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Smith v. Bush

United States District Court, D. South Carolina

November 9, 2017

Robert Davis Smith, Jr., #285136 a/k/a Robert Davis Smith, Jr., #0495 a/k/a Robert Davis Smith, Jr., #121630, Petitioner,
v.
Warden Bush, Respondent.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge

         This is an action seeking habeas corpus relief under 28 U.S.C. § 2241. [Doc. 1.] Petitioner is a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) at Broad River Correctional Institution, and he seeks habeas relief from a sentence imposed upon him in 1993. [Id.] The Petition is subject to summary dismissal.

         BACKGROUND

         Petitioner alleges that, on June 2, 1993, he was convicted of the crime of lewd act on a minor and sentenced under the Youthful Offender Act to 6 years, suspended to 30 months probation and 24 days public service employment. [Doc. 1 at 3.] He alleges that he was a juvenile when he was convicted and that he should not be required to register as a sex offender because he was not informed that he had to do so until “25 years” after his conviction. [Id. at 8.] He asks that the Court expunge his “old charge” from his criminal record. [Id. at 9.] Liberally construed, it appears that Petitioner brings this § 2241 habeas action because he believes his status as a registered sex offender is improper. [Doc. 1.]

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court. Petitioner filed this action in forma pauperis pursuant to 28 U.S.C. § 1915. This statute authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Thus, a federal court has jurisdiction over such a petition only if the petitioner is “in custody” and the custody is allegedly “in violation of the Constitution or laws or treaties of the United States.” Id.; Maleng v. Cook, 490 U.S. 488, 490 (1989). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to Section 2241 petitions through Rule 1(b), this Court is required to preliminarily review a petitioner's habeas petition and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).

         As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         DISCUSSION

         Petitioner seeks to challenge, pursuant to 28 U.S.C. § 2241, the collateral consequences of a conviction and sentence imposed upon him in 1993. However, Petitioner is no longer in custody under that sentence. Petitioner's current incarceration in state prison is unrelated to the conviction and sentence that he seeks to challenge in his habeas petition. The online court records from the Greenville County 13th Judicial Circuit Public Index show that Petitioner is currently serving a term of imprisonment under a sentence imposed on March 4, 2016, following a conviction in the Greenville County Court of General Sessions for the crime of criminal sexual conduct in the first degree. See Greenville County 13th Judicial Circuit Public Index, https://www2.greenvillecounty.org/ SCJD/PublicIndex/PISearch.aspx (search case number “2013A2320601632") (last visited November 9, 2017) (Indictment No. 13GS2307305).[*]

         Rather than seeking relief from his current term of imprisonment in his habeas petition, Petitioner asks that the Court expunge his 1993 conviction under the Youthful Offender Act. Specifically, Petitioner seeks to expunge the requirement that he register as a sex offender.

         Pursuant to 28 U.S.C. § 2241, a writ of habeas corpus is available only if a prisoner demonstrates that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2241(c)(3) (emphasis added); see also 28 U.S.C. 2254(a) (imposing the same “in custody” requirement). This statutory language has been consistently interpreted as requiring that the habeas petitioner be “in custody” under the conviction or sentence under attack at the time his petition is filed. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Furthermore, a prisoner can utilize habeas corpus proceedings only if he is challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, Petitioner does not attack the fact or duration of his confinement, but rather he attacks his classification as a sex offender.

         The Fourth Circuit Court of Appeals has held that the registration requirements imposed on sex offenders does not place the sex offender “in custody” for purposes of habeas jurisdiction. See Wilson v. Flaherty, 689 F.3d 332, 337-38 (4th Cir. 2012). Other circuit courts have unanimously agreed. See, e.g., Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008) (“[G]iven the habeas statute's ‘in custody' requirement, courts have rejected uniformly the argument that a challenge to a sentence of registration under a sexual offender statute is cognizable in habeas.”); Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002); Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998).

         Petitioner is no longer serving the sentence imposed upon him in 1993 that he now seeks to challenge. Simply put, sex offender registration does not meet the requirements of “in custody” for purposes of federal habeas relief; rather, it is a collateral consequence. See Clair v. Maynard, 812 F.Supp.2d 685, 687-88 (D. Md. 2011). “The sex offender registration requirement is merely a collateral consequence of conviction, and does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner ‘in custody' for the purpose of federal habeas corpus review.” Davis v. Nassau County524 F.Supp.2d 182, 188 (E.D.N.Y. 2007), see also Leslie v. Randle,296 F.3d 518, 522-23 (6th Cir. 2002) (Ohio sex offender registration does not satisfy custody requirement); McNab v. Kok,170 F.3d 1246, 1247 (9th Cir. 1999) (Oregon's sex offender registration ...


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