FILED

United States Court of Appeals

Tenth Circuit

October 25, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMMY HOWARD DICKEY,

Petitioner - Appellant,

v.

JOE ALLBAUGH, Interim Director

Oklahoma Department of Corrections;

STATE OF OKLAHOMA,

Respondents - Appellees.

No. 15-6234

(D.C. No. 5:15-CV-00685-M)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.

Timmy Howard Dickey appeals from the district court’s dismissal of his

petition for a writ of habeas corpus, 28 U.S.C. § 2254, or in the alternative,

habeas relief pursuant 28 U.S.C. § 2241, or a writ of audita querela or coram

nobis. Dickey v. Patton, 2015 WL 8494009 (W.D. Okla. Dec. 10, 2015). Upon

recommendation of the magistrate judge, Dickey v. Patton, 2015 WL 8592709

(W.D. Okla. Sept. 28, 2015), the district court held that Mr. Dickey was not “in

*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
custody” nor entitled to relief on alternate grounds. The district court granted a

certificate of appealability on whether Oklahoma’s sex offender registration

requirements satisfy the “in custody” requirement, and whether Mr. Dickey is

nevertheless entitled to relief under the All Writs Act via the writ of audita

querela or the writ of coram nobis. Our jurisdiction arises under 28 U.S.C. §

1291, and we affirm. 

Background

In 2011, Mr. Dickey was convicted of child sexual abuse and sentenced to

five years’ imprisonment after being tried by a jury. Aplt. App. 84. On direct

appeal, the Oklahoma Court of Criminal Appeals (OCCA), held that the record

was inadequate to establish one of the elements of the offense.1

 Id. 27. Rather

than reverse the conviction, however, the OCCA modified Mr. Dickey’s

conviction to incest, a charge the state had not elected to bring, and determined

his sentence should remain the same. Id. 15, 28–29.

Seeking to overturn the decision of the OCCA, Mr. Dickey filed an

application for post-conviction relief. The state district court denied his

application, and the OCCA affirmed, concluding that incest was a lesser-included

1

 Specifically, the OCCA found that the record did not establish that Mr.

Dickey was “a person responsible for the health, safety, or welfare” of the victim,

which was an element of the offense of child sexual abuse pursuant to Oklahoma

law at the time of the offense. Aplt. App. 26–27 (quoting 21 O.S. Supp. 2010,

§ 843.5(E)). 

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offense under the evidence test and thus there was no violation of Mr. Dickey’s

constitutional rights. Id. 33–35. Mr. Dickey then filed the instant federal action. 

Because he was convicted of a sex offense, Mr. Dickey is now required to

register pursuant to Oklahoma’s Sex Offenders Registration Act. Okla. Stat. tit.

57, §§ 581–590. He is not permitted to work with children or to work on school

premises. Id. § 589(A). He is forbidden from living, temporarily or permanently,

within a 2,000-foot radius of any “school . . ., educational institution, property or

campsite used by an organization whose primary purpose is working with

children, a playground or park . . ., or a licensed child care center.” Id. § 590(A). 

Additionally, it is unlawful for Mr. Dickey to live in a dwelling with another sex

offender. Id. § 590.1(A). Mr. Dickey contends that these provisions sufficiently

restrict his freedom to satisfy § 2254’s custody requirement, and that the

restrictions are more stringent than the Colorado statutory scheme addressed by

this court in Calhoun v. Attorney General of Colorado, 745 F.3d 1070 (10th Cir.),

cert. denied, 135 S. Ct. 376 (2014).

Discussion

A. Habeas Corpus

Section 2254(a) requires that a petitioner for a writ of habeas corpus be “in

custody pursuant to the judgment of a State court . . . in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus,

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a petitioner must demonstrate that he is in custody and the requirement is

jurisdictional. Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009). 

Questions as to the proper interpretation of “custody” under the statute are legal

and reviewed de novo. Id. at 1138. 

Custody status is determined as of the time the habeas petition is filed. 

Spencer v. Kemna, 523 U.S. 1, 7 (1998). The writ is available in situations where

a state-court criminal conviction has subjected the petitioner to “severe restraints

on [his or her] individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351

(1973). A restraint is severe when it is “not shared by the public generally.” 

Jones v. Cunningham, 371 U.S. 236, 240 (1963). The petitioner need not,

however, demonstrate actual, physical custody to obtain relief. Maleng v. Cook,

490 U.S. 488, 491 (1989) (per curiam). For example, habeas corpus is available

for prisoners released on personal recognizance or parole, among other situations. 

See, e.g., Hensley, 411 U.S. at 346, 353 (personal recognizance); Jones, 371 U.S.

at 242–43 (parole).

Not every restriction involving federal rights warrants the remedy of a writ

of habeas corpus. See Lehman v. Lycoming Cty. Children’s Servs. Agency, 458

U.S. 502, 510 (1982). Thus, collateral consequences of conviction which have

only a negligible effect on liberty or movement, do not satisfy the “custody”

requirement. Virsnieks v. Smith, 521 F.3d 707, 718 (7th Cir. 2008) (collecting

cases). For example, restitution or fines imposed on a petitioner do not — there

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must be a significant restraint on liberty. Erlandson v. Northglenn Mun. Ct., 528

F.3d 785, 788 (10th Cir. 2008). Other collateral consequences of conviction not

deemed restraints on liberty sufficient to constitute custody are the “inability to

vote, engage in certain businesses, hold public office, or serve as a juror,”

Maleng, 490 U.S. at 491–92, revocation of a driver’s license, medical license, or a

license to practice law, and disqualification as a real estate broker and insurance

agent, Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (collecting

cases).

