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Fifth Circuit Grants § 2255 Petition Challenging Failure to Register Conviction for Ineffective Assistance of Counsel

by Christopher Zoukis

The United States Court of Appeals for the Fifth Circuit reversed a district court’s denial of a former prisoner’s 28 U.S.C. § 2255 petition, in which he claimed that his guilty plea to charges of failure to register as a sex offender was the result of ineffective assistance of counsel.

The January 26, 2018, ruling found the petitioner’s guilty plea invalid and granted § 2255 relief.

Adam Shepherd exposed himself to two minor girls in Arizona in 2002. He was charged with one count of indecent exposure to a minor and one count of public sexual indecency to a minor. Pursuant to a plea agreement, the first count was dropped, and Shepherd pleaded guilty to attempted public sexual indecency. He received a suspended sentence, lifetime probation, and a requirement to register as a sex offender.

Shepherd moved to Texas in 2011, but he did not register as a sex offender, believing that he was not required to do so under Texas law. After an investigation by the U.S. Marshals Service and a determination by the Texas Department of Public Safety (“DPS”) that Shepherd was required to register, he was arrested and charged with failure to register in violation of the federal Sex Offender Registration and Notification Act. On the advice of counsel, Shepherd pleaded guilty and was sentenced to 24 months in prison, followed by 30 years of supervised release.

Following his release from prison, Shepherd attempted to register in Texas only to be informed by DPS that he did not have a duty to register in Texas based upon his Arizona conviction.

Shepherd was justifiably confused, as he had just spent two years in prison for failing to register in Texas.

Because Shepherd was still on supervised release, 28 U.S.C. § 2255 remained available to challenge his federal conviction for failure to register. In his petition, Shepherd claimed that he was never under a legal duty to register in Texas and that his trial attorney was ineffective for failing to make that argument.

After receiving evidence from Randy Ortega, managing attorney for the crime records service department of DPS, the magistrate agreed and recommended that Shepherd’s petition be granted. The district court declined to follow that recommendation and denied the petition. Shepherd appealed, and the Fifth Circuit reversed the district court and granted his petition.

Ortega’s evidence exposed the confusion. Due to a Texas Third Court of Appeals decision in August 2012, DPS changed its method for determining whether an individual with an out-of-state conviction must register. Prior to Texas Department of Public Safety v. Anonymous Adult Texas Resident, 382 S.W.3d 531 (Tex. App.—Austin 2012), DPS looked at both the elements and facts of the underlying out-of-state offense in making a registration decision. After Anonymous, DPS limited its review to the elements only.

In Shepherd’s case, this mattered. Prior to Anonymous, DPS could consider the facts of his Arizona crime, which involved indecent exposure to minors. After Anonymous, however, DPS could only consider the elements of the crime he pleaded guilty to in Arizona, not the facts. The crime was attempted public sexual indecency, and none of its elements involved a minor.

The new rules established in Anonymous were in place prior to Shepherd pleading guilty. As such, the Fifth Circuit ruled that Shepherd’s attorney should have known about them and advised his client that he would be pleading guilty to a crime that he did not commit. Shepherd was not, in fact, required to register in Texas because his Arizona conviction for attempted public sexual indecency had no counterpart in Texas that would require registration. His attorney’s failure to advise him of this was objectively unreasonable, as contemplated by Strickland v. Washington, 466 U.S. 668 (1984).

Strickland requires a showing of prejudice in order to make out an ineffective assistance of counsel claim. Shepherd’s attorney testified that if he had known about Anonymous he would have filed a motion to dismiss and would not have advised Shepherd to plead guilty. Moreover, the district court itself was unaware of Anonymous and its implications, which resulted in admonishments to Shepherd that did not include the fact that he would be pleading guilty to an offense that was not a crime. Given the totality of the circumstances, the Court found that Shepherd was prejudiced by ineffective assistance of counsel, rendering his guilty plea involuntary.

Accordingly, the Fifth Circuit reversed the order denying Shepherd’s § 2255 motion and rendered an order granting it. See: United States v. Shepherd, 880 F.3d 734 (5th Cir. 2018). 

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Related legal case

United States v. Shepherd



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