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Kasel v. State

United States District Court, D. Kansas

June 16, 2017

STATE OF KANSAS, Respondent.


          SAM A. CROW U.S. Senior District Judge.

         The case comes before the Court on petitioner Seth Michael Kasel's petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner, a prisoner incarcerated in the Sedgwick County Jail, proceeds pro se. The Court finds that it lacks subject matter jurisdiction over this petition and further finds the petition has been filed out of time. Moreover, Petitioner has failed to exhaust his state remedies and is now barred from doing so.


         On January 25, 2010, Mr. Kasel pled no contest to a violation of K.S.A. 21-3504, aggravated indecent liberties with a child, pursuant to a plea agreement. Mr. Kasel was a juvenile when the violation occurred. He was sentenced on January 31, 2012, to 24 months incarceration and 6 months of after care. As a result of his conviction, he was required to register as a sex offender for 5 years pursuant to the Kansas Offender Registration Act (“KORA”), K.S.A. 22-4901, et seq. Petitioner completed his incarceration and after care. Mr. Kasel states he failed to register for some period of time after his release because he was not aware of his obligation. A search for Petitioner in the publicly available Kansas Adult Supervised Population Electronic Repository (“KASPER”) results in a record stating that Petitioner was sentenced to jail on February 12, 2015, for failing to register and remains in custody. The KORA online registry site gives an “end of registration” date of January 19, 2019. The undersigned takes judicial notice of these publicly available records. Mr. Kasel apparently did not appeal either of his convictions. Petitioner filed this action on May 4, 2017.

         Rule 4 Review of Petition

         Rule 4 of the Rules Governing § 2254 Cases requires the Court to review a habeas petition upon filing and to dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254.


         Petitioner states in his application that he is challenging his 2010 conviction and 2012 sentencing. He does not request release from his current incarceration for failure to comply with the registration requirements. Mr. Kasel requests “a relief of registry” (Doc. #1, p. 14), stating, “All I want is to not have to register.” (Doc. #1-1, p. 1). He lists several grounds for his petition: (1) he was a juvenile, ignorant of the law, and not aware of the ramifications at the time he signed the plea agreement; (2) he was “coerced” into signing the plea agreement by his attorney; (3) he was not made aware of the duty to register at sentencing; (4) KORA is a bill of attainder; (5) KORA is punitive; (6) malicious prosecution; and (7) actual innocence.


         A. Jurisdiction

         This Court may not reach the merits of Mr. Kasel's petition because the Court lacks subject matter jurisdiction. Section 2254(a) provides that “a district court 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.” A petitioner seeking habeas relief must be in custody under the challenged conviction or sentence at the time the application is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Habeas relief is generally not available when a petitioner seeks to challenge a prior conviction for which he is no longer “in custody.” See Lackawanna Cnty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001). It appears from the record before the Court that Mr. Kasel has completed his sentence for the 2010 conviction that he challenges here and is no longer incarcerated under that conviction.

         However, a petitioner may be found to be “in custody” for purposes of the habeas corpus act in situations where the petitioner is not physically incarcerated. The custody requirement can be met where there is a severe restraint on a person's liberty imposed because of the individual's criminal conviction. Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Hence, courts have found petitioners to be “in custody” when they are on parole or probation, or even released on their own recognizance pending execution of sentence, due to the significant restraints on liberty. See id.; Jones v. Cunningham, 371 U.S. 236, 242-43 (1963); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir. 1992). In contrast, collateral consequences of a conviction, such as inability to vote or obtain certain licenses, are not sufficient to meet the custody requirement for a writ of habeas corpus. See Maleng, 490 U.S. at 492; Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998).

         While Mr. Kasel does not specifically make the argument, other similarly situated petitioners have argued that an offender registry requirement is a sufficient restraint on an individual's liberty to qualify as being “in custody.” This argument has been uniformly rejected by the federal circuit courts, including the Tenth Circuit, even in the face of differing state registration act requirements. See Calhoun v. Att'y General of Colorado, 745 F.3d 1070, 1074 (10th Cir. 2014)(Colorado registration statute); Virsnieks v. Smith, 521 F.3d 707, 720 (7th Cir. 2008)(Wisconsin registration statute); Wilson v. Flaherty, 689 F.3d 332, 335, 338-39 (4th Cir. 2012)(considering Virginia and Texas registration statutes); Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir. 2002)(Ohio registration statute); McNab v. Kok, 170 F.3d 1246, 1247 (9thCir. 1999)(Oregon statute); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999)(California statute); Williamson, 151 F.3d at 1183-84 (Washington statute).

         In Calhoun, the Tenth Circuit considered whether the ongoing registry obligation under Colorado's sex offender registry law satisfied the custody requirement for habeas relief. Mr. Calhoun pled guilty to unlawful sexual contact in 2002 and was sentenced to two years probation and required to register. His probation was terminated in 2007, and ...

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