Hautzenroeder v. DeWine

• Citation: 887 F.3d 737
• Decision Date: 11 April 2018
• Docket Number: No. 17-3395,17-3395
• Parties: Julie HAUTZENROEDER, Petitioner-Appellant, v. Michael DEWINE, Ohio Attorney General, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

887 F.3d 737

Julie HAUTZENROEDER, Petitioner-Appellant,

v.Michael DEWINE, Ohio Attorney General, Respondent-Appellee.

No. 17-3395

United States Court of Appeals, Sixth Circuit.

Argued: January 24, 2018

Decided and Filed: April 11, 2018

ARGUED: Wendy R. Calaway, THE LAW OFFICE OF WENDY R. CALAWAY, CO., L.P.A., Cincinnati, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Wendy R. Calaway, THE LAW OFFICE OF WENDY R. CALAWAY, CO., L.P.A., Cincinnati, Ohio, for Appellant. Stephanie L. Watson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: COLE, Chief Judge; SILER and COOK, Circuit Judges.

COOK, Circuit Judge.

Due to her conviction for sexual battery, Julie Hautzenroeder must forever comply with Ohio's sex offender registration and notification laws. After her release from prison and community control, Hautzenroeder filed a habeas petition under 28 U.S.C. § 2254 challenging her conviction with its attendant ongoing reporting burden. The district court dismissed the petition, deciding that it lacked jurisdiction under § 2254 because Hautzenroeder was no longer "in custody." Hautzenroeder timely appealed, and we AFFIRM.

I. BACKGROUND

An Ohio jury found Hautzenroeder, a high school teacher, guilty of one count of sexual battery involving a student. Although her state court appeals were unsuccessful, Hautzenroeder benefitted from the trial court's suspending most of her two-year prison sentence and discharging her early from community control. But no court could suspend Hautzenroeder's statutorily-mandated classification as a Tier III sex offender with its associated lifetime reporting requirements. See Ohio Rev. Code §§ 2950.01(G)(1)(a), 2950.07(B)(1).

Hautzenroeder's federal habeas petition alleged a due process violation stemming from insufficient evidence supporting her conviction. Ohio moved to dismiss, arguing that the district court lacked jurisdiction over the petition because Hautzenroeder filed it after her period of incarceration and community control expired—in other words, when she was no longer "in custody." Agreeing with a magistrate judge's report and recommendation, the district court dismissed her petition for want of jurisdiction. That court's later grant of a certificate of appealability as to "whether petitioner is in custody for purposes of habeas relief and whether the Court properly granted respondent's motion to dismiss" occasions this appeal.

II. ANALYSIS

"We apply de novo review to questions of subject matter jurisdiction." Steverson v. Summers , 258 F.3d 520, 522 (6th Cir. 2001). As the party opposing dismissal, Hautzenroeder bears the burden of establishing the existence of jurisdiction. Brott v. United States , 858 F.3d 425, 428 (6th Cir. 2017).

Federal courts may "entertain an application for a writ of habeas corpus [o]n 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) (emphases added). This language is jurisdictional: if a petitioner is not "in custody" when she files her petition, courts may not consider it. Steverson , 258 F.3d at 522.

The Supreme Court holds that a petitioner is "in custody" when she is subject to conditions that "significantly restrain [her] liberty to do those things which in this country free men are entitled to do." Jones v. Cunningham , 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ; see also Hensley v. Mun. Court , 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (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."). Comparing herself to a parolee, Hautzenroeder maintains that the continuous burdens and restrictions of her Tier III classification similarly circumscribe her liberties, rendering her "in custody" under § 2254. See Jones , 371 U.S. at 242, 83 S.Ct. 373 (detailing terms of petitioner's parole).

Yet not all consequences that flow from a criminal conviction significantly curb one's liberty. "[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it." Maleng v. Cook , 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) (emphasis added). Hautzenroeder is no longer in custody, the State's argument goes, because her obligations are "collateral consequences" of her conviction, not "severe restraints on liberty." See, e.g. , Carafas v. LaVallee , 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (giving examples of collateral consequences, including losing the right to vote, to serve as a juror, or to engage in certain businesses).

