FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER J. MUNOZ, JR., No. 20-16327
Petitioner-Appellant,
D.C. No.
v. 3:11-cv-00197-
LRH-RAM
GREGORY SMITH, Warden; ATTORNEY
GENERAL FOR THE STATE OF NEVADA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted June 18, 2021
San Francisco, California
Filed November 15, 2021
Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
Judges, and Douglas L. Rayes, * District Judge.
Opinion by Judge Bress
*
The Honorable Douglas L. Rayes, United States District Judge
for the District of Arizona, sitting by designation.
2 MUNOZ V. SMITH
SUMMARY **
Habeas Corpus
Vacating the district court’s order denying on the merits
Peter J. Munoz, Jr.’s federal habeas corpus petition
challenging the lifetime supervision imposed on him by the
State of Nevada, and remanding for further proceedings, the
panel held that the district court lacked jurisdiction to
adjudicate the petition under 28 U.S.C. § 2254.
The lifetime supervision consists of the following
conditions: (1) a $30 monthly fee to defray the costs of his
supervision; (2) electronic monitoring; and (3) a requirement
that he may reside at a location only if the residence has been
approved by his parole officer, and that he keep his parole
officer informed of his current address. The panel held that
under this court’s precedents, and on this record, these
conditions, individually and collectively, do not severely and
immediately restrain Munoz’s physical liberty. The panel
concluded that Munoz is therefore not challenging his
“custody,” and his claims are not cognizable in federal
habeas.
The panel wrote that, on remand, the district court may
determine whether to allow Munoz leave to file an amended
habeas petition that could secure jurisdiction under § 2254,
and/or consider whether it would be appropriate to construe
Munoz’s habeas petition to plead a cause of action under
42 U.S.C. § 1983.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MUNOZ V. SMITH 3
COUNSEL
Heather Fraley (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for Petitioner-
Appellant.
Katrina A. Samuels (argued), Deputy Attorney General;
Aaron D. Ford, Attorney General; Office of Nevada
Attorney General, Las Vegas, Nevada; for Respondents-
Appellees.
OPINION
BRESS, Circuit Judge:
A person may seek federal habeas relief if he is “in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under many state regimes, convicted sex
offenders who are released from prison are nonetheless
subject to additional forms of ongoing supervision. When a
person seeks to challenge those conditions in a federal
habeas petition, a federal court must determine whether the
conditions of supervision are, in fact, “custodial,” such that
the federal habeas statute applies.
In this case, we consider whether the petitioner can
challenge in federal habeas the lifetime supervision that
Nevada has imposed on him, which consists of the following
conditions: (1) a $30 monthly fee to defray the costs of his
supervision; (2) electronic monitoring; and (3) a requirement
that he may reside at a location only if the residence has been
4 MUNOZ V. SMITH
approved by his parole officer, and that he keep his parole
officer informed of his current address. We hold that under
our precedents and on this record, these conditions do not
severely and immediately restrain the petitioner’s physical
liberty. Petitioner is therefore not challenging his “custody,”
and his claims are not cognizable in federal habeas.
We have no occasion to decide whether petitioner’s
underlying constitutional challenge to his supervisory
conditions would have merit if presented through another
possible avenue of relief, such as a claim under 42 U.S.C.
§ 1983. We hold only that the district court lacked the ability
to adjudicate the petition under 28 U.S.C. § 2254. We
therefore remand this case to the district court for further
proceedings consistent with this opinion.
I
The procedural history of petitioner’s efforts to secure
federal habeas relief is extensive, and we recite only those
events relevant to this appeal. In 2002, petitioner Peter
Munoz digitally penetrated his daughter. A few years later,
he pleaded guilty to attempted lewdness with a child under
the age of 14. Nev. Rev. Stat. §§ 193.330, 201.230.
In his plea agreement, Munoz acknowledged that “the
Court will include as part of [his] sentence . . . lifetime
supervision commencing after any period of probation or
any term of imprisonment and period of release upon
parole.” The state court sentenced Munoz to 48–144
months’ imprisonment, required him to register as a sex
offender, and imposed a special sentence of lifetime
supervision. See Nev. Rev. Stat. § 176.0931(1) (“If a
defendant is convicted of a sexual offense, the court shall
include in sentencing . . . a special sentence of lifetime
supervision.”).
