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Person committed as sexually violent person can’t collaterally attack underlying criminal conviction after sentence has expired

Kevin Stanbridge v. Gregory Scott, Seventh Circuit Court of Appeals Nos. 14-1548 & 14-2114, 6/29/15

While Stanbridge’s prior sexual abuse conviction is a necessary predicate for his current confinement as a sexually violent person, once the sentence for the conviction expired he is no longer “in custody” for that conviction for purposes of bringing a collateral attack against the conviction.

As Staybridge was coming to the end of his sentence for sexual abuse in 2007, Illinois began proceedings to commit him as a sexually violent person. Stanbridge filed a federal habeas petition in 2012 challenging the sexual abuse conviction that served as the predicate for the commitment. The district court properly dismissed the petition after ruling Stanbridge was not “in custody” under the conviction, as required by 28 U.S.C. § 2254(a), and Maleng v. Cook, 490 U.S. 488, 490 (1989) (custody requirement is jurisdictional).

In Maleng v. Cook, the Supreme Court held that a petitioner does not remain “‘in custody’ under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted.” 490 U.S. at 492. That is because a sentence enhancement is a collateral consequence of a prior conviction, and “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.” Id.…. (Slip op. at 5-6).

The court clarifies that language from Virsnieks v. Smith, 521 F.3d 707, 178 (7th Cir. 2008), which suggested collateral consequences are those “with negligible effects on a petitioner’s liberty of movement,” does not establish the standard for distinguishing direct and collateral consequences; instead, a direct consequence is one “imposed by the sentencing court as part of the authorized punishment, and included in the court’s judgment” while a collateral consequence is one not included in the judgment. (Slip op. at 6-9). Thus:

As applied to this case, it is clear that Stanbridge is not in custody pursuant to his sexual abuse conviction…. Although his physical liberty of movement is restrained in a nonnegligible way, that restraint is not a direct consequence of his criminal conviction. Rather, his civil commitment is clearly a collateral consequence of his criminal conviction, as it was not part of the judgment in the criminal case. See George v. Black, 732 F.2d 108, 110 (8th Cir. 1984) (holding that the possibility of confinement pursuant to civil commitment proceedings after the expiration of a criminal sentence is a collateral consequence); cf. Chaidez v. United States, 133 S. Ct. 1103, 1108 n.5 (2013) (“[E]ffects of a conviction commonly viewed as collateral include civil commitment.”).

Stanbridge is, of course, in custody due to his civil commitment, and can challenge that custody via a habeas petition. (Slip op. at 10-11). And, the court notes there’s one exception to the rule that a prisoner can’t challenge a predicate conviction once the sentence has expired: When he claims it was obtained in violation of his right to counsel. (Slip op. at 12). That exception is inapplicable here.

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