In Leslie v. Randle , we decided that a habeas petitioner's obligations under Ohio's sex offender registration law were "more analogous to collateral consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole." 296 F.3d 518, 522–23 (6th Cir. 2002). But Leslie concerned Ohio's pre-2007 sex offender registration scheme. That year, Ohio revamped its law to align with the federal Sex Offender Registration and Notification Act ("SORNA"). See State v. Bodyke , 126 Ohio St.3d 266, 933 N.E.2d 753, 759 (2010). To prevail, therefore, Hautzenroeder must show that the new law's requirements so materially differ from the old regime's as to warrant a different result. She argues that several features of Ohio's SORNA meet this test. We are unpersuaded.

A. Obligation to Provide and Update Information

First, Hautzenroeder argues that the enhanced reporting requirements of the new law materially distinguish her case from Leslie . The State concedes that, as compared to its old registration law, Ohio's SORNA requires offenders to report more information to more officials. See Leslie , 296 F.3d at 521 (discussing Ohio's former registration requirements); compare Ohio Rev. Code §§ 2950.04, 2950.06, with Ohio Rev. Code Ann. §§ 2950.04, 2950.06 (LexisNexis 2001). She characterizes these requirements as "a unique encumbrance, which chills registrants' freedom of movement."

In reality, Hautzenroeder's obligations under Ohio's SORNA differ from those under Ohio's previous regime only in degree, not in kind. Her "ability to move to a different community or residence is ... not conditioned on approval by a government official." Leslie , 296 F.3d at 522. She need not "remain employed, nor is [she] prohibited from engaging in any legal activities." Id. ; see also Wilson v. Flaherty , 689 F.3d 332, 338 (4th Cir. 2012) (making the same point with respect to Virginia and Texas registration laws). In other words, Hautzenroeder's freedom of movement is unconstrained, her registration and reporting obligations notwithstanding.

Her circumstances are also readily distinguishable from the facts of Jones and Hensley , where the Supreme Court found that the petitioners were "in custody" because the government exercised direct control over their movements. The Jones petitioner was a parolee; the terms of his parole confined him to "a particular community, house, and job." 371 U.S. at 242, 83 S.Ct. 373. He could not drive a car without authorization, and he was to "keep away from undesirable places." Id. The Hensley petitioner, a man released on his own recognizance, was "in custody" because he could not "come and go as he please[d]. His freedom of movement rest[ed] in the hands of state judicial officers, who [could] demand his presence at any time and without a moment's notice." 411 U.S. at 345, 351, 93 S.Ct. 1571. Hautzenroeder suffers no such burdens.

Though registration obligations present a serious nuisance, as the First Circuit put it, "even grievous collateral consequences stemming directly from a conviction cannot, without more, transform the absence of custody into the presence of custody." Lefkowitz v. Fair , 816 F.2d 17, 20 (1st Cir. 1987) (holding that the loss of a medical license did not render a sex offender who had completed his sentence "in custody"). Other courts likewise hold that personal registration requirements are not enough to render a sex offender "in custody." See, e.g. , Dickey v. Allbaugh , 664 Fed.Appx. 690, 693–94 (10th Cir. 2016) (Oklahoma law); Calhoun v. Att'y Gen. of Colo. , 745 F.3d 1070, 1072–74 (10th Cir. 2014) (Colorado law); Wilson , 689 F.3d at 337–38 (Virginia and Texas laws) ; Henry v. Lungren , 164 F.3d 1240, 1242 (9th Cir. 1999) (California's pre-SORNA registration law). No court of appeals has held otherwise, and Hautzenroeder has given us no reason to diverge from this unanimous body of precedent.

B. Dissemination of Information to the Public

Ohio's SORNA requires the county sheriff to inform the offender's neighbors, area school officials, and the local municipal police chief, among others, of the offender's presence in the community. See generally Ohio Rev. Code § 2950.11(A) – (B). School officials may likewise inform their employees, who must report if they see the offender near the school. See generally Ohio Admin. Code 109:5-4-04. Ohio law also requires that sex offender information (such as the offender's name, physical characteristics, associated addresses, vehicle information, and criminal history details) be included in an online database that members of the public can use to search for sex offenders in their area. See Ohio Rev. Code §§ 2950.081, 2950.13(A)(11).

Hautzenroeder contends that the dissemination of such information transforms her conviction into a scarlet letter, encroaching on her liberty interests. She claims that widespread knowledge of her status may hinder her efforts to obtain employment or participate in ordinary social activities, impair her parenting abilities, and subject her to...