Stephen Deck v. State of California

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 5, 2023
• Docket: 22-55923
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN ROBERT DECK, No. 22-55923

Petitioner-Appellant, D.C. No. 8:21-cv-01525-MWF-SP v.

STATE OF CALIFORNIA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted August 14, 2023 Pasadena, California

Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.

Stephen Robert Deck appeals a district court order denying his 28 U.S.C. §

2254 petition for lack of jurisdiction because the sex offender registration

conditions with which Deck must comply do not constitute “custody” within the

meaning of the federal habeas statute. Because the parties are familiar with the

facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. §§

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1291 & 2253, and we affirm.

The purpose of habeas relief is “to effect release from illegal custody.”

Preiser v. Rodriguez, 411 U.S. 475, 486 n.7 (1973). Accordingly, a district court’s

jurisdiction to entertain § 2254 petitions is limited to petitioners who are in custody

and challenge the lawfulness of their custody. Munoz v. Smith, 17 F.4th 1237,

1241 (9th Cir. 2021). Whether sex offender registration conditions are sufficiently

restrictive to constitute “custody” depends primarily on “‘whether the legal

disabilit[ies] in question somehow limit[] the putative habeas petitioner’s

movement’ in a ‘significant’ way.” Id. at 1242 (quoting Williamson v. Gregoire,

151 F.3d 1180, 1183–84 (9th Cir. 1998)). We recently addressed this issue in

Munoz, where the putative petitioner challenged Nevada’s imposition of lifetime

supervision requiring him to register in person “every few months,” to pay a $30

monthly fee, to be subject to electronic monitoring, to reside only at locations

approved by his parole officer, and to keep his parole officer informed of his

current address. Id. at 1238–39, 1246. We held that “these conditions do not

severely and immediately restrain the petitioner’s physical liberty,” and thus do not

constitute “custody.” Id. at 1239.

Under our case law and on this record, Deck has not made the required

showing that the applicable restrictions rise to the level of “custody.” Although

Deck is required to re-register in person annually, we have held that “[r]egistration,

2 even if it must be done in person at the police station, does not constitute the type

of severe, immediate restraint on physical liberty necessary to render a petitioner

‘in custody’ for the purposes of federal habeas corpus relief.” Henry v. Lungren,

164 F.3d 1240, 1241 (9th Cir. 1999) (holding that California’s then-operative

registration conditions did not constitute “custody”).

Deck enumerates several disclosure and notification requirements, as well as

limitations imposed on him by third parties such as the federal government, other

states, and private companies. Deck also argues that he is ineligible for certain

types of employment, services, and benefits. Deck contends that these restrictions,

considered cumulatively, are sufficient to constitute custody. But most of these

collateral consequences have little to no bearing on Deck’s freedom of movement,

and none of them severely and immediately restrain his physical liberty. See

Maleng v. Cook, 490 U.S. 488, 491–92 (1989) (per curiam) (explaining that

“collateral consequences” such as a petitioner’s “inability to vote, engage in certain

businesses, hold public office, or serve as a juror” “are not themselves sufficient to

render an individual ‘in custody’ for the purposes of a habeas attack”).

We are not persuaded by Deck’s arguments based on Dow and Piasecki. See

Dow v. Cir. Ct. of the First Cir. ex rel. Huddy, 995 F.2d 922 (9th Cir. 1993) (per

curiam); Piasecki v. Ct. of Common Pleas, 917 F.3d 161 (3d Cir. 2019). Dow held

that a sentence requiring fourteen hours of attendance at an alcohol rehabilitation

3 program restricted the petitioner’s physical liberty enough to amount to “custody.”

Dow, 995 F.2d at 923. But, unlike here, the rehabilitation sentence in Dow

specified a particular period during which the defendant was required to be at a

closely supervised location from which he was not free to leave. Henry and Munoz

both held, after Dow, that a reasonable requirement to re-register in person, without

more, does not render a petitioner “in custody.” See Munoz, 17 F.4th at 1246;

Henry, 164 F.3d at 1242. Deck has not shown that the frequency with which he is

required to re-register in person renders him “in custody.”

This case is also unlike Piasecki, in which the Third Circuit held that the

conditions Pennsylvania imposed on a putative habeas petitioner were sufficiently

restrictive to constitute “custody.” See 917 F.3d at 163. We acknowledge that

many of the restrictions Deck faces are similar to those considered in Piasecki.

Like the petitioner in Piasecki, Deck must re-register in person at regular intervals

and when he moves. Id. at 164. Piasecki “was required to be in a certain place or

one of several places” during in-person registration, and the Third Circuit reasoned

that “the state’s ability to compel a petitioner’s attendance weighs heavily in favor

of concluding that the petitioner was in custody.” Id. at 170 (internal quotation

marks and citation omitted). Deck argues that the same logic applies to

California’s in-person registration requirement, and that Deck’s “failure to abide

4 by the restrictions [is] itself a crime,” as in Piasecki. Id. at 171 (internal quotation

marks omitted); see Cal. Penal Code § 290.018(b).

These arguments are unavailing. As we observed in Munoz, “Piasecki’s

analysis was consistent with our own precedent, but simply confronted far more

severe restrictions.” 17 F.4th at 1244. Deck’s baseline in-person registration is

only annual. Further, the statute in Piasecki imposed other in-person re-

registration requirements that Deck has not shown apply to him. See id. at 164–65,

170.

Because Deck has not shown that the conditions to which he is subject

severely and immediately restrain his physical liberty, the district court correctly

concluded that it lacked jurisdiction to entertain Deck’s § 2254 petition.1

AFFIRMED.

1 Respondent’s unopposed motion to take judicial notice (Dkt. 15) is GRANTED.