Louis Matthew Clements v. State of Florida ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12540
____________________
LOUIS MATTHEW CLEMENTS,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
FLORIDA ATTORNEY GENERAL,
SECRETARY, DOC,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:17-cv-00396-JLB-NPM
____________________
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2 Opinion of the Court 21-12540
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
JORDAN, Circuit Judge:
When Congress first gave federal courts the authority to is-
sue writs of habeas corpus, it limited relief to persons held by fed-
eral authorities. See Judiciary Act of 1789, § 14, 1 Stat. 81, 81-82; Ex
Parte Dorr, 44 U.S. 103, 105 (1845). Congress generally extended
habeas corpus relief to state prisoners after the Civil War and did
so by making the writ available to “any person” who “may be re-
strained of his or her liberty” in violation of the laws of the United
States. See Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385,
385-86; Dep’t. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959,
1976 (2020). See generally Brandon L. Garrett & Lee Kovarsky,
Federal Habeas Corpus: Executive Detention and Post-Conviction
Litigation 100 (Foundation Press 2013) (“Passed alongside the Civil
War Amendments, the Habeas Corpus Act of 1867 permitted all
state prisoners to file habeas petitions in federal court.”).
Since 1874, a person seeking federal habeas corpus relief
from a state court judgment must—among other things—be “in
custody.” See Medberry v. Crosby, 351 F.3d 1049, 1055 (11th Cir.
2003) (quoting former Rev. Stat. § 753). The “in custody” require-
ment has remained unchanged through subsequent legislative re-
visions of the various habeas corpus statutes. See, e.g., Brown v.
Allen, 344 U.S. 443, 462 n.17 (1953) (quoting the 1948 version of 28
U.S.C. § 2254); Act of Nov. 2, 1966, Pub. L. 89-711, § 2, 80 Stat. 1104,
1105 (placing “in custody” language in § 2254(a)). The
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Antiterrorism and Effective Death Penalty Act, passed by Congress
in 1996, left intact the “in custody” language in § 2254(a). See Pub.
L. 104-132, Title I, § 104, 110 Stat. 1214, 1217. See also Brian R.
Means, Introduction to Habeas Corpus: A Primer on Federal Col-
lateral Review 105-06 (2022) (“Nor did Congress when enacting the
dramatic changes to federal postconviction review as part of the
1996 Antiterrorism and Effective Death Penalty Act affect the Su-
preme Court’s custody jurisprudence.”).
As relevant here, custody generally means physical deten-
tion or confinement. See, e.g., 1 Shorter Oxford English Dictionary
584 (5th ed. 2002) (“Imprisonment.”); The American Heritage Dic-
tionary of the English Language 450 (4th ed. 2009) (“The state of
being detained or held under guard, especially by the police.”).
Since the early 1960s, however, the Supreme Court has not inter-
preted the “in custody” requirement literally. As a result, certain
restraints on a person’s liberty, short of physical detention, can sat-
isfy the “in custody” requirement. See, e.g., Justices of Boston
Mun. Ct. v. Lydon, 466 U.S. 294, 301 (1984) (defendant released on
his own recognizance pending retrial following vacatur of convic-
tion was “in custody” under § 2254).
The question before us in this appeal—one of first impres-
sion—is whether Florida’s registration and reporting requirements
for sex offenders render those offenders “in custody” within the
meaning of § 2254(a). Though the question is difficult given Su-
preme Court and Eleventh Circuit precedent, our answer is no.
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4 Opinion of the Court 21-12540
I
In 2008, Louis Clements pled guilty to a charge of lewd or
lascivious conduct in violation of Fla. Stat. § 800.04(6)(b) and was
sentenced to five years of sexual offender probation. The terms of
that probation provided that he “qualifie[d] and shall register with
the Florida Department of Law Enforcement as a sexual offender
pursuant to [Fla. Stat.] § 943.0435.” See also Fla. Stat.
§ 943.0435(1)(h)1.a.(I) (defining a sex offender as any person con-
victed of various sexual offenses, including a violation of § 800.04).
Nine years later, in 2017, Mr. Clements—proceeding pro
se—sought federal habeas corpus relief from his conviction pursu-
ant to 28 U.S.C. § 2254. The state moved to dismiss the petition for
lack of jurisdiction because he was not “in custody” under
§ 2254(a). Because his probationary sentence had expired in June
of 2013, the state argued that Mr. Clements was not in its physical
custody at the time he filed his petition. Mr. Clements responded
that his lifetime sex offender registration, “along with all the other
restrictions that come with being a registered sex offender,” signif-
icantly restrained his individual liberty such that he was “in cus-
tody” for purposes of § 2254(a).
The district court dismissed Mr. Clements’ § 2254 petition
for lack of jurisdiction. Without a controlling Eleventh Circuit de-
cision, the district court found persuasive cases from the Fourth,
Fifth, Sixth, Seventh, Ninth, and Tenth Circuits holding that the
registration and reporting requirements of various state sex of-
fender statutes were not so onerous as to place persons “in
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custody” for purposes of § 2254(a). The district court explained
that the only appellate court to hold otherwise, the Third Circuit,
had found the punitive nature of Pennsylvania’s sex offender regis-
tration statute dipositive. The Florida sex offender registration
statute, in contrast, did not impose a “sentence” and did not consti-
tute “punishment.”
Turning to Mr. Clements’ arguments, the district court
acknowledged that the sex offender registration and reporting re-
quirements were inconvenient. But it concluded that they did not
restrict Mr. Clements’ freedom of movement. Nor did they require
Mr. Clements to obtain the state’s approval before finding a resi-
dence or prevent him from participating in legal activities. Accord-
ingly, it ruled that Florida’s sex offender registration and reporting
requirements were collateral consequences of his conviction.
II
Before addressing the “in custody” question, we summarize
the requirements of Florida’s sex offender registration and report-
ing scheme and explain what is—and is not—before us. We set out
the requirements of the scheme in more detail in Part III.C.
A
In Florida, persons convicted of a qualifying sexual offense—
like Mr. Clements—are subject to registration and reporting re-
quirements for life. See Fla. Stat. § 943.0435(1)(h), (11). Upon ini-
tial in-person registration, sex offenders must provide the state
with all of their personal and identifying information. See
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§ 943.0435(2)(b), (3). This information is generally available to the
public. See Fla. Stat. § 119.071.
Sex offenders in Florida have an obligation to keep their reg-
istration up to date. At a minimum, they must report to their local
sheriff’s office in person every six months. See § 943.0435(14)(a).
Any changes with respect to a vehicle or residency or any travel
plans must generally be reported in person within 48 hours. See §
943.0435(2), (4), (7). Any changes to employment, telephone num-
bers, email addresses, or internet identifiers must be made online
within 48 hours. See § 943.0435(4)(e). Failure to report is a felony
offense. See, e.g., § 943.0435(8), (9)(a).
B
After Mr. Clements filed his pro se brief, we appointed coun-
sel for him. Counsel chose not to file a separate brief but presented
oral argument on behalf of Mr. Clements.
In his brief, Mr. Clements contends that Florida’s sex of-
fender registration and reporting requirements place him “in cus-
tody” for purposes of § 2254(a). But he also argues for the first time
that he is “in custody” in part due to the separate residency re-
strictions imposed by his sex offender status and by state and local
laws. See, e.g., Fla. Stat. § 775.215(2)(a) (stating that a sex offender
may not reside within 1,000 feet of any school, childcare facility,
park, or playground); Lee County, Fla., Ordinance No. 11-05 (2011)
(creating a “Child Safety Zone” that prohibits sex offenders loiter-
ing or prowling within 300 feet of certain specified locations that
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are primarily designed for or used by children, or areas where chil-
dren congregate, mirroring Fla. Stat. § 856.022).
Sex offenders in Florida do face a number of residency re-
strictions in addition to state registration and reporting require-
ments. But for several reasons we decline to address those resi-
dency restrictions in this appeal and leave them for another day.
First, as the district court noted, Mr. Clements was not subject to
the conditions of his sex offender probation, which expired in 2013,
when he filed his § 2254 habeas petition in 2017. Because
“‘[c]ustody’ is determined as of the time of the filing of the peti-
tion,” Patel v. United States Attorney General, 334 F.3d 1259, 1263
(11th Cir. 2003), any residency restrictions resulting from the term
of probation are not relevant to the custody issue. Second, in the
district court Mr. Clements did not brief the residency restrictions
or analyze their impact on the “in custody” determination. Alt-
hough he mentioned in his response to the state’s motion to dis-
miss that “all the other restrictions that come with being a regis-
tered sex offender” rendered him “in custody,” he did not set out
what those restrictions were. Third, from a factual perspective Mr.
