In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3322

ALBERT M. VIRSNIEKS,

Petitioner-Appellant,

v.

JUDY P. SMITH, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 670—Aaron E. Goodstein, Magistrate Judge.

____________

ARGUED NOVEMBER 2, 2007—DECIDED APRIL 2, 2008

____________

 

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,

Circuit Judges.

RIPPLE, Circuit Judge. Albert M. Virsnieks pleaded nolo

contendere to one count of burglary with intent to commit a

felony, in violation of section 943.10(1)(a) of the Wisconsin

Statutes, in exchange for the dismissal of one count of

second-degree sexual assault, see Wis. Stat. § 940.225(2)(a).

A Wisconsin trial court sentenced Mr. Virsnieks to the
2 No. 06-3322

statutory maximum of 10 years’ imprisonment and also

ordered him to register under Wisconsin’s sexual offender

statute. See id. § 973.048(1m). After exhausting his state

remedies and while serving his sentence of imprisonment,

Mr. Virsnieks filed in the district court a pro se petition for

a writ of habeas corpus under 28 U.S.C. § 2254. The district

court denied his petition. Mr. Virsnieks timely filed a

notice of appeal and obtained a certificate of appealability.

For the reasons set forth in this opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A.

On February 19, 1999, Mr. Virsnieks entered the home of

Joanne M. Buechel, with whom he previously had been

involved romantically. After Buechel discovered Mr.

Virsnieks in her home, an argument ensued; he allegedly

engaged in forcible sexual intercourse with her. The

criminal complaint filed against Mr. Virsnieks alleged both

burglary and second-degree sexual assault. The burglary

count stated that Mr. Virsnieks had entered Buechel’s home

with intent to commit a felony, but it did not identify

explicitly the felony as second-degree sexual assault. After

a preliminary hearing, the Wisconsin trial court determined

that probable cause existed to prosecute Mr. Virsnieks for

both charges. The State then filed an information charging

burglary and second-degree sexual assault; the information

did not state explicitly that the burglary charge was

predicated on the sexual assault.
No. 06-3322 3

Mr. Virsnieks and the State subsequently reached a plea

agreement. In exchange for a no contest plea on the burglary charge, the State agreed to drop the second-degree

sexual assault charge. The plea agreement provided that

“[n]o promises have been made regarding sentencing

recommendations to be made in this case. Both sides are

free to argue as to the sentence. Both parties agree that a

pre-sentence investigation should be ordered.” R.8, Ex. I.

The Wisconsin trial court held a plea hearing. The court

explained the burglary charge to which Mr. Virsnieks had

agreed to plead guilty: “What the State would have to

prove at a trial is that you intentionally entered a dwelling,

that the dwelling belonged to someone else, that you did

not have the person’s consent to enter into that residence,

that you were aware that you did not have permission to

enter into that residence, and that you intended to commit

a felony when you entered into that residence.” R.8, Ex. Q

at 7-8. Mr. Virsnieks indicated to the court that he understood the elements of burglary and that he had discussed

the case with counsel. During the plea colloquy, the trial

court did not make explicit that the predicate felony for the

burglary charge was sexual assault. The parties agreed to

use the criminal complaint and Buechel’s preliminary

hearing testimony as the factual basis for Mr. Virsnieks’

plea. The sexual assault featured prominently in Buechel’s

preliminary hearing testimony.

Prior to the sentencing hearing, Mr. Virsnieks submitted

to a court-ordered psychosexual evaluation that concluded

that he was sexually assaultive. Mr. Virsnieks also obtained

an expert, Dr. Michael Nelson, to conduct a psychological

evaluation. Dr. Nelson opined that, in terms of dangerousness and risk of recidivism, Mr. Virsnieks was at the mean

of the incarcerated population and just outside the range
4 No. 06-3322

1 Wisconsin law provides for automatic registration for defendants convicted of certain sexual offenses. See Wis. Stat.

§ 301.45(1)(g). Wisconsin law also gives trial courts the discretion to order defendants convicted of burglary to register if “the

court determines that the underlying conduct was sexually

motivated . . . and that it would be in the interest of public

(continued...)

for sexual predators. The pre-sentence report (“PSR”)

contained numerous references to Mr. Virsnieks’ sexual

assault of Buechel during the burglary, and it recommended that the court order him to register as a sexual

offender.