MUNOZ V. SMITH 5
Nevada’s rules for lifetime supervision are governed by
Nev. Rev. Stat. § 213.1243. At the time of Munoz’s 2006
sentencing, the 1997 version of § 213.1243 was in effect.
Under that statute, lifetime supervision was to be established
through regulations promulgated by the State Board of
Parole Commissioners (the “Parole Board”). Nev. Rev. Stat.
§ 213.1243(1). The Parole Board was required to, among
other things, “[s]upervise all persons . . . released to them for
supervision”; “[f]urnish to each person released under their
supervision a written statement of the conditions”; and
“[k]eep informed concerning the conduct and condition of
all persons under their supervision.” Id. §§ 213.1096(2)–(4).
Nevada law further specified that the Parole Board was
directed to establish “a schedule of fees to defray the costs
of supervision,” with a “monthly fee of at least $30” that
could be waived in cases of economic hardship. Nev. Rev.
Stat. §§ 213.1076(1)–(2). A later law, Senate Bill 471,
amended Nev. Rev. Stat. § 213.1243 and directed the Parole
Board to impose several additional conditions of lifetime
supervision, including electronic monitoring and certain
residency approval requirements and prohibitions. See id.
§§ 213.1243(3)–(5).
In 2011, and while he was still incarcerated, Munoz filed
a federal habeas petition challenging, among other things,
Senate Bill 471’s new conditions. In 2013, with his federal
habeas litigation ongoing, Munoz’s term of imprisonment
ended, and his lifetime supervision began. Shortly before
his release, Nevada’s Parole Board provided Munoz with his
conditions of lifetime supervision. The list included at least
seventeen separate conditions, many of which were not
listed in the statute. In 2014, Munoz filed his first amended
federal habeas petition. As relevant here, Munoz alleged
6 MUNOZ V. SMITH
that his lifetime supervision conditions violated his due
process rights and the Ex Post Facto Clause.
Based on intervening developments in Nevada law and
the State’s commitments in other cases, see ACLU of Nev. v.
Masto, 670 F.3d 1046, 1050–52, 1064–65 (9th Cir. 2012);
McNeill v. State, 375 P.3d 1022 (Nev. 2016); White v. State,
2018 WL 4908402, at *1 (Nev. 2018)—which may be
relevant to Munoz’s underlying constitutional arguments but
are not relevant here—the Parole Board amended Munoz’s
conditions to include only the three now at issue.
First, Munoz is required to pay a supervision fee of at
least $30 per month. See Nev. Rev. Stat. § 213.1243(5)(c).
Second, through what he describes as an ankle monitor,
Munoz is subject to “a system of active electronic
monitoring that is capable of identifying [his] location and
producing, upon request, reports or records of [his]
presence.” Id. § 213.1243(5)(b). Third, Munoz may “reside
at a location only if” the “residence has been approved by
the Parole and Probation officer assigned to [him]”; he must
“keep[] the Parole and Probation officer informed of [his]
current address”; and he may not live in a residence with
“more than three persons who have been released from
prison” unless it is a licensed transitional facility for released
offenders. Id. § 213.1243(3). Munoz is no longer subject to
the other restrictions that the Parole Board initially imposed
upon him when he was released from prison.
In 2017, Munoz filed a second amended federal habeas
petition. The district court denied Munoz’s petition on the
merits, holding that Nevada’s lifetime supervision
requirements did not violate the Ex Post Facto Clause or
Munoz’s due process rights. The district court issued a
certificate of appealability on this issue. After we heard oral
argument, we directed the parties to submit supplemental
MUNOZ V. SMITH 7
briefs on whether the district court had jurisdiction over
Munoz’s petition.
II
The State now argues that the district court lacked
jurisdiction to consider Munoz’s petition because his claims
are not cognizable in federal habeas. We have jurisdiction
to consider the jurisdictional question. See, e.g., Shaboyan
v. Holder, 652 F.3d 988, 989 (9th Cir. 2011) (per curiam).