Clements did not present any allegations or provide any empirical
evidence as to how much land he was practically excluded from
due to state and local residency restrictions. As a result, the state’s
reply discussed only the registration and reporting requirements,
and the district court’s dismissal order understandably did not go
beyond those requirements.
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8 Opinion of the Court 21-12540
We recognize that Mr. Clements was proceeding pro se in
the district court. Nevertheless, the residency restrictions were not
litigated below and are not properly before us. We generally “do
not consider issues or arguments raised for the first time on ap-
peal,” Ferguson v. Secretary for the Department of Corrections,
580 F.3d 1183, 1193 (11th Cir. 2009), even when pro se litigants are
involved, see Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998) (per curiam), and given the undeveloped record
with respect to the residency restrictions, we see no reason to de-
part from our normal practice here. See Juris v. Inamed Corp., 685
F.3d 1294, 1325 (11th Cir. 2012) (“[I]f a party hopes to preserve a
claim, argument, theory, or defense on appeal, [it] must first clearly
present it to the district court, that is, in such a way as to afford the
district court an opportunity to recognize and rule on it.”) (citation
and quotation marks omitted).
As an appellate court, we do not sit as a collective trier of
fact. Without access to appropriate and detailed maps and plats—
at a minimum—we cannot take judicial notice of how much land
is covered by state and local residency restrictions in Florida for sex
offenders. This is in part because the residency restrictions that
have been cited to us are triggered by and are dependent on the
location of certain facilities used or frequented by children (e.g.,
schools). We do not know where such facilities are situated, and
we do not have the means to sketch out the residency buffer zones
as experts might do. See Fed. R. Evid. 201(a)-(b). Cf. Wallace v.
New York, 40 F. Supp. 3d 278, 328 & n.43 (E.D. N.Y. 2014) (taking
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judicial notice of map, provided by town at court’s request, which
showed that 45.5% of town’s land (40.11 square miles) was not cov-
ered by sex offender residency restrictions). Even on appeal, Mr.
Clements does not provide the specifics necessary for us to evalu-
ate the effect of the residency restrictions.1
Moreover, it is unclear whether local residency restrictions,
imposed not by the state but by its municipalities, are properly con-
sidered in determining whether a person is “in custody” pursuant
to a judgment of a state court for purposes of § 2254(a). Absent
briefing on this legal issue, we decline to take it up and resolve it
ourselves. We therefore limit our discussion and ruling to whether
Florida’s sex offender registration and reporting requirements
placed Mr. Clements “in custody.”
III
The “in custody” requirement of § 2254(a) is jurisdictional,
so we must address it first and before any merits-related matters
like the applicable statute of limitations. See Maleng v. Cook, 490
U.S. 488, 490, 493-94 (1989); Diaz v. State of Fla. Fourth Jud. Cir. ex
1 Examples of scholarly articles trying to contextualize and quantify the effect
of certain sex offender residency restrictions include Songman Kang, The Con-
sequences of Sex Offender Residency Restriction: Evidence from North Caro-
lina, 49 Int’l Rev. of L. & Econ. 10 (2017); Jacqueline A. Berenson & Paul S.
Appelbaum, A Geospatial Analysis of the Impact of Sex Offender Residency
Restrictions in Two New York Counties, 35 L. & Hum. Behav. 235 (2011); and
Paul Zandbergen et al., Residential Proximity to Schools and Daycares: An
Empirical Analysis of Sex Offense Recidivism, 37 Crim. Just. & Beh. 482 (2010).
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rel. Duval Cnty., 683 F.3d 1261, 1263 (11th Cir. 2012). Our review
of the district court’s dismissal of Mr. Clements’ habeas corpus pe-
tition is plenary. See Diaz, 683 F.3d at 1263. 2
A
In Wales v. Whitney, 114 U.S. 564 (1885), the Supreme
Court addressed the question of custody in a habeas corpus case
arising out of a pending court-martial proceeding. The petitioner,
the medical director (and former surgeon general) of the navy, was
served with an order of the secretary of the navy which (1) in-
formed him that he was to be tried by a court-martial, (2) told him
that he was “placed under arrest,” and (3) instructed him to “con-
fine [him]self to the limits” of Washington, D.C. See id. at 566.
The petitioner—who was not physically detained—sought habeas
corpus relief with respect to the court-martial, but the Supreme
Court ruled that he was not in custody and could not avail himself
of the writ. First, he was “under no physical restraint” and was able
to “walk[ ] the streets of Washington with no one to hinder his
movements[.]” Id. at 569. Second, to the extent that he was
2 Other federal habeas corpus and post-conviction statutes, like those codified
as 28 U.S.C. §§ 2241(c)(1)-(4) & 2255(a), contain the same “in custody” lan-
guage as § 2254(a). Because of the identical phrasing, we cite to and discuss
“in custody” decisions involving these statutes in our opinion. See 3 Sarah N.
Welling, Fed. Prac. & Proc. Crim. § 630 (5th ed. & Nov. 2022 update) (“[The
term ‘in custody’] has exactly the same meaning for § 2255 actions as it does
for § 2254 habeas corpus applications, . . . and habeas corpus cases can be
looked to as authority for the term in § 2255.”).
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ordered to stay in Washington, that was no more than he was re-
quired to do as medical director of the navy before he was served
with the secretary’s order. See id. at 570 (“If there is no restraint
there is no right in the civil [habeas] court to interfere.”). Third, if
he decided to leave Washington, his arrest would require another
order from the secretary. See id. at 572.
The Supreme Court explained that “[s]omething more than
moral restraint is necessary to make a case for habeas corpus.
There must be actual confinement or the present means of enforc-
ing it.” Id. at 571-72 (italics deleted). Citing with approval to a state
case holding that a person granted bail was not in custody for pur-
poses of habeas corpus, the Court concluded that under the cir-
cumstances there was no “actual restraint” on the petitioner’s per-
sonal liberty. See id. at 573-75 (citing Respublica v. Arnold, 3 Yeates
263 (Pa. 1801)).
This understanding of custody remained the same through
the first half of the 20th century. The rule continued to be that
“[w]ithout restraint of liberty, the writ [of habeas corpus] w[ould]
not issue.” McNally v. Hill, 293 U.S. 131, 138 (1934). Our prede-
cessor, the former Fifth Circuit, therefore remarked in 1938 that a
“prisoner out on parole probably cannot maintain habeas corpus
against anyone. No one has his body in custody, or could lawfully
arrest him by virtue of his parole status so long as he observes its
conditions.” Van Meter v. Sanford, 99 F.2d 511, 511 (5th Cir. 1938).
Things changed in the early 1960s with Jones v. Cunning-
ham, 371 U.S. 236 (1963), in which the Supreme Court
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unanimously held that a defendant released on parole was “in cus-
tody” for purposes of 28 U.S.C. § 2241, one of the federal habeas
corpus statutes. The Supreme Court cited to an 18th-century Eng-
lish case, Rex v. Clarkson, 1 Strange 444, 445, 93 Eng. Rep. 625 (K.B.
1722), where the tribunal inquired whether the person on whose
behalf the writ was sought was under “illegal restraint” but did not
grant relief because she was “at her liberty to go where she
please[s].” See Jones, 371 U.S. at 238-39 & nn. 4-7. Surveying other
relevant decisions, the Court explained that “[h]istory, usage and
precedent can leave no doubt that, besides physical imprisonment,
there are other restraints on a man’s liberty, restraints not shared
by the public generally, which have been thought sufficient in the
English-speaking world to support the issuance of habeas corpus.”
Id. at 240.
The petitioner in Jones was confined “to a particular com-
munity, house, and job at the sufferance of his parole officer[,]”
could not “drive a car without permission[,]” had to “periodically
report to his parole officer, permit the officer to visit his home and
job at any time,” and generally had to “follow the officer’s advice.”
Id. at 242. “He [was] admonished to keep good company and good
hours, work regularly, keep away from undesirable places, and live
a clean, honest, and temperate life.” Id. A violation of any re-
striction could result in his immediate imprisonment. See id. The
Supreme Court analogized parole to more traditional, physical re-
strictions upon liberty, but stressed that the writ “is not now and
never has been a static, narrow, formalistic remedy; its scope has
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grown to achieve its grand purpose.” Id. at 243. It reasoned that
the petitioner had satisfied the “in custody” requirement because
the attendant conditions and restrictions significantly restrained his
freedom. See id. at 242-43. “Such restraints,” the Court held, were
“enough to invoke the help of the Great Writ.” Id. at 243. See also
Carafas v. LaVallee, 391 U.S. 234, 239-40 (1968) (extending the “in
custody” requirement to situations where a petitioner files the writ
while incarcerated but is unconditionally released from his sen-
tence while awaiting appellate review).
