United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge.
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.
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.
4 Review of Petition
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.
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
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
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.
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).
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 ...