By Larry . . . We are excited to report that registrants in Pennsylvania now will have a new vehicle to challenge sex offender registration. The United States Court of Appeals for the Third Circuit Court handed down a precedential decision on February 27th that has the potential to be significant going forward. See Piasecki v. Court of Common Pleas, Bucks County, PA, 16-4175 (FED3). The Court reversed a United States district judge’s dismissal of Piasecki’s habeas petition and remanded the case back for determination on the merits. Some have asked why this case is significant. The significance is because the decision was rendered in favor of a habeas petitioner who had sought relief from registration requirements using habeas corpus as the vehicle. It is the first of its kind as far as we can determine. And if this decision stands, it will mean registrants in Pennsylvania are deemed to be “in custody” for purposes of federal habeas corpus and can file a petition to challenge their registration requirements.
I will begin by providing some basics on habeas corpus. According to Cornell Law School’s Legal Information Institute, habeas corpus is Latin for “that you have the body.” Quoting Cornell, “In the US system, federal courts can use the writ of habeas corpus to determine if a state’s detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition process used, the amount of bail, and the jurisdiction of the court.” See https://www.law.cornell.edu/wex/habeas_corpus
Following a bench trial in the Court of Common Pleas of Bucks County, Jason Piasecki was convicted of fifteen counts of possession of child pornography. On April 26, 2010, the court sentenced him to a term of three years’ probation. At the time of sentencing, Pennsylvania sex offenders were subject to registration requirements under a statutory scheme referred to as Megan’s Law III. In December 2012, the Pennsylvania legislature permitted its Megan’s Law statute to expire and replaced it with the current registration law which is referred to as SORNA. It was enacted to bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006. SORNA applied retroactively to any Megan’s Law registrant who lived in the Commonwealth. An offender who had been required to comply with Megan’s Law III was therefore automatically subject to SORNA’s increased registration and reporting requirements.
Piasecki had been a 10-year registrant under Megan’s Law and became a Tier III offender under the provisions of SORNA. Accordingly, he was required to register in-person with the state police every three months for the rest of his life. The statute also requires him to appear, in-person, at a registration site if he were to:
- Change his name;
- Change his residence or become transient;
- Begin a new job or lose previous employment;
- Matriculate or end enrollment as a student;
- Add or change a phone number;
- Add, change, or terminate ownership or operator-ship of a car or other motor vehicle, and, as part of that visit, provide his license plate number, VIN number, and location where the vehicle will be stored;
- Commence or change “temporary lodging”;
- Add, change, or terminate any email address or other online designation; or
- Add, change, or terminate any information related to an occupational or professional license.
According to the Court’s opinion, “A federal court has jurisdiction to entertain a petition for a writ of habeas corpus under § 2254 only if the petitioner was ‘in custody pursuant to the judgment of a State court’ when the petition was filed…” Opinion at 7. Citing Jones v. Cunningham, 371 U.S. 236, 239 (1963), the court also observed, “…over the past half-century, courts have addressed the issue of habeas custody in an effort to determine when various state-imposed restrictions were sufficiently onerous to constitute ‘custody’ for purposes of habeas jurisdiction. It is now beyond dispute that custody is not limited to ‘actual physical custody.’ Rather, for the purposes of habeas jurisdiction, a petitioner is ‘in custody’ if he or she files while subject to significant restraints on liberty that are not otherwise experienced by the general public.” Id at 7.
Quoting directly from the Court’s opinion, “The question of whether Piasecki’s registration requirements were sufficiently restrictive to constitute custody is easily answered. They were. At a minimum, Piasecki was required ‘to be in a certain place’ or ‘one of several places’-a State Police barracks-at least four times a year for the rest of his life. The state’s ability to compel a petitioner’s attendance weighs heavily in favor of concluding that the petitioner was in custody. Further, Piasecki was not free to ‘come and go as he please[d].’ Any change of address, including any temporary stay at a different residence, required an accompanying trip to the State Police barracks within three business days. He was even required to regularly report to police if he had no address and became homeless…” See Opinion at 14.
The Court found “SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally. The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.” See Opinion at 26.
NARSOL plans to have a conference call in the next couple of weeks on this subject, and we hope to provide more clarity then. In the meantime, predicting the future is always risky because we do not have connections to the Pennsylvania Attorney General’s Office, which means our prediction could be wrong. Having said that, we expect the state will seek to overturn the decision of the three-judge panel just as they sought to overturn the Pennsylvania Supreme Court’s decision in Muniz. They have options including asking for en banc review, which is a review by all the judges that serve on the appellate court setting together as one. Requests for en banc review are seldom granted because there is insufficient capacity for the full court to hear the entire case load if they sat as one body. If en banc review is denied, their other option is to file a Petition for Certiorari with the United States Supreme Court. The Supreme Court only grants review of approximately one percent of the petitions it receives. We believe the odds in the case are probably a bit higher because federal habeas is already a significant component of the federal judiciary’s workload. If this decision stands, opening federal habeas proceedings to anyone having a registration obligation, workloads would increase considerably. Stay tuned because NARSOL is monitoring this case very closely.
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.