At the sentencing hearing, Mr. Virsnieks presented the

testimony of Dr. Nelson. After both parties had examined

the expert, the trial court posed several questions. The trial

court asked: “You do understand, that as far as the instant

offense here, the burglary is connected, and there was a

sexual assault charge connected with it, and the nature of

this charge is burglary with intent to commit a felony, i.e.,

a sexual assault; correct?” R.8, Ex. R at 25-26. In addition,

the trial court noted: “[T]he charge he pled to was burglary

with intent to commit a felony, which was a rape, a sexual

assault. I think that is my understanding. Counsel, correct

me if I am wrong.” Id. There is no indication in the record

that Mr. Virsnieks or his attorney objected to the trial

judge’s understanding of the case. In his statement to the

trial court, Mr. Virsnieks apologized for entering Buechel’s

home, but he did not address the sexual assault allegations.

In light of the alleged sexual assault on Buechel during

the burglary, the PSR recommended, and the State urged,

that the trial court exercise its discretion under Wisconsin

law1

 to order Mr. Virsnieks to register as a sex offender.2
No. 06-3322 5

1 (...continued)

protection to have the person report.” Id. § 973.048(1m). A

“sexually motivated” act is defined as an act that “is for the

actor’s sexual arousal or gratification or for the sexual humiliation or degradation of the victim.” Id. § 980.01(5).

2 The trial court and the pre-sentence report noted that Mr.

Virsnieks previously had served prison time for assaulting his

then-wife and forcing her to perform fellatio on him. In addition,

Buechel claimed that, prior to this incident, Mr. Virsnieks had

drugged her and, while she was unconscious, had taken

photographs of her and had engaged in sexual activity.

3 Wisconsin law allows a convicted defendant to file a postconviction motion in the trial court as part of his or her direct

appeal. See Wis. Stat. § 974.02.

Both Mr. Virsnieks and his counsel stated that they had

read the PSR. The Wisconsin trial court gave Mr. Virsnieks’

counsel an opportunity to address any factual inaccuracies

in the PSR; counsel declined. After hearing the testimony

and both parties’ arguments, the court sentenced Mr.

Virsnieks to 10 years’ imprisonment and ordered him to

register as a sex offender.

B.

After sentencing, Mr. Virsnieks, with the assistance of his

appellate counsel, filed a post-conviction motion in the trial

court.3

 He submitted that, under Wisconsin law, his plea

was not knowing or voluntary because he had not understood that the sexual assault was the felony underlying the

burglary charge and thus had not realized that he could be

ordered to register as a sex offender. Mr. Virsnieks claimed

that his trial counsel had told him that the predicate felony
6 No. 06-3322

4 “Use of the facilities” is not a felony under Wisconsin law.

was “use of the facilities.”4 Notably, during this hearing,

his new counsel explicitly stated that Mr. Virsnieks’ claim

was not based on ineffective assistance of trial counsel.

After listening to Mr. Virsnieks’ testimony and the

arguments presented by both parties, the trial court denied

the motion for post-conviction relief. It found Mr.

Virsnieks’ testimony “incredible.” R.8, Ex. S at 24. In the

court’s view, the fact that Mr. Virsnieks underwent a courtordered psychosexual evaluation prior to sentencing

should have raised a “red flag” about the significance of

the sexual assault. Id., Ex. S at 22. The court determined

that Mr. Virsnieks’ plea had been knowing based on the

information contained in the complaint and the PSR, which

both Mr. Virsnieks and his trial counsel had stated that

they had read. The court also noted that Mr. Virsnieks had

failed to object during the sentencing hearing at which the

sexual assault was mentioned repeatedly and that he had

declined the opportunity to refute the facts corresponding

to the underlying sexual assault, despite having agreed that

the criminal complaint and Buechel’s preliminary hearing

testimony would be used as the factual basis for the plea.

After the trial court’s denial of the post-conviction

motion, Mr. Virsnieks, with the assistance of counsel,

appealed to the Court of Appeals of Wisconsin. He raised

two arguments; both centered on his claim of ignorance

that the predicate felony for the burglary charge was sexual

assault. None of his arguments were based on federal law,

and he did not claim ineffective assistance of trial counsel.

The court of appeals affirmed the conviction on state law

grounds. The Supreme Court of Wisconsin later denied Mr.
No. 06-3322 7

Virsnieks’ petition, which also raised only state law

arguments.

