745 F.3d 1070
10th Cir.2014Background
- Calhoun pleaded guilty in 2002 to unlawful sexual contact; sentenced to probation and sex-offender treatment with mandatory registration.
- In 2003, probation violation led to a two-year prison term, suspended on condition of completing two years of sex-offense-specific probation.
- Probation terminated in 2007; in 2012 Calhoun filed a pro se § 2254 petition challenging multiple claims.
- Colorado requires sex-offender registration, including annual in-person appearances, reporting of address and employment, and changes to information.
- Calhoun, unconditionally released from probation before filing the petition, argued that registration obligations restrained his liberty and thus satisfied § 2254 custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Colorado sex-offender registration satisfy the custody requirement of § 2254 at filing? | Calhoun argues registration imposes custody. | State law registration is a collateral, non-custodial consequence. | No; registration is collateral and not custody. |
Key Cases Cited
- Mays v. Dinwiddie, 580 F.3d 1136 (10th Cir. 2009) (custody requirement is jurisdictional and must be interpreted de novo)
- Spencer v. Kemna, 523 U.S. 1 (Sup. Ct. 1998) (petitioner must be in custody at filing)
- Maleng v. Cook, 490 U.S. 488 (Sup. Ct. 1989) (actual custody not required; conditions may suffice)
- Hensley v. Municipal Court, 411 U.S. 345 (Sup. Ct. 1973) (collateral consequences alone insufficient; severe restraints needed)
- Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008) (sex-offender registration not custody; collateral)
- Wilson v. Flaherty, 689 F.3d 332 (4th Cir. 2012) (state sex-offender registration statutes generally do not satisfy custody)