FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES D. MACIEL, No. 11-56620
Petitioner-Appellant,
D.C. No.
v. 2:10-cv-07089-
AG-RNB
MATTHEW L. CATE; J. FLORES,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
July 9, 2013—Pasadena, California
Filed September 25, 2013
Before: Fortunato P. Benavides,* Jay S. Bybee,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
*
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 MACIEL V. CATE
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a parole
term and sex-offender registration requirement imposed
under California state law that were not part of the criminal
judgment.
The panel held that the sole certified issue, petitioner’s
parole challenge, was moot because he is no longer on parole
and has not identified a continuing collateral consequence
flowing from the expired parole term.
The panel granted a certificate of appealability as to
petitioner’s challenge to the sex-offender registration
requirement and, after examining Supreme Court precedent
and legislative intent, held that the requirement was neither
contrary to nor an unreasonable application of clearly
established federal law.
COUNSEL
Matthew B. Larsen (argued), Deputy Federal Public
Defender, and Sean K. Kennedy, Federal Public Defender,
Los Angeles, California, for Petitioner-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MACIEL V. CATE 3
Gregory J. Marcot (argued), Deputy Attorney General,
Kamala D. Harris, Attorney General of California, Jennifer A.
Neill, Senior Assistant Attorney General, and Phillip Lindsay,
Supervising Deputy Attorney General, San Diego, California,
for Respondent-Appellee.
OPINION
NGUYEN, Circuit Judge:
California state prisoner James D. Maciel appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus
petition challenging his sentence for committing lewd and
lascivious acts with force against a child. Maciel contends
that the state violated Hill v. United States ex rel. Wampler,
298 U.S. 460 (1936), by imposing a parole term and a sex-
offender registration requirement that were not part of his
criminal judgment. We find Maciel’s challenge to his parole
term moot because he is no longer on parole. With respect to
Maciel’s claim that imposition of the sex-offender
registration requirement violates Wampler, we hold that the
state court’s decision was neither contrary to nor an
unreasonable application of clearly established federal law.
Accordingly, we affirm.
Background
In 1986, Maciel was convicted and sentenced to 42 years
and four months in state prison. The sentencing court did not
on the record impose a parole term or order Maciel to register
with the state as a sex offender following release from
imprisonment, despite the fact that state law mandated both
4 MACIEL V. CATE
requirements.1 See Cal. Penal Code §§ 290, 3000 (1986).
These requirements also did not appear on the abstract of
judgment or, apparently, the criminal judgment itself.2
Maciel was released from custody in 2008, at which time
the state informed him that he would be subject to a three-
year parole period and sex-offender registration requirement.
Eleven months later, Maciel was reimprisoned for violation
of parole conditions.
Maciel then filed a round of habeas petitions in the state
courts, claiming that the parole and registration requirements
violated his right to due process because they were not part of
his sentence. The California courts denied relief. The
California Court of Appeal, which issued the last reasoned
decision, found that “[p]arole periods and registration
requirements are statutorily mandated, and not subject to
amendment by the trial court.”3
1
Under California’s determinate sentencing law in place at the time,
courts were required to “inform the defendant that as part of the sentence
after expiration of the term he or she may be on parole for a period.” Cal.
Penal Code § 1170(c) (1986). Thirty days before an inmate’s release, the
department of corrections was required to meet with the inmate to set the
terms of parole and its duration, up to three years, unless waived
altogether. Id. § 3000 (1986).
2
Although the state court judgment is not included in the record on
appeal, the state does not dispute Maciel’s assertion that the judgment
omitted a parole term and registration requirement.
3
The state court of appeal also found that Maciel’s claims were
procedurally defaulted under In re Clark, 855 P.2d 729, 742–43, 745,
750–51 (Cal. 1993), and McCleskey v. Zant, 499 U.S. 467, 498 (1991),
because he had presented them in unjustified, successive habeas corpus
petitions. The state has forfeited this defense, however, by failing to raise
MACIEL V. CATE 5
Maciel sought habeas relief in the district court, arguing
that the state court decisions were contrary to Wampler. The
district court denied relief and granted a certificate of
appealability solely on the issue of whether the imposition of
a parole term violated Wampler. Maciel timely appealed and
seeks to expand the certificate of appealability to include his
second claim challenging the imposition of sex-offender
registration requirements. While his appeal was pending, he
was discharged from parole, having previously been re-
released from prison.
Jurisdiction and Standard of Review
A.