The answer turns on whether Munoz’s lifetime supervision
places him “in custody” under 28 U.S.C. § 2254. Case law
confirms that Munoz’s supervisory conditions are not
“custodial” conditions within the meaning of the federal
habeas statute. We therefore hold that the district court
lacked jurisdiction to adjudicate Munoz’s federal habeas
petition as presented.
A
Federal courts “shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a) (emphasis added).
The writ of habeas corpus “is the exclusive vehicle for
claims brought by state prisoners that fall within the core of
habeas.” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir.
2016) (en banc). A claim is “within the core of habeas”
when, if successful, it “terminates custody, accelerates the
future release from custody, []or reduces the level of
custody.” Id. at 930 (emphasis added) (quoting Skinner v.
Switzer, 562 U.S. 521, 534 (2011)). Because “Section
2254(a)’s ‘in custody’ requirement is jurisdictional,” it “‘is
the first question we must consider.’” Bailey v. Hill, 599
8 MUNOZ V. SMITH
F.3d 976, 978 (9th Cir. 2010) (quoting Williamson v.
Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)).
The “in custody” language appears twice in § 2254(a).
The first reference to “in custody” requires that the habeas
petition be filed “in behalf of a person in custody.” Bailey,
599 F.3d at 978. Munoz meets this “in custody” requirement
because he was “in custody at the time” the relevant petition
was filed, serving his term of imprisonment. See id. at 979
(explaining that a “petitioner’s subsequent release from
custody does not itself deprive the federal habeas court of its
statutory jurisdiction” (quotations omitted)).
But the fact that a petitioner is “in custody” at the time
of filing is “insufficient to confer jurisdiction” because the
petitioner must also meet the second “in custody”
requirement. Id. To satisfy the second requirement, Munoz
must be challenging the “lawfulness of his custody.” Id. at
980. The second “in custody” requirement, then, “precludes
courts from reviewing a challenge to a non-custodial portion
of a criminal sentence.” Id. at 981 (citing Virsnieks v. Smith,
521 F.3d 707, 721 (7th Cir. 2008)); see also, e.g., Dominguez
v. Kernan, 906 F.3d 1127, 1137 (9th Cir. 2018) (“[T]he
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody.” (quoting Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973)). The question, then,
is whether Munoz—in challenging the lawfulness of his
lifetime supervision—is challenging a custodial sentence.
Historically, the “chief use of habeas corpus” was “to
seek the release of persons held in actual, physical custody
in prison or jail.” Jones v. Cunningham, 371 U.S. 236, 238
(1963). But in Jones, the Supreme Court interpreted
“custody” to encompass circumstances in which the state has
imposed “significant restraints on [a] petitioner’s liberty.”
Id. at 242. That was because, Jones held, “[h]istory, usage,
MUNOZ V. SMITH 9
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. Jones
concluded that a paroled prisoner was therefore in “custody”
for habeas purposes due to a series of highly limiting and
onerous conditions, such as that he be “confined . . . to a
particular community, house, and job at the sufferance of his
parole officer” and expected 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.
After Jones, the Supreme Court held that a petitioner
released on his own recognizance pending execution of his
sentence was “in custody” within the meaning of the federal
habeas statute. Hensley v. Mun. Ct., San Jose Milpitas
Judicial Dist., 411 U.S. 345, 345–46 (1973). Hensley
affirmed that the “custody requirement of the habeas corpus
statute is designed to preserve the writ of habeas corpus as a
remedy for severe restraints on individual liberty.” Id. at
351. At the same time, Hensley noted, the writ’s “use has
been limited to cases of special urgency, leaving more
conventional remedies for cases in which the restraints on
liberty are neither severe nor immediate.” Id. Thus, “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.” Maleng v. Cook, 490
U.S. 488, 492 (1989).
In the decades since Jones, our court and others have
addressed whether various conditions imposed on sex
offenders rendered them in “custody” for purposes of federal
10 MUNOZ V. SMITH
habeas. Our leading precedent in this area is Williamson v.