Having exhausted his direct appeals, Mr. Virsnieks

turned to his state habeas remedies. He filed a pro se

motion for post-conviction relief and raised the following

claims: (1) his plea was not knowing and voluntary because

he was not apprised that the predicate felony was sexual

assault; (2) the factual basis for his plea was insufficient

because the sexual assault count had been dismissed; (3)

based on the factual predicate for his guilty plea, the trial

court could not impose the sentence that he received; (4)

the State violated its plea agreement and the trial court

erred by receiving arguments based on the dismissed

sexual assault count; (5) his trial counsel was ineffective

because he did not object to the prosecutor’s or the victim’s

statements at sentencing about the sexual assault, because

he did not inform Mr. Virsnieks of the predicate felony and

because he did not allow Mr. Virsnieks to speak on his own

behalf; (6) his appellate counsel was ineffective for not

raising the ineffectiveness of trial counsel. The state trial

court denied the motion; it explained that these issues

already had been addressed adequately in Mr. Virsnieks’

previous post-conviction motions and appeals.

Mr. Virsnieks then raised the same issues in an appeal to

the Court of Appeals of Wisconsin. The appellate court

determined that all of the issues, except for the ineffective

assistance of trial and appellate counsel claims, were

procedurally barred. As to the ineffective assistance of trial

counsel claim, the court determined that, on direct appeal,

Mr. Virsnieks, through his own testimony and through his

appellate counsel’s representations to the court, explicitly

had disclaimed that his trial counsel was ineffective. The

appellate court also rejected his ineffective assistance of
8 No. 06-3322

appellate counsel claim because it was premised on an

argument that the court already had rejected—namely, that

he had not been apprised of the underlying felony. The

Supreme Court of Wisconsin denied Mr. Virsnieks’ petition

for review, which raised the same arguments.

Mr. Virsnieks subsequently filed a pro se petition for a

writ of habeas corpus in the United States District Court for

the Eastern District of Wisconsin. Mr. Virsnieks raised

three arguments: (1) that his plea was not voluntary and

intelligent because he had not known that the sexual

assault was the predicate felony; (2) that his trial counsel

was ineffective for having failed to inform him that the

State was relying on the sexual assault as the predicate

felony; and (3) that his appellate counsel was ineffective for

waiving any potential ineffective assistance of trial counsel

claim.

The district court denied Mr. Virsnieks’ petition. With

respect to the voluntariness of his plea, the district court

held that the record demonstrates that Mr. Virsnieks’ plea

had been entered freely and knowingly. The court noted

that, to prove burglary under Wisconsin law, the State need

not prove the specific felony that a defendant intended to

commit. The court read Mr. Virsnieks’ petition as possibly

raising an Apprendi violation. The court rejected this

argument because any finding by the sentencing court that

the underlying felony was a sexual assault did not increase

Mr. Virsnieks’ sentence beyond the maximum statutorily

authorized sentence. Mr. Virsnieks did not argue in his

habeas petition that the order to register as a sex offender

was beyond the maximum statutorily authorized sentence.

The district court also rejected Mr. Virsnieks’ ineffective

assistance of counsel claims. With respect to the claim

regarding his trial counsel, the court determined that,
No. 06-3322 9

5 Mr. Virsnieks was scheduled to be paroled by the Wisconsin

Department of Correction on October 17, 2006. Six days prior to

his parole date, however, the State of Wisconsin initiated

proceedings to have Mr. Virsnieks civilly committed indefinitely

as a sexually violent person. See Wis. Stat. § 980 et seq. These

proceedings are pending, and Mr. Virsnieks is presently in the

physical custody of the Wisconsin Department of Health and

(continued...)

given the totality of the circumstances, it was entirely

reasonable for trial counsel to have assumed that Mr.

Virsnieks was aware that sexual assault was the underlying

felony. The district court also ruled that the Court of

Appeals of Wisconsin’s decision that Mr. Virsnieks was

judicially estopped from raising the claim of ineffective

assistance of trial counsel by not raising it in the postconviction hearing was an adequate and independent state

law ground. Finally, the court determined that, because it

already had determined that his trial counsel was not

ineffective, his appellate counsel could not have been

ineffective for having declined to make the argument.