In the 1970s and 1980s, the Supreme Court extended the
Jones rationale to release on personal recognizance. See Hensley
v. Mun. Ct., 411 U.S. 345, 351-52 (1973) (release pending appeal);
Lydon, 466 U.S. at 301 (release pending retrial). The petitioner in
Hensley could not “come and go as he please[d],” and his “freedom
of movement rest[ed] in the hands of state judicial officers, who
[could] demand his presence at any time and without a moment’s
notice.” Hensley, 411 U.S. at 351-52 (further explaining the neces-
sity of habeas relief in this instance to avoid imprisonment without
an adequate federal remedy). Likewise, the petitioner in Lydon
was subject to restraints not shared by the public generally because
he was obligated to appear for trial on a specified date or face crim-
inal charges, could “not depart without leave,” and had to “keep
the peace and be of good behavior.” Lydon, 466 U.S. at 301
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(citation omitted). These cases reaffirmed and solidified the mod-
ern (and broad) understanding of the “in custody” requirement.3
Despite its breadth and flexibility, the “in custody” require-
ment retains a tensile strength. For example, the Supreme Court
has explained that “once the sentence imposed for a conviction has
completely expired, the collateral consequences of that conviction
are not themselves sufficient to render an individual ‘in custody’
for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at
491-92 (providing as examples of collateral consequences the “ina-
bility to vote, engage in certain businesses, hold public office, or
serve as a juror”). “[A] contrary ruling would mean that a peti-
tioner whose sentence has completely expired could nonetheless
challenge the conviction for which it was imposed at any time on
federal habeas.” Id. at 492. See, e.g., Westberry v. Keith, 434 F.2d
623, 624-25 (5th Cir. 1970) (holding that the imposition of a fine and
3 In describing these Supreme Court decisions, and attempting to summarize
their holdings, we have endeavored to note the rationale provided and the
facts that were deemed material to the outcome. It is not just what the Court
says, but what it does, that matters. See Texas & P. Ry. Co. v. La. Oil Refin.
Corp., 76 F.2d 465, 467 n.4 (5th Cir. 1935) (“The ratio decidendi, the reason for
the decision, the principle of the case, is not found in the reasons or the rule of
law set forth in the opinion, nor by a consideration of all of the ascertainable
facts of the case and the [court’s] decision . . . [but rather] by taking account of
the facts treated by the [court] as material and [its] decision upon them, taking
also into account those facts treated by [the court] as immaterial.”) (citation
and internal quotation marks omitted).
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the revocation of a driver’s license for a year did not render the
defendant “in custody” under § 2254). 4
B
At the time Congress first placed the “in custody” language
in § 2254, sex offender registration and reporting statutes “were not
remotely within anyone’s contemplation.” Wilson v. Flaherty, 689
F.3d 332, 340 (4th Cir. 2012) (Davis, J., concurring). So we are
tasked with applying “in custody” precedent to a fairly new reality.
As noted, the great majority of the circuits have held that
persons subject to sexual offender registration and reporting stat-
utes are not “in custody” for purposes of habeas corpus relief. See
Williamson v. Gregoire, 151 F.3d 1180, 1183-84 (9th Cir. 1998)
(Washington); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir.
1999) (California); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.
1999) (Oregon); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir.
2002) (Ohio); Virsnieks v. Smith, 521 F.3d 707, 719-20 (7th Cir.
2008) (Wisconsin); Wilson, 689 F.3d at 335-39 (Texas and Virginia);
Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1073-74 (10th Cir.
2014) (Colorado); Sullivan v. Stephens, 582 F. App’x 375, 375 (5th
Cir. 2014) (Texas); Hautzenroeder v. Dewine, 887 F.3d 737, 739-40
(6th Cir. 2018) (Ohio); Munoz v. Smith, 17 F.4th 1237, 1244 (9th
Cir. 2021) (Nevada). Only the Third Circuit has come to a contrary
4 We recognize that the Supreme Court decided Maleng at a time when §§
2254 and 2255 did not have limitations periods. That is no longer the case.
See §§ 2254(d) & 2255(f).
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conclusion. See Piasecki v. Ct. of Common Pleas, Buck Cnty., Pa.,
917 F.3d 161, 177 (3d Cir. 2019) (Pennsylvania). 5
Normally, we might begin by discussing (and giving serious
consideration to) the decisions of our sister circuits, but here those
decisions are of limited assistance because sex offender and regis-
tration statutes differ (sometimes greatly) from state to state and
change over time. See Calaway, Sex Offenders, 92 St. John L. Rev.
at 780 (“Courts generally cite to a series of cases across the circuits
that have declined to expand the definition of custody to individu-
als under a sex offender registration law. The issue with this anal-
ysis is that the statutory schemes at issue across the states vary
markedly in their restrictions and requirements.”) (footnotes omit-
ted). Nevertheless, we cite to and refer to those decisions where
appropriate.
5 A number of commentators take the position that, as a general matter, sex
offender registration and reporting statutes place offenders “in custody” for
federal habeas corpus and post-conviction purposes. See Katherine A. Mitch-
ell, Of What Consequence?: Sexual Offender Laws and Federal Habeas Relief,
75 U. Miami L. Rev. 76, 100-04 (2020); Wendy R. Calaway, Sex Offenders,
Custody and Habeas, 92 St. John’s L. Rev. 755, 768-93 (2018); Kimberley A.
Murphy, The Use of Federal Writs of Habeas Corpus to Release the Obliga-
tion to Report under State Sex Offender Statutes: Are Defendants “In Cus-
tody” for Purposes of Habeas Corpus Review?, 2000 L. Rev. M.S.U.-D.C.L.
513, 536-41 (2000); Tina D. Santos, Williamson v. Gregoire: How Much is
Enough? The Custody Requirement in the Context of Sex Offender Registra-
tion and Notification Statutes, 23 Seattle U. L. Rev. 457, 476-79 (1999).
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C
To recap and fully detail the requirements of Florida’s
scheme, sex offenders like Mr. Clements are subject to registration
and reporting requirements for life. See Fla. Stat. § 943.0435(1)(h),
(11). Upon initial registration, which must be in person, sex offend-
ers must provide the state with all of their personal and identifying
information, secure a state driver’s license or state identification
card, and provide a set of fingerprints. See § 943.0435(2)(b), (3).
This information—including the offender’s picture, date of birth,
addresses, vehicles, and sexual offense convictions—is available to
the public unless exempt or confidential. See Fla. Stat. § 119.071.
Sex offenders have an obligation to keep their registration
up to date. At a minimum, they must report to their local sheriff’s
office in person every six months. See § 943.0435(14)(a). Any
changes with respect to a vehicle or residence must be reported in
person within 48 hours. See § 943.0435(2), (4). Sex offenders who
become transient or homeless must report in person within 48
hours any shelter or location (including those with no specific ad-
dress) at which they spend more than three days on aggregate in a
calendar year, and report in person every 30 days thereafter. See
§§ 943.0435(4)(b)2 & 775.21(2)(o). Sex offenders must update their
driver’s licenses within 48 hours of the renewal date or of any
change in name or address. See § 943.0435(4)(a). Sex offenders
who plan to leave the state must report in person 48 hours before-
hand, or at least 21 days before any international trip of five days
or more. See § 943.0435(7). Any changes to employment,
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18 Opinion of the Court 21-12540
telephone numbers, email addresses, or internet identifiers must be
made online within 48 hours. See § 943.0435(4)(e). Failure to re-
port generally is a third-degree felony offense, with violations of
certain reporting requirements related to residency being second-
degree felonies. See, e.g., § 943.0435(8), (9)(a).
Florida’s sex offender registration and reporting statute also
contains several legislative findings. First, sex offenders “often pose
a high risk of engaging in sexual offenses even after being released,”
and therefore “have a reduced expectation of privacy because of
the public’s interest in public safety and in the effective operation
of government.” § 943.0435(12). Second, “[t]he designation of a
person as a sexual offender is not a sentence or a punishment but is
simply the status of the offender which is the result of a conviction
for having committed certain crimes.” Id.
D
The question is whether the reporting and registration re-
quirements constitute a sufficient restraint on the personal liberty
of sex offenders in Florida to render someone like Mr. Clements “in
custody.” Supreme Court and Eleventh Circuit cases make this a
hard question to answer.
