ELLINGTON v. CREWS et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 6/30/2014. (tf, n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
THOMAS ELLINGTON,
:
: Civil Action No. 14-4118 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
MICHAEL D. CREWS, et al.,
:
:
Respondents.
:
_______________________________________
:
BUMB, District Judge:
This matter is before the Court on Petitioner’s application
styled as a § 2254 petition (“Petition”).

For the reasons stated

below, the Petition will be dismissed for lack of jurisdiction,
and no certificate of appealability will issue.
Petitioner is a Florida inmate who recently filed another
action in this District.
I”), No. 14-3440 (RMB).

See Ellington v. Claypoole (“EllingtonIn Ellington-I, he submitted a § 1983

complaint indicating that, sixteen years ago, he was convicted of
a sexual offense falling within the range of crimes listed in
N.J. Stat. Ann. 2C:7-2(b) and, thus, became subject to the
registration requirement of N.J. Stat. Ann. 2C:7-1, et seq.
(“Megan’s Law”).

See Ellington-I, Docket Entry No. 1, at 3.

After that conviction, he had other convictions, one in 2000 (a
controlled substance offense) and others in 2003 and later
(failures to register under the Megan Law).

See id. at 3-5.

In 2013, he filed an application with the Superior Court of
New Jersey, Law Division, seeking relief from the registration
requirement.

See id.

Hon. Susan L. Claypoole (“Judge

Claypoole”) denied that application for failure to satisfy the
prerequisite requirement of demonstrating that Petitioner had
been offense-free for fifteen years.

See id. at 5.

After Judge

Claypoole’s ruling, Petitioner commenced Ellington-I, conceding
his controlled substance conviction in 2000 and his failures to
register in and after 2003 but maintaining that Judge Claypoole
erred in finding that he was obligated but failed to register in
New Jersey, since he has been incarcerated in Florida starting
November 1, 2010.

See id. at 3.

In light of that contention,

and asserting that his three convictions should have been ignored
for the purposes of the Megan’s Law, he alleged that Judge
Claypoole violated his rights by denying him relief from the
registration requirement.
in damages.

See id. at 4.

Correspondingly, he sought $1 million
This Court screened the Ellington-I

complaint and dismissed it sua sponte, as meritless, in light of
Judge Claypoole’s judicial immunity.

See Ellington v. Claypoole,

2014 U.S. Dist. LEXIS 77149 (D.N.J. June 6, 2014).
Three weeks after this Court’s entry of its Ellington-I
decision, the Clerk received Petitioner’s application at bar
styled, as noted supra, to mimic a § 2254 habeas petition.
Instant Matter, Docket Entry No. 1.

2

See

Here, as in Ellington-I, Petitioner is challenging Judge
Claypoole’s factual and legal findings.

See id. at 5 (stating

that his challenge was unexhausted at the Appellate Division and
the Supreme Court of New Jersey because, having no internet
access, Petitioner is unaware of New Jersey appellate rules).
Had Petitioner’s claim been a jurisdictionally-proper habeas
challenge, this Court would have dismissed it without prejudice,
for failure to exhaust.

However, a non-prejudicial dismissal is

unwarranted here, in light of Petitioner’s failure to meet the
threshold “in-custody” requirement vesting this Court with habeas
jurisdiction.
Section 2254 gives a federal district court subject matter
jurisdiction to entertain a habeas petition only as follows:1
[A] district court 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).
Similarly, the umbrella habeas statute, 28 U.S.C. § 2241 provides
in relevant part:
The writ of habeas corpus shall not extend to a
prisoner unless — . . . He is in custody in violation
of the Constitution or laws or treaties of the United
States.

1

Lack of subject matter jurisdiction may be raised by the
Court sua sponte at any time. See Bender v. Williamsport Area
School Dist., 475 U.S. 534, 541 (1986); Van Holt v. Liberty
Mutual Fire Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998).
3

28 U.S.C. § 2241(c)(3).
To obtain federal habeas corpus review under either one of
the above-listed statutes, a petitioner must satisfy two
requirements: (a) the status requirement, by showing that he is
“in custody”; and (b) the substance requirement, by showing that
his petition challenges the legality of that custody on the
ground that it is in violation of the Constitution or laws or
treaties of the United States.

See Maleng v. Cook, 490 U.S. 488,

490 (1989); 1 James S. Liebman & Randy Hertz, Federal Habeas
Corpus Practice and Procedure § 8.1 (4th ed. 2001).
The Supreme Court has “interpreted the statutory language as
requiring [a showing] that the habeas petitioner be ‘in custody’
under the conviction or sentence under attack at the time his
petition is filed.”