Gregoire, 151 F.3d 1180 (9th Cir. 1998). Williamson
considered “whether a convicted child molester who has
completed his sentence, but who must register as a sex
offender under a so-called ‘Megan’s law,’ is ‘in custody’ for
purposes of federal habeas corpus.” Id. at 1181.
Williamson provided several examples of conditions that
are “merely a collateral consequence of conviction, and do[]
not meet the ‘in custody’ requirement.” Id. at 1183. For
instance, “the imposition of a fine,” the revocation of a
professional license or a driver’s license, and “the inability
to vote, engage in certain businesses, hold public office, or
serve as a juror” are generally collateral consequences of
conviction that do not render a person “in custody” under the
federal habeas statute. Id.
Within that framework, Williamson addressed whether
Washington’s sex offender registration law was a “genuine
restraint on liberty” or “merely a collateral consequence” of
conviction. Id. Washington law required the petitioner to
register his address with the county sheriff, verify his address
annually, notify the sheriff before moving, and notify the
sheriff of enrollment in higher education. Id. at 1181.
Failure to comply with these conditions exposed the
petitioner to felony charges. Id. We held that these
conditions were not “custodial” and therefore could not be
challenged in federal habeas. Id. at 1184.
Williamson considered two factors in placing
Washington’s sex offender law on the “collateral
consequences” side of the ledger. First, and most
importantly, Williamson considered the petitioner’s
“physical sense of liberty,” asking “whether the legal
disability in question somehow limits the putative habeas
petitioner’s movement” in a “significant” way. Id. at 1183–
MUNOZ V. SMITH 11
84. On this first factor, we did “not see a significant restraint
on Williamson’s physical liberty.” Id. at 1183–84. We
reasoned that the law did not actually prevent the petitioner
from traveling, did not require him to “personally appear at
a sheriff’s office to register,” did not “demand his physical
presence at any time or place,” and did not “specify any
place in Washington or anywhere else where Williamson
may not go.” Id. at 1184.
In reaching this conclusion, we recognized that the
“registration and notification provisions might create some
kind of subjective chill on Williamson’s desire to travel” or
move to a new home. Id. Still, this was not “so severe” a
restraint to qualify as a deprivation of physical liberty from
a “custodial” perspective. Id. Washington’s sex offender
law thus “lack[ed] the discernible impediment to movement
that typically satisfies the ‘in custody’ requirement.” Id.
Nor did the threat of criminal sanctions alter the analysis.
See id. (“We do not think that the mere potential for future
incarceration, without any present restraint on liberty, can
satisfy the ‘in custody’ requirement.”).
Second, Williamson noted that Washington’s law was
“regulatory and not punitive.” Id. We addressed this point
in Williamson only briefly, explaining that it supplied
“[a]nother reason” for our holding, albeit not one that was
“directly controlling” because the “‘in custody’ requirement
may be satisfied by constraints other than criminal
punishment.” Id. Instead, we found this second factor
simply “bolster[ed] our conclusion” that the Washington law
was not analogous to probation or parole and did not impose
restraints on liberty severe enough to constitute “custody.”
Id.
We later applied Williamson’s reasoning to hold that
other states’ sex offender registration requirements did not
12 MUNOZ V. SMITH
render the offenders “in custody” for federal habeas
purposes. In Henry v. Lungren, 164 F.3d 1240 (9th Cir.
1999), we held that a California sex offender law did not
place the petitioner “in custody” even though California’s
law, which the petitioner maintained required in-person
annual registration, was in some ways “more restrictive”
than the Washington law challenged in Williamson. Id. at
1242. Henry concluded that “[r]egistration, even if it must
be done in person at the police station, does not constitute
the type of severe, immediate restraint on physical liberty
necessary to render a petitioner ‘in custody’ for the purposes
of federal habeas corpus relief.” Id. (citing Jones, 371 U.S.
at 242–43). Henry therefore determined that the district
court lacked jurisdiction over the habeas petition. Id.
Similarly, in McNab v. Kok, 170 F.3d 1246 (9th Cir.
