LOUIS MATTHEW CLEMENTS v. STATE OF FLORIDA, FLORIDA ATTORNEY GENERAL, SECRETARY, DOC
No. 21-12540
United States Court of Appeals for the Eleventh Circuit
February 9, 2023
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 2:17-cv-00396-JLB-NPM
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
When Congress first gave federal courts the authority to issue writs of habeas corpus, it limited relief to persons held by federal authorities. See
Since 1874, a person seeking federal habeas corpus relief from a state court judgment must—among other things—be “in custody.” See Medberry v. Crosby, 351 F.3d 1049, 1055 (11th Cir. 2003) (quoting former Rev. Stat. § 753). The “in custody” requirement has remained unchanged through subsequent legislative revisions of the various habeas corpus statutes. See, e.g., Brown v. Allen, 344 U.S. 443, 462 n.17 (1953) (quoting the 1948 version of
As relevant here, custody generally means physical detention or confinement. See, e.g., 1 Shorter Oxford English Dictionary 584 (5th ed. 2002) (“Imprisonment.“); The American Heritage Dictionary of the English Language 450 (4th ed. 2009) (“The state of being detained or held under guard, especially by the police.“). Since the early 1960s, however, the Supreme Court has not interpreted the “in custody” requirement literally. As a result, certain restraints on a person‘s liberty, short of physical detention, can satisfy the “in custody” requirement. See, e.g., Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 301 (1984) (defendant released on his own recognizance pending retrial following vacatur of conviction was “in custody” under
The question before us in this appeal—one of first impression—is whether Florida‘s registration and reporting requirements for sex offenders render those offenders “in custody” within the meaning of
I
In 2008, Louis Clements pled guilty to a charge of lewd or lascivious conduct in violation of
Nine years later, in 2017, Mr. Clements—proceeding pro se—sought federal habeas corpus relief from his conviction pursuant to
The district court dismissed Mr. Clements’
Turning to Mr. Clements’ arguments, the district court acknowledged that the sex offender registration and reporting requirements were inconvenient. But it concluded that they did not restrict Mr. Clements’ freedom of movement. Nor did they require Mr. Clements to obtain the state‘s approval before finding a residence or prevent him from participating in legal activities. Accordingly, it ruled that Florida‘s sex offender registration and reporting requirements were collateral consequences of his conviction.
II
Before addressing the “in custody” question, we summarize the requirements of Florida‘s sex offender registration and reporting scheme and explain what is—and is not—before us. We set out the requirements of the scheme in more detail in Part III.C.
A
In Florida, persons convicted of a qualifying sexual offense—like Mr. Clements—are subject to registration and reporting requirements for life. See
Sex offenders in Florida have an obligation to keep their registration up to date. At a minimum, they must report to their local sheriff‘s office in person every
B
After Mr. Clements filed his pro se brief, we appointed counsel for him. Counsel chose not to file a separate brief but presented oral argument on behalf of Mr. Clements.
In his brief, Mr. Clements contends that Florida‘s sex offender registration and reporting requirements place him “in custody” for purposes of
Sex offenders in Florida do face a number of residency restrictions in addition to state registration and reporting requirements. But for several reasons we decline to address those residency restrictions in this appeal and leave them for another day. First, as the district court noted, Mr. Clements was not subject to the conditions of his sex offender probation, which expired in 2013, when he filed his
We recognize that Mr. Clements was proceeding pro se in the district court. Nevertheless, the residency restrictions were not litigated below and are not properly before us. We generally “do not consider issues or arguments raised for the first time on appeal,” Ferguson v. Secretary for the Department of Corrections, 580 F.3d 1183, 1193 (11th Cir. 2009), even when pro se litigants are involved, see Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam), and given the undeveloped record with respect to the residency restrictions, we see no reason to depart from our normal practice here. See Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012) (“[I]f a party hopes to preserve a claim, argument, theory, or defense on appeal, [it] must first
As an appellate court, we do not sit as a collective trier of fact. Without access to appropriate and detailed maps and plats—at a minimum—we cannot take judicial notice of how much land is covered by state and local residency restrictions in Florida for sex offenders. This is in part because the residency restrictions that have been cited to us are triggered by and are dependent on the location of certain facilities used or frequented by children (e.g., schools). We do not know where such facilities are situated, and we do not have the means to sketch out the residency buffer zones as experts might do. See Fed. R. Evid. 201(a)-(b). Cf. Wallace v. New York, 40 F. Supp. 3d 278, 328 & n.43 (E.D. N.Y. 2014) (taking judicial notice of map, provided by town at court‘s request, which showed that 45.5% of town‘s land (40.11 square miles) was not covered by sex offender residency restrictions). Even on appeal, Mr. Clements does not provide the specifics necessary for us to evaluate the effect of the residency restrictions.1
