Reginald KING, Plaintiff–Appellant v. Steven C. McCRAW, Director of the Texas Department of Public Safety; Chief Kenith Adcox, Chief of the La Porte Police Department, Defendants–Appellees.
No. 13-20092
United States Court of Appeals, Fifth Circuit
March 10, 2014
560 Fed. Appx. 278
“[T]here is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships.” Pickering, 23 I. & N. Dec. at 624. Where a case is vacated based on a defect in the underlying criminal proceedings, the alien no longer has a “conviction” for purposes of the immigrаtion laws. See id. “If, however, a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the [alien] remains ‘convicted’ for immigration purposes.” Id. In making this determination, the BIA “look[s] to the law under which the [vacating] court issued its order and the terms of the order itself, as well as the reasons presented by the [alien] in requesting that the court vacate the conviction.” Id. at 625.
As the BIA determined, the evidence does not reveal the reason that the conviction was vacated, and none of the documents indicate a determination that Hernandez was not properly advised as to the immigration consequences of his plea, which was the basis on which he sought vacatur. Given the deficiencies in the supporting evidence under Pickering, which were amply discussed by the BIA, Hernandez fails to establish that the BIA abused its discretion in denying his motion to reopen. See Zhao, 404 F.3d at 304.
In view of the foregoing, we need not address Hernandez‘s contentions as to the BIA‘s determination that he did not satisfy the 10-year continuous presence requirement. The petition for review is DENIED.
Carol M. Garcia, Esq., Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendants-Apрellees.
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
I. FACTUAL AND PROCEDURAL HISTORY
In November 1990, Appellant Reginald King (“King“) was charged with indecency with a child.
In 1990, at the time King pleaded guilty and was placed on deferred adjudication for indecency with a child, the Texas Sex Offender Registration Act (SORA) had not yet been enacted. It was enacted the next year in 1991. See Sex Offender Registration Act, 72d Leg., R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029. SORA required any
In 2005, SORA was amended to include as a reportable conviction deferred adjudications for indecency with a child that occurred on or after September 1, 1970.
Meanwhile, in 2001, King had been charged with two burglaries of a habitation. He pleaded guilty to both as charged and was sentenced to a 20-year term of imprisonment. In 2008, King was released on parole with the statutorily mandated condition that he register as a sex offender and be evaluated to determine whether he needed sex offender counseling.
In 2009, La Porte Police Detective Huckabee contacted King and informed him that he was required to register as a sex offender with the La Porte Police Department, and King complied. King, represented by counsel, filed the instant lawsuit against the Director of the Texas Department of Public Safety, Steven McCraw, and the Chief of the La Porte Police Department, Kenith Adcox, both in their official capacities.
Adcox moved to dismiss the complaint, asserting insufficient service of process. The district court granted the motion and dismissed the claims against Adcox without prejudice. The court allowed King until August 31, 2011, to serve the Attorney General of Texas, and King timely effected service.
McCraw filed a motion for summary judgment, and Adcox subsequently filed a motion to join McCraw‘s motion for summary judgment. The court granted summary judgment in favor of McCraw. In its opinion, the court noted that although Adcox had filed a motion “purporting to join in McCraw‘s motion for summary judgment,” King‘s claims against Adcox had been dismissed based on insufficient service of process.
King filed a motion for reconsiderаtion of summary judgment, asserting that in the order granting summary judgment the court had erroneously stated that the cause of action against Adcox had been dismissed. The court granted King‘s mo-
II. ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo, applying the same standards as the district court. Am. Home Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment motion is properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the record indicates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Id.; see also
B. Ex Post Facto Claim
King argues that SORA is unconstitutional as applied to him because it violates the Ex Post Facto Clause. He points out that SORA was not in existencе at the time he pleaded guilty to the offense of indecency with a child. He contends that the restrictions on where he may live, work, and with whom he may associate are punitive. In its original opinion granting summary judgment, the district court explained that SORA did not impose the complained of restrictions; instead, the City of La Porte‘s ordinances contain these restrictions. Opinion at p. 11 (Sept. 7, 2012). In its opinion on reconsideration, the district court ruled that it was “not free to consider” a challenge to the La Porte ordinances because that claim was “not properly before it.” Opinion at p. 11 (Jan. 15, 2013). The court concluded that it would not grant leave to amend at that point because it would be futile, opining that “even if [King] amended his complaint to claim an ex post facto violation by the La Porte ordinance, this claim would still fail to survive summary judgment.” Id. at 12. On appeal, King fails to argue that the district court erred in ruling that the challеnge to the La Porte restrictions was not properly before it. King‘s failure to argue this claim renders it abandoned. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (explaining that the Court “will not raise and discuss legal issues that [appellant] has failed to assert“).