Mr. Virsnieks timely filed a notice of appeal and sought

a certificate of appealability (“COA”) on all three issues

that he had raised before the district court. In his request

for a COA, he alerted the district court for the first time

that he had been ordered to register as a sex offender. The

district court explained that, “[b]ased on this additional

fact, only now presented, jurists of reason could disagree

as to whether the government was required to indicate in

the information that sexual assault was the specific crime

that Virsnieks had intended to commit when he entered the

residence.” R.31 at 4. Accordingly, the court granted Mr.

Virsnieks’ request for a COA.5
10 No. 06-3322

5 (...continued)

Family Services. Any potential issues arising from these pending

proceedings are not before this court.

II

DISCUSSION

A. Habeas Corpus Standards of Review

We review de novo the district court’s denial of a habeas

petition. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir. 2007).

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), we may grant habeas relief only if the state

court’s “decision was contrary to, or involved an unreasonable application of, Supreme Court precedent,” id., or

“resulted in a decision 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)(2). To

grant habeas relief under the “contrary to” clause, we must

find that the state court reached a result opposite to that

reached by the Supreme Court on materially indistinguishable facts. See Terry Williams v. Taylor, 529 U.S. 362, 405

(2000); Jackson v. Miller, 260 F.3d 769, 774 (7th Cir. 2001). To

obtain relief under the “unreasonable application” clause,

a habeas petitioner must show that the state court’s

decision unreasonably applied clearly established Supreme

Court precedent by unreasonably extending a rule to a

context where it should not have applied or by unreasonably refusing to extend a rule to a context where it should

have applied. Jackson, 260 F.3d at 774. The state court’s

factual findings are presumed correct; this presumption

can be rebutted by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 348

(2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005).
No. 06-3322 11

6 In Smith, the Supreme Court held that Alaska’s sexual offender

statute was not punitive for purposes of the Ex Post Facto

Clause. Smith v. Doe, 538 U.S. 84, 105-06 (2003).

7 The Wisconsin Court of Appeals adjudicated on the merits Mr.

Virsnieks’ claim that his plea was involuntary and unintelligent,

but it did so without reference to federal law. The Supreme

Court has held that this is of no consequence. See Early v. Packer,

537 U.S. 3, 8 (2002) (holding that, under AEDPA, a state court

need not cite or even be aware of Supreme Court precedent, “so

long as neither the reasoning nor the result of the state-court

decision contradicts” the Court’s precedents); see also Harrison v.

McBride, 428 F.3d 652, 665-67 (7th Cir. 2005).

In short, the state court decision must be “both incorrect

and unreasonable.” Washington v. Smith, 219 F.3d 620, 628

(7th Cir. 2000) (emphasis in original); see also Terry Williams,

529 U.S. at 407-08.

Mr. Virsnieks raises three claims on appeal: (1) that his

plea was not voluntary and intelligent because he had not

been informed that sexual assault was the predicate felony

for the burglary charge; (2) that the order requiring him to

register as a sex offender violated Apprendi because in his

case such an order is punitive, despite Smith v. Doe, 538

U.S. 84 (2003),6

 and exceeds the maximum statutorily

authorized penalty for burglary; and (3) that his trial and

appellate counsel provided ineffective assistance.

B. Voluntary and Intelligent Plea

Mr. Virsnieks asserts that the Wisconsin trial court’s

determination that he knew that his plea involved the

sexual assault was unreasonable.7

 He further submits that

the Wisconsin court’s decision was contrary to, and an
12 No. 06-3322

8 We employ the same standard in determining whether a no

contest plea was entered knowingly and voluntarily. See, e.g.,

McGrath v. United States, 402 F.2d 466, 467 (7th Cir. 1968).

unreasonable application of, clearly established Supreme

Court precedent because his plea had been neither voluntary nor intelligent. In support of this contention, Mr.

Virsnieks points to the lack of any explicit statement, in

either the information or the criminal complaint, at the

preliminary hearing or at the plea hearing, that sexual

assault was the predicate felony for the burglary charge.

1.

The principles that govern our inquiry are well settled. A

guilty plea8

 must be voluntary and intelligent. Parke v.

