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)).

Other

CAL POST CON " NEW DEVELOPMENTS AFTER KIM
In our ongoing search for new post-conviction tactics on behalf of immigrants, we are exploring several new possibilities: (1) Habeas Custody. While the California Supreme Court has reaffirmed the custody requirement for habeas corpus, there are several situations in which custody is extended: (a) Failure to Register. California criminal law contains a number of registration requirements, in which defendants convicted of certain offenses are required to register with law enforcement. If a defendant fails to register as required, typically criminal penalties can be exacted. For example, if a defendant is convicted of any of a long list of sex offenses, s/he is required to register as a sex offender, often for life, pursuant to Penal Code 290. If the defendant fails to register as required, s/he can be arrested and charged with a violation of this criminal statute. The existence of the prior conviction constitutes an element of the current failure to register offense, as to which the defendant is currently in custody. S/he would then be in actual custody, or released on bail or own recognizance on constructive custody, or sentenced to actual custody, or placed on probation or released on parole (constructive custody). Any of these forms of current custody are sufficient to confer habeas corpus jurisdiction on the courts. The predicate offense, that is the basis of the registration obligation, may have occurred many years before, and as to the predicate conviction, custody may have expired. Yet because the current custody on the failure to register offense is based on the earlier conviction, it is possible to file habeas corpus based on the current custody, and challenge the constitutionality of the predicate conviction. If the predicate conviction is the conviction triggering adverse immigration consequences, it may be possible to attack the earlier conviction by this means, and obtain a court order that the earlier conviction is legally invalid, that can be used in immigration court to avoid its adverse immigration consequences.

CAL POST CON " HABEAS " CURRENT CUSTODY GIVES JURISDICTION TO ATTACK EXPIRED CUSTODY PRIOR CONVICTION ON WHICH CURRENT CUSTODY DEPENDS
Custody for habeas on the basis of incarceration for failure to register A habeas petitioner incarcerated for failing to comply with a state sex offender registration law is in custody for the purpose of challenging the prior conviction that led the imposition of the registration requirement. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). A petitioner filing a habeas claim on an expired prior conviction must show that he or she bore no responsibility for the delay in filing. Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403 (2001). I. Custody on the basis of incarceration for failure to register a. Custody For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be in custody. See, e.g., Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994.) In general, a states sexual offender registration laws do not render a habeas petitioner in custody because they are a collateral consequence of conviction that do not impose a severe restraint on an individuals liberty. In re Stier, 152 Cal.App.4th 63, 83 (2007) (citing Resendiz v. Kovensky 416 F.3d 952, 959 (9th Cir. 2005); see, e.g., McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1999.) Though merely being subject to the sex offender registry requirement alone does not satisfy custody for the purposes of habeas relief, the Ninth Circuit has held that incarceration for failure to register as a sex offender does establish custody for 2254 and 2255 habeas relief from the initial conviction that led to the registration requirement. Zichko, 247 F.3d at 1020. In Zichko v. Idaho, the petitioner pleaded guilty to rape and was sentenced to ten years in prison, but served seven. Two years after he was released, he was incarcerated for failing to register as a sex offender. 247 F.3d 1015, 1019 (9th Cir. 2001). He subsequently filed a habeas petition with the federal district court, alleging, inter alia, ineffective assistance of counsel in his rape case. His original sentence would have ended less than a month before he filed the habeas petition. The court ultimately denied the habeas petition on the grounds of state procedural default. Id. at 1021. But the Ninth Circuit first noted that, though the initial rape conviction had expired, Zichko was subject to the registration requirement only because of that initial conviction. Id. 1020. Accordingly, the court held that a habeas petitioner is in custody for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction is a necessary predicate to the failure to register charge. Id. at 1019 (citing Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994)). The court drew support for its reasoning from the well settled proposition that a habeas corpus petitioner meets the statutory in custody requirements when, at the time he files the petition [] . . . he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks. Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985). See also Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394 (2001) (Lackawanna) (holding that petitioner was in custody for jurisdictional purposes because he alleged that the earlier, unconstitutional conviction had enhanced his later sentence); Brock v. Weston, 31 F.3d 887, 890 (9th Cir.1994) (holding that the habeas petitioner could challenge an earlier expired conviction while involuntarily committed for treatment as a violent sexual predator). Though California state cases have yet to issue holdings on the issue, the Supreme Court and Court of Appeals cases have made clear that custody for failure to register can be used to challenge the constitutionality of the original conviction.

CAL POST CON " HABEAS " CURRENT CUSTODY GIVES JURISDICTION TO ATTACK EXPIRED CUSTODY PRIOR CONVICTION ON WHICH CURRENT CUSTODY DEPENDS
Custody for habeas on the basis of incarceration for failure to register A habeas petitioner incarcerated for failing to comply with a state sex offender registration law is in custody for the purpose of challenging the prior conviction that led the imposition of the registration requirement. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). A petitioner filing a habeas claim on an expired prior conviction must show that he or she bore no responsibility for the delay in filing. Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403 (2001).