We have said that the “in custody” requirement should be
construed “very liberally.” Howard v. Warden, 776 F.3d 772, 775
(11th Cir. 2015) (citation omitted). To that end, we have held that
non-citizens released on supervision while awaiting a final decision
in their immigration proceedings are deemed to be “in custody” for
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21-12540 Opinion of the Court 19
purposes of habeas corpus. See United States ex rel. Marcello v.
Dist. Dir. of INS, New Orleans, 634 F.2d 964, 971 & n.11 (5th Cir.
1981) (petitioner subject to deportation order was “in custody” for
federal habeas corpus purposes because he was on supervised pa-
role, he had to report quarterly to immigration authorities, and he
had to notify those authorities if he intended to leave the state for
more than 48 hours); Romero v. Sec’y, DHS, 20 F.4th 1374, 1379
(11th Cir. 2021) (applying Marcello and holding that petitioner,
who was subject to a deportation order, was “in custody” under §
2241 because she was in an immigration supervision program, had
to appear in person at the government’s request, could not travel
outside the state for more than 48 hours without advance notice,
was required to apprise the government of any changes in resi-
dence or employment, had to participate in a more stringent super-
vision program if directed to do so, and was subject to a plan of
action which required her to depart the country or be forcibly re-
moved). In contrast, we have held that a dead-docketed indict-
ment, pending for more than 19 years, did not place the petitioner
“in custody” because it did “not currently subject [him] to any re-
porting requirements, or limit his ability to work, travel, or reside
where he pleases.” Howard, 776 F.3d at 776.
Marcello and Romero lend some support to Mr. Clements’
position. To use just two of the registration and reporting obliga-
tions in Marcello and Romero as markers, Mr. Clements—like the
petitioners in those two cases—has to report in person to the au-
thorities periodically and has to provide advance notification if he
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20 Opinion of the Court 21-12540
is going to leave the state (two days’ notice for domestic trips and
21 days’ notice for international trips). Compare Marcello, 634 F.2d
at 971 & n.11; Romero, 20 F.4th at 1379. Mr. Clements, in fact,
must provide that advance notification in person, making the re-
quirement more burdensome and restrictive of his personal liberty.
But the petitioners in Marcello and Romero were situated differ-
ently from Mr. Clements in a significant way—both were subject
to deportation orders from the federal government when they
were released with conditions. Mr. Clements is under no similar
order of expulsion from the country or the state, and we believe
that is an important distinction for purposes of the “in custody”
analysis.
As Jones explained, “what matters” is whether the legal re-
quirements in question “significantly restrain [the person’s] liberty
to do those things which in this country free men are entitled to
do.” 371 U.S. at 242-43. For our part, we have said that the “in
custody” requirement “is satisfied if restrictions have been placed
on a petitioner’s freedom of action or movement.” Djadju v. Vega,
32 F.4th 1102, 1106 (11th Cir. 2022) (§ 2241 case interpreting Jones).
Accord Note, Developments in the Law—Federal Habeas Corpus:
Custody and Remedy, 83 Harv. L. Rev. 1038, 1073 & n.5 (1970)
(asserting that whether a given set of legal restraints place a person
“in custody” should be determined based on “the severity of the
restraints”).
In our view, the proper inquiry here under Jones and its
progeny is whether Florida’s registration and reporting
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21-12540 Opinion of the Court 21
requirements substantially limit Mr. Clements’ actions or move-
ment. See Williamson, 151 F.3d at 1183; Leslie, 296 F.3d at 522;
Virsnieks, 521 F.3d at 718. See also 1 Randy Hertz & James S. Lieb-
man, Federal Habeas Corpus and Procedure § 8.2[a], at 461 (7th ed.
2021) (explaining that “any person who cannot come and go and as
she pleases” satisfies the “in custody” requirement); Custody and
Remedy, 83 Harv. L. Rev. at 1078 (asserting that, even after Jones,
“some restraint on [the] petitioner’s liberty more substantial than
civil disabilities is required”). Though habeas corpus is no longer
simply a remedy for unlawful physical custody, the focus on liberty
of movement at least has the benefit of “comport[ing] with the
original conception of the writ as a remedy for unlawful restriction
of physical mobility.” Custody and Remedy, 83 Harv. L. Rev. at
1076. And it provides a stopping point of sorts for the concept of
being “in custody.” See Howard, 776 F.3d at 775 (“[A]lthough the
word ‘custody’ is elastic, all definitions of it incorporate some con-
cept of ongoing control, restraint, or responsibility by the custo-
dian.”) (citation and quotation marks omitted). Cf. Hensley, 411
U.S. at 354 (Blackmun, J., concurring in the result) (explaining that,
given the trajectory of the Supreme Court’s broad understanding
of custody, “[o]ne wonders where the end is”). 6
6 Justice O’Connor sketched out a different “in custody test” in Lydon: “[A]
state [offender] should be considered ‘in custody pursuant to the judgment of
a [s]tate court’ . . . only where he is under physical restraint, or under a legal
restraint that can be converted into physical restraint without a further judicial
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22 Opinion of the Court 21-12540
We acknowledge, of course, that the lifetime registration
and reporting requirements imposed on Mr. Clements by Florida
law are demanding and not the sort of obligations and restraints
“shared by the public generally[.]” Jones, 371 U.S. at 240. Never-
theless, the requirements are less oppressive in terms of personal
liberty than the restraints faced by the parolee in Jones, 371 U.S. at
242, or the persons released on personal recognizance bonds in
Hensley, 411 U.S. at 351-52, and Lydon, 466 U.S. at 301, or the
noncitizens subject to deportation and under supervision in Mar-
cello, 634 F.2d at 971 & n.11, and Romero, 20 F.4th at 1379. After
a quantitative and qualitative analysis, we conclude—admittedly
with some hesitation—that as a whole Florida’s registration and re-
porting requirements for sex offenders did not render Mr. Clem-
ents “in custody” at the time he filed his habeas corpus petition.
First, though Mr. Clements has to report in person to the
authorities periodically and provide them with all sorts of infor-
mation and updates, he knows exactly when he must do so: during
his birthday month and six months thereafter. See Fla. Stat.
§ 943.0435(14)(a). He is not at the beck and call of state officials,
and those officials cannot “demand his presence at any time and
without a moment’s notice.” Hensley, 411 U.S. at 351. Compare
Romero, 20 F.4th at 1379 (noncitizen subject to removal was “in
custody” in part because she was required to “appear in person at
hearing.” Lydon, 466 U.S. at 339 (O’Connor, J., concurring in the judgment)
(citation omitted). But her proposal did not garner a majority of the Court.
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21-12540 Opinion of the Court 23
the government’s request”). Under the circumstances, the periodic
in-person reporting did not place Mr. Clements “in custody.” See
Henry, 164 F.3d at 1242 (holding that in-person registration was
not a severe enough restriction to place a sex offender “in cus-
tody”).
Second, Mr. Clements is not required to live in a certain
community or home and does not need permission to hold a job
or drive a car. Compare Jones, 371 U.S. at 242. And he can engage
in legal activities without prior approval or supervision. See Hau-
tzenroeder, 887 F.3d at 741 (pointing out that under Ohio’s sex of-
fender registration and reporting statutes the petitioner was not
“prohibited from engaging in any legal activities”); Wilson, 689
F.3d at 338 (recognizing the same for the sex offender statutes of
Virginia and Texas).
Third, Mr. Clements has to provide in-person advance no-
tice of trips outside the state and outside the country, but the trips
themselves do not require permission or approval by state officials.
See Williamson, 151 F.3d at 1184 (noting that Washington’s sex of-
fender registration statute did not limit where offenders could go).
Mr. Clements can—subject to the residency restrictions which we
leave for another day—generally “come and go as he pleases[,]”
and his “freedom of movement” does not “rest[ ] in the hands” of
state officials. See Hensley, 411 U.S. at 351.
