Wilson v. Flaherty

• Decision Date: 15 August 2012
• Docket Number: No. 11–6919.,11–6919.
• Citation: 689 F.3d 332
• Parties: Eric C. WILSON, Petitioner–Appellant, v. W. Steven FLAHERTY, Superintendent, Virginia Department of State Police, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

689 F.3d 332

Eric C. WILSON, Petitioner–Appellant,

v.W. Steven FLAHERTY, Superintendent, Virginia Department of State Police, Respondent–Appellee.

No. 11–6919.

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2012.

Decided: Aug. 15, 2012.

ARGUED:George A. Somerville, Troutman Sanders, LLP, Richmond, Virginia, for Appellant. Virginia Bidwell Theisen, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF:Stephen A. Northup, Anthony F. Troy, Joshua D. Heslinga, Troutman Sanders, LLP, Richmond, Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney General of Virginia, Benjamin H. Katz, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DAVIS joined. Judge DAVIS wrote a separate concurring opinion. Judge WYNN wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254's jurisdictional requirement that he be “in custody” at the time he filed his petition, see28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

The district court dismissed Wilson's petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer “in custody,” as required by § 2254(a).

We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson's liberty so as to justify a finding that he is in the custody of state officials.

I

Wilson was one of the “Norfolk Four,” a group of four young Navy sailors who were convicted of the rape and/or murder of Michelle Bosko, the wife of another Navy sailor. Wilson himself was acquitted of murder but convicted of rape in 1999 and sentenced to eight and one-half years' imprisonment. Wilson was released from custody in 2005 after having fully served his sentence, and he returned to his parents' home in Texas.

Following the convictions, the investigation and prosecution of the Norfolk Four were called into question by new evidence, including allegations of fraud on the part of the lead investigator and a DNA match to another individual who confessed to and was later convicted of the rape and murder of Bosko. We recently set forth the facts relating to the Bosko murder, the investigation, trials, and exculpatory new evidence in detail, affirming the district court's grant of the habeas petition of Derek Tice, another member of the Norfolk Four. See Tice v. Johnson, 647 F.3d 87 (4th Cir.2011).

In 2004, a year before Wilson was released from prison, he, along with the other three members of the Norfolk Four, petitioned the Governor of Virginia for an absolute pardon on the grounds of innocence, pursuant to Article V, § 12, of the Virginia Constitution and Virginia Code § 53.1–229. Ultimately, in 2009, Virginia Governor Tim Kaine, after reviewing the pardon applications anew, concluded that the Norfolk Four “had raised substantial doubt about the validity of their convictions but had not conclusively established their innocence.” He thus issued conditional pardons to the three members of the Norfolk Four who were still incarcerated, freeing them from prison, but keeping their convictions in place. He denied any relief to Wilson because Wilson had already been released.

Because of his conviction for rape, Wilson was required to and did register with the Virginia State Police as a sex offender, pursuant to Virginia's Sex Offender and Crimes Against Minors Registry Act, Va.Code § 9.1–900, et seq. As required by that law, he registered before leaving prison. Wilson was also required to reregister for any significant changes in residence, employment, online contact information, or vehicle ownership while a Virginia resident, Va.Code § 9.1–903, and, because his rape conviction was considered a “sexually violent offense,” was required to reregister and confirm all of his identifying information every 90 days, id.§ 9.1–904. Upon moving to Texas, Wilson was also required to register there in a manner similar to that required by Virginia. In addition, Wilson has asserted that he cannot, based on other regulations, adopt his stepson or work as an electrician at sites that require clearance, among other things.

Wilson filed this petition for a writ of habeas corpus in March 2010, some five years after his sentence was fully served, alleging that he is actually innocent; that the Commonwealth of Virginia suppressed exculpatory evidence; and that he was the victim of a corrupt investigative process. Naming as the respondent W. Steven Flaherty, the Superintendent of the Virginia Department of State Police, Wilson alleged that he was being unlawfully restrained by the Virginia State Police in its administration of the Virginia Sex Offender and Crimes Against Minors Registry Act because he was unlawfully convicted and subjected to registration requirements. For relief, he requested that his rape conviction be declared null and void; that he be immediately released from his violent sex offender status; and that Virginia expunge any and all records relating to his conviction. Wilson also filed a motion to stay and abey his petition to permit his exhaustion in the Virginia state courts of his corrupt-investigative-process claim.

In response, the Superintendent of the State Police contended that the district court should deny the motion to stay and abey because Wilson was not “in custody for purposes of federal habeas corpus and thus [the district court] lack[ed] jurisdiction to consider his current habeas case.” See28 U.S.C. § 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490–91, 494, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) (holding that a habeas petitioner must be “ ‘in custody’ under the conviction or sentence under attack at the time his petition is filed” and that the failure to establish the in custody requirement deprives a federal habeas court of subject matter jurisdiction).

The district court agreed with the Superintendent and dismissed Wilson's petition, based on a lack of subject matter jurisdiction. Because Wilson had made a substantial showing of the denial of a constitutional right, however, the court issued a certificate of appealability “as to the specific issue regarding whether Wilson is considered ‘in custody,’ such that the relief afforded by habeas corpus is available to him.” This appeal followed.

II

Recognizing that he filed his petition only after fully serving his sentence, Wilson contends nonetheless that he remains “in custody” of the Virginia State Police because of the “substantial restraints on his liberty” that the State Police are imposing on him by enforcing Virginia's sex offender registration statute. He does not dispute the proposition that the collateral consequences of a conviction do not generally suffice to find one “in custody” but argues that, as a sex offender, he suffers from far more substantial restraints than the normal consequences of a felony conviction. In addition to the general registration obligations, which he must fulfill in person and which require him to provide a wide “array of physical and other personal identifying information,” he notes that he has to reregister every 90 days because his offense was a “sexually violent offense,” seeVa.Code 9.1–904. He also must reregister in person for any changes in residence, employment, vehicle ownership, or online contact information. See id.§ 9.1–903. Moreover, before moving from Virginia to Texas, Wilson was required to notify the Virginia State Police, who in turn notified the designated law enforcement agency in Texas. See id.§ 9.1–903(D). He asserts that when he moved to Texas, he was and continues to be subject to similar registration requirements. SeeTex.Code Crim. Proc. Ann. art. 62.001, et seq. In addition, he claims that under Texas law he must carry a sex offender identification card at all times and renew his driver's license every year rather than every six years and must do so in person.

Wilson also points to other constraints resulting from his status as a sex offender that are not imposed by the registration statutes. He claims that he is unable to work as an electrician at particular jobs, such as at government buildings, or to enroll in electrician school to advance his career because he cannot pass the required background checks. He claims that he has been unable to adopt his eight-year-old stepson; that, to visit his stepson in school, he must submit to a humiliating background check; that, for an unexplained reason, he was not permitted to travel to Canada for his honeymoon; and that he must notify authorities if he is going to be away from home for more than 24 hours.

Finally, Wilson points out that his failure to comply with the state registration requirements subjects him to criminal penalties, both under state and federal law.

Based on these restraints on his liberty,...