King does argue that the district court erred in rejecting his claim that the application of SORA tо him violates the Ex Post Facto Clause. In unpublished opinions, this Court has repeatedly affirmed a district court‘s dismissal as frivolous the claim that the retroactive application of Texas law requiring sex offender registration and notification violates the Ex Post Facto Clause. See Hayes v. Tex., 370 Fed.Appx. 508 (5th Cir. 2010); Hall v. Att‘y Gen. of Tex., 266 Fed.Appx. 355 (5th Cir. 2008); Herron v. Cockrell, 78 Fed.Appx. 429 (5th Cir. 2003). Although our unpublished decisions аre not controlling precedent, all these decisions relied on the Supreme Court‘s holding in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). In Smith v. Doe, the Supreme Court rejected an ex post facto challenge to Alaska‘s sex-offender-registration statute. Id. Although King recognizes the holding in Smith v. Doe, he contends that SORA‘s application to him is excessive in relation to the statute‘s stated purpose of public safety. The only challenge he makes to SORA‘s application to him is the requirement to re-register annually. However, the Supreme Court explained that “registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause.” Id. at 102, 123 S.Ct. 1140. Contrary to King‘s assertion, SORA‘s requirement to re-register annually cannot be said to be excessive. Cf. id. at 104, 123 S.Ct. 1140 (opining that the “duration of the reporting requirements is not excessive” because research has shown that a child molester may commit a “re-offense” as many as 20 years after being releasеd). The Supreme Court has instructed that “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 92, 123 S.Ct. 1140 (internal quotation marks omitted). As stated by the district court, King‘s evidence and allegations are insufficient as a matter of law to show that SORA is a criminal penalty. Thus, the district court properly denied King‘s claim of an ex post facto violation.2
C. Procedural Due Process Claim
King contends that SORA‘s “policies and procedures that were adopted, implemented, and imposed” violate his right to procedural and substantive due process. With respect to procedural due process, King complains that the statute automatically classified him as a sex offender without notice or any individualized determination of his purported danger to the community. We have held that “[w]hen an individual is convicted of a sex offense, no further process is due before imposing sex offender conditions.” Meza v. Livingston, 607 F.3d 392, 401 (5th Cir. 2010) (citing Conn. Dep‘t of Pub. Safety v. Doe, 538 U.S. 1, 7-8, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003)).3 We explained that an individual convicted of a sexual offense in a “prior adversarial setting, whether as the result of a bench trial, jury trial, or plea agreement, has received the minimum protections required by due process.” Id. (internal quotation marks omitted); Doe, 538 U.S. at 7, 123 S.Ct. 1160 (explaining that the “the law‘s requirements turn on an offender‘s cоnviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest“). Thus, King has not shown that his procedural due process rights were violated.
D. Substantive Due Process Claim
With respect to substantive due process, King contends that the burdens of SORA are excessive in rеlation to its stated purpose. “While the core of substantive due process is protection from arbitrary government action, only the most egregious official conduct is arbitrary in the constitutional sense.” Coleman v. Dretke, 395 F.3d 216, 224 (5th Cir. 2004) (internal quotation marks and citation omitted). It has been explained that “behavior most likely to shock the conscience and thus support a substantive due process claim is conduct intended to injure in some way unjustifiable by any government interest.” Id. at 224-25 (internal quotation marks and citation omitted). See also Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (noting that Coleman foreclosed the petitioner‘s argument that he was deprived of substantive due process by the pаrole condition that he register as a sex offender under SORA and receive therapy even though he had never been convicted of a sex offense). We are not persuaded that SORA‘s registration requirements are unjustified or that they are imposed with the intent to injure him. King has not shown that the restrictions rise to the lеvel of shocking the conscience. Thus, we affirm the district court‘s denial of King‘s substantive due process claim.
For the above reasons, the district court‘s judgment is AFFIRMED.
PER CURIAM