1999) (per curiam), we addressed Oregon’s sex offender
registration requirements. We concluded there that “because
Oregon’s sex offender registration requirements place no
greater restraint on personal liberty than those of California
and Washington, the Oregon law does not place [the
petitioner] in custody within the meaning of section
2254(a).” Id. at 1247.
More recently, in Maciel v. Cate, 731 F.3d 928 (9th Cir.
2013), we evaluated a California law imposing “heightened
. . . registration and tracking requirements” on sex offenders.
Id. at 936. This law imposed on the petitioner “mandatory
GPS monitoring for life” and “a lifetime ban on living within
2,000 feet of a school or park where children gather.” Id. It
also imposed related residency restrictions and monthly
reporting requirements, while directing the “publication on
a website of his crime, identity, appearance, any future
address, and assessment for future dangerousness.” Id. at
936–37 (internal citations omitted).
MUNOZ V. SMITH 13
In Maciel, the petitioner argued that it violated Hill v.
Wampler, 298 U.S. 460 (1936), to not include these
conditions in his original criminal judgment. Wampler held
that a petitioner was entitled to habeas relief when, after the
district court pronounced its judgment, the clerk of court
added a condition that the petitioner would remain
imprisoned until he had paid a $5,000 fine. Id. at 461–62,
467. Wampler disapproved of the clerk’s addition of a
punitive condition because it had not been included in the
district court’s judgment. Id. at 465–67.
Applying the deferential standards of review in the
Antiterrorism and Effective Death Penalty Act of 1996, we
held in Maciel that “[e]ven assuming that Wampler extends
to non-custodial sentencing conditions,” the state court
could reasonably conclude that Wampler does not
encompass burdensome regulatory—rather than punitive—
conditions. 731 F.3d at 935–37 (emphasis added). In other
words, California’s sex offender registration and tracking
requirements, though burdensome, could be regarded as
collateral consequences of conviction, not “custodial”
requirements.
Like our court, other circuits have also considered a
range of post-release conditions imposed on sex offenders in
the context of deciding whether challenges to those
conditions were cognizable in federal habeas. Other circuits
have likewise held that these conditions did not place
offenders “in custody” under § 2254. See, e.g., Calhoun v.
Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014)
(“[W]e join the circuits uniformly holding that the
requirement to register under state sex-offender registration
statutes does not satisfy § 2254’s condition that the
petitioner be ‘in custody’ . . . .”); Wilson v. Flaherty, 689
F.3d 332, 337–38 (4th Cir. 2012) (holding that a petitioner
14 MUNOZ V. SMITH
challenging Virginia’s sex offender law was not “‘in
custody’ so as to satisfy the jurisdictional requirement for a
federal habeas case” and noting that “every court of appeals
to have considered whether the registration requirements
imposed on sex offenders place the sex offender in custody
for purposes of habeas jurisdiction has concluded that they
do not”); Virsnieks v. Smith, 521 F.3d 707, 718–20 (7th Cir.
2008) (holding that Wisconsin’s sex offender law “imposes
minimal restrictions on a registrant’s physical liberty of
movement” and noting that “courts ha[d] rejected uniformly
the argument that a challenge to a sentence of registration
under a sexual offender statute is cognizable in habeas”);
Leslie v. Randle, 296 F.3d 518, 521–23 (6th Cir. 2002)
(analogizing Ohio’s sex offender law to the Washington law
challenged in Williamson and holding that Ohio’s
requirements were “more analogous to collateral
consequences such as the loss of the right to vote than to
severe restraints on freedom of movement such as parole”).
The Third Circuit has permitted habeas challenges to a
Pennsylvania sex offender registration law. See Piasecki v.
Ct. of Common Pleas, Bucks Cnty., Pa., 917 F.3d 161, 170
(3d Cir. 2019). But in so holding, it applied an approach
similar to Williamson and its progeny, except in the context
of a state law that imposed very different requirements.
