JASON PIASECKI, Aрpellant v. COURT OF COMMON PLEAS, BUCKS COUNTY, PA; DISTRICT ATTORNEY BUCKS COUNTY; ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
No. 16-4175
United States Court of Appeals for the Third Circuit
February 27, 2019
PRECEDENTIAL. Argued March 6, 2018. Before: McKEE, AMBRO and RESTREPO, Circuit Judges.
Peter Goldberger, Esq. 50 Rittenhouse Place Ardmore, PA 19003
Matthew Stiegler, Esq. [Argued] 7145 Germantown Avenue Suite 2 Philadelphia, PA 19119 Attorneys for Appellant
Karen A. Diaz, Esq. Stephen B. Harris, Esq. [Argued] Bucks County Office of District Attorney Bucks County Justice Center 100 North Main Street Doylestown, PA 18901 Attorneys for Appellee
Aaron J. Marcus, Esq. Defender Association of Philadelphia 1441 Sansom Street Philadelphia, PA 19102 Attorneys for Amicus Defender Association of Philadelphia
Mark B. Sheppard, Esq. Montgomery McCracken Walker & Rhoads 1735 Market Street, 21st Floor Philadelphia, PA 19103 Attorneys for Amicus Pennsylvania Association of Criminal Defense Attorneys
McKEE, Circuit Judge.
We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania‘s Sex Offender Registration and Notification Act (“SORNA“) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction. We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.
Accоrdingly, we will reverse the District Court and remand for further proceedings.
I.
Following a bench trial in the Court of Common Pleas of Bucks County, Jason Piasecki was convicted of fifteen counts of possession of child pornography. On April 26, 2010, the court sentenced him to a term of three years’ probation. At sentencing, the court informed Piasecki:
So as to counts 16 through 30, as to each count the defendant is sentenced to 36 months’ county probation. The conditions of his sentence are that he undergo sex offender supervision, that he be subject to ten-year registration, that he
have no unsupervised contact with minor children under the age of 18, excluding your son and your girlfriend‘s son, without written permission of Bucks County Adult Probation and Parole. You‘re to have no computer Internet use. You‘re to continue in treatment with Dean Dixon and Dr. Nover. You‘re not to drink, and you‘re to take medications as directed. You‘re ordered to pay court costs.
I‘m going to have you sign the mandatory sex offender conditions.1
At the time of sentencing, Pennsylvania sex offenders were subject to registration requirements under a statutory scheme referred to as Megan‘s Law III.2 But in December of
2012, as Piasecki pursued appellate and collateral relief in state court, the Pennsylvania legislature permitted its Megan‘s Law statute to expire and replaced it with SORNA. It was enacted to “bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006.”3 Any state that did not implement restrictions similar to those set forth in the Adam Walsh Act stood to lose ten percent “of the funds that would otherwise be allocated for that fiscal year [under] . . . the Omnibus Crime Control and Safе Streets Act of 1968.”4 When Piasecki filed his petition under
Piasecki was a Tier III offender under the provisions of SORNA. Accordingly, he was required to register in-person with the State Police every three months for the rest of his life.6 The statute also required him to appear, in-person, at a registration site if he were to:
- Change his name;
- Change his residence or become transient;
- Begin a new job or lose previous employment;
- Matriculate or end enrollment as a student;
- Add or change a phone number;
- Add, change, or terminate ownership or operatorship of a car or other motor vehicle, and, as part of that visit, provide his license
- plate number, VIN number, and location where the vehicle will be stored;
- Commence or change “temporary lodging;”7
- Add, change, or terminate any email address or other online designation; or
- Add, change, or terminate any information related to an occupational or
professional license.8
If Piasecki were to become homeless, he was required to “appear in person monthly and to be photographed.”9 Prior to any international travel, Piasecki had to “appear in person at an approved registration site no less than 21 days” before his anticipated departure.10 Failure to abide by any of these reporting requirements exposed Piasecki to criminal prosecution.11
The parties do not dispute that Piasecki was subject to these restrictions—and only these restrictions—when he filed his
The District Court referred the matter to a Magistrate Judge, who recommended that the petition be dismissed for lack of jurisdiction. The Magistrate Judge acknowledged that Pennsylvania‘s SORNA statute made “sex offenders’ registration obligations considerably more burdensome,” but ultimately concluded that Piasecki was “free to live, work, travel, or engage in any legal activity without the approval of a government official.”14 The Magistrate Judge also concluded that Pennsylvania‘s sex offender registration requirements were “collateral consequences and not direct consequences of the petitioner‘s conviction.”15 Accordingly, the court reasoned that they were not part of the judgment of the state court and could not support habeas corpus jurisdiction.