In reaching our conclusion, we have also considered the Su-
preme Court’s decision in Smith v. Doe, 538 U.S. 84, 105-06 (2003),
which held that the retroactive application of Alaska’s sex offender
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24 Opinion of the Court 21-12540
registration law did not violate the Ex Post Facto Clause because
the law was not punitive. See also Houston v. Williams, 547 F.3d
1357, 1364 (11th Cir. 2008) (relying on Smith in holding that Flor-
ida’s sex offender registration statute did not violate the Ex Post
Facto Clauses of the Florida and the U.S. Constitutions). In our
view, some aspects of the analysis in Smith counsel against a con-
clusion that Mr. Clements was “in custody” due to Florida’s sex of-
fender registration and reporting requirements. 7
In one part of its opinion, the Supreme Court in Smith ad-
dressed whether the Alaska law imposed an “affirmative disability
or restraint” on sex offenders. See Smith, 538 U.S. at 99-100. The
Court concluded that it did not for a number of reasons. For start-
ers, the law did not “restrain activities sex offenders may pursue
[and] leaves them free to change jobs or residences.” Id. at 100. In
addition, “[a]lthough the public availability of the information
[posted online] may have a lasting and painful impact on the con-
victed sex offender, th[o]se consequences flow not from the [law’s]
7 In analyzing the matter of custody, some circuits have considered whether
a sex offender law is punitive or remedial. See Piasecki, 917 F.3d at 175; Hau-
tzenroeder, 887 F.3d at 744; Leslie, 296 F.3d at 522-23; Calhoun, 745 F.3d at
1074. With respect, we do not think the punitive/remedial distinction is very
helpful, for Supreme Court and Eleventh Circuit precedent demonstrates that
custody under the habeas statutes does not require criminal punishment. For
example, in Lydon, the petitioner’s criminal conviction had been vacated
pending retrial. See 466 U.S. at 300. And in our immigration cases neither
petitioner was subject to a criminal judgment. See Marcello, 634 F.2d at 966;
Romero, 20 F.4th at 1377.
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21-12540 Opinion of the Court 25
registration and dissemination provisions, but from the fact of con-
viction, already a matter of public record.” Id. at 101. Finally, the
argument that the law was akin to probation or supervised release
had “some force,” but it did not carry the day because sex offenders
subject to the law were “free to move where they wish and to live
and work as other citizens, with no supervision.” Id.
We recognize that Smith—which did not address the mean-
ing of the phrase “in custody” in the habeas context—is not con-
trolling. And we realize that on its facts Smith is also not a perfect
fit. For example, the Supreme Court noted that the updating of
information by sex offenders in Alaska did not have to be in person.
See id. at 100. Although Florida does not require that all changes of
information be made in person, see, e.g., § 943.0435(4)(a), an of-
fender like Mr. Clements must appear in person at the sheriff’s of-
fice for (a) his initial registration, (b) two annual visits, (c) changes
to his vehicle or residence, and (d) trips outside of the state or coun-
try. That makes Florida’s sex offender registration and reporting
requirements different (and more burdensome) than Alaska’s at the
time Smith was decided. Despite the differences, we conclude that
Mr. Clements was not “in custody” due to Florida’s registration
and reporting requirements for sex offenders. The restrictions on
freedom of movement are not severe enough. Cf. United States v.
Juvenile Male, 560 U.S. 558, 560-61 (2010) (dicta: “Perhaps the most
likely potential ‘collateral consequenc[e]’ that might be remedied
by a judgment in [the government’s] favor is the requirement that
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26 Opinion of the Court 21-12540
[the defendant] remain registered as a sex offender under Montana
law.”).
After giving the matter due consideration, we choose not to
follow the Third Circuit’s contrary decision in Piasecki, 917 F.3d at
177, which held that Pennsylvania’s sex offender statute satisfied
§ 2254’s “in custody” requirement. For starters, Piasecki is distin-
guishable on its facts because Pennsylvania imposes more onerous
reporting and registration requirements on sex offenders than Flor-
ida. See Munoz, 17 F.4th at 1244 (“Piasecki involved much more
burdensome conditions than those addressed in our prior cases.”).
Mr. Piasecki, for example, had to appear in person four times a year
for the rest of his life, was required to update all of his personal and
identifying information in person, and had no “computer internet
use.” See Piasecki, 917 F.3d at 164-65. As we have explained, the
“in custody” inquiry considers the severity—the degree—of the re-
straints. The cumulative effect of the restrictions on Mr. Piasecki’s
autonomy was more akin to physical custody than what we have
here. In addition, the Third Circuit in Piasecki acknowledged that
its prior precedent concerning a sentence of community service
supported an “in custody” finding due to Mr. Piasecki’s obligation
to report his travel, even in the absence of a pre-approval require-
ment. See id. at 172 (citing Barry v. Bergen Cnty. Prob. Dep’t, 128
F.3d 152, 161 (3d Cir. 1997) (holding that requirement of 500 hours
in county community service program, imposed as part of the sen-
tence, rendered a defendant “in custody”)). There is no such anal-
ogous precedent in the Eleventh Circuit. The Third Circuit
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21-12540 Opinion of the Court 27
recognized that it had “departed from the courts that ha[d] held
that registration requirements are not custodial because they do
not require pre-approval from the government before a registrant
travels, thus not limiting his or her ability to move freely.” Id.Mr. Clements submits that we should consider the stigma of
being labeled a sex offender. But any fear or embarrassment that
he may suffer as a result of his sex offender designation is not in and
of itself a restraint on his liberty. See Carter v. Att’y Gen., 782 F.2d
138, 140 n.1 (10th Cir. 1996) (explaining that, under Jones and its
progeny, a habeas applicant “must labor under liberty restraints
more severe than the stigma of a prior criminal conviction”). The
stigma is not a condition imposed by Florida and is a practical con-
sequence of the nature of Mr. Clements’ conviction. Florida “does
not make the publicity and the resulting stigma an integral part of
the objective of [its] regulatory scheme.” Smith, 538 U.S. at 99.
IV
Florida’s lifetime registration and reporting requirements
for sex offenders did not place Mr. Clements “in custody” under §
2254(a). We therefore affirm the district court’s dismissal of his ha-
beas corpus petition for lack of jurisdiction.
AFFIRMED.
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21-12540 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
The majority opinion faithfully applies current doctrine,
which obliges a court determining whether an individual is “in cus-
tody” within the meaning of the federal habeas corpus statutes to
engage in an amorphous, eye-of-the-beholder inquiry: Is the peti-
tioner subject to conditions that “significantly restrain [his] liberty
to do those things which in this country free men are entitled to
do”? Jones v. Cunningham, 371 U.S. 236, 243 (1963). And in apply-
ing the Jones “test”—such as it is—to hold that Mr. Clements is not
“in custody,” the majority reaches what I think to be the correct
result in this particular case. Accordingly, I join the majority opin-
ion in full.
I write separately because I have come to believe that Jones
was a misstep. It marked a radical departure from the original and
long-settled understanding of the term “custody,” and the nebu-
lous things-that-free-men-can-do standard that it prescribed confers
nearly limitless discretion on individual judges. I would return to
ordinary meaning: An individual is “in custody” for habeas corpus
purposes if, but only if, he is under close physical confinement.
Let me explain.
I
“Custody” has been an essential feature of—and prerequisite
to—habeas corpus relief since the Founding. The Judiciary Act of
1789 forbade the newly created federal courts to grant the writ to
“prisoners in gaol, unless where they are in custody, under or by
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2 NEWSOM, J., Concurring 21-12540
colour of the authority of the United States.” 1 Stat. 73, 82 (1789)
(emphasis added). So too, when Congress extended the privilege
of the writ to state prisoners in 1867, it required a petitioning in-
mate to specify, among other things, “in whose custody he or she
is detained.” 14 Stat. 385, 385–86 (1867). And when, some 80 years
later, Congress codified the writ in its present form, it again predi-
cated relief on a petitioner’s demonstration that he was “in cus-
tody.” The general habeas provision, titled “Power to Grant Writ,”
states that “[t]he writ of habeas corpus shall not extend to a pris-
oner unless . . . [h]e is in custody.” 28 U.S.C. § 2241(c). And more
targeted provisions—applicable to state and federal prisoners, re-
spectively—authorize federal courts to entertain post-conviction
petitions brought by those who are “in custody pursuant to the
judgment of a [s]tate court,” id. § 2254(a), and those who are “in
custody under sentence of a court established by Act of Congress,”
id. § 2255(a).
A
The crucial question, then: What is meant by the key term
“custody”? For centuries, there wasn’t any doubt about that: It
meant close physical confinement. Samuel Johnson’s 1755 English
dictionary, for instance, defined the word by reference to “impris-
onment.” 1 Samuel Johnson, A Dictionary of the English Language
532 (1755). As did Noah Webster’s 1828 American dictionary. See
Noah Webster, American Dictionary of the English Language 516
(1828) (“[i]mprisonment; confinement; restraint of liberty”). Suc-
cessive editions of Black’s defined the term in exactly the same way.