Maleng, 490 U.S. at 490-91; see also Spencer

v. Kemna, 523 U.S. 1, 7 (1998) (custody requirement is satisfied
where the petitioner is incarcerated at the time his petition is
filed).2

The “in custody” requirement is satisfied when the

2

Thus, the generic fact that a petitioner is incarcerated
is of no relevance to the “in custody” requirement. Rather, the
restraints on the petitioner’s liberty must arise from: (a) the
operations of the very sentence he is attacking; and (b) that
sentence must be in effect when he files his habeas petition.
While collateral consequences, such as the lack of ability to
vote, engage in certain businesses, hold public office, serve as
a juror, etc., may avoid mootness of a habeas petition where the
petitioner was released after his petition was filed but before
the judicial decision is entered, such collateral consequences
are not sufficient to satisfy the “in custody” jurisdictional
requirement if the petition is filed after the sentence expired.
4

sentence attacked is imposing “significant restraints on
petitioner’s liberty . . . which are in addition to those imposed
by the State upon the public generally.”

Lehman v. Lycoming

County Children’s Serv. Agency, 458 U.S. 502, 508 (1982) (quoting
Jones v. Cunningham, 371 U.S. 236, 242 (1963)); see also Hensley
v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345,
351 (1973) (“The custody requirement of the habeas corpus statute
is designed to preserve the writ of habeas corpus as a remedy for
severe restraints on individual liberty.”)
Megan’s Laws, as adopted certain states, including the State
of New Jersey, are non-punitive regulatory regimes that require:
(a) mandatory registration of certain convicted sex offenders
with law enforcement authorities; and (b) community notification.
See Smith v. Doe, 538 U.S. 84, 89 (2003).3

The requirements

See Spencer, 523 U.S. at 7-8; Maleng, 490 U.S. at 491-92.
3

The Court of Appeals for the Third Circuit described the
requirements of New Jersey’s Megan’s Law as follows:
The registrant must provide the following information
to the chief law enforcement officer of the
municipality in which he resides: name, social security
number, age, race, sex, date of birth, height, weight,
hair and eye color, address of legal residence, address
of any current temporary legal residence, and date and
place of employment. N.J.S.A. 2C:7-4(b)(1). He must
confirm his address every ninety days, notify the
municipal law enforcement agency if he moves, and
re-register with the law enforcement agency of any new
municipality. N.J.S.A. 2C:7-2(d) to (e). The
information provided by the registrant is put into a
central registry, open to other law enforcement
5

posed by such regimes do not meet the “in custody” requirement
under § 2254(a) and/or § 2241(c)(3).

See Green v. Fisher, 2011

U.S. Dist. LEXIS 140791 (E.D. Pa. May 23, 2011) (collecting
cases).

“[C]ourts [in this nation] have rejected uniformly the

argument that a challenge to a sentence of registration under a
sexual offender statute is cognizable in habeas.”

Virsnieks v.

Smith, 521 F.3d 707, 718 (7th Cir. 2008); see also Leslie v.
Randle, 296 F.3d 518, (6th Cir. 2002); Henry v. Lungren, 164 F.3d
1240, 1241-42 (9th Cir. 1999); McNab v. Kok, 170 F.3d 1246, 1247
(9th Cir. 1999).

In sync, the courts in this District have

personnel but not to public inspection. Law
enforcement officials then use the data provided to
apply a “Risk Assessment Scale,” a numerical scoring
system, to determine the registrant’s “risk of offense”
and the tier in which the registrant should be
classified. In the case of Tier 1 registrants,
notification is given only to law enforcement agents
“likely to encounter” the registrant. Tier 2, or
“moderate risk,” notification is given to law
enforcement agents, schools, and community
organizations “likely to encounter” the registrant.
Tier 3, or “high risk,” notification goes to all
members of the public “likely to encounter” the
registrant. Notifications generally contain a warning
that the information is confidential and should not be
disseminated to others, as well as an admonition that
actions taken against the registrant, such as assaults,
are illegal. The prosecutor must provide the
registrant with notice of the proposed notification. A
pre-notification judicial review process is available
for any registrant who wishes to challenge his or her
classification.
Paul P. v. Verniero, 170 F.3d 396, 399 (3d Cir. 1999) (citations
and internal quotation marks omitted).
6

invariably held that the classification, registration and
community notification provisions of New Jersey’s Megan’s Law are
merely collateral consequences of the conviction that did not
constitute severe/immediate restraints on liberty sufficient to
satisfy the “in custody” requirement for the purposes of vesting
a federal court with jurisdiction to conduct a habeas review.
See, e.g., Moore v. New Jersey, 2012 U.S. Dist. LEXIS 62192, at
*9 (D.N.J. May 3, 2012) (addressing this very issue and relying
on Bango v. Green-Allen, 2011 U.S. Dist. LEXIS 143 (D.N.J. Jan.
3, 2011); Coleman v. Arpaio, 2010 U.S. Dist. LEXIS 41035 (D.N.J.
Apr. 27, 2010); Shakir v. State of New Jersey, 2006 U.S. Dist.
LEXIS 1322 (D.N.J. Jan. 17, 2006).
custody” under Megan’s Law.

Thus, Petitioner is not “in

Since Petitioner is not “in

custody,” this Court lacks subject matter jurisdiction over his
claim and will dismiss his Petition with prejudice.
No certificate of appealability will issue since Petitioner
has not made “a substantial showing of the denial of a
constitutional right” under 28 U.S.C. § 2253(c)(2).

See

Miller-El v. Cockrell, 537 U.S. 322 (2003).
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 30, 2014
7