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United States v. Elmer

United States District Court, D. Kansas

April 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN E. ELMER, Defendant. Civil Action No. 17-2219-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On March 11, 2009, the Court sentenced defendant to 18 months in prison and five years of supervised release. This matter is before the Court on defendant's letter (Doc. #90) filed February 24, 2017, which the Court construes as a motion to vacate his conviction under 28 U.S.C. § 2255. For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.

         Procedural Background

         On February 27, 2008, a grand jury indicted defendant for failing to update a registration under the Sex Offender Registration and Notification Act (“SORNA”) in violation of 18 U.S.C. § 2250. See Indictment (Doc. #1). Defendant filed a motion to dismiss which asserted that (1) Section 2250 is invalid because Congress lacked authority under the Commerce Clause to criminalize a local sex offender's failure to register in a state-created registry; (2) SORNA's registration requirements were invalid because Congress lacked authority under the Commerce Clause to force citizens who have been convicted under state law to register as sex offenders; (3) as applied to his travel before February 28, 2007 (when the Attorney General issued the interim rule), SORNA violated the ex post facto clause; (4) Section 2250 was not made retroactive to offenses which occurred before its effective date and even if it was retroactive, defendant's prosecution violated the ex post facto clause; (5) the Attorney General's regulation was invalid because it was issued without a notice and comment period in violation of the Administrative Procedures Act; (6) SORNA violated the non-delegation doctrine because Congress attempted to delegate to the Attorney General the power to determine the retroactivity of the registration requirements; (7) defendant's prosecution under Section 2250 violated his right to due process because he did not receive notice of SORNA's requirements when he was convicted of the underlying offense, it was impossible for him to comply with SORNA because Kansas has not adopted a SORNA-compliant registry and he could not “knowingly” violate SORNA because no state had adopted a SORNA-compliant registry; (8) Section 2250 violated the Tenth Amendment because it forced state officials to enforce a federal regulatory scheme; and (9) as applied, SORNA infringed on defendant's constitutional right to travel. On September 23, 2008, the Court overruled defendant's motion to dismiss. See Memorandum And Order (Doc. #34).

         On November 24, 2008, defendant pled guilty to failing to update a registration under SORNA. On March 11, 2009, the Court sentenced defendant to 18 months in prison and five years of supervised release. See Judgment In A Criminal Case (Doc. #47). Defendant did not appeal. On April 29, 2011, after defendant violated the terms of his supervised release, the Court sentenced him to eight months in prison and five years of supervised release. See Judgment In A Criminal Case (Doc. #59). On November 3, 2015, after defendant again violated the terms of his supervised release, the Court sentenced him to 21 months in prison with no supervised release to follow. See Judgment In A Criminal Case (Doc. #86). On March 16, 2017, the BOP released defendant.

         On October 3, 2016, defendant filed a motion to expunge his conviction because (1) SORNA was not in effect in 1981 when he was convicted of a sex offense and (2) he is fully rehabilitated. On October 11, 2016, the Court overruled defendant's motion. See Memorandum And Order (Doc. #88).

         On February 24, 2017, defendant filed the instant letter which the Court construes as a motion to vacate his conviction under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that his conviction for failure to update his registration was erroneous and his name should be removed from the sex offender registry because (1) the indictment did not allege that he received notice of the requirement to register under SORNA and (2) the record demonstrates that he did not in fact receive notice until his arrest in this case. See Doc. #89 at 6.

         Analysis

         When defendant filed his motion, he was in the custody of the Bureau of Prisons (“BOP”). Accordingly, the Court construes defendant's motion as one to vacate his conviction under 28 U.S.C. § 2255.

         I. Relief Under 28 U.S.C. § 2255

         A. Defendant's Motion Is Not Moot

         On March 16, 2017, the BOP released defendant. Because the Court did not impose a term of supervised release on the revocation sentence, defendant is no longer in custody. The Court initially evaluates whether defendant's motion is moot.

         To maintain a Section 2255 claim after release, a defendant must show “some concrete and continuing injury other than the now-ended incarceration or parole” or some “collateral consequence” of the conviction. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). If a defendant challenges his conviction under Section 2255 and is released while his petition is pending, federal courts presume that “a wrongful criminal conviction has continuing collateral consequences.” United States v. Wilson, 525 F.Supp.2d 691, 694 (D. Del. 2007) (quoting Spencer, 523 U.S. at 8). Arguably, defendant's conviction for failure to update his registration has a collateral consequence that he must continue to register under SORNA. The Court therefore assumes that defendant has a viable case or controversy.[1] See United States v. Romera-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (motion to vacate not moot when defendant released from custody because he faced collateral consequence of potential deportation). Cf. Bailey v. United States, No. CR-08-IPJ-PWG-0408-S, 2013 WL 4851679, at *5 (N.D. Ala. Sept. 10, 2013) (presumption does not apply when prisoner challenges sentence, not some aspect of conviction itself); Guzman v. United States, 2007 WL 1821698 *1 (S.D.N.Y. June 26, 2007) (same).[2]

         B. Subs ...


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