# Moore v. Embry

> District Court, W.D. Oklahoma · November 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10390558

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10390558

## How later opinions describe it (automated extraction)

- discussing “the perfect freedom of the Federal courts to inquire into the case and make such orders and render such judgment as they shall see fit”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

BEVERLY MICHELLE MOORE, )
)
Petitioner, )
)
v. )
Case No. CIV-09-985-G
)
TAMIKA WHITE, Warden, )
)
Respondent. )
ORDER
Now before the Court is Petitioner Beverly Michelle Moore’s Motion for Permanent
Injunction (Doc. No. 298). Respondent, Warden Tamika White, has responded in
opposition (Resp’t’s Obj., Doc. No. 299), and the matter is now at issue.
I. Background
On September 11, 2023, the Court conditionally granted Petitioner’s 28 U.S.C. §
2254 habeas corpus petition, finding the challenged state-court criminal conviction to be
constitutionally infirm and directing that, if the State of Oklahoma did not commence
proceedings for a new trial within 90 days, Petitioner would be permanently discharged
and released from all restraints and custody of the State of Oklahoma on the conviction at
issue. Subsequently, upon application of Respondent, the Court ordered that the retrial
deadline be stayed pending disposition of Respondent’s appeal of the Court’s September
11, 2023 Order. The Court directed, however, that Petitioner be released from custody,
subject to conditions, on or before December 10, 2023. See Order of Oct. 19, 2023 (Doc.
No. 281); Order of Nov. 9, 2023 (Doc. No. 286).
On November 15, 2023, the Court held a status conference and hearing. See Doc.
No. 291. Petitioner was released from State custody later that day. See Doc. No. 292.
On that same date, Petitioner filed a request for the Court to issue a temporary

restraining order enjoining enforcement of the registration requirements of the Mary Rippy
Violent Crime Offenders Registration Act (or “the Mary Rippy Act”), Okla. Stat. tit. 57,
§§ 591-599.1, against Petitioner following her release. See Pet’r’s Mot. TRO (Doc. No.
290).1 Respondent objected to Petitioner’s request. See Doc. No. 293.
The Court considered the arguments of the parties and the relevant record and found

that entry of a temporary restraining order was necessary to protect the rights of the parties
and the public. See TRO (Doc. No. 296); Fed. R. Civ. P. 65(d)(1)(A). Specifically, the
Court directed:
IT IS HEREBY ORDERED that the Oklahoma Department of
Corrections, the Office of the Oklahoma Attorney General, and Respondent,
as well as their officers, employees, agents, attorneys, successors, and all
others acting in concert or participating with them, are TEMPORARILY
RESTRAINED from enforcing the provisions of the Mary Rippy Violent
Crime Offenders Registration Act, Okla. Stat. tit. 57, §§ 591-599.1, as to
Petitioner Beverly Michelle Moore and from prosecuting Petitioner for any
violation of that Act.
This Temporary Restraining Order is effective upon entry and shall
expire on November 29, 2023, at 11:59 p.m., unless extended by the Court
for good cause shown or by agreement of the parties.
It is further ordered that the security requirement of Federal Rule of Civil
Procedure 65(c) is waived.

1 The Act prescribes in relevant part that a person convicted of certain crimes must register
as a violent offender with both the Oklahoma Department of Corrections and a local law
enforcement authority. See Okla. Stat. tit. 57, §§ 593, 594. A failure to register can be
punished by up to five years’ incarceration and a $5000 fine. See id. § 599.
TRO at 6.
II. Petitioner’s Motion for Permanent Injunction
Petitioner now seeks permanent injunctive relief from the Court, in the form of an

order prohibiting enforcement of the Mary Rippy Act2 as to Petitioner “until such time as
the State prevails on appeal,” “decide[s] to retry [Petitioner],” or “dismiss[es] the case.”
Pet’r’s Mot. Permanent Inj. at 4.3
A. The Court’s Authority
According to Respondent, the Anti-Injunction Act, 28 U.S.C. § 2283, precludes the

Court from preventing the enforcement of the state-court registration statute as to
Petitioner. See Resp’t’s Obj. at 14-18. The Court again rejects the proposition that the
Court’s exercise of authority is barred by the Anti-Injunction Act. See TRO at 3-4.
The Anti-Injunction Act prescribes that a federal court “may not grant an injunction
to stay proceedings in a State court except as expressly authorized by Act of Congress, or

where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28

2 The parties disagree as to whether Petitioner, whose criminal conviction was
unconstitutionally obtained but still stands in the state-court record, is required to register
as a violent offender under the explicit terms of the Act. The Court need not decide this
legal question, as all parties assume that the State’s position is that Petitioner is required to
register and would be subject to prosecution should she fail to do so. As previously found
by the Court, however, Petitioner has shown a substantial likelihood of success on her
contention that her infirm conviction does not require her to register. See TRO at 3.
3 Petitioner argues that the requested injunction should bind the State of Oklahoma as “the
real party in interest.” Pet’r’s Mot. Permanent Inj. at 4 n.3, 11. The “real party in interest”
generally refers to the person or entity bringing the suit, see Fed. R. Civ. P. 17(a), and
Petitioner cites no authority for the proposition that the Court may properly extend the
reach of an injunction on this basis. See Fed. R. Civ. P. 65(d) (prescribing the “Scope of
Every Injunction”).
U.S.C. § 2283. It is well established, however, that pursuant to 28 U.S.C. § 2251 “any
federal judge ‘before whom a habeas corpus proceeding is pending’” has the “power to
stay a state-court action ‘for any matter involved in the habeas corpus proceeding.’”