Moreover, it is unclear whether local residency restrictions, imposed not by the state but by its municipalities, are properly considered in determining whether a person is “in custody” pursuant to a judgment of a state court for purposes of
III
The “in custody” requirement of
A
In Wales v. Whitney, 114 U.S. 564 (1885), the Supreme Court addressed the question of custody in a habeas corpus case arising out of a pending court-martial proceeding. The petitioner, the medical director (and former surgeon general) of the navy, was served with an order of the secretary of the navy which (1) informed him that he
The Supreme Court explained that “[s]omething more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it.” Id. at 571-72 (italics deleted). Citing with approval to a state case holding that a person granted bail was not in custody for purposes of habeas corpus, the Court concluded that under the circumstances there was no “actual restraint” on the petitioner‘s personal liberty. See id. at 573-75 (citing Respublica v. Arnold, 3 Yeates 263 (Pa. 1801)).
This understanding of custody remained the same through the first half of the 20th century. The rule continued to be that “[w]ithout restraint of liberty, the writ [of habeas corpus] w[ould] not issue.” McNally v. Hill, 293 U.S. 131, 138 (1934). Our predecessor, the former Fifth Circuit, therefore remarked in 1938 that a “prisoner out on parole probably cannot maintain habeas corpus against anyone. No one has his body in custody, or could lawfully arrest him by virtue of his parole status so long as he observes its conditions.” Van Meter v. Sanford, 99 F.2d 511, 511 (5th Cir. 1938).
Things changed in the early 1960s with Jones v. Cunningham, 371 U.S. 236 (1963), in which the Supreme Court unanimously held that a defendant released on parole was “in custody” for purposes of
The petitioner in Jones was confined “to a particular community, house, and job at the sufferance of his parole officer[,]” could not “drive a car without permission[,]” had to “periodically report to his parole officer, permit the officer to visit his home and job at any time,” and generally had to “follow the officer‘s advice.” Id. at 242. “He [was] admonished to keep good company and good hours, work regularly, keep away from undesirable places, and live a clean, honest, and temperate life.” Id. A violation of any restriction could
In the 1970s and 1980s, the Supreme Court extended the Jones rationale to release on personal recognizance. See Hensley v. Mun. Ct., 411 U.S. 345, 351-52 (1973) (release pending appeal); Lydon, 466 U.S. at 301 (release pending retrial). The petitioner in Hensley could not “come and go as he please[d],” and 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.” Hensley, 411 U.S. at 351-52 (further explaining the necessity of habeas relief in this instance to avoid imprisonment without an adequate federal remedy). Likewise, the petitioner in Lydon was subject to restraints not shared by the public generally because he was obligated to appear for trial on a specified date or face criminal charges, could “not depart without leave,” and had to “keep the peace and be of good behavior.” Lydon, 466 U.S. at 301 (citation omitted). These cases reaffirmed and solidified the modern (and broad) understanding of the “in custody” requirement.3
Despite its breadth and flexibility, the “in custody” requirement retains a tensile strength. For example, the Supreme Court has explained that “once 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, 490 U.S. at 491-92 (providing as examples of collateral consequences the “inability to vote, engage in certain businesses, hold public office, or serve as a juror“). “[A] contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas.” Id. at 492. See, e.g., Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir. 1970) (holding that the imposition of a fine and the revocation of a driver‘s license for a year did not render
B
At the time Congress first placed the “in custody” language in
As noted, the great majority of the circuits have held that persons subject to sexual offender registration and reporting statutes are not “in custody” for purposes of habeas corpus relief. See Williamson v. Gregoire, 151 F.3d 1180, 1183-84 (9th Cir. 1998) (Washington); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (Oregon); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002) (Ohio); Virsnieks v. Smith, 521 F.3d 707, 719-20 (7th Cir. 2008) (Wisconsin); Wilson, 689 F.3d at 335-39 (Texas and Virginia); Calhoun v. Att‘y Gen. of Colo., 745 F.3d 1070, 1073-74 (10th Cir. 2014) (Colorado); Sullivan v. Stephens, 582 F. App‘x 375, 375 (5th Cir. 2014) (Texas); Hautzenroeder v. Dewine, 887 F.3d 737, 739-40 (6th Cir. 2018) (Ohio); Munoz v. Smith, 17 F.4th 1237, 1244 (9th Cir. 2021) (Nevada). Only the Third Circuit has come to a contrary conclusion. See Piasecki v. Ct. of Common Pleas, Buck Cnty., Pa., 917 F.3d 161, 177 (3d Cir. 2019) (Pennsylvania).5
Normally, we might begin by discussing (and giving serious consideration to) the decisions of our sister circuits, but here those decisions are of limited assistance because sex offender and registration statutes differ (sometimes greatly) from state to state and change over time. See Calaway, Sex Offenders, 92 St. John L. Rev. at 780 (“Courts generally cite to a series of cases across the circuits that have declined to expand the definition of custody to individuals under a sex offender registration law. The issue with this analysis is that the statutory schemes at issue across the states vary markedly in their restrictions and requirements.“) (footnotes omitted). Nevertheless, we cite to and refer to those decisions where appropriate.
