Louis Matthew Clements v. State of Florida

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 1 of 46

[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

____________________

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 2 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 3 of 46

21-12540 Opinion of the Court 3

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 4 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 5 of 46

21-12540 Opinion of the Court 5

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 6 of 46

6 Opinion of the Court 21-12540

§ 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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 7 of 46

21-12540 Opinion of the Court 7

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 8 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 9 of 46

21-12540 Opinion of the Court 9

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).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 10 of 46

10 Opinion of the Court 21-12540

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.”).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 11 of 46

21-12540 Opinion of the Court 11

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 12 of 46

12 Opinion of the Court 21-12540

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 13 of 46

21-12540 Opinion of the Court 13

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 14 of 46

14 Opinion of the Court 21-12540

(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).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 15 of 46

21-12540 Opinion of the Court 15

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).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 16 of 46

16 Opinion of the Court 21-12540

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).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 17 of 46

21-12540 Opinion of the Court 17

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,

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 18 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 19 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 20 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 21 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 22 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 23 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 24 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 25 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 26 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 27 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 28 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 29 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 30 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 31 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 32 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 33 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 34 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 35 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 36 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 37 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 38 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 39 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 40 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 41 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 42 of 46

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”).

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 43 of 46

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.

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 44 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 45 of 46

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

USCA11 Case: 21-12540 Document: 60-1 Date Filed: 02/09/2023 Page: 46 of 46

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.