McFarland v. Scott, 512 U.S. 849, 857 (1994) (emphasis omitted) (quoting 28 U.S.C. §
2251(a)(1)). Stated differently, the Court’s exercise of authority under § 2251 “is not
barred by the Anti-Injunction Act.” Id. at 858.4
Respondent further argues that the application or enforcement of the Mary Rippy
Act as to Petitioner is not a “matter involved in the habeas corpus proceeding” and so is

not subject to this Court’s power to stay under § 2251. 28 U.S.C. § 2251(a)(1); see Resp’t’s
Obj. at 15. The Court disagrees. The Tenth Circuit has explained that § 2251 permits a
federal court to enjoin state-court proceedings “related” to the federal habeas proceeding.
Brown, 62 F. App’x at 222. The current challenge over the Mary Rippy Act is indisputably
“related” to and “involved in” Petitioner’s habeas action, as any applicability of the state

statute to Petitioner arises only as a “collateral consequence” of her (constitutionally
infirm) state-court criminal conviction. Cowan v. Crow, No. 19-CV-0639, 2019 WL
6528593, at *3 (N.D. Okla. Dec. 4, 2019).
Further, upon issuance of an absolute grant of habeas relief, the Court has
“jurisdiction to execute [its] lawful judgment” and has the “authority to nullify”

4 Were Petitioner’s Motion to be evaluated as a request for a stay of state-court proceedings
under § 2251, the relevant four-part test and discretion afforded to the Court would be the
same as described herein, and the Court would reach the same functional result. See, e.g.,
Brown v. Mullin, 62 F. App’x 221, 222-23 (10th Cir. 2003).
Petitioner’s “unconstitutionally obtained state criminal conviction.” Gentry v. Deuth, 456
F.3d 687, 692, 696 (6th Cir. 2006). This includes granting relief “from . . . collateral
consequences” of the unlawful conviction. Id. at 693 (emphasis omitted). It follows that

the Court possesses the authority to enjoin or stay state-court proceedings that would
effectively defeat, even in part, the relief granted to Petitioner in this matter. Cf. Rogers v.
Peck, 199 U.S. 425, 436 (1905) (discussing “the perfect freedom of the Federal courts to
inquire into the case and make such orders and render such judgment as they shall see fit”);
28 U.S.C. § 2243 (“The court shall . . . dispose of the matter as law and justice require.”).

Respondent therefore does not establish that the Anti-Injunction Act or the present
conditional nature of the writ serves to deprive the Court of jurisdiction to decide
Petitioner’s request for injunctive relief.
B. Relevant Standard
For Petitioner to obtain a permanent injunction, she must prove:

(1) actual success on the merits; (2) irreparable harm unless the injunction is
issued; (3) the threatened injury outweighs the harm that the injunction may
cause the opposing party; and (4) the injunction, if issued, will not adversely
affect the public interest.
Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009) (internal quotation
marks omitted). The Court exercises broad discretion in considering a request for
injunctive relief. See id.
C. Actual Success on the Merits
As conceded by Respondent, the Court’s September 11, 2023 ruling granted relief
to Petitioner on the relevant Sixth Amendment claim and reflects “actual success on the
merits” of her habeas corpus petition. Id. (internal quotation marks omitted); see Resp’t’s
Obj. at 18; see also Brown, 62 F. App’x at 223.
D. Irreparable Harm

Petitioner asserts that there is a high likelihood she will suffer irreparable harm
absent the requested relief, contending that being subject to the Mary Rippy Act “could
interfere with every aspect of her reintegration into society.” Pet’r’s Mot. Permanent Inj.
at 7. Petitioner also argues that being subject to additional supervision by the State would
be time consuming and interfere with her ability to seek employment and receive mental

health treatment and that, “given the public nature of the registration requirement,
including public access via a website, the harm would not be subject to being cured if the
Tenth Circuit upholds this Court’s order.” Id. at 7-9; see Okla. Stat. tit. 57, § 599.1.
Respondent counters that Petitioner’s “vague” allegations as to the registration
requirement’s interference in her resumption of life outside of custody fail to show that

such injury is “likely” or “irreparable.” Resp’t’s Obj. at 19-20, 21-23.
The Court concurs that Petitioner’s allegations of injury overstate the onerousness
of compliance with the Mary Rippy Act, at least for someone who is a subject of a lawful
conviction. But the Court has found that Petitioner’s conviction was unconstitutionally
obtained. An “irreparable” injury means “a significant risk of harm that [cannot] be

