Umbarger v. Michigan

• Decision Date: 05 February 2013
• Docket Number: Case No. 1:12-cv-705
• Court: U.S. District Court — Western District of Michigan
• Parties: JOHN R. UMBARGER, Petitioner, v. STATE OF MICHIGAN et al., Respondents.

JOHN R. UMBARGER, Petitioner,

v.STATE OF MICHIGAN et al., Respondents.

Case No. 1:12-cv-705

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: February 5, 2013

Honorable Robert Holmes Bell

OPINION

This is a habeas corpus action brought by Petitioner John R. Umbarger pursuant to 28 U.S.C. § 2241.¹ Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see also 28 U.S.C. § 2243 (directing courts to grant the writ or order the respondent to answer it "unless it appears from the application that the applicant or person detained is not entitled thereto"). If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that arepalpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed.

Background

In 1996, Petitioner was convicted in Kent County Circuit Court of three counts of first-degree criminal sexual conduct with a person under thirteen years of age, Mich. Comp. Laws § 750.520b(1)(a), and one count of second-degree criminal sexual conduct with a person under thirteen years of age, Mich. Comp. Laws § 750.520c(1)(a), for acts committed in 1994. He was sentenced to concurrent prison terms for each count. On April 20, 2010, he was released on parole, and on April 23, 2012, he completed the terms of his sentence and parole and was discharged from both. He filed the instant petition in July 2012.

In 1995, before Petitioner's conviction, the State of Michigan enacted the Sex Offenders Registration Act (SORA), Mich. Comp. Laws § 28.721 et seq. Among other things, it requires convicted sex offenders like Petitioner to register with the state and provide personal information about themselves, some of which is then published on a publicly-available website. See Mich. Comp. Laws §§ 28.727, 28.728. Amendments to SORA that became effective in 2006 prohibit Petitioner from working, residing, or loitering within 1,000 feet of school property. See Mich. Comp. Laws §§ 28.733-28.735. Additional amendments that became effective in 2011 require Petitioner to report in person to his local law enforcement agency on a quarterly basis and "immediately"² after he: changes his name, residence, or place of employment; enrolls or discontinues enrollment at an institution of higher education; establishes an e-mail or instant-messaging address; purchases or begins to regularly operate a vehicle; or "intends to temporarilyreside" at any place other than residence for more than 7 days. See Mich. Comp. Laws § 28.725(1). He must also report in person "immediately" before he moves to another state, and not later than 21 days before he moves or travels to another country for more than 7 days. See Mich. Comp. Laws § 28.725(6)-(7). Because of the nature of his convictions, Petitioner is classified as a "tier III" offender;³ as such, he is subject to SORA's registration requirements for life. Mich. Comp. Laws § 28.725(12). The penalty for failure to comply with SORA is a fine and/or imprisonment. See Mich. Comp. Laws § 28.729.

In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., for the purpose of "creat[ing] a national system for the registration of sex offenders." United States v. Utesch, 596 F.3d 302, 306 (6th Cir. 2010) (citing 42 U.S.C. § 16901). SORNA requires sex offenders to "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). The registry includes the sex offender's name, Social Security number, addresses where the offender works, resides or attends school, and the license plate numbers and descriptions of any vehicles owned or operated by the offender. 42 U.S.C. § 16914. Those required to register must appear in person to update their registration information "not later than 3 business days after each change of name, residence, employment, or student status[.]" 42 U.S.C. § 16913(c). A "tier III" offender like Petitioner must verify his information in person at least once every three months. 42 U.S.C. § 16916. SORNA's registration requirements apply toPetitioner for the remainder his life. 42 U.S.C. § 16915(a)(3). The penalty for being a sex offender who "travels in interstate or foreign commerce" and "knowingly" fails to comply with SORNA is a fine and/or imprisonment for up to 10 years. 18 U.S.C. § 2250(a).