We first address Maciel’s request to expand the certificate
of appealability because it affects our jurisdiction. Now that
Maciel has completed his sentence, there is no longer a live
controversy over the state’s imposition of a parole term. A
criminal sentence—unlike the underlying convictions which
he does not challenge—carries no presumption of collateral
consequences. Thus, a habeas petitioner must show “some
concrete and continuing injury other than the now-ended
incarceration or parole . . . if the suit is to be maintained.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Because Maciel has not identified a continuing collateral
consequence that flows from his expired parole term, we find
it either in the district court or here. See Chaker v. Crogan, 428 F.3d
1215, 1220 (9th Cir. 2005).
6 MACIEL V. CATE
the sole certified issue moot.4 Therefore, we lack jurisdiction
over this appeal unless we grant Maciel’s motion to certify
his claim involving the imposition of a sex-offender
registration requirement. Cf. Phelps v. Alameda, 366 F.3d
722, 729–30 (9th Cir. 2004) (holding that appeal from denial
of habeas petition was moot where COA did not encompass
district court’s ruling that independently precluded relief and
where we could not expand certificate of appealability sua
sponte). We may expand the certificate of appealability if
Maciel “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see Ngo v.
Giurbino, 651 F.3d 1112, 1115 n.1 (9th Cir. 2011). This
means only “that the issues are debatable among jurists of
reason; that a court could resolve the issues in a different
manner; or that the questions are adequate to deserve
encouragement to proceed further.” Muth v. Fondren,
676 F.3d 815, 822–23 (9th Cir. 2012) (quoting Lambright v.
4
Maciel argues that the registration and other conditions are triggered
by his conviction and sentence. See, e.g., Cal. Penal Code § 3004(b)
(“Every inmate who has been convicted for any felony violation of a
‘registerable sex offense’ . . . and who is committed to prison and released
on parole . . . shall be monitored by a global positioning system for life.”
(emphasis added)). Thus, his argument goes, the issue is not moot
because if the parole term is deemed invalid, the registration conditions
would also be invalidated. Maciel has forfeited this argument by failing
to address it in his reply brief even though the state raised mootness in its
answering brief. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir.
2011). Instead, he improperly raised the argument for the first time in a
Federal Rule of Appellate Procedure 28(j) letter filed shortly prior to oral
argument. Even if considered on the merits, Maciel’s argument still fails.
Parole is imposed by law in felony sex offense convictions. See Cal.
Penal Code § 3000(a)(1). Under Maciel’s interpretation, the phrase “and
released on parole” would be rendered superfluous. See City of Alhambra
v. Cnty. of Los Angeles, 288 P.3d 431, 442 (Cal. 2012) (disfavoring
statutory constructions that render language superfluous).
MACIEL V. CATE 7
Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000)) (internal
quotation mark omitted). We think that Maciel has met this
standard. Therefore, we certify Maciel’s second claim for
relief and exercise jurisdiction under 28 U.S.C. §§ 1291 and
2253.
B.
We review the district court’s denial of a habeas petition
de novo. Varghese v. Uribe, 720 F.3d 1100, 1105 (9th Cir.
2013). Although Maciel was convicted in 1986, our review
of his claims is circumscribed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, which applies to all habeas petitions
filed after its effective date. See Lindh v. Murphy, 521 U.S.
320, 322–23 (1997). We may grant relief only if Maciel
shows that the state court’s adjudication of his claim “resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
Analysis
The sole question we face is whether the state court’s
denial of Maciel’s claim was contrary to or an unreasonable
application of Wampler. We thus begin with a discussion of
that case.
8 MACIEL V. CATE
A.
Thomas Wampler was convicted of income tax fraud and
sentenced to an 18-month term in a federal penitentiary and
a $5,000 fine. Wampler, 298 U.S. at 461. The clerk of court
forwarded a warrant of commitment to the penitentiary but
inserted language to the effect that Wampler was to remain
imprisoned until he paid the fine or was discharged by due
process of law. Id. at 461–62. Near the end of his prison
term, Wampler petitioned the district court to remove this
language from the warrant of commitment, id. at 462,
presumably because he had not yet paid the fine and wished
to be released.
The district court denied the petition on the ground that,
for at least 40 years, it had followed the Maryland common
law practice of imposing a repayment condition but not
including it in the judgment. Instead, the clerk of court would
prepare the warrant of commitment with the condition
included unless directed otherwise by the court. Id.; United
States v. Wampler, 10 F. Supp. 609, 610–11 (D. Md. 1935).
Wampler obtained habeas relief from a different district
court,5 and the warden appealed to the Third Circuit, which
certified the relevant legal questions to the United States
Supreme Court.
