Tooby's California Post-Conviction Relief for Immigrants

For some criminal convictions, the judgment imposes a registration requirement.[215]  Under narcotics offender registration requirements, the defendant must go to the police station, give fingerprints and a photo, and register.[216]  Some courts have held this is the equivalent of punishment.[217]  Disobedience of this requirement is itself a criminal offense.  This restraint on liberty as a result of the judgment of the court is greater than that suffered by other citizens.  The defendant’s freedom of movement is controlled in part by the statute that commands a personal appearance at the police or sheriff’s department each time s/he moves to register the new address.  This is arguably custody sufficient to meet the jurisdictional requirement for habeas corpus.[218] 

            California courts have not spoken on the question whether registration requirements constitute sufficient custody for state habeas corpus.  The Ninth Circuit, however, has rejected this argument, holding somewhat illogically that two different registration requirements, including California’s, are “collateral consequences” only and not sufficient to meet the custody requirement for federal habeas corpus.[219]

[215] C.E.B., California Criminal Law: Procedure and Practice (5th ed. 2000) § 38.25.  Newly added registration requirements include arson under Cal.Penal Code § § 451, 453.  Penal Code § 457.1; see Stats. 1994, ch. 11X.  In addition, sex offender registration has been expanded to include some misdemeanors, for which lifetime registration is required.  Penal Code § 290, 290.1, 4852.01; see 1994 Stats., chs. 863, 867.

[216] Health & Safety Code § § 11590-11594 (defendant must register anew each time s/he moves for five years following the judgment).

[217] A U.S. District Court has held that the punitive aspects of public notification of the identity of sex offender registrants constitute have sufficient similarities to punishment that the Constitution prevents ex post facto application of a new public notification law.  Artway v. Attorney General of New Jersey, 1995 WL 91540 (D.N.J. 1995).

[218] Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

[219] Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998); Henry v. Lundgren, 164 F.3d 1240 (9th Cir. 1999)(rejecting claim that California sex offender registration which required personal appearance at police station constituted custody sufficient for federal habeas corpus jurisdiction under 28 U.S.C. § 2241(c)(3)).