C
To recap and fully detail the requirements of Florida‘s scheme, sex offenders like Mr. Clements are subject to registration and reporting requirements for life. See
Sex offenders have an obligation to keep their registration up to date. At a minimum, they must report to their local sheriff‘s office in person every six months. See
Florida‘s sex offender registration and reporting statute also contains several legislative findings. First, sex offenders “often pose a high risk of engaging in sexual offenses even after being released,” and therefore “have a reduced expectation of privacy because of the public‘s interest in public safety and in the effective operation of government.”
D
The question is whether the reporting and registration requirements constitute a sufficient restraint on the personal liberty of sex offenders in Florida to render someone like Mr. Clements “in custody.” Supreme Court and Eleventh Circuit cases make this a hard question to answer.
We have said that the “in custody” requirement should be construed “very liberally.” Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015) (citation omitted). To that end, we have held that non-citizens released on supervision while awaiting a final decision in their immigration proceedings are deemed to be “in custody” for purposes of habeas corpus. See United States ex rel. Marcello v. Dist. Dir. of INS, New Orleans, 634 F.2d 964, 971 & n.11 (5th Cir. 1981) (petitioner subject to deportation order was “in custody” for federal habeas corpus purposes because he was on supervised parole, he had to report quarterly to immigration authorities, and he had to notify those authorities if he intended to leave the state for more than 48 hours); Romero v. Sec‘y, DHS, 20 F.4th 1374, 1379 (11th Cir. 2021) (applying Marcello and holding that petitioner, who was subject to a deportation order, was “in custody” under
Marcello and Romero lend some support to Mr. Clements’ position. To use just two of the registration and reporting obligations in Marcello and Romero as markers, Mr. Clements—like the petitioners in those two cases—has to report in person to the authorities periodically and has to provide advance notification if he is going to leave the state (two days’ notice for domestic trips and 21 days’ notice for international trips). Compare Marcello, 634 F.2d at 971 & n.11; Romero, 20 F.4th at 1379. Mr. Clements, in fact, must provide that advance notification in person, making the requirement more burdensome and restrictive of his personal liberty. But the petitioners in Marcello and Romero were situated differently from Mr. Clements in a significant way—both were subject to deportation orders from the federal government when they were released with conditions. Mr. Clements is under no similar order of expulsion from the country or the state, and we believe that is an important distinction for purposes of the “in custody” analysis.
