June 26, 2019

Tenth Circuit: Ongoing Registration Obligations Under Colorado’s Sex Offender Registration Act Do Not Satisfy Jurisdictional Custody Requirement of Habeas Corpus Petitions

The Tenth Circuit Court of Appeals published its opinion in Calhoun v. Colorado Attorney General on Tuesday, March 18, 2014.

Ronald C. Calhoun, a convicted sex offender, appealed the district court’s dismissal of his habeas corpus petition filed under 28 U.S.C. § 2254. The district court held that Calhoun was not “in custody,” as required to invoke the jurisdiction of the federal courts. His probation was terminated on February 2, 2007 and he filed the current habeas petition five years later. Calhoun asserted that he was in custody for the purpose of § 2254 because he must register as a sex offender.

The Tenth Circuit held that “the future threat of incarceration for registrants who fail to comply with the [sex-offender registration] statute[s] is insufficient to satisfy the custody requirement.” The Colorado sex-offender registration requirements Calhoun is subject to are collateral consequences of conviction that do not impose a severe restriction on his freedom. The court agreed with circuits that have uniformly held that the requirement to register under state sex-offender registration statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he files a habeas petition.

Because the district court was without jurisdiction to consider the merits of the petition, the court affirmed its dismissal.

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