Justice Cardozo, writing for a unanimous Court, held that
Wampler was entitled to habeas relief because the repayment
condition of release, contained only in the warrant of
commitment but not in the district court’s judgment, was
void. Wampler, 298 U.S. at 465. Although the constitutional
5
Wampler was convicted in the District of Maryland but sought habeas
relief in the Middle District of Pennsylvania, where he was confined.
MACIEL V. CATE 9
basis for the Court’s holding was not explained, the decision
was apparently grounded in considerations of due process.6
See Earley v. Murray, 451 F.3d 71, 76 n.1 (2d Cir. 2006)
(positing that constitutional due process guarantees were the
source of Wampler’s rule because Wampler recognized that
“[a]ny deficiency in the sentence could have been corrected
through the proper procedures”), cert. denied, 551 U.S. 1159
(2007).
B.
Seventy years later, the Second Circuit confronted facts
in Earley materially identical to those here and granted
habeas relief under Wampler. Sean Earley pled guilty to
second degree attempted burglary and was sentenced to six
years in prison. Earley, 451 F.3d at 73. Although state law
mandated a term of post-release supervision, the sentencing
court did not orally impose it, nor was it reflected in the
written judgment or order of commitment. The New York
Department of Correctional Services administratively added
a five-year term of post-release supervision to Earley’s
sentence without informing him. Id. The Second Circuit held
that, in light of Wampler, “clearly established Supreme Court
precedent renders the five-year [post-release supervision]
term added to Earley’s sentence . . . invalid.” Id. at 76.7
6
The Supreme Court relied primarily on a line of cases from our court
that found the principle “obvious,” Wagner v. United States, 3 F.2d 864,
864–65 (9th Cir. 1925), and requiring little discussion, Boyd v. Archer,
42 F.2d 43, 43–44 (9th Cir. 1930).
7
The Second Circuit recently reaffirmed its holding in Earley, rejecting
a claim for qualified immunity by a state correctional official who
allegedly imposed conditions of post-release supervision on the plaintiffs
despite the absence of any orders by the sentencing courts imposing those
10 MACIEL V. CATE
C.
On the assumption that Earley was correctly decided,
Maciel asks us to extend it and find that the administrative
imposition of the sex-offender registration requirement, rather
than by a court order, also violates Wampler. Whether or not
the Second Circuit is correct about Wampler’s scope, we
think the California courts were entirely reasonable in
distinguishing Wampler from the facts of this case.
1.
There are a number of important differences between
Wampler’s and Maciel’s situations. Most obviously,
Wampler concerned illegitimate detention, not the collateral
consequences of that detention. The Supreme Court
emphasized Wampler’s longer time in custody when finding
that the discrepancy between the judgment and punishment
was substantial enough to warrant habeas relief:
A warrant of commitment departing in
matter of substance from the judgment back
of it is void. Being void and not merely
irregular, its nullity may be established upon
a writ of habeas corpus. The prisoner is
detained, not by virtue of the warrant of
requirements. Vincent v. Yelich, 718 F.3d 157, 165 (2d Cir. 2013)
(holding that under both Wampler and Earley, it was “clearly established
[in 2006] that the administrative imposition of [post-release supervision]
terms not imposed by the court is unconstitutional”). The Second Circuit
has also held that the right at issue was clearly established by Wampler for
habeas purposes but not for qualified immunity purposes until after Earley
clarified the law. See Scott v. Fischer, 616 F.3d 100, 105–08 (2d Cir.
2010).
MACIEL V. CATE 11
commitment, but on account of the judgment
and sentence. If the judgment and sentence
do not authorize his detention, no “mittimus”
will avail to make detention lawful.
Wampler, 298 U.S. at 465 (internal quotation marks and
citations omitted). The California courts reasonably could
have concluded that Wampler’s reach was limited to claims
involving actual custody.
2.
Another reason why the California courts were reasonable
in distinguishing Wampler is that it expressly applies only to
discretionary sentencing terms rather than the statutorily
mandated requirements at issue here. Wampler involved a
statute permitting the district court, as it saw fit, to impose a
sentencing condition that the defendant remain in prison until
any fine imposed was repaid. 298 U.S. at 463. Justice
Cardozo explained why the discretionary nature of the
punishment matters:
Imprisonment does not follow automatically
upon a showing of default in payment. It
follows, if at all, because the consequence has
been prescribed in the imposition of the
sentence. The choice of pains and penalties,
when choice is committed to the discretion of
the court, is part of the judicial function. This
being so, it must have expression in the
sentence, and the sentence is the judgment.
Id. at 463–64 (emphasis added). The negative implication of
this key passage is that when a requirement does follow
12 MACIEL V. CATE
automatically from the conviction, such as when the choice
to impose it was made by the legislature rather than the judge
at sentencing, the “choice of pains and penalties” is not part
of the judicial function and need not have expression in the
sentence and judgment.