In overruling objections that Piasecki filed to the Report and Recommendation, the District Court emphasized that Piasecki‘s sentence had expired, and that the registration requirements were “merely collateral consequences of a conviction.”16 It also noted that Piasecki‘s reporting requirements were not explicitly included in the state court‘s judgment and that the requirements were “remedial rather than punitive.”17 Consequently, the court held that they could not support habeas jurisdiction because they did not constitute custody.
We granted a certificate of appealability, and this timely appeal followed.
II.18
A federal court has jurisdiction to entertain a petition for a writ of habeas
A. “In Custody”
Over the past half-century, courts have addressed the issue of habeas custody in an effort to determine when various state-imposed restrictions were sufficiently onerous to constitute “custody” for purposes of habeas jurisdiction. It is now beyond dispute that custody is not limited to “actual physical custody.”23 Rather, for the purposes of habeas jurisdiction, a petitioner is “in custody” if he or she files while subject to significant restraints on liberty that are not otherwise experienced by the general public.24
In Jones v. Cunningham, the Supreme Court considered whether a parolee was “in custody” for the purposes of habeas jurisdiction under
Jones held that these parole restrictions were sufficiently restrictive to render the petitioner “in custody.” It rooted its analysis in the historical development of the custody requirement. The Court acknowledged that “the chief use of habeas corpus statutes has been to seek release of persons held in actual, physical custody in
her liberty to go where she pleased.‘”31 Jones noted that United Stаtes courts have historically found that “the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.”32 Rather, “[h]istory, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on [a person‘s] liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.”33
Turning to the specific conditions of Jones‘s parole, the Court found that they constituted custody because they “significantly restrain[ed] petitioner‘s liberty to do those things which in this country free men [were] entitled to do.”34 Indeed, the parole restrictions were myriad and demanding. The parole order confined Jones to “a particular community, house, and job at the sufferance of his parole officer.”35 He could not drive a car without permission, and he was required to open his home and place of employment to his parole officer at any time. Additionally, his parole officer required him to “keep good company and good hours,” stay away from “undesirable
places,” and “to live a clean, honest, and temperate life.”36 Any failure to follow these provisions, however slight, could have resulted in Jones being returned to prison.
Under these circumstances, the Court concluded that even though Jones has been “release[d] from immediate physical imprisonment,” his parole conditions “significantly confine[d] and restrain[ed] his freedom.”37 That was “enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute[.]”38
After Jones, the Supreme Court decided Hensley v. Municipal Court.39 There, it considered whether a similar—but slightly less—restrictive scheme than the one in Jones could support habeas jurisdiction to adjudicate a
The Court held that these conditions supported habeas jurisdiction even though Hensley was subject to less restrictive supervision requirements than Jones.43 Despite the less intrusive requirements, Hensley was still subject to “restraints
‘not shared by the public generally,‘” as Jones had been.44 Hensley was obligated to appear wherever and whenever a court ordered him.45 He could not “come and go as he please[d]” because his “freedom of movement rest[ed] in the hands of state judicial officers, who [could have] demand[ed] his presence at any time without a moment‘s notice.”46 The Court also noted that any failure to abide by these conditions was, itself, a criminal offense.47 He was, therefore, “in custody.”48
We have also held that the jurisdictional “custody” requirement can be satisfied by restrictions other than physical confinement.49 In Barry v. Bergen County Probation Department,50 we were asked to decide whether a sentence of community service was sufficiently onerous to qualify as custody under
expired when he filed his petition, but the sentencing court had also ordered him to complete 500
We held that the сommunity service obligation constituted custody even though the “State did not monitor or restrict Barry‘s every act” because his sentence nevertheless required him “to be in a certain place—or in one of several places—to attend meetings or to perform services.”53 Thus, he was “clearly subject to restraints on his liberty not shared by the public generally.”54 As a result, Barry‘s community service sentence constituted custody that was sufficiently restrictive to support habeas jurisdiction.55