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21-12540 NEWSOM, J., Concurring 3
The inaugural installment, for instance, explained that “custody”
meant “the detainer of a man’s person by virtue of lawful process
or authority; actual imprisonment.” It then elaborated: “In a sen-
tence that the defendant ‘be in custody until,’ etc., this term im-
ports actual imprisonment. The duty of the sheriff under such a
sentence is not performed by allowing the defendant to go at large
under his general watch and control.” Black’s Law Dictionary 312
(1st ed. 1891); accord Black’s Law Dictionary 309 (2d ed. 1910)
(same); Black’s Law Dictionary 493–94 (3d ed. 1933) (same).
The close-confinement understanding of the term “custody”
is confirmed by the writ’s origin and early application. Let’s start
with the Latin: Translated literally, “habeas corpus” means “(that)
you have the body”—plainly a reference to the subject’s actual,
physical detention. Webster’s New International Dictionary 1121
(2d ed. 1944). And the history of the writ’s development in Stuart
England perfectly comports with the Latin connotation. That
story has been told elsewhere, see Boumediene v. Bush, 553 U.S.
723, 739–42 (2008), so I’ll limit myself to a few key highlights. In
1627, Parliament enacted the famous Petition of Right, which
stated that no one should be “imprisoned without any cause” and
that “no freeman, in any such manner as is before mencioned
[shall] be imprisoned or deteined.” 16 Charles 1, ch. 1, § 8. When
Parliament continued to face royal intransigence, it passed a second
statute, the Habeas Corpus Act of 1640, which condemned the
“great delays” imposed “by sheriffs, gaolers, and other officers, to
whose custody, any of the King’s subjects have been committed for
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4 NEWSOM, J., Concurring 21-12540
criminal, or supposed criminal matters, in making returns of writs
of habeas corpus to them directed.” 16 Charles 1, ch. 10. Finally,
in 1679, Parliament further tightened the screws: It gave jailers a
presumptive three-day deadline for delivering the bodies of those
“in . . . their Custody.” 31 Charles 2, ch. 2. There can be little doubt
that Parliament’s serial codifications of the habeas remedy indicate
a concern for prisoners in actual, physical “custody”—i.e., “im-
prison[ment],” “dete[ntion],” “commit[ment].”
Wholly unsurprisingly, Blackstone described the writ in sim-
ilar terms. He characterized habeas corpus as a remedy for “re-
moving the injury of unjust and illegal confinement”—“confine-
ment,” he said, being synonymous with “imprisonment.” 3 Black-
stone, Commentaries on the Laws of England, ch. 8, p. 137 (1768)
(emphasis omitted); see also 1 Blackstone, Commentaries, ch. 1, p.
132 (1765) (defining “confinement” as “imprisonment”). To be
sure, Blackstone recognized that “imprisonment” didn’t neces-
sarily denote formal incarceration—it could be accomplished, for
instance, by “keeping a man against his will in a private house, put-
ting him in the stocks, [or] arresting or forcibly detaining him in the
street.” 1 Blackstone, Commentaries, ch. 1, p. 132. But as his ex-
amples demonstrate, Blackstone clearly viewed habeas as a remedy
for those who were in close physical confinement.
B
So, importantly, did American jurists after the Revolution.
Parliament’s 1679 act was the “genesis” of “[v]irtually all American
habeas corpus legislation.” Dallin H. Oaks, Habeas Corpus in the
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21-12540 NEWSOM, J., Concurring 5
States—1776-1865, 32 U. Chi. L. Rev. 243, 251 (1965). And as al-
ready explained, the Judiciary Act of 1789 described the writ as a
means of “inquir[ing] into the cause of commitment” and limited
the class of eligibles to “prisoners in gaol”—and, in particular, those
prisoners who could prove that they were “in custody, under or by
colour of the authority of the United States.” 1 Stat. at 82.
“Early state court decisions in this country were in agree-
ment that the Habeas Corpus Act” covered only “persons who
were within the four walls of a prison.” Dallin H. Oaks, Legal His-
tory in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 469
(1966) (quotations and citations omitted). Take, for example,
Respublica v. Arnold, 3 Yeates 263 (Pa. 1801). There, an individual
who was free on bail sought habeas corpus relief. The Pennsylva-
nia Supreme Court refused his request on the ground urged by the
Commonwealth: that the state’s habeas statute—a verbatim copy
of England’s 1679 act—didn’t “refer to any other cases, than where
the party applying is in gaol, in actual custody.” Id. at 264 (empha-
sis added). So too, State v. Buyck, 3 S.C.L. 460 (S.C. Const. App.
1804), in which a person charged with forgery but out on his own
recognizance sought habeas relief. The court denied the petition
because “the provisions of the habeas corpus act[] extend only to
persons actually in prison, and not to persons under recognizance,
and at large upon bail.” Id. at 461 (emphasis added).
And so the law remained for almost two centuries: “Until
the 1960s, courts interpreted the custody requirement strictly.”
Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts
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6 NEWSOM, J., Concurring 21-12540
and the Federal System 1354 (7th ed. 2015). Foremost among those
“courts” was the United States Supreme Court, which uniformly
respected the settled understanding that “custody”—as a necessary
precondition to habeas corpus relief—entailed actual, physical con-
finement. Wales v. Whitney, 114 U.S. 564 (1885), is illustrative.
There, the former surgeon general of the Navy, having been ac-
cused of “dereliction[] of duty” and given strict orders not to leave
Washington, D.C., sought a writ of habeas corpus. Rejecting his
request, the Supreme Court thought it “obvious” that the peti-
tioner was “under no physical restraint,” as he could “walk[] the
streets of Washington with no one to hinder his movements.” Id.
at 567, 569. That fact, the Court held, was dispositive: “[T]o make
a case for habeas corpus,” the Court said, “[t]here must be actual
confinement” or the imminent threat thereof. Id. at 571–72.
Stallings v. Splain, 253 U.S. 339 (1920), is to the same effect. In that
case, a petitioner indicted for embezzlement but (effectively) out
on bail unsuccessfully sought habeas relief. The Court explained
that it was “well settled that under such circumstances a petitioner
is not entitled to be discharged on habeas corpus.” Id. at 343 (citing
Respublica and Buyck). “Being no longer under actual restraint,”
the petitioner “was not entitled to the writ of habeas corpus.” Id.(citing Wales).
* * *
The picture that emerges from any honest appraisal of the
historical record—stretching back hundreds of years—is clear: “If
there was any single feature that characterized the writ of habeas
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21-12540 NEWSOM, J., Concurring 7
corpus in both its early statutory and common-law forms, it was
the requirement that adult prisoners be subject to an immediate
and confining restraint on their liberty.” Oaks, Legal History, su-
pra, at 469. And that original understanding persisted well into the
20th century: “Only a person in actual custody [was] entitled to
the writ of habeas corpus.” Note, Remedies Against the United
States and Its Officials, 70 Harv. L. Rev. 827, 865 (1957); see also
Note, Federal Habeas Corpus Review of “Final” Administrative
Decisions, 56 Colum. L. Rev. 551, 551 n.7 (1956) (describing the
actual-custody requirement as a “doctrine … basic to habeas cor-
pus review”).
II
Then came the 1960s—when, as the majority says, “[t]hings
changed.” Maj. Op. at 11. To call that an understatement would
be, well, an understatement. As the leading federal-courts treatise
has explained, in 1963 the Supreme Court “revolutionized” the
meaning of the term “custody” in Jones v. Cunningham, 371 U.S.
236 (1963). See Hart & Wechsler, supra, at 1354.
In Jones, the Supreme Court unanimously concluded that a
state prisoner who was out on parole was, despite his release, “in
custody” within the meaning of the general federal habeas corpus
statute, 28 U.S.C. § 2241. In so holding, the Court acknowledged
that “the chief use of habeas corpus ha[d] been to seek the release
of persons held in actual, physical custody in prison or jail.” 371
U.S. at 238. But citing to a mishmash of obscure cases involving
spouses and children, aliens seeking entry at the border, and
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8 NEWSOM, J., Concurring 21-12540
military enlistees, the Court decreed that the writ “can do more”
than “reach behind prison walls and iron bars.” Id. at 243. Habeas,
the Court said, “is not now and never has been a static, narrow,
formalistic remedy”; rather, “its scope has grown to achieve its
grand purpose” of protecting individual liberty more generally. Id.Accordingly, the Court concluded—in soaring terms—that what
matters is whether the conditions to which a petitioner is subject
“significantly restrain [his] liberty to do those things which in this
country free men are entitled to do.” Id.In holding that the petitioner before it qualified under that
standard, the Court pointed to a grab-bag of considerations: He (1)
was “confined by the parole order to a particular community,
house, and job at the sufferance of his parole officer”; (2) couldn’t
“drive a car without permission”; (3) had to “periodically report to
his parole officer, permit the officer to visit his home and job at any
time, and follow the officer’s advice”; and (4) was “admonished to
keep good company and good hours, work regularly, keep away
from undesirable places, and live a clean, honest, and temperate
life.” Id. at 242. “Such restraints,” the Court held—without further
elaboration—“are enough to invoke the help of the Great Writ.”