In 2014, we joined other circuits in holding that the requirement to register

under state sex-offender statutes does not satisfy § 2254’s condition that the

petitioner be “in custody” at the time he or she files a habeas petition. See

Calhoun, 745 F.3d at 1074. We determined that Colorado’s sex-offender

requirements were not severe enough to constitute being “in custody” for habeas

purposes. See id. at 1072–74. Mindful of our precedent in Calhoun, Mr. Dickey

asserts that Oklahoma’s statutory scheme involving sex offenders is more

restrictive than that of Colorado because it significantly infringes on Mr. Dickey’s

rights to live, work, associate, and travel in ways not addressed by this court in

Calhoun. Aplt. Br. at 16.

It is undisputed that Mr. Dickey was released from prison before he filed

his § 2254 petition. Id. at 11. The OCCA issued its decision modifying Mr.

Dickey’s conviction from child sexual abuse to incest on April 24, 2013. Aplt.

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App. 25–29. He was discharged from the custody of the Oklahoma Department of

Corrections (DOC) on November 25, 2013. Id. 88. He then filed his federal

petition for a writ of habeas corpus on June 23, 2015. Id. 23. Accordingly, Mr.

Dickey had approximately seven months to file his petition for habeas corpus

while satisfying the “in custody” condition of § 2254 by being in the physical

custody of the Oklahoma DOC.

We now turn to the question of whether Mr. Dickey continues to be “in

custody” even after his release from prison given the nature of Oklahoma’s sexoffender registration statute. Although we agree with Mr. Dickey that

Oklahoma’s statutory scheme is more restrictive than that of Colorado, we do not

find that Oklahoma’s registration requirements impose a severe restraint on Mr.

Dickey’s freedom sufficient to satisfy the “in custody” requirement of § 2254. 

There is no condition of Mr. Dickey’s sentence that could subject him to

reincarceration or impose an additional restraint on his liberty. He remains free

to live, work, travel, associate, and engage in lawful activities without

government approval. Like those at issue in Calhoun, Oklahoma’s sex-offender

registration conditions are collateral consequences of Mr. Dickey’s conviction,

and not a continuation of punishment. A holding to the contrary “would read the

‘in custody’ requirement out of the statute.” Maleng, 490 U.S. at 492.

B. Audita Querela and Coram Nobis

We next address Mr. Dickey’s assertions that he is entitled to relief under

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the All Writs Act via the writ of audita querela or the writ of coram nobis, which

do not require that a petitioner be “in custody” to obtain relief. See United States

v. Denedo, 556 U.S. 904, 911 (2009); United States v. Torres, 282 F.3d 1241,

1245 (10th Cir. 2002).

1. Writ of Audita Querela

The purpose of a writ of audita querela is to challenge a judgment that

although correct when rendered, is now infirm due to subsequent events. Torres,

282 F.3d at 1245 n.6. An example would be something unanticipated, such as an

intervening change in law. Rawlins v. Kansas, 714 F.3d 1189, 1193 (10th Cir.

2013). Mr. Dickey’s argument, however, appears to be that the judgment of the

OCCA was incorrect at the time it was rendered. Moreover, he has not argued

that anything since the decision has made the judgment infirm. Accordingly, Mr.

Dickey is not entitled to relief under a writ of audita querela.

2. Writ of Coram Nobis

Although the Federal Rules of Civil Procedure abolished the writ of coram

nobis, see Fed. R. Civ. P. 60(e), the Supreme Court has since held in United

States v. Morgan, 346 U.S. 502, 506–13 (1954), that federal courts are authorized

to issue the writ to correct criminal judgments. Coram nobis has a limited use: to

fix fundamental errors of law or fact. Murray v. United States, 704 F.3d 23, 28

(1st Cir. 2013). It is an extraordinary remedy, which is available ‘only under

circumstances compelling such action to achieve justice’” Id. (quoting Morgan,

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346 U.S. at 511). Its purpose is “to correct errors ‘of the most fundamental

character; that is, such as render[] the proceeding itself irregular and invalid.’” 

Id. (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)).

The traditional use of the writ of corum nobis, however, is by a court in

correcting its own errors, not the errors of courts in other jurisdictions. 

Finkelstein v. Spitzer, 455 F.3d 131, 133–34 (2d Cir. 2006). Accordingly, we

have held that federal courts lack jurisdiction to grant a writ of coram nobis with

respect to state court judgments. Rawlins, 714 F.3d at 1196–97; see also

Finkelstein, 455 F.3d at 134 (collecting cases). Despite Mr. Dickey’s statement

to the contrary, Aplt. Br. at 23–24, we do not find this understanding of the writ

of coram nobis to conflict with the decision of the Supreme Court in Morgan. 

Because the offending error originated in the OCCA, the federal district court was

correct in concluding that it lacked the power to reexamine Mr. Dickey’s

conviction through a writ of corum nobis. 

Because Mr. Dickey was not “in custody” when he filed his § 2254 petition,

and is not eligible for relief in federal court under the writs of audita querela or

corum nobis, the district court’s judgment is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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