In reaching that decision, we relied on Dow v. Circuit Court of the First Circuit, a per curiam decision from the Court
of Appeals for the Ninth Circuit, which we found to be “quite compelling and analogous” to the question before us in Barry.56 Dow‘s sentence for DUI required him to attend fourteen hours of alcohol rehabilitation classes.57 He had the option of scheduling the classes over a three- or five-day period.58 Dow filed a
More recently, in United States v. Ross,62 we considered whether a $100 “special assessment” that accompanied a conviction for possessing a machine gun constituted “custody” for the purposes of
provides for restraints that are “(1) severe, (2) immediate (i.e. not speculative), and (3) not shared by the public generally.”65
Applying this test to Ross‘s special assessment, we concluded that a fine is not the type of obligation that can support habeas jurisdiction. We noted that the Supreme Court has “emphasized the physical nature of the restraints” when defining custody.66 Ross‘s fine imposed no analogous restriction on his freedom of movement and thus could not be viewed as “severe.”67 Thus, Ross could not challenge a special assessment under
Given this precedent, the question of whether Piasecki‘s registration requirements were sufficiently restrictive to constitute custody is easily answered. They were. At a minimum, Piasecki was required “to be in a certain place” or “one of several places“—a State Police barracks—at least four times a year for the rest of his life.69 The state‘s ability to compel a petitioner‘s attendance weighs heavily in favor of concluding that the petitioner was in custody.70 Further, Piasecki was not free to “come and go as he please[d].”71 Any change of address, including any temporary stay at a different residence, required an accompanying trip to the State Police barracks within three business days.72 He was even required to regularly report to police if he had no address and became homeless. In addition, Piasecki could have no “computer
internet use.”73
storing his car in a different location, changed his phone number, or created a new email address.74 These are compulsory, physical “restraints ‘not shared by the public generally.‘”75 Unlike the special assessment considered in Ross, these restraints compelled Piasecki‘s physical presence at a specific location and severely conditioned his freedom of movement. They were more severe than the community service requirement in Barry or the mandatory alcohol classes considered in Dow.
Moreover, any failure to abide by the restrictions was “itself a crime,” just like the situation facing the petitioner in Hensley.76 If Piasecki failed to report to the State Police barracks within three days of any triggering event listed in the SORNA statute, he could be charged with a felony of the second degree.77 In Pennsylvania, such felonies are punishable by up to ten years’ imprisonment.78 If Piasecki provided inaccurate information, he faced prosecution for a felony of the first degree and incarceration of up to twenty years.79 Given the level of restriction imposed by the registration requirements and the harsh consequences that would result from failing to adhere to them, we easily conclude that the restrictions placed on Piasecki were “severe.”80
The remaining two prongs of the test we announced in Ross are also easily satisfied. The restrictions were “immediate (i.e. not speculative)”81—neither side disputes that Piasecki was subject to all of SORNA‘s requirements when he filed the petition at issue. Finally, and as explained above, these
restrictions were obviously “not shared by the public generally.”82
First, many of our sister circuit courts of appeals that have found sex offender registration requirements could not support habeas jurisdiction reached that conclusion when considering restrictions imposed under pre-SORNA statutes.86
Those registration requirements were not as onerous as those imposed under SORNA.87
Second, we have explicitly departed from the courts thаt have held that registration requirements are not custodial because they do not require pre-approval from the government before a registrant travels, thus not limiting his or her ability to move freely.88 In Barry, we held that custodial “restraint does not require ‘on-going supervision’ or ‘prior approval.‘”89 Rather, we concluded that even though the government did not “monitor[] Barry‘s every move, [it] nevertheless performed an oversight function” and that “level of supervision was clearly adequate” to qualify as custody.90 Accordingly, we cannot conclude that Piasecki‘s supervision did not amount to custody based on a “pre-approval” theory.