Id. at 243.
Under Jones’s things-that-free-men-can-do standard, the
class of petitioners who qualify for in-custody status has ballooned.
In Hensley v. Municipal Court, for instance, the Supreme Court
held that a defendant who had been released “on his own recogni-
zance” and was thus “at large” was nonetheless “in custody” within
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21-12540 NEWSOM, J., Concurring 9
the meaning of § 2241. See 411 U.S. 345, 347, 351 (1973). In so
holding, the Court acknowledged an extension of Jones: “It is true,
of course, that the parolee is generally subject to greater re-
strictions on his liberty of movement than a person released on bail
or his own recognizance.” Id. at 348. But the Court rejected an
understanding of the custody requirement that, in its words, would
“suffocate the writ in stifling formalisms or hobble its effectiveness
with the manacles of arcane and scholastic procedural require-
ments.” Id. at 350. Rather, the Court said, the habeas remedy
should be deployed with “initiative and flexibility.” Id. (quoting
Harris v. Nelson, 394 U.S. 286, 291 (1969)). The petitioner before
it, the Court concluded, faced “restraints ‘not shared by the public
generally’”—and was thus in custody—because (1) he couldn’t
“come and go as he please[d],” (2) his “freedom of movement
rest[ed] in the hands of state judicial officers, who [could] demand
his presence at any time and without a moment’s notice,” and (3)
“[d]isobedience [was] itself a criminal offense.” Id. at 351.
Over the last half-century, this circuit has applied Jones
many times—perhaps most recently in an opinion that I authored,
Romero v. Secretary, U.S. Dep’t of Homeland Sec., 20 F.4th 1374(11th Cir. 2021). The question there was whether an immigrant
subject to pre-deportation supervision was “in custody” for habeas
purposes. In concluding that she was, we held that her conditions
of supervision were “similarly restrictive” to those that our prede-
cessor court had deemed sufficient to constitute custody in United
States ex rel. Marcello v. District Director of INS, 634 F.2d 964 (5th
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10 NEWSOM, J., Concurring 21-12540
Cir. 1981). In particular, we pointed to a collection of case-specific
circumstances: The immigrant before us (1) had to “appear in per-
son at the government’s request,” (2) couldn’t “travel outside Flor-
ida for more than 48 hours without advance notice,” (3) had to “ap-
prise the government of any change in residence or employment,”
and (4) had to “participate in a more stringent supervision program
if directed to do so.” Id. at 1379 (internal quotations omitted). Be-
cause “those restraints [were] materially similar to the ones im-
posed on the petitioners in Jones and Marcello,” we held, she was
“in custody” within the meaning of § 2241. Id.
* * *
Taking stock: Jones was a “revolution[]” indeed. Hart &
Wechsler, supra, at 1354. In keeping with the writ’s “body”-based
origins, the British Parliament had designed habeas corpus to rem-
edy actual, physical confinement, and Blackstone had clearly ex-
plained the writ that way. On this side of the Atlantic, the same
men who theorized the “judicial Power” and created the federal
courts memorialized the close-confinement understanding of “cus-
tody” in the Judiciary Act of 1789. Framing-era decisions reflected
that settled view, and for almost two centuries, the Supreme Court
itself respected it. Jones abandoned all of that, substituting in its
place an atextual, ahistorical, know-it-when-you-see-it criterion:
whether the petitioner is prevented from “do[ing] those things
which in this country free men are entitled to do.” 371 U.S. at 243.
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21-12540 NEWSOM, J., Concurring 11
III
If it were up to me, I would scrap Jones’s freewheeling, ad
hoc approach in favor of a return to the ordinary and original un-
derstanding of the term “custody.” I say so for textual, historical,
and practical reasons, which I will attempt to unpack in turn.
A
First, the text. It is by now hornbook law that a court should
“interpret[] a statute in accord with the ordinary public meaning of
its terms at the time of its enactment.” Bostock v. Clayton County,
140 S. Ct. 1731, 1738 (2020). The reasons, the Supreme Court has
reminded us, are (1) that “only the words on the page constitute
the law adopted by Congress and approved by the President,” and
(2) that if “judges could add to, remodel, update, or detract from
old statutory terms inspired only by extratextual sources and our
own imaginations, we would risk amending statutes outside the
legislative process reserved for the people’s representatives” and
“deny the people the right to continue relying on the original
meaning of the law they have counted on to settle their rights and
obligations.” Id.There was no doubt—nor is there currently any dispute—
about the ordinary public meaning of the term “custody” at the
times of any of the federal habeas statutes’ enactments. Custody
meant then (as it means now) close physical confinement or deten-
tion—i.e., “actual imprisonment.” See supra at 2–4 (collecting his-
torical definitions); see also Maj. Op. at 3 (collecting modern
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12 NEWSOM, J., Concurring 21-12540
definitions). Conspicuously, the Supreme Court in Jones made no
effort to ground its flabby interpretation of “custody” in that term’s
plain meaning. Quite the contrary, the Court jettisoned what it
called “formalistic” considerations in favor of what it took to be the
writ’s “grand purpose.” 371 U.S. at 243.
Such a lax mode of statutory interpretation was wrong in
1963, and it is even more wrong—or more evidently wrong—to-
day. The Supreme Court would do well to bring (or to restore,
really) the same plain-meaning interpretive approach to the habeas
statutes that it applies to other written laws.
B
There’s also the related matter of history. Although the
Jones Court didn’t spurn history to quite the extent that it disre-
garded statutory text, its historical analysis—as others have
noted—leaves a lot to be desired. As Professor Oaks unmasked in
his trenchant critique, “the Supreme Court’s statement that its de-
cision . . . was supported by the ‘history of habeas corpus in both
England and in this country’ falls considerably sort of complete ac-
curacy.” Oaks, Legal History, supra, at 471 (quoting Jones, 371 U.S.
at 238). In particular, he observed, the Court’s sourcing was start-
ingly selective—“a regal patchwork of history that, on close exam-
ination, proves as embarrassingly illusory as the Emperor’s new
clothes.” Id. at 472. Most notable, perhaps, were what Oaks called
“sins of omission.” Id. at 468. In particular, the Court never grap-
pled with early American decisions like Respublica and Buyck—
and perhaps even more jarringly, never even cited its own
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21-12540 NEWSOM, J., Concurring 13
decisions in Wales and Stallings, even though both were indisput-
ably relevant, and even though both had been examined in the par-
ties’ briefs and the lower courts’ opinions. Not good.
But there were sins of commission too. Having ignored
what would seem to have been the key precedents, the Jones Court
substituted a motley collection of its own. Again, Professor Oaks:
“Although Mr. Justice Black,” who authored the opinion, “‘looked
to common-law usages and the history of habeas corpus both in
England and in this country,’ he chose his precedents from” among
arcane decisions “involving aliens seeking entrance to this country,
and common-law decisions under which the writ was issued to lib-
erate wives or minor children ‘not under imprisonment, restraint
or duress of any kind.’” Id. at 470 (quoting Jones, 371 U.S. at 238–
39). But neither of those categories of cases is particularly proba-
tive. Some of the domestic-relations cases are old, to be sure; they
include several 18th- and 19th-century English decisions. See 371
U.S. at 238–39. But they uniformly involved the use of the writ to
free individuals from private custodians, a situation that goes well
“beyond the reach of any habeas statute ever enacted by Con-
gress”—all of which, of course, pertain to those in government cus-
tody. Department of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959, 1972 (2020); see also 28 U.S.C. § 2241, 2254, 2255. From
among that category, the Jones Court conspicuously ignored early
English precedents that contradicted its conclusion. See, e.g.,
Palmer v. Forsyth and Bell, 107 E.R. 1108, 1109 (1825) (quashing
the writ because the custodian “had no power at all over the body
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14 NEWSOM, J., Concurring 21-12540
of the defendants”); Rex v. Dawes and Rex v. Kessel, 97 E.R. 486,
486 (1758) (refusing habeas relief to conscripted soldiers who had
either (1) absconded or (2) been made a corporal on the ground
that “neither of them was in custody”).