Raley, 506 U.S. 20, 29 (1992). To enter a voluntary and

intelligent plea, a defendant must have full awareness of

the plea’s “direct consequences,” Brady v. United States, 397

U.S. 742, 755 (1970), “real notice of the true nature of the

charge against him,” Henderson v. Morgan, 426 U.S. 637, 645

(1976), and understand “the law in relation to the facts,”

McCarthy v. United States, 394 U.S. 459, 466 (1969). Whether

a plea was entered knowingly and voluntarily is determined from “all of the relevant circumstances surrounding

it.” Brady, 397 U.S. at 749. Guilty pleas “are accorded a

great measure of finality” because they “are important

components of this country’s criminal justice system.”

Blackledge v. Allison, 431 U.S. 63, 71 (1977). As a result, the

defendant bears the burden of proving that the plea he

entered was involuntary and unintelligent. Marx v. United

States, 930 F.2d 1246, 1250 (7th Cir. 1991).
No. 06-3322 13

9 See Murrell v. Frank, 332 F.3d 1102, 1112 (7th Cir. 2003) (noting

that we extend “great deference” to a state court’s credibility

determinations); Ward v. Sterns, 334 F.3d 696, 710 (7th Cir. 2003).

2.

Under AEDPA, we generally must accept a state court’s

factual findings. Araujo v. Chandler, 435 F.3d 678, 682 (7th

Cir. 2005) (citing 28 U.S.C. §§ 2254(d)(2); 2254(e)(1)).

Therefore, as a threshold matter, Mr. Virsnieks must

overcome the state court’s factual determination that he

knew that the offense underlying the burglary charge was

the sexual assault.

Mr. Virsnieks has failed to show that the state court’s

decision “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)(2). The Wisconsin

trial court found “incredible” Mr. Virsnieks’ testimony that

his trial counsel had told him that the predicate felony was

“use of the facilities,” a non-felony in Wisconsin. R.8, Ex. S

at 24. The court further discredited Mr. Virsnieks’ claim

that he did not know that the sexual assault was the

predicate felony for the burglary.

Mr. Virsnieks points out that the information, criminal

complaint, preliminary hearing and plea hearing did not

state explicitly that sexual assault was the predicate felony.

Nevertheless, the Wisconsin court made a credibility

determination—which we generally are required to accept

under AEDPA9

—that, given the strong suggestions to that

effect contained in the criminal complaint, information and

Buechel’s preliminary hearing testimony, Mr. Virsnieks

must have known that the sexual assault was the predicate

offense for his plea. Although the information available in
14 No. 06-3322

10 We have defined direct consequences as the “immediate, and

automatic consequences of the guilty plea.” United States v.

Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (internal quotation

marks and citation omitted); see also Little v. Crawford, 449 F.3d

1075, 1080 (9th Cir. 2006); Wilson v. McGinnis, 413 F.3d 196, 199

(2d Cir. 2005); Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004);

George v. Black, 732 F.2d 108, 110 (8th Cir. 1984); Bryant v. Cherry,

687 F.2d 48, 49-50 (4th Cir. 1982).

11 See also Wilson, 413 F.3d at 199-200; Steele, 365 F.3d at 17; United

(continued...)

the PSR and the statements made by the trial judge in his

questioning of Dr. Nelson during the sentencing hearing

post-dated Mr. Virsnieks’ plea hearing, his failure to object,

or even inquire as to whether the sexual assault was the

predicate felony for his guilty plea to burglary, buttresses

the state court’s credibility determination.

3.

Mr. Virsnieks’ claim that his plea cannot stand because

he was not informed adequately about the potential that he

would be ordered to register as a sex offender cannot

succeed for an additional reason. The registration order

was a collateral consequence about which the State was not

required to inform him. The Supreme Court has held that

a guilty plea is voluntary and intelligent if the defendant

enters the plea with full awareness of its “direct consequences.” Brady, 397 U.S. at 755. Thus, although a defendant must be informed of the direct consequences flowing

from a plea, he need not be informed of collateral consequences.10 Warren v. Richland County Circuit Court, 223 F.3d

454, 457 (7th Cir. 2000).11
No. 06-3322 15

11 (...continued)

States v. Sambro, 454 F.2d 918, 922 (D.C. Cir. 1971) (en banc) (“We

presume that the Supreme Court meant what it said when it

used the word ‘direct’; by doing so, it excluded collateral consequences.” (emphasis in original)).

The Supreme Court has not delimited comprehensively

the particular consequences that are direct or collateral for

purposes of evaluating the voluntariness of a guilty plea.

See Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir. 2005).