SORA and SORNA are related to one another. SORNA requires states that accept certain federal funds to maintain a sex offender registry conforming to its requirements. See 42 U.S.C. §§ 16912, 16925. SORNA provides a set of "minimum standards for sex offender registration and notification in the United States," though states are generally free to adopt additional regulations beyond those provided for in the Act. The Nat'l Guidelines for Sex Offender Registration & Notification, 73 Fed. Reg. 38034, 38044 (July 2, 2008). SORA, as amended in 2011, is part of Michigan's effort to comply with SORNA's minimum requirements. See http://www.smart.gov/sorna.htm (visited January 24, 2013) (listing Michigan as a state that is in substantial compliance with SORNA). Thus, generally speaking, both statutes contain similar registration and notification provisions for sex offenders, though SORA's may be more extensive. One prominent feature of SORA that clearly distinguishes it from SORNA, however, is that SORA also limits where sex offenders may work or reside. See Mich. Comp. Laws §§ 28.733-28.735.

Petitioner claims that SORA and SORNA are void or unconstitutional⁴ as applied to him for the following reasons:

I. . . . [SORA] DEPRIVES PETITIONER OF HIS RIGHTS TO FREEDOM OF ASSOCIATION, OF TRAVEL, OF LIBERTY, OF LOCOMOTION, AND TO BE LEFT ALONE . . . .

II. . . . SORA IS EX POST FACTO AND CONSTITUTES A BILL OF PAINS AND PENALTIES . . . .

III. . . . [SORA] SUBJECT[S] [PETITIONER] TO SPECIFIC AND UNEQUAL SPECIALTY LAWS WITHOUT JUDICIAL PROCESS, . . . CONSTITUTING A DUE PROCESS OF LAW VIOLATION UNDER THE . . . [CONSTITUTION].

IV. . . . SORA AND SORNA ARE VOID AND UNENFORCEABLE PURSUANT TO THE EQUAL PROTECTION OF THE LAW CLAUSE[] OF THE . . . [CONSTITUTION].

V. 42 USC § 1[6]913 WHICH PURPORTS TO GRANT THE AT[T]ORNEY GENERAL OF THE UNITED STATES OF AMERICA THE RIGHT TO DETERMINE RETROACTIVE APPLICATION OF SORNA, AND THEREBY OF SORA, IS UNCONSTITUTIONAL . . . .

VI. THE FEDERAL GOVERNMENT LACKS JURISDICTION OVER STATE CRIMES AND CANNOT EXTORT THE STATE OF MICHIGAN TO ENACT LAWS ON ITS BEHALF.

(Pet., docket #1, Page ID##8, 10, 12-14.)

Petitioner elaborates on the foregoing claims in his petition. In short, he contends that SORA violates his constitutional rights to freedom of association, travel, privacy, due process and equal protection, and that it constitutes an impermissible ex post facto law and a bill of attainder. He also contends that SORNA is an ex post facto law that violates his rights to due process and equal protection, and that: exceeds the scope of Congress' power to regulate state activity, impermissibly coerces the State of Michigan to enact laws on behalf of the federal government, and impermissibly delegates authority to the Attorney General to determine its retroactive application.

The respondents named in this action are the State of Michigan (identified as the "Michigan Legislature") and the United States (identified as "The United States in Congress Assembled"). (See Pet., docket #1, Page ID#1.) As relief, Petitioner seeks an order requiring theState of Michigan and the United States Attorney General to release him from the requirements of SORA and SORNA.

Discussion

To obtain federal habeas corpus relief, Petitioner must demonstrate that he is "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). The custody requirement is a jurisdictional one; if a petitioner is not "in custody" at the time that the petition is filed, the Court lacks jurisdiction to consider it. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). "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." Hensley v. Municipal Court, 411 U.S. 345, 351 (1973). Because habeas corpus is an "extraordinary remedy," its use "has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate." Id.

"[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody." Jones v. Cunningham, 371 U.S. 236, 239 (1963) (emphasis added). In Jones, the Supreme Court extended the availability of the writ to a prisoner released on parole, because his release was "conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities." Maleng, 490 U.S. at 491 (citing Jones, 371 U.S. at 242). Similarly, in Hensley, the Supreme Court held that a petitioner who had been released on his own recognizance pending the execution of his sentence was "in custody" because he was "subject to restraints not shared by the public generally" in that he had an "obligation to appear at all times and places as ordered by any...