Dickey v. Allbaugh

664 F. App'x 690
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 25, 2016
Docket15-6234
StatusUnpublished
Cited by13 cases

This text of 664 F. App'x 690 (Dickey v. Allbaugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickey v. Allbaugh, 664 F. App'x 690 (10th Cir. 2016).

Opinion

ORDER AND JUDGMENT *

Paul J. Kelly, Jr. Circuit Judge

Timmy Howard Dickey appeals from the district court’s dismissal of his petition for a writ of habeas corpus, 28 U.S.C. § 2254, or in the alternative, habeas relief pursuant 28 U.S.C. § 2241, or a writ of audita querela or coram nobis. Dickey v. Patton, 2015 WL 8494009 (W.D. Okla. Dec. 10, 2015). Upon recommendation of the magistrate judge, Dickey v. Patton, 2015 WL 8592709 (W.D. Okla. Sept. 28, 2015), the district court held that Mr. Dickey was not “in custody” nor entitled to relief on alternate grounds. The district court granted a certificate of appealability on whether Oklahoma’s sex offender registration requirements satisfy the “in custody” re *692 quirement, and whether Mr. Dickey is nevertheless entitled to relief under the All Writs Act via the writ of audita querela or the writ of coram nobis. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

In 2011, Mr. Dickey was convicted of child sexual abuse and sentenced to five years’ imprisonment after being tried by a jury. Aplt. App. 84. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA), held that the record was inadequate to establish one of the elements of the offense. 1 Id. 27. Rather than reverse the conviction, however, the OCCA modified Mr. Dickey’s conviction to incest, a charge the state had not elected to bring, and determined his sentence should remain the same. Id. 15,28-29.

Seeking to overturn the decision of the OCCA, Mr. Dickey filed an application for post-conviction relief. The state district court denied his application, and the OCCA affirmed, concluding that incest was a lesser-included offense under the evidence test and thus there was no violation of Mr. Dickey’s constitutional rights. Id. 33-35. Mr. Dickey then filed the instant federal action.

Because he was convicted of a sex offense, Mr, Dickey is now required to register pursuant to Oklahoma’s Sex Offenders Registration Act. Okla. Stat. tit. 57, §§ 581-590. He is not permitted to work with children or to work on school premises. Id. § 589(A). He is forbidden from living, temporarily or permanently, within a 2,000-foot radius of any “school ..., educational institution, property or campsite used by an organization whose primary purpose is working with children, a playground or park ,,, or a licensed child care center.” Id. § 590(A). Additionally, it is unlawful for Mr. Dickey to live in a dwelling with another sex offender. Id. § 590.1(A). Mr. Dickey contends that these provisions sufficiently restrict his freedom to satisfy § 2254’s custody requirement, and that the restrictions are more stringent than the Colorado statutory scheme addressed by this court in Calhoun v. Attorney General of Colorado, 745 F.3d 1070 (10th Cir.), cert. denied, — U.S. —, 135 S.Ct. 376, 190 L.Ed.2d 254 (2014).

Discussion

A. Habeas Corpus

Section 2254(a) requires that a petitioner for a writ of habeas corpus be “in custody pursuant to the judgment of a State court .,. in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §-2254(a). Thus, a petitioner must demonstrate that he is in custody and the requirement is jurisdictional. Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009). Questions as to the proper interpretation of “custody” under the statute are legal and reviewed de novo. Id. at 1138.

Custody status is determined as of the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The writ is available in situations where a state-court criminal conviction has subjected the petitioner to “severe restraints on [his or her] individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). A restraint is severe when it is “not shared by the public generally.” Jones v. Cunning *693 ham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The petitioner need not, however, demonstrate actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). For example, habeas corpus is available for prisoners released on personal recognizance or parole, among other situations. See, e.g., Hensley, 411 U.S. at 346, 353, 93 S.Ct. 1571 (personal recognizance); Jones, 371 U.S. at 242-43, 83 S.Ct. 373 (parole).

Not every restriction involving federal rights warrants the remedy of a writ of habeas corpus. See Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 510, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Thus, collateral consequences of conviction which have only a negligible effect on liberty or movement, do not satisfy the “custody” requirement. Virsnieks v. Smith, 521 F.3d 707, 718 (7th Cir. 2008) (collecting cases). For example, restitution or fines imposed on a petitioner do not— there must be a significant restraint on liberty. Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008). Other collateral consequences of conviction not deemed restraints on liberty sufficient to constitute custody are the “inability to vote, engage in certain businesses, hold public office, or serve as a juror,” Maleng, 490 U.S. at 491-92, 109 S.Ct. 1923, revocation of a driver’s license, medical license, or a license to practice law, and disqualification as a real estate broker and insurance agent, Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (collecting cases).

In 2014, we joined other circuits in holding that the requirement to register under state sex-offender statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he or she files a habeas petition. See Calhoun, 745 F.3d at 1074. We determined that Colorado’s sex-offender requirements were not- severe enough to constitute being “in custody” for habeas purposes. See id. at 1072-74. Mindful of our precedent in Calhoun, Mr. Dickey asserts that Oklahoma’s statutory scheme involving sex offenders is more restrictive than that of Colorado because it significantly infringes on Mr.

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664 F. App'x 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-v-allbaugh-ca10-2016.