As Jones explained, “what matters” is whether the legal requirements in question “significantly restrain [the person‘s] liberty to do those things which in this country free men are entitled to do.” 371 U.S. at 242-43. For our part, we have said that the “in custody” requirement “is satisfied if restrictions have been placed on a petitioner‘s freedom of action or movement.” Djadju v. Vega, 32 F.4th 1102, 1106 (11th Cir. 2022) (
In our view, the proper inquiry here under Jones and its progeny is whether Florida‘s registration and reporting
requirements substantially limit Mr. Clements’ actions or movement. See Williamson, 151 F.3d at 1183; Leslie, 296 F.3d at 522; Virsnieks, 521 F.3d at 718. See also 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus and Procedure § 8.2[a], at 461 (7th ed. 2021) (explaining that “any person who cannot come and go and as she pleases” satisfies the “in custody” requirement); Custody and Remedy, 83 Harv. L. Rev. at 1078 (asserting that, even after Jones, “some restraint on [the] petitioner‘s liberty more substantial than civil disabilities is required“). Though habeas corpus is no longer simply a remedy for unlawful physical custody, the focus on liberty of movement at least has the benefit of “comport[ing] with the original conception of the writ as a remedy for unlawful restriction of physical mobility.” Custody and Remedy, 83 Harv. L. Rev. at 1076. And it provides a stopping point of sorts for the concept of being “in custody.” See Howard, 776 F.3d at 775 (“[A]lthough the word ‘custody’ is elastic, all definitions of it incorporate some concept of ongoing control, restraint, or responsibility by the custodian.“) (citation and quotation marks omitted). Cf. Hensley, 411 U.S. at 354 (Blackmun, J., concurring in the result) (explaining that, given the trajectory of the Supreme Court‘s broad understanding
We acknowledge, of course, that the lifetime registration and reporting requirements imposed on Mr. Clements by Florida law are demanding and not the sort of obligations and restraints “shared by the public generally[.]” Jones, 371 U.S. at 240. Nevertheless, the requirements are less oppressive in terms of personal liberty than the restraints faced by the parolee in Jones, 371 U.S. at 242, or the persons released on personal recognizance bonds in Hensley, 411 U.S. at 351-52, and Lydon, 466 U.S. at 301, or the noncitizens subject to deportation and under supervision in Marcello, 634 F.2d at 971 & n.11, and Romero, 20 F.4th at 1379. After a quantitative and qualitative analysis, we conclude—admittedly with some hesitation—that as a whole Florida‘s registration and reporting requirements for sex offenders did not render Mr. Clements “in custody” at the time he filed his habeas corpus petition.
First, though Mr. Clements has to report in person to the authorities periodically and provide them with all sorts of information and updates, he knows exactly when he must do so: during his birthday month and six months thereafter. See
Second, Mr. Clements is not required to live in a certain community or home and does not need permission to hold a job or drive a car. Compare Jones, 371 U.S. at 242. And he can engage in legal activities without prior approval or supervision. See Hautzenroeder, 887 F.3d at 741 (pointing out that under Ohio‘s sex offender registration and reporting statutes the petitioner was not “prohibited from engaging in any legal activities“); Wilson, 689 F.3d at 338 (recognizing the same for the sex offender statutes of Virginia and Texas).
Third, Mr. Clements has to provide in-person advance notice of trips outside the state and outside the country, but the trips themselves do not require permission or approval by state officials. See Williamson, 151 F.3d at 1184 (noting that Washington‘s sex offender registration statute did not limit where offenders could go). Mr. Clements can—subject to the residency restrictions which we leave for another day—generally “come and go as he pleases[,]” and his “freedom of movement” does not “rest[ ] in the hands” of state officials. See Hensley, 411 U.S. at 351.
In reaching our conclusion, we have also considered the Supreme Court‘s decision in Smith v. Doe, 538 U.S. 84, 105-06 (2003), which held that the retroactive application of
In one part of its opinion, the Supreme Court in Smith addressed whether the Alaska law imposed an “affirmative disability or restraint” on sex offenders. See Smith, 538 U.S. at 99-100. The Court concluded that it did not for a number of reasons. For starters, the law did not “restrain activities sex offenders may pursue [and] leaves them free to change jobs or residences.” Id. at 100. In addition, “[a]lthough the public availability of the information [posted online] may have a lasting and painful impact on the convicted sex offender, th[o]se consequences flow not from the [law‘s] registration and dissemination provisions, but from the fact of conviction, already a matter of public record.” Id. at 101. Finally, the argument that the law was akin to probation or supervised release had “some force,” but it did not carry the day because sex offenders subject to the law were “free to move where they wish and to live and work as other citizens, with no supervision.” Id.