In sum, we hold that Piasecki was subject to severe restraints on his liberty not shared by the public generally. Tasks as banal as changing an e-mail address or taking a week‘s vacation required him to physically appear at a State Police barracks. Even in the absence of those ostensibly elective choices, Piasecki was compelled by the state to report to a police station every three months for the rest of
B. “Pursuant to the Judgment of a State Court”
Even an onerous restriction cannot support habeas jurisdiction if it is nothing more than a “collateral consequence” of a conviction.91 Rather, the custody that is a condition precedent to our habeas jurisdiction must be a direct result of “the conviction or sentence under attack” when the petition is filed.92 Thus, a court will not have jurisdiction to rule on a habeas petition if “the sentence imposed for [the challenged] conviction has fully expired at the time [the] petition is filed.”93 This requirement is evident from the plain text of
We must therefore decide whether Piasecki‘s custodial restrictions were imposed as part of his sentence or if they were merely collateral consequences of his underlying child pornography convictions.
We begin at perhaps the most obvious starting point—the actual judgment of sentence entered by the state court. Two documents from the state court record inform and guide our inquiry—the “Bucks County Criminal Court Sheet” and the “Bucks County Mandatory Sex Offender Conditions” Order. Both show that the registration requirements were part of the judgment of sentence.
The Court Sheet has a handwritten notation under “Sentence,” stating that, in addition to “Sex Offender Supervision,” Piasecki was sentenced to “Registration” for “10 yrs.” More compellingly, the Sex Offender Conditions Order states that Piasecki‘s “SENTENCE IS SUBJECT TO THE FOLLOWING CONDITIONS IN ADDITION TO THOSE WHICH APPEAR ON THE COURT SHEET.” Under that heading, the sentencing court checked a box next to “Sex Offender Registration Pursuant to Megan‘s Law” and another box indicating “10 Year Registration.”
These documents weigh strongly in favor of finding that the sex-offender registration requirements were part of Piasecki‘s sentence and therefore imposed “pursuant to the judgment of a state court.”95 Both of the documents plainly reflect that the registration requirements were a part of the sentence.
As compelling as this record is, we will not end our inquiry there. Federal courts confronted with the question of whether sex offender registration requirements are part of the state court judgment of sentence also look to state law to see if the state construes sex offender registration as a punitive aspect of a criminal sentence or a remedial measure imposed collaterally. Our sister circuit courts of appeals that have held registration requirements are not imposed pursuant to the judgment of sentence have done so, in part, because the respective state courts have determined that their state registration schemes are remedial, not punitive.96
which held that SORNA‘s “in-person updating requirements” were punitive.97 There, Coppolino filed a writ of mandamus asking the Commonwealth Court to remove him from the list of offenders required to comply with SORNA. Like Piasecki, he had initially been required to register under Megan‘s Law, but became subject to SORNA‘s registration requiremеnts when they took effect in 2012. He alleged that several of the new registration requirements were punitive and that subjecting him to the increased punishment violated principles of double jeopardy.
Coppolino held that the quarterly registration requirements were not punitive, but the in-person updates were. The court reasoned that the quarterly registration requirements were not punitive because they left Coppolino free to live as he chooses and did not prevent him from engaging in any given activity.
The in-person updates, however, were punitive because they imposed “an affirmative disability or restraint on registrants by inhibiting their ability to travel freely.”98 The court specifically pointed to the “temporary lodging” and “motor vehicle” restrictions that SORNA required registrants to follow and held that they were particularly restrictive.99 If, the court surmised, a hotel where the registrant was planning to stay was full, “he would have three days to return to Pennsylvania and report the change in person or risk a five year prison sentence.”100 Similarly, it was “unclear how a registrant travelling to another city would be able to register, prior to renting a car there, a vehicle‘s license plate number and registration number and other identifier.”101 If the registrant were unable to determine such information in advance, he would have to return within three business days to report the information in person.”102 The court noted that this “might be
impossible” depending on “where and how the registrant is traveling.”103
Coppolino concluded that, by impairing a citizen‘s “basic right” of “freedom of movement,” the periodic reporting requirements imposed an affirmative restraint that was disproportionate to any public purpose that it served.104 “On balance, this disproportionality, along with the similarity to the traditional punishment of parole
The Pennsylvania Supreme Court affirmed Coppolino in a per curiam opinion.106 But that was not its final say on Pennsylvania‘s SORNA statute. In Commonwealth v. Muniz,107 it held that all of the SORNA registration provisions were punitive and that applying them retroactively violated the Pennsylvania Constitution.108 The OAJC and two concurring
justices agreed that the Pennsylvania legislature did not intend to create a punitive scheme—but nevertheless did so when it enacted SORNA.109 Retroactive application of the scheme therefore violated the Pennsylvania Constitution‘s ex post facto clause.
