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Henry v. Lungren

United States Court of Appeals, Ninth Circuit
Jan 15, 1999
164 F.3d 1240 (9th Cir. 1999)

Summary

holding that in-person registration was not a severe enough restriction to place a sex offender "in custody"

Summary of this case from Clements v. State

Opinion

No. 97-56215

Argued and Submitted August 3, 1998 — Pasadena, California

Filed January 15, 1999

COUNSEL

David F. Glassman, Deputy Attorney General, Los Angeles, California, for the respondent-appellant.

Robert E. Henry, Pro Per, Oxnard, California, and Everett B. Clary, O'Melveny Myers, Los Angeles, California, for the petitioner-appellee.

Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, California, for amicus curiae Criminal Justice Legal Foundation.

Appeal from the United States District Court for the Central District of California Robert M. Takasugi, District Judge, Presiding D.C. No. CV-96-08509-RMT.

Opinion by Judge McKeown

Before: Betty B. Fletcher, David R. Thompson, and M. Margaret McKeown, Circuit Judges.


OPINION


The Attorney General of the State of California appeals from the district court's grant of Robert E. Henry's petition for habeas corpus. Under 28 U.S.C. § 2241(c)(3), the district court had jurisdiction to entertain Henry's petition for a writ of habeas corpus only if he was "in custody" when the petition was filed. Because Henry was not "in custody" at the time he filed the present petition, the district court lacked jurisdiction and therefore we reverse.

This case has a long history that is best summarized in the previous opinions. Henry v. Estelle, 33 F.3d 1037 (9th Cir. 1994) (per curiam), rev'd sub nom. Duncan v. Henry, 513 U.S. 364 (1995) (per curiam).

Henry, a convicted sex offender, filed his first habeas petition in federal court in 1990. After the Supreme Court held that he had not properly exhausted his claims in state court, 513 U.S. at 366, upon remand in 1995, the district court dismissed the petition without prejudice. In an effort to satisfy the exhaustion requirement, Henry refiled in state court; his petition was denied. Henry then filed the present petition on March 17, 1997, after his release from prison and after his discharge from parole. Henry argues that he was in actual, physical custody when he filed the petition, claiming that the date he filed the earlier habeas petition — not the date of the present petition — determines whether he satisfied the "in custody" determination. We disagree. The district court's dismissal of Henry's original petition for failure to exhaust state remedies "terminated the litigation." Farmer v. McDaniel, 98 F.3d 1548, 1552 (9th Cir. 1996), cert. denied, 117 S.Ct. 1474 (1997). The relevant date is the date on which Henry filed the present, second petition.

This case presents the novel question of whether the filing of the second habeas petition, following dismissal without prejudice of the first petition, relates back to the date of the first petition. The Federal Rules of Civil Procedure apply to habeas corpus proceedings "to the extent that the practice in such proceedings is not set forth in statutes of the United States." Fed.R.Civ.P. 81(a)(2). Rule 15(c)(2) provides for the relation back of an amended pleading to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). Henry's filing of the second petition does not, however, relate back under Rule 15(c)(2) to the filing date of the original habeas petition. The district court did not expressly or impliedly retain jurisdiction over Henry's original petition when the court dismissed for failure to exhaust. Because Henry's original habeas action was dismissed in 1995, there was no pending petition to which Henry's new 1997 petition could relate back or amend. See Lefkowitz v. Fair, 816 F.2d 17, 22-23 (1st Cir. 1987) (holding district court did not retain jurisdiction over habeas petition after dismissing petition without prejudice for failure to exhaust state remedies and not expressly or impliedly retaining jurisdiction); but see Williams v. Vaughan, 3 F. Supp.2d 567, 578 (E.D.Pa. 1998) (holding that filing of second amended petition relates back under Fed.R.Civ.P. 15(c) to original filing date of first habeas petition, which was dismissed without prejudice to refile after exhausting state remedies).

To hold that Henry's present petition relates back to his original petition would defeat the very purpose of habeas relief: "to effect release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7 (1973). Although a petitioner's release from custody does not moot a pending habeas petition, Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968), Henry was released before he filed the petition that is before us. Because of this circumstance, there is no custody from which he could be released. And, because his original petition was dismissed, Henry's circumstances are unlike those presented in Miller v. Laird, 464 F.2d 533 (9th Cir. 1972), in which we held that an amended habeas petition related back to the date of the original petition and the district court retained jurisdiction where "the original petition had not been dismissed and the action was still pending." Id. at 534.

Henry also argues that he is still "in custody" because, as a convicted sex offender, he is now required under California law to register annually with law enforcement authorities. Henry claims that the lifetime registration requirement is tantamount to perpetual "custody." The Attorney General counters that registration under a so-called "Megan's law" is not "custody" for purposes of federal habeas relief. On the day of oral argument in this case, another panel of this Court filed its opinion on this very issue, holding that such a petitioner is not "in custody" and is precluded from federal habeas relief. Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998). The reasoning of Williamson is controlling.