We recognize that Smith—which did not address the meaning of the phrase “in custody” in the habeas context—is not controlling. And we realize that on its facts Smith is also not a perfect fit. For example, the Supreme Court noted that the updating of information by sex offenders in Alaska did not have to be in person. See id. at 100. Although Florida does not require that all changes of information be made in person, see, e.g.,
After giving the matter due consideration, we choose not to follow the Third Circuit‘s contrary decision in Piasecki, 917 F.3d at 177, which held that Pennsylvania‘s
Mr. Clements submits that we should consider the stigma of being labeled a sex offender. But any fear or embarrassment that he may suffer as a result of his sex offender designation is not in and of itself a restraint on his liberty. See Carter v. Att‘y Gen., 782 F.2d 138, 140 n.1 (10th Cir. 1996) (explaining that, under Jones and its progeny, a habeas applicant “must labor under liberty restraints more severe than the stigma of a prior criminal conviction“). The stigma is not a condition imposed by Florida and is a practical consequence of the nature of Mr. Clements’ conviction. Florida “does not make the publicity and the resulting stigma an integral part of the objective of [its] regulatory scheme.” Smith, 538 U.S. at 99.
IV
Florida‘s lifetime registration and reporting requirements for sex offenders did not place Mr. Clements “in custody” under
AFFIRMED.
NEWSOM, Circuit Judge, concurring:
The majority opinion faithfully applies current doctrine, which obliges a court determining whether an individual is “in custody” within the meaning of the federal habeas corpus statutes to engage in an amorphous, eye-of-the-beholder inquiry: Is the petitioner subject to conditions that “significantly restrain [his] liberty to do those things which in this country free men are entitled to do“? Jones v. Cunningham, 371 U.S. 236, 243 (1963). And in applying the Jones “test“—such as it is—to hold that Mr. Clements is not “in custody,” the majority reaches what I think to be the correct result in this particular case. Accordingly, I join the majority opinion in full.
I write separately because I have come to believe that Jones was a misstep. It marked a radical departure from the original and long-settled understanding of the
Let me explain.
I
“Custody” has been an essential feature of—and prerequisite to—habeas corpus relief since the Founding. The
A
The crucial question, then: What is meant by the key term “custody“? For centuries, there wasn‘t any doubt about that: It meant close physical confinement. Samuel Johnson‘s 1755 English dictionary, for instance, defined the word by reference to “imprisonment.” 1 Samuel Johnson, A Dictionary of the English Language 532 (1755). As did Noah Webster‘s 1828 American dictionary. See Noah Webster, American Dictionary of the English Language 516 (1828) (“[i]mprisonment; confinement; restraint of liberty“). Successive editions of Black‘s defined the term in exactly the same way. The inaugural installment, for instance, explained that “custody” meant “the detainer of a man‘s person by virtue of lawful process or authority; actual imprisonment.” It then elaborated: “In a sentence that the defendant ‘be in custody until,’ etc., this term imports actual imprisonment. The duty of the sheriff under such a sentence is not performed by allowing the defendant to go at large under his general watch and control.” Black‘s Law Dictionary 312 (1st ed. 1891); accord Black‘s Law Dictionary 309 (2d ed. 1910) (same); Black‘s Law Dictionary 493–94 (3d ed. 1933) (same).
The close-confinement understanding of the term “custody” is confirmed by the writ‘s origin and early application. Let‘s start with the Latin: Translated literally, “habeas corpus” means “(that) you have the body“—plainly a reference to the subject‘s actual, physical detention. Webster‘s New International Dictionary 1121 (2d ed. 1944). And the history of the writ‘s development in Stuart England perfectly comports with the Latin connotation. That story has been told elsewhere, see Boumediene v. Bush, 553 U.S. 723, 739–42 (2008), so I‘ll limit myself to a few key highlights. In 1627, Parliament enacted the famous Petition of Right, which stated that no one should be “imprisoned without any cause” and that “no freeman, in any such manner
Wholly unsurprisingly, Blackstone described the writ in similar terms. He characterized habeas corpus as a remedy for “removing the injury of unjust and illegal confinement“—“confinement,” he said, being synonymous with “imprisonment.” 3 William Blackstone, Commentaries on the Laws of England *137 (1768) (emphasis omitted); see also 1 Blackstone, Commentaries *132 (1765) (defining “confinement” as “imprisonment“). To be sure, Blackstone recognized that “imprisonment” didn‘t necessarily denote formal incarceration—it could be accomplished, for instance, by “keeping a man against his will in a private house, putting him in the stocks, [or] arresting or forcibly detaining him in the street.” 1 Blackstone, Commentaries *132. But as his examples demonstrate, Blackstone clearly viewed habeas as a remedy for those who were in close physical confinement.