Under its “contrary to” clause, AEDPA prohibits a federal

court from granting habeas relief unless the state court’s

decision contradicts “clearly established Federal law as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). As we have explained previously,

“[t]here can be no Supreme Court precedent to be contradicted or unreasonably applied,” and therefore no habeas

relief, when there is no Supreme Court precedent on point

or where the Court has reserved the question. Lockhart v.

Chandler, 446 F.3d 721, 724 (7th Cir. 2006); Simpson v.

Battaglia, 458 F.3d 585, 597 (7th Cir. 2006).

To a very limited extent, reference to lower court holdings may be evidence of a rule mandated implicitly by the

Supreme Court. For example, we held in Dalton that, for

purposes of habeas review under AEDPA, the potential

length of incarceration to which a prisoner exposed himself

by pleading guilty was a direct consequence of a guilty

plea. Dalton, 402 F.3d at 733. 

Unlike in Dalton, the issue here—whether being ordered

to register as a sexual offender is a direct or collateral

consequence—is not sufficiently clear cut to permit us to

conclude that the state court’s decision was contrary to, or

an unreasonable application of, Brady. Indeed, to the very
16 No. 06-3322

limited extent that the decisions of the courts of appeals

can “guide us in determining what constitutes an unreasonable application” of clearly established Supreme Court

precedent, see Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir.

2005), these decisions indicate that no clearly established

federal law requires that defendants be informed of the

possibility that they could be ordered to register as sexual

offenders. See, e.g., Steele, 365 F.3d at 16-17 (holding that

“the possibility of commitment for life as a sexually

dangerous person is a collateral consequence of pleading

guilty”); Warren, 223 F.3d at 456 (holding that the failure of

a state court to inform a defendant prior to his Alford plea

of the possibility that his probation could be revoked if he

did not admit during counseling sessions that he had

committed a sexual offense is a collateral consequence);

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. United States v.

Kikuyama, 109 F.3d 536, 538 (9th Cir. 1997) (holding that a

“consequence is ‘collateral’ where it lies within the discretion of the court to impose it” and therefore that a defendant’s consecutive sentence was collateral); Wall v. United

States, 500 F.2d 38, 39 (10th Cir. 1974) (same).
No. 06-3322 17

12 This argument does not require the retroactive application of

Apprendi. See Curtis v. United States, 294 F.3d 841, 845 (7th Cir.

2002) (holding that Apprendi does not apply retroactively under

the principles established by Teague v. Lane, 489 U.S. 288 (1989)).

Mr. Virsnieks’ conviction became final after June 26, 2000, the

date on which the Supreme Court issued Apprendi. See Spreitzer

v. Peters, 114 F.3d 1435, 1442 (7th Cir. 1997) (“A state conviction

and sentence become final for purposes of retroactivity analysis

when the availability of direct appeal to the state courts has been

exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally

denied.” (internal quotation marks omitted)).

13 Mr. Virsnieks was ordered to register under a Wisconsin

statute separate from the burglary provision. Wis. Stat.

§ 973.048(1m). This provision gives trial courts the discretion to

order defendants convicted of burglary to register if “the court

determines that the underlying conduct was sexually

motivated . . . and that it would be in the interest of public

protection to have the person report.” Id.

C. Apprendi Claim12

Mr. Virsnieks next submits that the order requiring him

to register as a sex offender increased the penalty for

burglary beyond the maximum statutorily authorized

sentence because the Wisconsin burglary statute does not

include registration as an available sentencing option.13

According to Mr. Virsnieks, the finding of fact that supported the sex offender registration order—that a sexual

assault occurred during the course of the burglary—either

must have been admitted by him or must have been

submitted to a jury and proven beyond a reasonable doubt.

Because neither of these adjudicatory procedures were

followed and because the order requiring him to register as

a sexual offender, in his view, is punitive, the Wisconsin

courts ran afoul of Apprendi. 
18 No. 06-3322

14 Jones v. Cunningham, 371 U.S. 236, 242-43 (1963).

15 Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S.

345, 346 (1973); see also Justices of Boston Mun. Court v. Lydon, 466

U.S. 294, 300 (1984).

16 Lefkowitz v. Newson, 420 U.S. 283, 286 n.2 & n.8 (1975).

Were Mr. Virsnieks’ Apprendi argument successful, we

would issue a writ of habeas corpus releasing him from the

obligation to register as a sex offender. We begin by

considering whether this relief is cognizable under the

habeas statute.

