Kennedy v. Allera

• Decision Date: 15 July 2010
• Docket Number: No. 08-8513.,08-8513.
• Citation: 612 F.3d 261
• Parties: Michael Edward KENNEDY, # 35377-098, Petitioner-Appellant,v.Michael P. ALLERA, United States Probation Service; William S. Henry, United States Probation Service; Edward F. Reilly, Chairman, United States Parole Commission; John Joseph Curran, Jr., Office of the Attorney General; Kathryn Seifert, Director, Eastern Shore Psychological Services, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

612 F.3d 261

Michael Edward KENNEDY, # 35377-098, Petitioner-Appellant,v.Michael P. ALLERA, United States Probation Service; William S. Henry, United States Probation Service; Edward F. Reilly, Chairman, United States Parole Commission; John Joseph Curran, Jr., Office of the Attorney General; Kathryn Seifert, Director, Eastern Shore Psychological Services, Respondents-Appellees.

No. 08-8513.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2010.

Decided: July 15, 2010.

ARGUED: Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Larry David Adams, Office of the United States Attorney, Baltimore, Maryland, for Appellees. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellees.

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge SHEDD joined.

OPINION

NIEMEYER, Circuit Judge:

Having been released on parole after serving 20 years of a life sentence of imprisonment for a 1980 federal conviction for rape and murder, Michael Kennedy was directed by his U.S. Probation Officer, as a condition of parole, to report to the Wicomico County, Maryland, Sheriff's Office and to register as a sex offender, in accordance with the Sex Offender Registration and Notification Act (“SORNA”), Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (codified primarily at 42 U.S.C. §§ 16901-16962 and 18 U.S.C. § 2250). See 42 U.S.C. § 16913(a) (imposing a duty on sex offenders to register in the States in which they reside, work, and study); 28 C.F.R. § 72.3 (making SORNA applicable to those convicted of a sex offense prior to SORNA's enactment). Acknowledging the broad scope of his Probation Officer's authority, Kennedy nonetheless argues that the order to register was unreasonable because (1) it was premised on an incorrect reading of SORNA; (2) he was unable lawfully to register in Maryland under the terms of Maryland's state registry; and (3) the order violated the Tenth Amendment by commandeering Maryland officials to register him in violation of Maryland law.

We conclude that because SORNA lawfully imposes, as a matter of federal law, registration obligations directly on sex offenders, such as Kennedy, the Probation Officer acted within his discretion in imposing the registration requirement and that Kennedy is not relieved of that duty by any restriction in Maryland law or by Maryland's failure to implement SORNA. We also reject Kennedy's Tenth Amendment challenge. Accordingly, we vacate our earlier opinion Kennedy v. Allera, 361 Fed.Appx. 442 (4th Cir.2009) (affirming on the ground that Kennedy was required to register under Maryland law independent of his duty under SORNA), and affirm the judgment of the district court for the reasons given herein.

I

In December 1980, a federal jury in California convicted Michael Kennedy of raping and murdering Maria Lopez de Felix. At the time of the crime, Kennedy was employed as an Immigration and Naturalization Officer, and the victim was a Mexican national who had attempted to enter the United States illegally. According to the facts presented at trial, Kennedy was escorting Lopez de Felix to the Mexican border when he led her to an unoccupied building, raped and strangled her, and left her body on an adjacent walkway. Following his conviction, Kennedy was sentenced to life imprisonment.

After serving 20 years in federal prison, Kennedy was released on parole in January 2000 to the supervision of the U.S. Parole Commission in the District of Maryland. Included in the standard conditions of his release was the requirement that Kennedy register as a sex offender in accordance with the laws of any State with which he had contact, as directed by his U.S. Probation Officer. The condition provided specifically:

If you have been convicted of any sexual offense under District of Columbia or federal law (including Uniform Code of Military Justice offenses), you must report for registration with your state sex offender registration agency as directed by your U.S. Probation Officer. You are required to report for registration in any state in which you live, work, attend school, or pursue any vocation. You must be registered in compliance with applicable state law that applies to current or prior federal, state, or local convictions for sexual offenses, and in compliance with 42 U.S.C. § 14072(i) (which makes it a federal crime for any offender covered by 18 U.S.C. § 4042 not to register in accordance with state law). If there is any question as to whether or where you are required to register, you must seek and follow the guidance of your U.S. Probation Officer.