The Jones Court’s reliance on immigration-related cases was
similarly misplaced, for at least two reasons. For one, those deci-
sions aren’t particularly historical—most of them, like Jones itself,
dated from the mid-20th century. See, e.g., Brownell v. We Shung,
352 U.S. 180 (1956); Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537 (1950). For another, the Jones Court’s major premise—
that the aliens in those cases were “free to go anywhere else in the
world,” 371 U.S. at 239—is false. The truth is that excludable im-
migrants were “locked up until carried out of the country against
[their] will,” Chin Yow v. United States, 208 U.S. 8, 13 (1908), and
the fact that they could voluntarily depart for China, Italy, or Ire-
land is irrelevant. Vis-à-vis this country—which is all that matters
when one is seeking relief against this country’s agents—the immi-
grants to whom the Jones Court pointed were most assuredly in
“custody.” See Mezei, 345 U.S. at 220 (Jackson, J., dissenting) (not-
ing that those individuals were “incarcerated by a combination of
forces which ke[pt them] as effectually as a prison, the dominant
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21-12540 NEWSOM, J., Concurring 15
and proximate of these forces being the United States immigration
authority”). 1
C
Lastly, the practical. Even setting aside Jones’s glaring tex-
tual and historical deficiencies, the rudderless things-that-free-men-
can-do inquiry that it decreed has left courts at sea in making case-
by-case “custody” determinations. In applying that hopelessly
opaque standard, judges are consigned to a gestalt totality-of-the-
circumstances analysis, wondering whether a particular jumble of
conditions are together “enough to invoke the help of the Great
Writ.” Jones, 371 U.S. at 243.
The majority’s analysis in this case—although scrupulously
conscientious—perfectly illustrates the problem. To its great
credit, the majority admits the difficulty of the task before us: “The
1 The Jones Court’s invocation of two mid-20th-century district court deci-
sions involving military enlistees adds nothing to its historical analysis. See
371 U.S. at 240 & n.11 (citing Ex parte Fabiani, 105 F. Supp. 139 (E.D. Pa. 1952),
and United States ex rel. Steinberg v. Graham, 57 F. Supp. 938 (E.D. Ark.
1944)). Even setting aside those decisions’ recency, they were aberrant, and
they were denounced at the time for having “not correctly state[d] the law.”
Lynch v. Hershey, 208 F.2d 523, 524 (D.C. Cir. 1953) (observing that “con-
structive custody” was an “untenable” basis for habeas relief); see also, e.g.,
McDowell v. Sacramento Loc. Bd. Grp., Boards 21, 22 & 23, Selective Serv.
Sys., 264 F. Supp. 492, 495 (E.D. Cal. 1967) (same). See generally Remedies
Against the United States and Its Officials, supra, at 865 & n.240 (explaining,
“contra” Fabiani, that “[o]nly a person in actual custody is entitled to the writ
of habeas corpus”).
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16 NEWSOM, J., Concurring 21-12540
question,” it says, “is whether the reporting and registration re-
quirements” imposed by Florida’s sex-offender statute “constitute
a sufficient restraint on the personal liberty of sex offenders in Flor-
ida to render someone like Mr. Clements ‘in custody.’” Maj. Op.
18–19. But, it continues, “Supreme Court and Eleventh Circuit
cases”—by which it means Jones and its progeny, including Hens-
ley, Marcello, Romero, etc.—“make this a hard question to an-
swer.” Id.; accord, e.g., id. at 3–4 (“[T]he question is difficult given
Supreme Court and Eleventh Circuit precedent.”). Having can-
vassed the relevant precedents—and the attendant smorgasbord of
contextual considerations—the majority is left to articulate the
Court’s holding as follows: “After a quantitative and qualitative
analysis, we conclude—admittedly with some hesitation—that as a
whole Florida’s registration and reporting requirements for sex of-
fenders did not render Mr. Clements ‘in custody’ at the time he
filed his habeas corpus petition.” Id. at 22.
That is an admirably forthright statement and application of
existing doctrine—and I think, under that doctrine, a correct deci-
sion. But the summary really says it all about the doctrine itself:
We’ve explored all the relevant factors, along two vectors—both
“quantitative” and “qualitative.” We’ve considered those factors’
interrelationship, “as a whole.” And although we’re “hesita[nt]”
about our conclusion, we’ve determined, on balance, that Mr.
Clements is indeed not “in custody.” Again, A+ for candor and
conscientiousness. But the underlying doctrine, in my estimation,
is fundamentally broken.
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21-12540 NEWSOM, J., Concurring 17
The problem is that Jones’s things-that-free-men-can-do
standard is so vague—and the considerations that courts must con-
sult to operationalize it so multifarious—that many, if not most,
cases can be decided either way. Compare, for instance, the razor-
thin distinctions that separate this case from Marcello and Romero,
in which we held that the habeas petitioners were “in custody.”
Mr. Marcello was on “supervised parole, which require[d] him to
report quarterly to the INS and notify it whenever he intend[ed] to
leave [his home state] for more than 48 hours.” 634 F.2d at 971
n.11. Ms. Romero had to “appear in person at the government’s
request,” give immigration authorities 48 hours’ notice before trav-
eling outside her home state, and “apprise the government of any
change in residence or employment.” 20 F.4th at 1379. For his
part, Mr. Clements has to (among other things) appear in person at
his county sheriff’s office twice a year, report to a drivers’ license
office every time he changes residences, give 21 days’ notice before
leaving the country, and give 48 hours’ notice before establishing
any temporary residence in another state. While Marcello and
Romero might have had it slightly worse, it’s hard to say that the
conditions they faced were categorically more onerous than Clem-
ents’s.
Consider, as well, how just a tweak or two to Clements’s
own situation might affect his “custody” status. What if he were
trapped (so to speak) not in 65,000-square-mile Florida, but in 1200-
square-mile Rhode Island? Likelier in custody? What if Clements
had to notify officials seven days before leaving the state, rather
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18 NEWSOM, J., Concurring 21-12540
than just two—custody? And how should we weigh routine in-
person reporting requirements? They impede one’s freedom of
movement, to be sure, but how much? And are they more restric-
tive than an official’s unfettered discretion to summon? Or perhaps
less so? And might the answer to that question depend on the par-
ticular petitioner’s risk tolerance?
You get the point: Determining custody status under Jones
and its progeny isn’t—and will never be—remotely systematic or
scientific. It will always be fraught with the risk of error—and, far
worse, with the risk of manipulation. And that, to my mind, is no
good. Cf. United States v. Jimenez-Shilon, 34 F.4th 1042, 1054 (11th
Cir. 2022) (Newsom, J., concurring) (lamenting “judge-empower-
ing” multifactor balancing tests); cf. also Antonin Scalia, The Rule
of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178–82 (1989)
(criticizing “discretion-conferring” standards as inviting unfairness,
unpredictability, and arbitrariness).
* * *
Jones’s freewheeling things-that-free-men-can-do standard
bears no connection to the plain meaning of the term “custody,”
has no firm footing in the history of habeas corpus, and is infinitely
manipulable in practice. It’s time, I think, for a course correction.
IV
I’ll conclude by echoing Justice Blackmun’s penetrating cri-
tique of the Supreme Court’s modern “custody” jurisprudence:
“[T]he Court has wandered a long way down the road in expanding
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21-12540 NEWSOM, J., Concurring 19
traditional notions of habeas corpus. . . . Although recognizing that
the custody requirement is designed to preserve the writ as a rem-
edy for severe restraints on individual liberty, the Court seems now
to equate custody with almost any restraint, however[] tenuous.
One wonders where the end is.” Hensley, 411 U.S. 353–54
(Blackmun, J., concurring).
The solution, it seems to me—as it so often does—is “a re-
turn to first principles.” Club Madonna Inc. v. City of Miami
Beach, 42 F.4th 1231, 1263 (11th Cir. 2022) (Newsom, J., concur-
ring). Unless and until Congress itself expands the writ’s scope—
which, to be clear, would be fine by me—I would hold that an in-
dividual is “in custody” within the meaning of the federal habeas
corpus statutes if, but only if, he is in close physical confinement.
That understanding follows from the phrase’s original and ordinary
meaning, jells with courts’ early (and longstanding) interpretations,
and minimizes the risk that similarly situated individuals will be
treated differently and that even well-meaning judges will find
themselves “mak[ing] stuff up” as they go. Id. at 1261.