B
So, importantly, did American jurists after the Revolution. Parliament‘s 1679 act was the “genesis” of “[v]irtually all American habeas corpus legislation.” Dallin H. Oaks, Habeas Corpus in the States—1776-1865, 32 U. Chi. L. Rev. 243, 251 (1965). And as already explained, the
“Early state court decisions in this country were in agreement that the Habeas Corpus Act” covered only “persons who were within the four walls of a prison.” Dallin H. Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 469 (1966) (quotations and citations omitted). Take, for example, Respublica v. Arnold, 3 Yeates 263 (Pa. 1801). There, an individual who was free on bail sought habeas corpus relief. The Pennsylvania Supreme Court refused his request on the ground urged by the Commonwealth: that the state‘s habeas statute—a verbatim copy of England‘s 1679 act—didn‘t “refer to any other cases, than where the party applying is in gaol, in actual custody.” Id. at 264 (emphasis added). So too, State v. Buyck, 3 S.C.L. 460 (S.C. Const. App. 1804), in which a person charged with forgery but out on his own recognizance sought habeas relief. The court denied the petition because “the provisions of the habeas corpus act[] extend only to persons actually in prison, and not to persons under recognizance, and at large upon bail.” Id. at 461 (emphasis added).
And so the law remained for almost two centuries: “Until the 1960s, courts interpreted the custody requirement strictly.” Richard H. Fallon, Jr., et al.,
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The picture that emerges from any honest appraisal of the historical record—stretching back hundreds of years—is clear: “If there was any single feature that characterized the writ of habeas corpus in both its early statutory and common-law forms, it was the requirement that adult prisoners be subject to an immediate and confining restraint on their liberty.” Oaks, Legal History, supra, at 469. And that original understanding persisted well into the 20th century: “Only a person in actual custody [was] entitled to the writ of habeas corpus.” Note, Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 865 (1957); see also Note, Federal Habeas Corpus Review of “Final” Administrative Decisions, 56 Colum. L. Rev. 551, 551 n.7 (1956) (describing the actual-custody requirement as a “doctrine . . . basic to habeas corpus review“).
II
Then came the 1960s—when, as the majority says, “[t]hings changed.” Maj. Op. at 11. To call that an understatement would be, well, an understatement. As the leading federal-courts treatise has explained, in 1963 the Supreme Court “revolutionized” the meaning of the term “custody” in Jones v. Cunningham, 371 U.S. 236 (1963). See Hart & Wechsler, supra, at 1354.
In Jones, the Supreme Court unanimously concluded that a state prisoner who was out on parole was, despite his release, “in custody” within the meaning of the general federal habeas corpus statute,
In holding that the petitioner before it qualified under that standard, the Court pointed to a grab-bag of considerations: He (1) was “confined by the parole order to a particular community, house, and job at the sufferance of his parole officer“; (2) couldn‘t “drive a car without permission“; (3) had to “periodically report to his parole officer, permit the officer to visit his home and job at any time, and follow the officer‘s advice“; and (4) was “admonished to keep good company and good hours, work regularly, keep away from undesirable places, and live a clean, honest, and temperate life.” Id. at 242. “Such restraints,” the Court held—without further elaboration—“are enough to invoke the help of the Great Writ.” Id. at 243.
Under Jones‘s things-that-free-men-can-do standard, the class of petitioners who qualify for in-custody status has ballooned. In Hensley v. Municipal Court, 411 U.S. 345 (1973), for instance, the Supreme Court held that a defendant who had been released “on his own recognizance” and was thus “at large” was nonetheless “in custody” within the meaning of
Over the last half-century, this circuit has applied Jones many times—perhaps most recently in an opinion that I authored, Romero v. Secretary, U.S. Dep‘t of Homeland Sec., 20 F.4th 1374 (11th Cir. 2021). The question there was whether an immigrant subject to pre-deportation supervision was “in custody” for habeas purposes. In concluding that she was, we held that her conditions of supervision were “similarly restrictive” to those that our predecessor court had deemed sufficient to constitute custody in United States ex rel. Marcello v. District Director of INS, 634 F.2d 964 (5th Cir. 1981). In particular, we pointed to a collection of case-specific circumstances: The immigrant before us (1) had to “appear in person at the government‘s request,” (2) couldn‘t “travel outside Florida for more than 48 hours without advance notice,” (3) had to “apprise the government of any change in residence or employment,” and (4) had to “participate in a more stringent supervision program if directed to do so.” 20 F.4th at 1379 (internal quotations omitted). Because “those restraints [were] materially similar to the ones imposed on the petitioners in Jones and Marcello,” we held,
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Taking stock: Jones was a “revolution[]” indeed. Hart & Wechsler, supra, at 1354. In keeping with the writ‘s “body“-based origins, the British Parliament had designed habeas corpus to remedy actual, physical confinement, and Blackstone had clearly explained the writ that way. On this side of the Atlantic, the same men who theorized the “judicial Power” and created the federal courts memorialized the close-confinement understanding of “custody” in the
III
If it were up to me, I would scrap Jones‘s freewheeling, ad hoc approach in favor of a return to the ordinary and original understanding of the term “custody.” I say so for textual, historical, and practical reasons, which I will attempt to unpack in turn.