Justice Cardozo later reiterated the distinction between
discretionary and non-discretionary punishment by rejecting
the contention that the tradition followed by the sentencing
judge and the clerk of court was so firmly established as to
have legal effect:
The court speaks through its judgment, and
not through any other medium. It is not
within the power of a judge by instructions to
a clerk to make some other medium the
authentic organ of his will. We are told that
the instructions may be likened to a rule of
court. They were not published; they were
not reduced to writing; they are lacking in the
formal safeguards that protect against mistake
and perhaps against oppression.
Id. at 465 (emphasis added). Again, the negative implication
is that if the punishment had been prescribed by rule of court
or other written law, its imposition by an administrator would
have withstood scrutiny. Laws duly enacted by the
legislature that mandate a particular punishment upon
conviction contain the procedural safeguards that concerned
Justice Cardozo.
The Second Circuit concluded that the discretionary
nature of the punishment was not material to Wampler, which
in the Second Circuit’s view, “went on to articulate a broader
MACIEL V. CATE 13
holding: The judgment of the court establishes a defendant’s
sentence, and that sentence may not be increased by an
administrator’s amendment.” Earley, 451 F.3d at 75. But
this begs the question. If, in light of the underlying statutory
scheme, the court’s judgment of conviction and sentence of
imprisonment require that the defendant be subject to
additional punishment after release, an administrator arguably
has not “amended” the judgment in any sense by carrying out
that punishment. Wampler did not criticize the district court
just for failing to set forth the punishment at issue in writing;
it also criticized the district court’s assumption that a warrant
of commitment, which did not “profess to regulate the form
or content of the sentence,” could affect it in any way. See
298 U.S. at 466. A duly enacted law of universal application,
in contrast, would regulate the sentence without offending the
Constitution.
3.
Even assuming that Wampler extends to non-custodial
sentencing conditions imposed by an administrator rather
than a judge, it still would have been reasonable to
distinguish Wampler on the ground that it involved
punishment and not simply burdensome regulation.
The district court here found that the registration
requirement amounted to a non-punitive regulatory measure
that was not part of Maciel’s sentence and thus need not be
included in the court’s judgment. Maciel faults the district
court’s reliance on cases involving ex post facto claims, a
theory of relief he disavows, but his Wampler claim is
analytically similar. Both types of claim assert that the state
is subjecting a convicted felon to illegal punishment that
could have been but was not lawfully imposed at the time of
14 MACIEL V. CATE
the crime or sentence, and the threshold question in either
case is whether the state action was punitive or civil in nature.
See Seling v. Young, 531 U.S. 250, 266 (2001) (“Whether a
confinement scheme is punitive has been the threshold
question for [double jeopardy, ex post facto, due process, and
Fifth Amendment privilege against self-incrimination]
constitutional challenges.”); Williamson v. Gregoire,
151 F.3d 1180, 1184 (9th Cir. 1998) (characterizing
Washington’s sex-offender registration requirement as a
“collateral consequence” of conviction—rather than a
“restraint on liberty” that would satisfy the “in custody”
requirement—in part because it “is ‘regulatory and not
punitive,’ and therefore did not amount to punishment within
the meaning of the Ex Post Facto Clause” (quoting Russell v.
Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997))).
For due process purposes, when determining “whether a
restriction on liberty constitutes impermissible punishment or
permissible regulation, we first look to legislative intent.”
Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054, 1059
(9th Cir. 2013) (quoting United States v. Salerno, 481 U.S.
739, 747 (1987)) (internal quotation mark omitted). “Absent
an express intent on the part of the legislature to punish, ‘the
punitive/regulatory distinction turns on whether an alternative
purpose to which the restriction may rationally be connected
is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned to it.’” Id.
(quoting Salerno, 481 U.S. at 747).
a.
There are two sex-registration laws at issue here. First,
the state legislature enacted the Sex Offender Punishment,
Control, and Containment Act of 2006 (“SOPCCA”), ch. 337,
MACIEL V. CATE 15
2006 Cal. Stat. 2584. Later that year, the California
electorate passed Proposition 83, the Sexual Predator
Punishment and Control Act: Jessica’s Law.
SOPCCA’s “primary purpose . . . was to prevent ‘future
victimization’ of the community by sex offenders.” People
v. Cornett, 274 P.3d 456, 459 (Cal. 2012). Similarly,
Proposition 83 was “a wide-ranging initiative that [sought] to
address the problems posed by sex offenders.” People v.