Piasecki involved much more burdensome conditions
than those addressed in our prior cases. The petitioner was
“required to register in-person with the State Police every
three months for the rest of his life,” and was required to
“appear, in-person, at a registration site” any time he wanted
to leave home for more than seven days, travel
internationally, change his residence, change his
employment, matriculate or end enrollment as a student, add
or change a phone number, change ownership of a car, or
MUNOZ V. SMITH 15
add or change any email address or online designation,
among other things. Id. at 164–65, 170. The petitioner was
also permitted no “computer internet use.” Id. at 170.
The Third Circuit concluded that the combined effect of
these conditions was sufficiently severe to amount to
custody. Id. at 171 (holding that the “restraints compelled
Piasecki’s physical presence at a specific location and
severely conditioned his freedom of movement”).
Piasecki’s analysis was consistent with our own precedent,
but simply confronted far more severe restrictions than those
we have addressed in our past cases. See id. at 172
(explaining that Pennsylvania’s law was more “onerous”
than those addressed in other cases).
B
We turn now to the specific conditions Nevada has
imposed on Munoz and ask whether they are sufficiently
“severe” and “immediate” to make Munoz’s supervision a
“genuine restraint on liberty.” Henry, 164 F.3d at 1242;
Williamson, 151 F.3d at 1183. This issue is not resolved, as
Munoz implies, by the “lifetime” nature of the conditions or
the fact that they are supervisory (i.e., continuing in nature).
Henry, for example, involved “lifetime” requirements as
well. 164 F.3d at 1242. But Henry, like our other cases,
focused not on the duration of the restrictions per se but on
their nature and quality, in terms of whether they amounted
to a significant, severe, and immediate restraint on physical
liberty. McNab, 170 F.3d at 1247; Henry, 164 F.3d at 1242;
Williamson, 151 F.3d at 1183–84. Within the framework our
precedents set forth, we conclude that individually and
collectively, Munoz’s lifetime conditions of supervision do
not rise to that level.
16 MUNOZ V. SMITH
First, the requirement that Munoz pay a $30 monthly fee,
Nev. Rev. Stat. § 213.1243(5)(c), does not render him “in
custody.” “We have repeatedly recognized that the
imposition of a fine, by itself, is not sufficient to meet
§ 2254’s jurisdictional requirements.” Bailey, 599 F.3d at
979 (citing Williamson, 151 F.3d at 1183; Dremann v.
Francis, 828 F.2d 6, 7 (9th Cir. 1987)).
Munoz’s payment obligations were monthly, rather than
one-time-only. But the timing of his required payments does
not transform them into a custodial requirement because like
a fine, they do not impose a restraint on Munoz’s physical
liberty, much less the “significant restraint” that § 2254’s “in
custody” requirement demands. Id.; see also Kaminski v.
United States, 339 F.3d 84, 87 (2d Cir. 2003) (holding that a
restitution order requiring monthly payments of ten percent
of monthly income or $100 “plainly does not come close” to
satisfying the “in custody” requirement). Requiring Munoz
to make a monthly payment thus “lack[s] the discernible
impediment to movement that typically satisfies the ‘in
custody’ requirement.” Williamson, 151 F.3d at 1184.
Second, we have little difficulty concluding that
Munoz’s electronic monitoring requirement, Nev. Rev. Stat.
§ 213.1243(5)(b), also does not cause him to be “in custody”
under § 2254. The electronic monitoring allows the State to
track Munoz’s whereabouts, but it does not limit his physical
movement, nor does it require him to go anyplace. As was
true with the registration requirements we considered in
Williamson, Nevada’s electronic monitoring of Munoz
“neither target’s [petitioner’s] movement in order to impose
special requirements, nor does it demand his physical
presence at any time or place.” 151 F.3d at 1184. It also
does not “prevent[] him from going” anywhere, either. Id.
MUNOZ V. SMITH 17
To the extent electronic monitoring “create[s] some kind
of subjective chill” on where Munoz may choose to go, that
is insufficient under Williamson. Id.; see also Belleau v.