compensated after the fact.” Trial Laws. Coll. v. Gerry Spence Trial Laws. Coll. at
Thunderhead Ranch, 23 F.4th 1262, 1270-71 (10th Cir. 2022) (internal quotation marks
omitted). “Cases have . . . noted that irreparable harm is often suffered when the injury
cannot be adequately atoned for in money or when the district court cannot remedy the
injury following a final determination on the merits.” Prairie Band of Potawatomi Indians
v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (alterations, citation, and internal quotation
marks omitted). The deprivation of liberty that would occur upon enforcement of the Act

against Petitioner is a serious harm that may not be compensated for after the fact.
Once registered as a “Violent Crime Offender[],” Petitioner will be included in a
database to which “[a]ll persons, businesses and organizations in this state shall have
access” “for purposes of verifying a person's suitability for employment, volunteering, and
for screening persons at risk of potential harm to children who may work with or provide

services to children.” Okla. Stat. tit. 57, § 599.1(A).5 Public officials and agencies are
granted immunity from civil liability under the Mary Rippy Act, and law enforcement
officers may “notify[] members of the public of any persons that pose a danger under
circumstances that are not enumerated in” the Act. Id. § 596. Although Respondent states
that “[c]ertainly, [Petitioner’s] name can be removed from the registry” if Respondent is

unsuccessful on the habeas appeal, Respondent’s cited authority does not support this
proposition. Resp’t’s Obj. at 22 (citing Okla. Stat. tit. 57, § 594(C)(1) (prescribing that a
registrant must be registered for ten years from the date of the completion of sentence)).

5 The information produced by a registry search is extensive: “The information provided
in a name search shall include the searched person’s full name, any alias names, the crime
which requires registration, and whether the person is deemed a habitual or aggravated
offender. In addition, information may be provided in the name search concerning the date
and place of the offense, the sentence disposition, a photograph of the registered person,
and other pertinent information including the current residence location.” Okla. Stat. tit.
57, § 599.1(B). The statute specifically exempts from liability “any governmental agency”
who releases or publishes the information maintained on the registry. Id.
And Respondent’s lengthy list of the detailed obligations imposed upon registrants under
the Mary Rippy Act belies her contention that the statutory requirements are de minimis.
See id. at 20-21; Okla. Stat. tit. 57, §§ 594, 595, 597, 598.

Impairment of Petitioner’s ability to “renew bonds with her family,” “seek gainful
employment,” and “attend school” is an injury that is not readily amenable to being “atoned
for in money.” Pet’r’s Mot. Permanent Inj. at 7; Prairie Band of Potawatomi Indians, 253
F.3d at 1250 (internal quotation marks omitted); cf. Graham v. Henry, No. 06-CV-381,
2006 WL 2645130, at *9 (N.D. Okla. Sept. 14, 2006) (holding that plaintiff made a

sufficient showing of irreparable injury because he alleged that he was homeless as a result
of a residency restriction in the state sex offender registration act). The Court finds that
Petitioner has adequately shown that she will be subject to irreparable harm absent issuance
of the requested injunction.
III. The Balance of Hardships and the Effect of an Injunction on the Public

As the “harm that the injunction may cause the opposing party,” Respondent cites
harm to “the interests of the State in regulating its citizens.” Sw. Stainless, 582 F.3d at
1191 (internal quotation marks omitted); Resp’t’s Obj. at 26. Again, however, Congress
has expressly recognized the federal habeas courts’ ability to “stay any proceeding against
the person detained” “for any matter involved in the habeas corpus proceeding.” 28 U.S.C.

§ 2251(a)(1) (emphasis added). Such authority undermines Respondent’s suggestion that
this Court’s grant of injunctive relief touching upon a collateral consequence of Petitioner’s
conviction would constitute improper interference in state-court proceedings. Cf.
McFarland, 512 U.S. at 858 (“Section 2251 . . . dedicates the exercise of stay jurisdiction
to the sound discretion of a federal court.”).
Relatedly, enjoining application of the Mary Rippy Act as to Petitioner is not

adverse to the public interest. Again, the Court has determined that Petitioner’s conviction
is unconstitutional. What is more, Petitioner is being released subject to reporting
requirements and under the supervision of the United States Probation Office for the
Western District of Oklahoma. It has not been shown that these conditions are inadequate
to protect the public safety.

CONCLUSION
As outlined above, Petitioner’s Motion for Permanent Injunction (Doc. No. 298) is
GRANTED as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the
Oklahoma Department of Corrections, the Office of the Oklahoma Attorney
General, and Respondent, as well as their officers, employees, agents,
attorneys, successors, and all others acting in concert or participating with
them, are permanently enjoined from enforcing the provisions of the Mary
Rippy Violent Crime Offenders Registration Act, Okla. Stat. tit. 57, §§ 591-
599.1, as to Petitioner Beverly Michelle Moore and from prosecuting
Petitioner for any violation of that Act.
The Temporary Restraining Order previously entered (Doc. No. 290) shall expire
as outlined therein. The terms of this injunction shall remain in place absent further order
of the Court.
IT IS SO ORDERED this 29th day of November, 2023.

CHARLES B.GOODWIN
United States District Judge

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390558. Public record. Not legal advice.