A
First, the text. It is by now hornbook law that a court should “interpret[] a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020). The reasons, the Supreme Court has reminded us, are (1) that “only the words on the page constitute the law adopted by Congress and approved by the President,” and (2) that if “judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people‘s representatives” and “deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.” Id.
There was no doubt—nor is there currently any dispute—about the ordinary public meaning of the term “custody” at the times of any of the federal habeas statutes’ enactments. Custody meant then (as it means now) close physical confinement or detention—i.e., “actual imprisonment.” See supra at 2–4 (collecting historical definitions); see also Maj. Op. at 3 (collecting modern definitions). Conspicuously, the Supreme Court in Jones made no effort to ground its flabby interpretation of “custody” in that term‘s plain meaning. Quite the contrary, the Court jettisoned what it called “formalistic” considerations in favor of what it took to be the writ‘s “grand purpose.” 371 U.S. at 243.
Such a lax mode of statutory interpretation was wrong in 1963, and it is even more wrong—or more evidently wrong—today. The Supreme Court would do well to bring (or to restore, really) the same plain-meaning interpretive approach to the habeas statutes that it applies to other written laws.
B
There‘s also the related matter of history. Although the Jones Court didn‘t spurn history to quite the extent that it disregarded statutory text, its historical analysis—as others have noted—leaves a lot to be desired. As Professor Oaks unmasked in his trenchant critique, “the Supreme Court‘s statement that its decision . . . was supported by the ‘history of habeas corpus
But there were sins of commission too. Having ignored what would seem to have been the key precedents, the Jones Court substituted a motley collection of its own. Again, Professor Oaks: “Although Mr. Justice Black,” who authored the opinion, “‘looked to common-law usages and the history of habeas corpus both in England and in this country,’ he chose his precedents from” among arcane decisions “involving aliens seeking entrance to this country, and common-law decisions under which the writ was issued to liberate wives or minor children ‘not under imprisonment, restraint or duress of any kind.‘” Id. at 470 (quoting Jones, 371 U.S. at 238–39). But neither of those categories of cases is particularly probative. Some of the domestic-relations cases are old, to be sure; they include several 18th- and 19th-century English decisions. See 371 U.S. at 238-39. But they uniformly involved the use of the writ to free individuals from private custodians, a situation that goes well “beyond the reach of any habeas statute ever enacted by Congress“—all of which, of course, pertain to those in government custody. Department of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1972 (2020); see also
The Jones Court‘s reliance on immigration-related cases was similarly misplaced, for at least two reasons. For one, those decisions aren‘t particularly historical—most of them, like Jones itself, dated from the mid-20th century. See, e.g., Brownell v. We Shung, 352 U.S. 180 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). For another, the Jones Court‘s major premise—that the aliens in those cases were “free to go anywhere else in the world,” 371 U.S. at 239—is false. The truth is that excludable immigrants were “locked up until carried out of the country against [their] will,” Chin Yow v. United States, 208 U.S. 8, 13 (1908), and the fact that they could voluntarily depart for China, Italy, or Ireland is irrelevant. Vis-à-vis this country—which is all that matters when one is seeking relief against this country‘s agents—the immigrants to whom the Jones Court pointed were most assuredly in “custody.” See Mezei, 345 U.S. at 220 (Jackson, J., dissenting) (noting
C
Lastly, the practical. Even setting aside Jones‘s glaring textual and historical deficiencies, the rudderless things-that-free-men-can-do inquiry that it decreed has left courts at sea in making case-by-case “custody” determinations. In applying that hopelessly opaque standard, judges are consigned to a gestalt totality-of-the-circumstances analysis, wondering whether a particular jumble of conditions are together “enough to invoke the help of the Great Writ.” Jones, 371 U.S. at 243.