Wall, 811 F.3d 929, 941 (7th Cir. 2016) (Flaum, J.,
concurring in the judgment) (explaining that electronic
monitoring “does not infringe on [the offender’s] freedom of
movement” because he “may go where he pleases, when he
pleases”); Maciel, 731 F.3d at 935 (including 24-hour
electronic monitoring among conditions that could be
described as “non-custodial”); Doe v. Bredesen, 507 F.3d
998, 1000, 1005 (6th Cir. 2007) (holding that a sex offender
statute that required the offender to “wear a [GPS] device at
all times” did “not constitute an affirmative disability or
restraint”).
Third, and finally, Munoz is not “in custody” due to his
residency approval and reporting obligations. As a
reminder, Munoz may only reside at a location if “the
residence has been approved by the parole and probation
officer” assigned to Munoz. Nev. Rev. Stat.
§ 213.1243(3)(a). If “the residence is a facility that houses
more than three persons who have been released from
prison,” the facility must be “a facility for transitional living
for released offenders that is licensed” under Nevada law.
Id. § 213.1243(3)(b). And Munoz must also “keep[] the
parole and probation officer informed” of his current
address. Id. § 213.1243(3)(c).
The last of these requirements we can dispense with
easily: requiring Munoz to update his parole officer with his
current address does not restrict his movement in any
apparent way. See Williamson, 151 F.3d at 1184. Munoz
represents that he is required to appear in person “every few
months” to register. The laws we considered in Williamson
and Henry also involved requirements that the offender
18 MUNOZ V. SMITH
verify his address with the State, and in Henry registration
was in-person. See Henry, 164 F.3d at 1242; Williamson,
151 F.3d at 1183–84. Munoz provides no basis for treating
his reporting obligations any differently.
Requiring Munoz to obtain approval for where he lives
involves greater potential for a restraint on Munoz’s physical
liberty. But Munoz cites no authority to support the
proposition that a residency approval requirement, without
more, renders him “in custody.” It is not apparent that the
residency approval requirement has actually restricted where
Munoz may reside. Nor does Munoz contend, for example,
that any parole or probation officer has unreasonably
withheld approval, or that that this requirement has been
applied in a way that unduly limits his ability to live at a
location of his choosing. Almost by definition, this
requirement does not require him to live or be anywhere,
either. See Williamson, 151 F.3d at 1180 (noting that
Washington’s sex registration law did not “demand
[petitioner’s] physical presence at any time or place”).
Thus, regardless of whether a residency approval
requirement could in some particularly inhibiting
circumstances create a severe or significant restraint on an
offender’s physical liberty, McNab, 170 F.3d at 1247;
Henry, 164 F.3d at 1242; Williamson, 151 F.3d at 1183–84,
Munoz has not shown that his residency approval condition
is a “custodial” one under § 2254. See also Hautzenroeder
v. Dewine, 887 F.3d 737, 742–43 (6th Cir. 2018) (holding
that Ohio’s residency restrictions for sex offenders did not
create conditions of “custody” under § 2254). 1
For the same reasons, Munoz has not shown he is in “custody”
1
based on the requirement that, if he lives with more than three persons
MUNOZ V. SMITH 19
Because it is sufficient to conclude under Williamson’s
first factor that Munoz’s conditions of lifetime supervision
are not a severe, immediate restraint on his physical liberty,
we need not resolve whether the conditions are regulatory or
punitive under Williamson’s second factor. See Henry, 164
F.3d at 1242 (applying Williamson and holding that
California’s sex offender law did not place petitioner “in
custody” without addressing whether the law was punitive
or regulatory). On this record, Munoz has not demonstrated
that the three conditions that make up his lifetime
supervision are “custodial” within the meaning of § 2254.
The district court therefore lacked jurisdiction over Munoz’s
habeas petition.
* * *
On remand, the district court may determine whether to
allow Munoz, upon a proper showing, leave to file an
amended habeas petition that could secure jurisdiction under
§ 2254. In addition, or alternatively, the district court may
consider whether it would be appropriate to “construe
[Munoz’s] petition for habeas corpus to plead a cause of
action under § 1983 after notifying and obtaining informed
consent” from Munoz. Nettles, 830 F.3d at 936.
VACATED and REMANDED.
who have been released from prison, the facility be a transitional living
facility licensed under Nevada law. Nev. Rev. Stat. § 213.1243(3).