The only material difference between Williamson and this case is that the Washington sex offender law applies to Williamson, whereas California law applies to Henry. Compare Wash. Rev. Code § 9A.44.130 with Cal. Penal Code § 290. The laws are very similar in their essentials, each requiring a convicted sex offender to provide address and other background information, fingerprints, and a photograph to the local law enforcement authority. California law is more restrictive in requiring annual registration; Washington requires a one-time registration upon release from custody, coupled with an annual address verification procedure. Both states require an individual to reregister upon change of address. Henry claims the California law requires in-person registration, although that is not spelled out in the statute.

The minimal differences between the two statutes do not justify a different result for Henry. Registration, even if it must be done in person at the police station, does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner "in custody" for the purposes of federal habeas corpus relief. See generally Jones v. Cunningham, 371 U.S. 236, 242-43 (1963). Instead, the registration requirement is merely a collateral consequence of conviction that is "not [itself] sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it." Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam).

Because the district court lacked jurisdiction over the petition for habeas corpus, we reverse and we need not address the other issues raised on appeal.

REVERSED.


Summaries of

Henry v. Lungren

United States Court of Appeals, Ninth Circuit
Jan 15, 1999
164 F.3d 1240 (9th Cir. 1999)

holding that in-person registration was not a severe enough restriction to place a sex offender "in custody"

Summary of this case from Clements v. State

holding that California sexual offender registration laws do not render registrant "in custody"

Summary of this case from Resendiz v. Kovensky

holding that a second 28 U.S.C. § 2241 petition did not "relate back" to the date of the first petition pursuant to Rule 15 because the district court had already dismissed the first petition without expressly or impliedly retaining jurisdiction over the first petition

Summary of this case from United States v. Burk

holding "California's sex offender registration requirement does not 'constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner "in custody" for the purposes of federal habeas corpus relief,' but is 'merely a collateral consequence of conviction'"

Summary of this case from Harrell v. Pelonis

holding that "the registration requirement is merely a collateral consequence of conviction" that is alone insufficient to render an individual "in custody"

Summary of this case from Siddiqi v. Supreme Court of Cal.

holding that California's sex offender registration law does not meet custody requirement

Summary of this case from Holmes v. California

holding that California sex-offender-registration requirement following discharge from custody and parole is insufficient to meet custody requirement

Summary of this case from Hurst v. Attorney Gen. of Cal.

holding that a mandatory sex offender registration requirement does not support a finding that the "in custody" requirement is met

Summary of this case from Madden v. California

holding that an individual, who is required to register as a sex offender, is not “in custody”

Summary of this case from Confederated Tribes of the Colville Reservation v. Anderson

holding that an individual, who is required to register as a sex offender, is not "in custody"

Summary of this case from Confederated Tribes of Colville Res. v. Anderson

In Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999), we held that a California sex offender law did not place the petitioner "in custody" even though California's law, which the petitioner maintained required in-person annual registration, was in some ways "more restrictive" than the Washington law challenged in Williamson.

Summary of this case from Munoz v. Smith

applying Williamson and holding that California's sex offender law did not place petitioner "in custody" without addressing whether the law was punitive or regulatory

Summary of this case from Munoz v. Smith

In Henry, without analysis, the Ninth Circuit concluded that “[r]egistration, even if it must be done in person at the police station, does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner ‘in custody’ for the purposes of federal habeas corpus relief.” 164 F.3d at 1242.

Summary of this case from Wilson v. Flaherty

explaining that a second federal habeas petition filed after the dismissal without prejudice of an earlier federal habeas petition cannot be deemed to "relate back" to the filing date of the earlier petition, because there is no pending petition to which the new petition could relate back

Summary of this case from Gomez v. Walker

noting that a second petition will relate back to a timely filed first petition raising the same claims which was dismissed without prejudice for failure to exhaust state court remedies where district court expressly or impliedly retained jurisdiction

Summary of this case from Rosses v. Madden

In Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999), the Ninth Circuit held that "the filing of [a] second habeas petition, following dismissal without prejudice of the first petition" for failure to exhaust, did not "relate[] back to the date of the first petition."

Summary of this case from Laun v. Orange Cnty. Sheriff

being subject to California's sex offender registration requirement not custody

Summary of this case from Goetz v. Lawson

addressing California's sex offender registration statute which requires in-person registration and noting that the difference between the Washington statute and the California statute was minimal

Summary of this case from Calhoun v. Attorney Gen. of Colo.

construing California law

Summary of this case from Maloney v. Belleque

construing California law

Summary of this case from Byrum v. State

reaching same result as Williamson but analyzing California's sex offender registration law

Summary of this case from Coleman v. Arpaio

reaching same result as Williamson but analyzing California's sex offender registration law

Summary of this case from Shepherd v. State

reaching same result as Williamson but analyzing California's sex offender registration law

Summary of this case from Shakir v. State
Case details for

Henry v. Lungren

Case Details

Full title:ROBERT E. HENRY, Petitioner-Appellee, v. DANIEL LUNGREN, California State…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jan 15, 1999

Citations

164 F.3d 1240 (9th Cir. 1999)

Citing Cases

Munoz v. Smith

We later applied Williamson 's reasoning to hold that other states' sex offender registration requirements…

Wilson v. Flaherty

Not only has the Supreme Court never held that a defendant is in custody for habeas purposes when the…