Federal Habeas Corpus - Custody Requirement - Fourth Circuit Denies Forum to Sex Offender with Actual Innocence Claim

Harvard Law Review, May 2013 | Go to article overview

Federal Habeas Corpus - Custody Requirement - Fourth Circuit Denies Forum to Sex Offender with Actual Innocence Claim


Under 28 U.S.C. [section] 2254(a), habeas corpus petitioners challenging their state law convictions must be "in custody" for federal courts to have jurisdiction over their petitions. (1) Recently, in Wilson v. Flaherty, (2) the Fourth Circuit held that the requirements of Virginia's sex offender registration statute did not place a habeas petitioner with an actual innocence claim "in custody." By refusing jurisdiction over the petitioner's claim, the Fourth Circuit signaled that a petitioner must commit an additional offense in order to gain access to a forum in which he can demonstrate his innocence. This "untenable" (3) conclusion results from the intersection of the federal habeas statute, the Supreme Court's habeas jurisprudence, and the requirements of sex offender registration. In the absence of legislative change, the Supreme Court should consider employing a legal fiction to determine that the requirements of sex offender registries place individuals in custody pursuant to a future conviction for failure to register. Though this reading of the habeas statute would be unprecedented, it would provide a small class of petitioners with a path to exoneration without opening the courts to a flood of new claims.

On July 8, 1997, Navy sailor William Bosko returned home to his apartment in Norfolk, Virginia, to find his wife Michelle's seminaked body lying in a pool of blood. (4) Four young sailors--Danial Williams, Derek Tice, Eric Wilson, and Joseph Dick--were apprehended. No physical evidence linked any of the four to the crime. (5) Nonetheless, the four men confessed under police interrogation. (6) Williams and Dick eventually pled guilty to murder and rape, Tice was convicted of both charges, and Wilson was convicted of rape (but not of murder). (7) A fifth man, Omar Ballard, later confessed to the crimes after authorities confronted him with a letter he had written from prison in which he bragged of the murder. DNA taken from Michelle Bosko's vagina, from under her fingernails, and from a blanket used to cover the body matched Ballard's sample. (8) He claimed to have acted alone. (9)

Ballard's guilty plea--and the conviction of the lead investigator on unrelated corruption charges involving extortion and lying to the FBI (10)--cast significant doubt on the veracity of the confessions of the four sailors. (11) In light of this doubt, Virginia Governor Tim Kaine issued conditional pardons in 2009 to the three men still in prison; the pardon did not extend to Wilson, who had already fully served his sentence. (12) Since the conditional pardon did not remove the sex offender registration requirement, (13) the four men turned to the courts to free them from the restrictions imposed by sex offender registration. (14)

Eric Wilson filed for a writ of habeas corpus in the Eastern District of Virginia under 28 U.S.C. [section] 2254 in August of 2010, raising an actual innocence claim. (15) Wilson sought the nullification of his rape conviction, the expungement of records relating to his conviction, and release from his status as a violent sex offender. (16) In order to meet the jurisdictional requirement that the petitioner be "in custody pursuant to the judgment of a State court," (17) Wilson argued that his status as a registered sex offender created restraints on his liberty sufficient to constitute "custody." (18) Citing the Supreme Court's determination that the "collateral consequences of [a] conviction are not themselves sufficient to render an individual 'in custody,'" (19) the district court noted that a consensus exists among federal courts that sex offender registration statutes impose only such collateral consequences and were therefore insufficient to render Wilson "in custody." (20)

The Fourth Circuit affirmed. Writing for the panel, Judge Niemeyer (21) agreed that the requirements of the sex offender statute were collateral consequences of Wilson's conviction and did not impose "sufficiently substantial restraints on [his] liberty" to impart federal habeas jurisdiction. …

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