Wilson v. Flaherty, No. 3:10CV536, 2011 WL 2471207 (E.D. Va. June 20, 2011):
[This opinion concerns one of the "Norfolk Four." For a brief news story about this case, click here.]
The Background. In July 1997, Michelle Bosko was raped and murdered in her apartment. Eventually, five men were convicted with respect to crimes against Michelle Bosko: Derek Tice, Danial Williams, Joseph Dick, Eric Wilson, and Omar Ballard. Wilson was sentenced to eight and one-half years in prison. In 2005, Wilson's sentence expired, he was released from prison, and he returned to his parents' home in Texas.
Other Defendants Receive Pardons. In 2004, Wilson, Tice, Williams, and Dick petitioned the Governor of Virginia for absolute pardons. In 2009, Governor Kaine concluded that Tice, Williams, Dick, and Wilson "had raised 'substantial doubt' about the validity of their convictions, but had not 'conclusively established [their] innocence.'" The Governor issued conditional pardons to Tice, Williams, and Dick, released them from prison, but kept their convictions in place. The Governor denied any relief to Wilson because Wilson was no longer in prison.
Wilson Subject to Sex-Offender Registration Laws. Wilson currently resides in Texas, and is subject to sex-offender registration requirements and the collateral consequences of being on the sex-offender registry. Wilson filed a petition for a writ of habeas corpus and requests the Court to expunge his record and release him from the requirement of registering as a sex offender. This means that Wilson must register in person with the local sheriff's department each year. Wilson must carry a sex offender card at all times or suffer a legal penalty. He is characterized as a violent sex offender on the public national sex offender registry. As an electrician, Wilson is prohibited from working on certain job sites because of his status. On one occasion, for example, Wilson was removed from a Department of Homeland Security building because of his status. Wilson may not leave the country. If he is away from home for more than twenty-four hours, he must notify the authorities in person. He endures humiliation each time he visits his step-son's school because the school performs a background check for each visitor. Furthermore, Wilson may not adopt his step-son because of Wilson's sex-offender status.
The "In Custody" Requirement. To qualify for relief under 28 U.S.C. § 2254, a petitioner must be "in custody." Although the term "in custody" encompasses petitioners subject to immediate physical imprisonment, the term also includes those subject to some other restraints on freedom. For example, an individual on parole or probation, sentenced to a rehabilitation program, sentenced to community service, or civilly committed, may satisfy the in-custody requirement. These individuals satisfy the in-custody requirement because they suffer "substantial restraints not shared by the public generally."
Sex-Offender Registration Does Not Create "Custody." Despite the consequences of being a convicted sex offender, federal courts have unanimously held that sex-offender registration and its collateral consequences do not qualify as "custody" for habeas relief. Courts base these findings on the fact that the registration statutes analyzed do not significantly restrain sex offenders' liberty. In other words, the regulations "are more analogous to collateral consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole."
COA Granted. Although many other Circuit Courts and District Courts have unanimously agreed that sex-offender registration laws do not create "custody," neither the United States Court of Appeals for the Fourth Circuit nor any District Court within the Fourth Circuit has ruled on the issue. Accordingly, the Eastern District of Virginia grants a certificate of appealability on the issue.