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Merritt v. Gusman

United States District Court, E.D. Louisiana

May 14, 2018


         SECTION: “F” (5)



         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITHOUT PREJUDICE.

         Factual and Procedural History

         Petitioner, Otis Merritt, [1] is a pretrial detainee currently incarcerated at the Orleans Justice Center in New Orleans, Louisiana. On August 31, 2017, he was charged with failure to register, periodically renew or update sex-offender registration, provide proof of residence or notification of change of address, or provide community notification as required by Louisiana Revised Statute 15:542 et. seq.[2] The bill of information alleged that he was previously convicted in the State of Texas, Criminal District Court of Dallas County, for indecency with a child (Docket No. F-9675214-KJ). The state-court record reflects that in June 1996, Merritt was convicted of one count of indecency with a child and was sentenced to serve a term of five (5) years imprisonment in the State of Texas correctional system. After his release from prison, he was required to register as a lifetime registrant of the Texas Sex Offender Registry.[3] At the time of his arrest, Merritt had recently established a new residence in New Orleans, Louisiana, and had an obligation to register and report pursuant to the provisions of the Louisiana Sex Offender Registry. He is currently awaiting trial on the charge of failure to register pursuant to Louisiana Revised Statute 15:542.1.4(A)(1).

         On or about October 23, 2017, Merritt filed his federal application for habeas corpus relief. The application identified his challenged conviction and sentence as the June 1996 conviction imposed in Dallas County, Texas. He asserts that he was never informed when he pleaded guilty to the Texas offense that he would have to register as a sex offender for life, and he is now being confined illegally as a result.[4] He requests immediate release from his detention stemming from his arrest for failure to register and to be removed from all registration requirements. The State filed a response, asserting that the Court lacks jurisdiction and should not entertain unexhausted claims for relief seeking dismissal of pending state criminal charges and proceedings.[5]Merritt filed a reply refuting the State's assertions that he is no longer in custody for the 1996 conviction and arguing that the registration requirements violate his constitutional rights.[6]


         A. 1996 Conviction for Indecency with a Child

         Merritt's federal application purports to challenge his 1996 guilty-plea conviction in Dallas County, Texas for which he received a five-year sentence. That sentence has long since expired. To the extent Merritt may be challenging the 1996 conviction, he was no longer in custody under that sentence at the time he filed this federal application, and consequently this Court lacks jurisdiction to entertain such a challenge. A federal court is without subject matter jurisdiction to consider the legality of an expired conviction and discharged sentence. 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a) (federal district courts have jurisdiction to entertain petitions for writs of habeas corpus from persons who are “in custody in violation of the Constitution or laws or treaties of the United States”); Maleng v. Cook, 490 U.S. 488, 492 (1989).

         Construed liberally, Merritt's application suggests that his custody is continuing as a direct result of the ongoing sex-offender registration requirement that stemmed from his 1996 guilty plea.[7] Essentially, he argues that the consequences resulting from his status as a convicted sex offender (i.e., the continuing obligation to register and report and his violation and imprisonment for failing to comply) satisfy the “in custody” requirement and allow him to challenge the expired 1996 guilty-plea conviction. He offers no support for the argument and the law does not support his position.

         The Supreme Court has made it abundantly clear 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.” Id. at 492. Our federal circuit courts unanimously hold that sex-offender registration requirements are collateral consequences of a conviction. See, e.g., Hautzenroeder v. Dewine, 887 F.3d 737, 740-41 (6th Cir. 2018) (citing Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002)); Bonser v. Dist. Attorney Monroe Cty., No. 659 F.Appx. 126, 128 (3d Cir. 2016); Sullivan v. Stephens, 582 F.Appx. 375 (5th Cir. 2014); Calhoun v. Attorney Gen. of Colorado, 745 F.3d 1070, 1074 (10th Cir. 2014); Wilson v. Flaherty, 689 F.3d 332, 337 (4th Cir. 2012); Virsnieks v. Smith, 521 F.3d 707, 720 (7th Cir. 2008) (“[G]iven the habeas statute's ‘in custody' requirement, courts have rejected uniformly the argument that a challenge to a sentence of registration under a sexual offender statute is cognizable in habeas.”); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999). Thus, neither the registration requirement imposed nor his present incarceration for violating that requirement affords him the ability to challenge his 1996 conviction. Bonser, supra, at 129-30 (finding that registration requirement and resulting incarceration for noncompliance were collateral consequences of petitioner's expired 2006 conviction that did not render him “in custody” on the expired conviction).

         Contrary to Merritt's suggestion, the registration requirement for convicted sex offenders does not render a person “in custody” for purposes of § 2254 federal habeas corpus relief. Puckett v. Powers, Civ. Action No. 10-1066, 2011 WL 794898 (E.D. La. Jan. 27, 2011), recommendation adopted, 2011 WL 794861 (E.D. La. Feb. 28, 2011). Merritt cannot satisfy the “in custody” requirement for his 1996 conviction based solely on his current imprisonment that resulted because he failed to register or report as a convicted sex offender in accordance with law. For this reason, the Court has no jurisdiction to consider Merritt's challenge to his 1996 conviction.[8]

         B. Failure to Exhaust

         As outlined above, Merritt seeks immediate release from confinement and the purported invalid obligations to report as a sex offender, which led to his arrest and pending criminal charge. A federal court does have jurisdiction under 28 U.S.C. § 2241 to consider petitions brought by individuals currently detained in state custody regardless of whether there has been a judgment of conviction. See 28 U.S.C. 2241(c); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). However, the State correctly argues that even if Merritt's claims for relief were ...

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