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Third Circuit: Pennsylvania’s SORNA Requirements Sufficiently Restrictive to Constitute Custody for Habeas Jurisdiction

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that the registration and reporting requirements of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) are sufficiently restrictive to constitute custody for the purposes of habeas corpus jurisdiction.

Jason Piasecki was convicted in the Court of Common Pleas of Bucks County of 15 counts of child pornography. He was sentenced to three years’ probation. His sentence included the requirement that he register under a statutory scheme known as “Megan’s Law” for a period of 10 years. While Piasecki was pursuing postconviction relief, Pennsylvania replaced Megan’s Law with the more onerous SORNA and applied it retroactively to all persons previously required to register under Megan’s Law.

Piasecki was a Tier III offender under SORNA, which required him to: 

(1) register in-person every three months with the state police for the rest of his life, and (2) appear in-person at a registration site if he were to: change his name or change his address; begin a new job or become unemployed; matriculate or end student enrollment; add/change phone number; add/change/terminate car ownership and must provide license plate number, VIN number, and location of where car is stored; commence or change temporary lodging; add/change/terminate any email address; and add/change/terminate any information related to an occupational or professional license. If Piasecki became homeless, he was required to appear monthly and be photographed. If he planned international travel, he must appear not fewer than 21 days before anticipated departure. If he failed to abide by any of these requirements, he was subject to criminal prosecution.

Piasecki filed a habeas petition pursuant to 28 U.S.C. § 2254, which gives a federal court jurisdiction to hear a petition only if the petitioner is in custody pursuant to a judgment of a state court. The district court dismissed the petition for want of jurisdiction, finding Piasecki was not in custody and that the SORNA restrictions were not the result of a state court’s judgment. The Third Circuit granted a certificate of appealability.

The Third Circuit stated the jurisdiction requirement of § 2254 has two components: “custody” that arose “pursuant to the judgment of the state court.” Said another way, the habeas corpus jurisdiction provision requires a petitioner to be subject to a “non-negligible restraint on physical liberty” that is a “direct consequence of the conviction being challenged.” Thus, the Court observed it must determine if the requirements of SORNA are sufficiently restrictive enough to constitute custody, and if so, are they imposed pursuant to the judgment of a state court.

For the purposes of habeas jurisdiction, a person is “in custody” if the petition is filed while the person is subject to significant restraints on liberty that are not otherwise experienced by the general public. In Hensley v. Municipal Court, 411 U.S. 345 (1973), the petitioner was released on his own recognizance pending appeal. Hensley was required to “appear at all times and places as ordered by the court.” And any court could “revoke the order of his release and return him to custody.” The U.S. Supreme Court held those conditions supported habeas corpus jurisdiction. Hensley could not “come and go as he please[d]” because his “freedom of movement rested in the hands of judicial officers, who [could have] demand[ed] his presence at any time without a moment’s notice.” And “any failure to abide by those conditions was a criminal offense.” These are significant restraints not experienced by the general public.

In United States v. Ross, 801 F.3d 374 (3d Cir. 2015), the Third Circuit announced a three-part test to determine whether a restriction is custodial, i.e., restraints are custodial if they are (1) severe, (2) immediate (not speculative), and (3) not shared by the public generally. In Ross, the petitioner had to pay a fine of $100. The Ross Court determined he was not in custody because the monetary restraint was not severe since it didn’t restrict his freedom of movement.

Applying the case law to the present case, the Court ruled that the registration requirements imposed upon Piasecki “were sufficiently restrictive to constitute custody….” The Court observed Piasecki was required to “appear at a certain place” at least four times a year for life, and he could not “come and go as he pleased.” Failure to abide by the restrictions is a crime punishable by up to 20 years in prison. Piasecki’s restraints were severe, immediate, and not shared by the public generally. Thus, the Court concluded he was in custody.

The Court commented that “many of our sister circuit courts of appeals … have found sex offender registration requirements could not support habeas jurisdiction….” But those decisions involved pre-SORNA statutes; the “registration requirements were not as onerous as those imposed under SORNA,” the Court explained. 

The next step in the inquiry for habeas jurisdiction is to determine whether SORNA’s restrictions imposed upon Piasecki are “pursuant to a judgment of a State court.” § 2254. 

The Court examined the state court’s actual judgment of sentence, which is comprised of the “Bucks County Criminal Court Sheet” and the “Bucks County Mandatory Sex Offender Conditions” Order. According to the Court, “[b]oth show that the registration requirements were part of the judgment of sentence.” 

The Court observed that the Criminal Court Sheet contains handwritten notation stating Piasecki was sentenced to “Registration” for “10 yrs.” The Court then examined the Sex Offender Conditions Order, which states Piaski’s “SENTENCE IS SUBJECT TO THE FOLLOWING CONDITIONS IN ADDITION TO THOSE THAT APPEAR ON THE COURT SHEET.” Under that heading, the sentencing court checked the box next to “Sex Offender Registration Pursuant to Megan’s Law” and another box indicating “10 Year Registration.” The Court concluded that “the documents plainly reflect that the registration requirements were a part of the sentence.”

The Court then went on to explain that federal courts look to state law when determining whether sex offender registration requirements are a part of the state court imposed sentence. That is, some states view registration requirements as a punitive part of the criminal sentence, while other states construe them as a remedial measure imposed collaterally.  

Because a collateral consequence cannot support a finding of “in custody,” the Court looked to Pennsylvania law to determine if the state construes sex offender registration as a punitive aspect of a criminal sentence or as a remedial measure imposed collaterally. In Coppolino v. Noonan, 102 A.3d 1254 (Pa. Commw. Ct. 2014), the Commonwealth Court of Pennsylvania held that the in-person updating requirements of SORNA are punitive because they impose “an affirmative disability or restraint on registrants by inhibiting their ability to travel freely.” Id. 

The Pennsylvania Supreme Court affirmed the lower court’s decision. Coppolino v. Noonan, 633 Pa. 445 (Pa. 2015). Additionally, in Commonwealth v. Muniz, 640 Pa. 699 (Pa. 2017), the Supreme Court held that all SORNA registration requirements are punitive, so applying them retroactively violates the Pennsylvania Constitution’s ex post facto clause. Thus, Pennsylvania courts construe SORNA’s registration requirements to be punitive, not remedial (as courts in most other states do).

Consequently, the Court concluded that Piasecki was “in custody pursuant to a judgment of a state court.” As such, the federal court has jurisdiction to hear his habeas petition. Accordingly, the Court vacated and remanded with instructions for further proceeding consistent with its opinion. See: Piasecki v. Court of Common Pleas, 2019 U.S. App. LEXIS 5979 (3d Cir. 2019). 

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