 3-4.)
Burks filed timely objections to the R&R on May 24, 2017, triggering this de novo
Burks’s first objection contends that because the Eighth Circuit has never “passed
on the question of registration requirements as sufficient to allow for ‘in-custody’
treatment,” his petition presents a matter of first impression that requires statutory
analysis. (See Objections at 2.) Burks contends that this analysis has not been done—
presumably by the magistrate judge. (See id.)
The Court rejects this assertion. While Burks is correct that the Eighth Circuit has
not considered this specific factual scenario, he is mistaken in suggesting that Judge Rau
somehow engaged in an improperly cursory review of the procedural sufficiency of his
claim. On the contrary, the R&R demonstrates careful consideration of whether a non3
punitive registration requirement—the only remaining consequence of an otherwise
expired conviction—can constitute being “in custody” under § 2254. Analogizing to
similar cases that have found a requirement to register as a sex offender to be insufficient,
the magistrate judge prudently determined that registration as a predatory offender
likewise falls below the habeas threshold. (See R&R at 3-4.) See Virsnieks v. Smith, 521
F.3d 707, 718 (7th Cir. 2008); Hansen v. Marr, 594 F. Supp. 2d 1097, 1100 (D. Neb.
2009); Stevens v. Fabian, No. 08-cv-1011 (ADM/AJB), 2009 WL 161216, at *10 (D.
Minn. Jan. 22, 2009). Having reviewed Judge Rau’s reasoning, this Court likewise finds
that the burdens imposed by registration as a predatory offender do not cause a petitioner
to be “in custody” under § 2254.
This determination largely disposes of Burks’s second objection, which contends
that “analogizing [to] a Sex Offender Registration . . . is misplaced” because the
requirements of Minn. Stat. § 243.166 stem from an underlying “violent” offense.
(Objections at 2.) Burks does not indicate why this distinction is relevant to the present
procedural analysis, however, which is concerned with the consequences of the
“restrictions and obligations imposed upon” the petitioner. See Jones v. Jerrison, 20 F.3d
849, 852 n.2 (8th Cir. 1994). As the Court cannot conceive of any relevant difference
between registration as a violent offender versus registration as a sex offender, it holds
Burks’s narrow distinction to be of no consequence to the sufficiency of his habeas
CERTIFICATE OF APPEALABILITY
A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition
unless he is granted a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). A COA cannot be granted unless the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such
a “showing” requires demonstration “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). As the magistrate judge recognized, courts to have considered the
matter have uniformly concluded that non-punitive registration requirements do not rise
to the level of being “in custody” for purposes of § 2254. Accordingly, the Court finds
that reasonable jurists would be unlikely to consider this Court’s resolution of Burks’s
petition to be “debatable.” It will not issue a COA here.
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
Petitioner’s Objections to the Magistrate Judge’s May 15, 2017 Report and
Recommendation [Doc. No. 10] are OVERRULED;
The Court ADOPTS the Report and Recommendation [Doc. No. 8];
This action is DISMISSED with prejudice; and
The Court will NOT issue a Certificate of Appealability in this matter.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 28, 2017
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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