J.A. 18.

When Kennedy's U.S. Probation Officer, Michael Allera, instructed Kennedy to register as a sex offender in Maryland in accordance with Maryland law, Kennedy objected, arguing that Maryland law did not require him to register. Nonetheless, Kennedy reported to the Wicomico County Sheriff's Office to register, as Allera had directed. The Sheriff's Office, however, refused to accept Kennedy's registration concluding that Kennedy was not required to register under Maryland law. Consequently, Officer Allera withdrew his instruction to Kennedy to register in Maryland as a sex offender.

In 2004, Officer Allera learned of several troubling incidents in which Kennedy had acted inappropriately toward women. In addition, Allera received a report from Kennedy's therapist indicating that recent evaluations suggested that Kennedy posed a moderate risk of committing another sex offense. Officer Allera submitted those facts to the Parole Commission, and the Commission modified Kennedy's parole conditions to require him to submit to a polygraph examination and to continue participating in a sex-offender treatment program. After Kennedy objected to these conditions, the Commission's National Appeals Board affirmed them on January 7, 2005. In response, Kennedy filed a pro se petition for habeas corpus under 28 U.S.C. § 2241 in the district court, challenging his new parole conditions on constitutional and statutory grounds.

On July 27, 2006, while Kennedy's habeas petition was pending, Congress enacted SORNA, which provides that “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). In addition, SORNA gave the Attorney General of the United States the authority to specify its applicability to sex offenders convicted before its enactment or its implementation in a particular jurisdiction. Id. § 16913(d). Pursuant to this authority, the Attorney General issued a regulation on February 28, 2007, making SORNA's registration requirements applicable to “all sex offenders, including sex offenders convicted of the offense ... prior to the enactment of [SORNA].” 28 C.F.R. § 72.3.

In response to SORNA's enactment and the Attorney General's regulation, Officer Allera officially instructed Kennedy, by letter dated March 16, 2007, to register as a sex offender under SORNA. In response to this letter, Kennedy supplemented his habeas petition to include a challenge to the legality of this condition and any obligation to register under SORNA. At the same time, Kennedy also filed a motion for a temporary restraining order and preliminary injunction, requesting that the district court enjoin Officer Allera from requiring him to register. This motion was later withdrawn, however, when the Parole Commission agreed to refrain from ordering Kennedy to register as a sex offender while the merits of his habeas petition were pending and while the Parole Commission was considering him for early termination of parole.

On November 13, 2007, the Parole Commission denied Kennedy early termination of parole, and the National Appeals Board thereafter affirmed the ruling. The Board stated further:

[T]he Commission has not specifically required you to register as a sex offender under Maryland law because it had been advised that there was a question of the applicability of the law to you. In good faith, the Commission has awaited a ruling on the issue. However, the National Appeals Board has determined that, under the Sex Offender Registration and Notification Act (SORNA), you are required to register as a sex offender. See U.S. v. Gould, 526 F.Supp.2d 538 (D.Md.2007). The Board affirms the condition of parole that requires you to register as a sex offender.

J.A. 96. To implement the ruling, Officer Allera sent Kennedy a letter dated April 18, 2008, which stated:

Dear Mr. Kennedy This is a follow-up to my phone message on 04/18/2008. As you are aware, a condition of your parole states if you have been convicted of any sexual offense under District of Columbia or federal law you must report for registration with your state sex offender registration agency as directed by your U.S. Probation Officer. You are required to report for registration in any state in which you live, work, attend school, or pursue any vocation. This condition was held in abeyance pending further research of the matter.

As indicated in the Notice of Action on Appeal dated March 26, 2008, the Parole Board affirmed the condition of your parole that requires you to register as a sex offender. As noted in the document, this was based on a decision by the National Appeals Board.

You are hereby instructed to report to Lieutenant Roberts ... at the Wicomico Sheriff's Office ... and register as a sex offender on April 30, 2008 at 10:00 am.

J.A. 97 (emphasis added).

After receiving this letter, Kennedy renewed his motion for a temporary restraining order and preliminary injunction to prohibit the Parole Commission from requiring him to register as a...