As a result of Coppolino and Muniz, Pennsylvania courts have concluded that SORNA‘s registration requirements are punitive, not remedial—unlike the courts in nearly every other state. This supports Piasecki‘s claim that the registration requirements imposed upon him are punitive sanctions imposed pursuant to the state court‘s judgment of sentence rather than collateral consequences or remedial measures.
Moreover, Pennsylvania state court decisions have historically treated sex offender registration requirements as part of the judgment of sentence. The Commonwealth concedes that registrants seeking to challenge their registration status have traditionally done so by appealing the judgment of sentence, and Pennsylvania courts treat a registrant‘s “status” under a sex offender registration statute as “a component of the judgment of sentence.”110 Challenges to a registration classification, therefore, must be made in the context of a challenge to the judgment of sentence itself.111 Thus, under
Pennsylvania
Nevertheless, we recognize that one factor does support the contrary view. As the Commonwealth notes, the registration requirements at issue here were created more than two years after Piasecki was sentenced. Arguably, then, Piasecki‘s registration requirements were imposed pursuant to an act of the legislature, not a state court judgment. This argument has some force, but ultimately we disagree with the Commonwealth‘s position because Piasecki became subject to SORNA‘s registration requirements as a “direct consequence of [the] conviction” being challenged.112
Piasecki became subject to SORNA‘s registration requirements by virtue of his сonviction and subsequent judgment of sentence. Under the initial version of SORNA passed by the Pennsylvania legislature, any person who was “required to register with the Pennsylvania State Police . . . prior to the [amendment]” and who had “not fulfilled the period of registration as of the effective date of this section” became subject to SORNA‘s increased registration requirements.113 In other words, Piasecki was subject to SORNA‘s registration requirements because of the sentence imposed pursuant to the state court judgment.
We therefore conclude that SORNA‘s registration requirements rendered Piasecki “in custody pursuant to the judgment of a State Court” when he filed his petition.
C. The Limits of Our Ruling
Many of our sister circuits have predicted that a ruling such as the one we announce today would render the “in custody” requirement of the habeas statute superfluous.114 Our decision today raises no such concerns. We do not hold that any collateral consequence of conviction can support habeas jurisdiction. Rather, we hold that the custodial jurisdiction requirement is satisfied by severe, immediate, physical, and (according to the state‘s own definition) punitive restraints on liberty that are imposed pursuant to—and included in—the judgment of a state court such as the one here. Truly collateral consequences—such as the “inability to vote, engage in certain businesses, hold public office, or serve as a juror”115—are not analogous to the restrictive and invasive regime created under SORNA‘s registration requirements. The physical compulsion of SORNA‘s registration requirements and their direct relation to the judgment of sentence set them apart from consequences
Additionally, this is not a situаtion where Piasecki was in custody as a result of an intervening judgment such as a separate conviction or a civil commitment hearing.116 In those cases, a litigant could not challenge a previously expired conviction that is no longer the source of any restrictions. As we have explained, Piasecki‘s registration requirements were part of his sentence and continue as such into the future. No separate order is involved.
Finally, nothing we have said should be interpreted as calling into question the wisdom or propriety of Pennsylvania‘s sex offender registration requirements. That determination is the province of the legislature, not the courts.117 The legislature determined that long-term, in-person registration and supervision was necessary for those who commit sexual offenses118—including those who possess truly horrific videos such as those possessed by Piasecki. Today, we hold only that the restrictions that follow from that level of supervision constitute custody for the purposes of habeas jurisdiction.
III. CONCLUSION
The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”119 The scope of the writ has grown in accordance with its purpose—to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.120 SORNA‘s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally. The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction. For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.