Munoz v. Smith

17 F.4th 1237

Peter J. MUNOZ, Jr., Petitioner-Appellant,

v.Gregory SMITH, Warden; Attorney General for the State of Nevada, Respondents-Appellees.

No. 20-16327

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 18, 2021 San Francisco, California

Filed November 15, 2021

Heather Fraley (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

Katrina A. Samuels (argued), Deputy Attorney General; Aaron D. Ford, Attorney General; Office of Nevada Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Douglas L. Rayes,^* District Judge.

BRESS, Circuit Judge

A person may seek federal habeas relief if he is "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under many state regimes, convicted sex offenders who are released from prison are nonetheless subject to additional forms of ongoing supervision. When a person seeks to challenge those conditions in a federal habeas petition, a federal court must determine whether the conditions of supervision are, in fact, "custodial," such that the federal habeas statute applies.

In this case, we consider whether the petitioner can challenge in federal habeas the lifetime supervision that Nevada has imposed on him, which consists of the following conditions: (1) a $30 monthly fee to defray the costs of his supervision; (2) electronic monitoring; and (3) a requirement that he may reside at a location only if the residence has been approved by his parole officer, and that he keep his parole officer informed of his current address. We hold that under our precedents and on this record, these conditions do not severely and immediately restrain the petitioner's physical liberty. Petitioner is therefore not challenging his "custody," and his claims are not cognizable in federal habeas.

We have no occasion to decide whether petitioner's underlying constitutional challenge to his supervisory conditions would have merit if presented through another possible avenue of relief, such as a claim under 42 U.S.C. § 1983. We hold only that the district court lacked the ability to adjudicate the petition under 28 U.S.C. § 2254. We therefore remand this case to the district court for further proceedings consistent with this opinion.

I

The procedural history of petitioner's efforts to secure federal habeas relief is extensive, and we recite only those events relevant to this appeal. In 2002, petitioner Peter Munoz digitally penetrated his daughter. A few years later, he pleaded guilty to attempted lewdness with a child under the age of 14. Nev. Rev. Stat. §§ 193.330, 201.230.

In his plea agreement, Munoz acknowledged that "the Court will include as part of [his] sentence ... lifetime supervision commencing after any period of probation or any term of imprisonment and period of release upon parole." The state court sentenced Munoz to 48–144 months' imprisonment, required him to register as a sex offender, and imposed a special sentence of lifetime supervision. See Nev. Rev. Stat. § 176.0931(1) ("If a defendant is convicted of a sexual offense, the court shall include in sentencing ... a special sentence of lifetime supervision.").

Nevada's rules for lifetime supervision are governed by Nev. Rev. Stat. § 213.1243. At the time of Munoz's 2006 sentencing, the 1997 version of § 213.1243 was in effect. Under that statute, lifetime supervision was to be established through regulations promulgated by the State Board of Parole Commissioners (the "Parole Board"). Nev. Rev. Stat. § 213.1243(1). The Parole Board was required to, among other things, "[s]upervise all persons ... released to them for supervision"; "[f]urnish to each person released under their supervision a written statement of the conditions"; and "[k]eep informed concerning the conduct and condition of all persons under their supervision." Id. §§ 213.1096(2)–(4).

Nevada law further specified that the Parole Board was directed to establish "a schedule of fees to defray the costs of supervision," with a "monthly fee of at least $30" that could be waived in cases of economic hardship. Nev. Rev. Stat. §§ 213.1076(1)–(2). A later law, Senate Bill 471, amended Nev. Rev. Stat. § 213.1243 and directed the Parole Board to impose several additional conditions of lifetime supervision, including electronic monitoring and certain residency approval requirements and prohibitions. See id. §§ 213.1243(3)–(5).

In 2011, and while he was still incarcerated, Munoz filed a federal habeas petition challenging, among other things, Senate Bill 471's new conditions. In 2013, with his federal habeas litigation ongoing, Munoz's term of imprisonment ended, and his lifetime supervision began. Shortly before his release, Nevada's Parole Board provided Munoz with his conditions of lifetime supervision. The list included at least seventeen separate conditions, many of which were not listed in the statute. In 2014, Munoz filed his first amended federal habeas petition. As relevant here, Munoz alleged that his lifetime supervision conditions violated his due process rights and the Ex Post Facto Clause.