McKee, 223 P.3d 566, 571 (Cal. 2010). To accomplish these
goals, both SOPCCA and Proposition 83 (1) created several
new criminal offenses involving child victims; (2) increased
penalties for existing sex crimes against children; and
(3) changed parole and probation provisions for sex
offenders, sex offender registration requirements, and the
system for collecting and disseminating information
regarding sex offenders. Cornett, 274 P.3d at 459–60;
McKee, 223 P.3d at 571. While the first two changes clearly
serve a punitive purpose, the last—the only one at issue
here—does not. California heightened its registration and
tracking requirements to better regulate the problems posed
by sex offenders rather than to punish them. See McKee,
223 P.3d at 576–78.
b.
The registration requirement, without more,
unquestionably serves a regulatory purpose, as several cases
involving similar laws have held. See, e.g., United States v.
Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012)
(“[I]ndividuals convicted of serious sex offenses do not have
a fundamental right to be free from sex offender registration
requirements, and . . . such requirements serve ‘a legitimate
nonpunitive purpose of public safety, which is advanced by
16 MACIEL V. CATE
alerting the public to the risk of sex offenders in their
community.’” (quoting Doe v. Tandeske, 361 F.3d 594, 597
(9th Cir. 2004))).
A closer question is whether the registration-related
burdens on Maciel’s liberty are also regulatory as opposed to
punitive. Maciel identifies several such burdens: mandatory
GPS monitoring for life, Cal. Penal Code § 3004(b), a
lifetime ban on living within 2,000 feet of a school or park
where children gather as well as any additional residency
restrictions that local governments impose, id.
§ 3003.5(b)–(c), monthly reporting requirements while he
remains homeless, id. § 290.011(a), and the publication on a
website of his crime, identity, appearance, any future address,
and assessment for future dangerousness, id. §§ 290.04(a),
290.46(b).8
When classifying a measure as either punitive or civil,
courts generally consider the following factors: (1) whether
the sanction involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment;
(3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of
punishment—retribution and deterrence; (5) whether the
behavior to which it applies is already a crime; (6) whether an
alternative purpose to which it may rationally be connected
is assignable for it; and (7) whether it appears excessive in
8
In fact, Maciel may not be subject to all of these requirements. At least
one state appellate court held that the GPS monitoring requirements and
residency restrictions cannot be imposed retroactively, People v. Milligan,
83 Cal. Rptr. 3d 550, 559–60 (Ct. App. 2008), although the court later
withdrew its opinion, finding the issue unripe, 2009 WL 3119692 (Cal. Ct.
App. Sept. 29, 2009).
MACIEL V. CATE 17
relation to the alternative purpose assigned. United States v.
Reynard, 473 F.3d 1008, 1020 (9th Cir. 2007) (citing
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69
(1963)).
Of the four consequences of his registration as a sex
offender that Maciel claims are punitive, two—the monthly
reporting requirements while he is homeless and the
publication of information about him on a website—are not
materially different from registration requirements that we
and other circuits have found to be regulatory. See Juvenile
Male, 670 F.3d at 1005, 1013–14 (noting that several circuits
have upheld as civil regulatory measures requirements that
the contents of sex-offender registries be published and the
offenders register every three months). The two most
intrusive consequences of registration are the lifetime GPS
monitoring requirement and the residency restrictions. A
divided panel of the Sixth Circuit, evaluating a similar GPS
monitoring requirement under the Mendoza-Martinez
framework, concluded that the measure was a civil regulatory
scheme. See Doe v. Bredesen, 507 F.3d 998, 1003–07 (6th
Cir. 2007). Likewise, an Eighth Circuit panel split on
whether a residency restriction similar to California’s was
punitive, the majority finding that it was regulatory under
Mendoza-Martinez. Doe v. Miller, 405 F.3d 700, 718–23 (8th
Cir. 2005).
These cases illustrate that, at most, reasonable jurists can
disagree whether, under clearly-established Supreme Court
law, the consequences of registration as a sex offender in
California are punitive. Therefore, given AEDPA’s
deferential standard of review, we hold that the California
courts reasonably concluded that Wampler does not
encompass Maciel’s registration claim. See Harrington v.
18 MACIEL V. CATE
Richter, 131 S. Ct. 770, 786 (2011) (“A state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision. . . . The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” (internal quotation
marks and citation omitted)).
Conclusion
There are various grounds on which the California courts
reasonably could have denied Maciel’s Wampler claim,
including the actual ground given by the California Court of
Appeal—that parole and registration requirements are
imposed by law and are not subject to the sentencing court’s
discretion. Therefore, the judgment of the district court
denying Maciel’s habeas petition is
AFFIRMED.