United States District Court, D. Minnesota
Demond Burks, Federal Correctional Institution Terre Haute,
Terre Haute, Indiana, pro se.
William Stockmeyer, III, Minnesota Attorney General's
Office, Peter J. Orput, Hennepin County Attorney's
Office, for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, United States District Judge.
matter is before the undersigned United States District Judge
for consideration of Petitioner Desmon Demond Burks's
Objections [Doc. No. 10] to United States Magistrate Judge
Steven E. Rau's Report and Recommendation
(“R&R”), dated May 15, 2017 [Doc. No. 8]. The
magistrate judge recommended that Burks's 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus by a Person in
State Custody [Doc. No. 1] (“Habeas Pet.”) be
denied, and this action be dismissed.
to statute, this Court reviews de novo any portion of the
magistrate judge's opinion to which specific objections
are made, and “may accept, reject, or modify, in whole
or in part, the findings or recommendations” contained
in that opinion. 28 U.S.C. § 636(b)(1)(C); see
also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3).
Based on that de novo review, and for the reasons set forth
below, the Court overrules Petitioner's objections and
adopts the R&R in its entirety.
is currently incarcerated at the Federal Correctional
Institute in Terre Haute, Indiana, having been convicted in
this Court for conspiracy to commit bank fraud, aiding and
abetting bank fraud, and aggravated identify theft. See
United States v. Burks, No. 11-cr-369(4) (PAM/FLN) (D.
Minn.). However, Burks's petition does not relate to his
federal incarceration. Rather, Burks challenges the validity
of a sentence imposed in Minnesota state court in 2002.
(See Habeas Pet. at 6.) See Burks v. State,
No. A15-1416, 2016 WL 3375956 (Minn.Ct.App. June 20, 2016).
In that case, Burks pleaded guilty to one count of
terroristic threats, and was given a stayed sentence of 21
months, subject to a five-year term of probation.
Id. at *1. Burks's probation ended in 2007, but
as a result of his conviction, he is required by Minnesota
law to register as a predatory offender. See Minn.
Stat. § 243.166.
now brings the present habeas corpus petition to challenge
the registration requirement, arguing that it violates the Ex
Post Facto Clause of the United States Constitution, and that
in any event he was not convicted of an enumerated offense
requiring registration. (See Habeas Pet. at 6.)
See U.S. Const. art. I, § 10, cl. 1. Pursuant
to statute and the local rules of this Court, Burks's
petition was first referred to the magistrate judge for
review. See 28 U.S.C. § 636; D. Minn. LR 72.1.
The R&R submitted to this Court did not consider the
merits of Burks's claims, however, because Judge Rau
concluded as a threshold matter that the petition is
procedurally improper because Burks is not “in
custody” as that term is construed for purposes of
§ 2254 petitions. (See R&R at 2-3.)
See 28 U.S.C. § 2254(a); accord 28
U.S.C. § 2241(c)(1)-(3). In particular, although the
magistrate judge recognized that Burks is currently
incarcerated for a federal crime, he is no longer subject to
any restraint as a result of his state court terroristic
threats conviction, besides the ongoing requirement to
register as a predatory offender. Judge Rau concluded that
this collateral consequence does not rise to the level of
being “in custody, ” and thus Burks's
petition must fail. (See R&R at 3-4.)
filed timely objections to the R&R on May 24, 2017,
triggering this de novo review.
first objection contends that because the Eighth Circuit has
never “passed on the question of registration
requirements as sufficient to allow for
‘in-custody' treatment, ” his petition
presents a matter of first impression that requires statutory
analysis. (See Objections at 2.) Burks contends that
this analysis has not been done- presumably by the magistrate
judge. (See id.)
Court rejects this assertion. While Burks is correct that the
Eighth Circuit has not considered this specific factual
scenario, he is mistaken in suggesting that Judge Rau somehow
engaged in an improperly cursory review of the procedural
sufficiency of his claim. On the contrary, the R&R
demonstrates careful consideration of whether a non- punitive
registration requirement-the only remaining consequence of an
otherwise expired conviction-can constitute being “in
custody” under § 2254. Analogizing to similar
cases that have found a requirement to register as a
sex offender to be insufficient, the magistrate
judge prudently determined that registration as a
predatory offender likewise falls below the habeas
threshold. (See R&R at 3-4.) See Virsnieks
v. Smith, 521 F.3d 707, 718 (7th Cir. 2008); Hansen
v. Marr, 594 F.Supp.2d 1097, 1100 (D. Neb. 2009);
Stevens v. Fabian, No. 08-cv-1011 (ADM/AJB), 2009 WL
161216, at *10 (D. Minn. Jan. 22, 2009). Having reviewed
Judge Rau's reasoning, this Court likewise finds that the
burdens imposed by registration as a predatory offender do
not cause a petitioner to be “in custody” under
determination largely disposes of Burks's second
objection, which contends that “analogizing [to] a Sex
Offender Registration . . . is misplaced” because the
requirements of Minn. Stat. § 243.166 stem from an
underlying “violent” offense. (Objections at 2.)
Burks does not indicate why this distinction is relevant to
the present procedural analysis, however, which is concerned
with the consequences of the “restrictions and
obligations imposed upon” the petitioner. See Jones
v. Jerrison, 20 F.3d 849, 852 n.2 (8th Cir. 1994). As
the Court cannot conceive of any relevant difference between