Based on intervening developments in Nevada law and the State's commitments in other cases, see ACLU of Nev. v. Masto , 670 F.3d 1046, 1050–52, 1064–65 (9th Cir. 2012) ; McNeill v. State , 132 Nev. 551, 375 P.3d 1022 (2016) ; White v. State , 2018 WL 4908402, at *1 (Nev. 2018) —which may be relevant to Munoz's underlying constitutional arguments but are not relevant here—the Parole Board amended Munoz's conditions to include only the three now at issue.

First, Munoz is required to pay a supervision fee of at least $30 per month. See Nev. Rev. Stat. § 213.1243(5)(c). Second, through what he describes as an ankle monitor, Munoz is subject to "a system of active electronic monitoring that is capable of identifying [his] location and producing, upon request, reports or records of [his] presence." Id. § 213.1243(5)(b). Third, Munoz may "reside at a location only if" the "residence has been approved by the Parole and Probation officer assigned to [him]"; he must "keep[ ] the Parole and Probation officer informed of [his] current address"; and he may not live in a residence with "more than three persons who have been released from prison" unless it is a licensed transitional facility for released offenders. Id. § 213.1243(3). Munoz is no longer subject to the other restrictions that the Parole Board initially imposed upon him when he was released from prison.

In 2017, Munoz filed a second amended federal habeas petition. The district court denied Munoz's petition on the merits, holding that Nevada's lifetime supervision requirements did not violate the Ex Post Facto Clause or Munoz's due process rights. The district court issued a certificate of appealability on this issue. After we heard oral argument, we directed the parties to submit supplemental briefs on whether the district court had jurisdiction over Munoz's petition.

II

The State now argues that the district court lacked jurisdiction to consider Munoz's petition because his claims are not cognizable in federal habeas. We have jurisdiction to consider the jurisdictional question. See, e.g., Shaboyan v. Holder , 652 F.3d 988, 989 (9th Cir. 2011) (per curiam). The answer turns on whether Munoz's lifetime supervision places him "in custody" under 28 U.S.C. § 2254. Case law confirms that Munoz's supervisory conditions are not "custodial" conditions within the meaning of the federal habeas statute. We therefore hold that the district court lacked jurisdiction to adjudicate Munoz's federal habeas petition as presented.

A

Federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). The writ of habeas corpus "is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas." Nettles v. Grounds , 830 F.3d 922, 927 (9th Cir. 2016) (en banc). A claim is "within the core of habeas" when, if successful, it "terminates custody , accelerates the future release from custody , [ ]or reduces the level of custody. " Id. at 930 (emphasis added) (quoting Skinner v. Switzer , 562 U.S. 521, 534, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011) ). Because " Section 2254(a)'s ‘in custody’ requirement is jurisdictional," it " ‘is the first question we must consider.’ " Bailey v. Hill , 599 F.3d 976, 978 (9th Cir. 2010) (quoting Williamson v. Gregoire , 151 F.3d 1180, 1182 (9th Cir. 1998) ).

The "in custody" language appears twice in § 2254(a). The first reference to "in custody" requires that the habeas petition be filed "in behalf of a person in custody." Bailey , 599 F.3d at 978. Munoz meets this "in custody" requirement because he was "in custody at the time" the relevant petition was filed, serving his term of imprisonment. See id. at 979 (explaining that a "petitioner's subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction" (quotations omitted)).

But the fact that a petitioner is "in custody" at the time of filing is "insufficient to confer jurisdiction" because the petitioner must also meet the second "in custody" requirement. Id. To satisfy the second requirement, Munoz must be challenging the "lawfulness of his custody." Id. at 980. The second "in custody" requirement, then, "precludes courts from reviewing a challenge to a non-custodial portion of a criminal sentence." Id. at 981 (citing Virsnieks v. Smith , 521 F.3d 707, 721 (7th Cir. 2008) ); see also, e.g., Dominguez v. Kernan , 906...