The majority‘s analysis in this case—although scrupulously conscientious—perfectly illustrates the problem. To its great credit, the majority admits the difficulty of the task before us: “The question,” it says, “is whether the reporting and registration requirements” imposed by Florida‘s sex-offender statute “constitute a sufficient restraint on the personal liberty of sex offenders in Florida to render someone like Mr. Clements ‘in custody.‘” Maj. Op. 18-19. But, it continues, “Supreme Court and Eleventh Circuit cases“—by which it means Jones and its progeny, including Hensley, Marcello, Romero, etc.—“make this a hard question to answer.” Id.; accord, e.g., id. at 3–4 (“[T]he question is difficult given Supreme Court and Eleventh Circuit precedent.“). Having canvassed the relevant precedents—and the attendant smorgasbord of contextual considerations—the majority is left to articulate the Court‘s holding as follows: “After a quantitative and qualitative analysis, we conclude—admittedly with some hesitation—that as a whole Florida‘s registration and reporting requirements for sex offenders did not render Mr. Clements ‘in custody’ at the time he filed his habeas corpus petition.” Id. at 22.
That is an admirably forthright statement and application of existing doctrine—and I think, under that doctrine, a correct decision. But the summary really says it all about the doctrine itself: We‘ve explored all the relevant factors, along two vectors—both “quantitative” and “qualitative.” We‘ve considered those factors’ interrelationship, “as a whole.” And although we‘re “hesita[nt]” about our conclusion, we‘ve determined, on balance, that Mr. Clements is indeed not “in custody.” Again, A+ for candor and conscientiousness. But the underlying doctrine, in my estimation, is fundamentally broken.
The problem is that Jones‘s things-that-free-men-can-do standard is so vague—and the considerations that courts must consult to operationalize it so multifarious—that many, if not most, cases can be decided either way. Compare, for instance, the razor-thin distinctions that separate this case
Consider, as well, how just a tweak or two to Clements‘s own situation might affect his “custody” status. What if he were trapped (so to speak) not in 65,000-square-mile Florida, but in 1200-square-mile Rhode Island? Likelier in custody? What if Clements had to notify officials seven days before leaving the state, rather than just two—custody? And how should we weigh routine in-person reporting requirements? They impede one‘s freedom of movement, to be sure, but how much? And are they more restrictive than an official‘s unfettered discretion to summon? Or perhaps less so? And might the answer to that question depend on the particular petitioner‘s risk tolerance?
You get the point: Determining custody status under Jones and its progeny isn‘t—and will never be—remotely systematic or scientific. It will always be fraught with the risk of error—and, far worse, with the risk of manipulation. And that, to my mind, is no good. Cf. United States v. Jimenez-Shilon, 34 F.4th 1042, 1054 (11th Cir. 2022) (Newsom, J., concurring) (lamenting “judge-empowering” multifactor balancing tests); cf. also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178–82 (1989) (criticizing “discretion-conferring” standards as inviting unfairness, unpredictability, and arbitrariness).
*
Jones‘s freewheeling things-that-free-men-can-do standard bears no connection to the plain meaning of the term “custody,” has no firm footing in the history of habeas corpus, and is infinitely manipulable in practice. It‘s time, I think, for a course correction.
IV
I‘ll conclude by echoing Justice Blackmun‘s penetrating critique of the Supreme Court‘s modern “custody” jurisprudence: “[T]he Court has wandered a long way down the road in expanding traditional notions of habeas corpus. . . . Although recognizing that the custody requirement is designed to preserve the writ as a remedy for severe restraints on individual liberty, the Court seems now to equate custody with almost any restraint, however[] tenuous. One wonders where the end is.” Hensley, 411 U.S. 353–54 (Blackmun, J., concurring).
The solution, it seems to me—as it so often does—is “a return to first principles.” Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1263 (11th Cir. 2022) (Newsom, J., concurring). Unless and until Congress itself expands the writ‘s scope—which, to be clear, would be fine by me—I would hold that an individual is “in custody” within the meaning of the