664 F. App'x 690
10th Cir.2016Background
- In 2011 Dickey was convicted by a jury of child sexual abuse and sentenced to five years; on direct appeal the Oklahoma Court of Criminal Appeals (OCCA) found the record inadequate as to an element and modified the conviction to incest while leaving the sentence unchanged.
- Dickey exhausted state post-conviction relief; the OCCA affirmed denial, holding incest was a lesser-included offense under state law.
- Following release from DOC on November 25, 2013, Dickey filed a federal petition on June 23, 2015 seeking habeas relief under 28 U.S.C. § 2254 (or § 2241 in the alternative) and, alternatively, relief under the All Writs Act by writs of audita querela or coram nobis.
- Because he is now convicted of a sex offense, Oklahoma law requires registration and imposes restrictions (employment with children, residency exclusion zones, prohibition on cohabiting with other sex offenders).
- The district court dismissed the § 2254 petition for lack of jurisdiction (Dickey was not “in custody” when he filed) and denied alternative writ relief; the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oklahoma sex-offender registration and related restrictions render Dickey “in custody” for § 2254 when he filed | Oklahoma’s SORA imposes severe, continuous restraints (residency, employment, association) greater than Colorado’s scheme in Calhoun and thus satisfies § 2254 custody | Registration and collateral restrictions are not a continuation of physical custody and do not impose restraints severe enough to meet § 2254’s custody requirement | Not in custody under § 2254; registration and restrictions are collateral consequences, not sufficient restraint to satisfy custody requirement |
| Whether a writ of audita querela can be used to challenge the OCCA judgment | Audita querela can reach a judgment that, though correct when rendered, is rendered infirm by subsequent events or law; relief appropriate here | The alleged error existed when the OCCA rendered its judgment and Dickey points to no subsequent intervening change that infirmed the judgment | Audita querela not available—Dickey shows no intervening event making the judgment infirm |
| Whether a federal coram nobis can be used to attack a state-court conviction in federal court | Coram nobis corrects fundamental errors and does not require custody; federal courts can use it to vindicate rights even for state convictions | Coram nobis traditionally permits a court to correct its own prior errors and federal courts lack jurisdiction to grant coram nobis relief with respect to state-court judgments | Coram nobis unavailable in federal court to attack state-court judgment; district court correctly declined relief |
| Whether precedence (Calhoun/Maleng) controls analysis of custody for § 2254 | Oklahoma’s scheme is materially more restrictive than Colorado’s so Calhoun is distinguishable | Calhoun and Supreme Court custody precedents still control; collateral registration obligations are insufficient to read the custody requirement out of § 2254 | Calhoun/Maleng line governs; Oklahoma’s scheme still does not impose the necessary severe restraint to constitute custody |
Key Cases Cited
- Calhoun v. Attorney General of Colorado, 745 F.3d 1070 (10th Cir.) (sex-offender registration does not constitute custody for § 2254)
- Maleng v. Cook, 490 U.S. 488 (1989) (habeas requires custody; not limited to physical confinement)
- Spencer v. Kemna, 523 U.S. 1 (1998) (custody status is judged at time petition is filed)
- Morgan, United States v., 346 U.S. 502 (1954) (federal courts may issue coram nobis to correct their own criminal judgments)
- Rawlins v. Kansas, 714 F.3d 1189 (10th Cir. 2013) (limitations on use of audita querela/coram nobis and scope of federal review)
- Denedo v. United States, 556 U.S. 904 (2009) (All Writs Act and post-conviction writs jurisprudence)