1.

The United States Congress has authorized federal courts

to entertain petitions for a writ of habeas corpus only

where the individual seeking the writ is “in custody.” 28

U.S.C. § 2241(c); see also id. § 2254(a). Historically, federal

courts interpreted the “in custody” requirement strictly;

they required that an individual be in the state’s physical

custody at the time that he or she filed the habeas petition.

See Richard H. Fallon, Jr., Daniel J. Meltzer & David L.

Shapiro, Hart and Wechsler’s The Federal Courts and the

Federal System 1395 (5th ed. 2003) (citing Wales v. Whitney,

114 U.S. 564 (1885); Stallings v. Splain, 253 U.S. 339 (1920);

Weber v. Squier, 315 U.S. 810 (1942)). In more recent times,

beginning with Jones v. Cunningham, 371 U.S. 236, 242-43

(1963), the Supreme Court has broadened the definition of

custody. Habeas corpus is now available, for example, to

prisoners who are released on parole,14 personal recognizance,15 and bail,16 as well as those serving consecutive
No. 06-3322 19

17 Peyton v. Rowe, 391 U.S. 54, 67 (1968); see also Garlotte v. Fordice,

515 U.S. 39, 46-47 (1995).

18 Jones, 371 U.S. at 240 n.9 (collecting cases).

19 Id. at 240 n.11.

sentences;17 to aliens seeking entry into the United States;18

and to individuals seeking to challenge their induction into

military service.19

 Despite this expansion of the definition of custody,

habeas petitioners must establish that they are subject to

conditions that “significantly restrain . . . [their] liberty.”

Jones, 371 U.S. at 243; see also Hensley v. Mun. Court, San Jose

Milpitas Judicial Dist., 411 U.S. 345, 351 (1973) (“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.” (emphasis added)); Harts

v. Indiana, 732 F.2d 95, 96 (7th Cir. 1984) (per curiam). In

Jones and other cases expanding the definition of custody,

the Court emphasized the physical nature of the restraints

on liberty that satisfied the custody requirement. Jones,

Hensley and Peyton, each involved restraints on a habeas

petitioner’s ability to move about freely. Jones, 371 U.S. at

242 (“Petitioner is confined by the parole order to a particular community, house, and job at the sufferance of his

parole officer. He cannot drive a car without permission.”);

Peyton v. Rowe, 391 U.S. 54, 67 (1968) (holding that “a

prisoner serving consecutive sentences is ‘in custody’

under any one of them”); Hensley, 411 U.S. at 351 (emphasizing that the petitioner “cannot come and go as he

pleases” and that his “freedom of movement rests in the

hands of state judicial officers, who may demand his

presence at any time and without a moment’s notice”).
20 No. 06-3322

Thus, the collateral consequences of a conviction, those

consequences with negligible effects on a petitioner’s

physical liberty of movement, are insufficient to satisfy the

custody requirement. See Maleng v. Cook, 490 U.S. 488, 491-

92 (1989); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); cf.

Bunn v. Conley, 309 F.3d 1002, 1008 (7th Cir. 2002) (holding

that a prisoner’s challenge to 18 U.S.C. § 4042(b), which

requires that the Bureau of Prisons notify a state’s chief law

enforcement officer that a prisoner convicted of a crime of

violence is being released, is not cognizable in habeas). 

In accordance with these principles, courts have held that

orders of restitution, fines and the revocation of medical

and driver’s licenses do not satisfy the “in custody”

requirement. See, e.g., Smullen v. United States, 94 F.3d 20, 25

(1st Cir. 1996); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir.

1986) (per curiam); Harts, 732 F.2d at 96-97; Hanson v.

Circuit Court, 591 F.2d 404, 407 (7th Cir. 1979). In contrast,

a sentence of 500 hours of community service has been held

to restrict sufficiently an individual’s physical liberty of

movement to satisfy the requirement. Barry v. Bergen

County Prob. Dep’t, 128 F.3d 152, 162 (3d Cir. 1997).

Indeed, given the habeas statute’s “in custody” requirement, courts have rejected uniformly the argument that a

challenge to a sentence of registration under a sexual

offender statute is cognizable in habeas. See Leslie v. Randle,

296 F.3d 518, 521-23 (6th Cir. 2002) (holding that a sentence

of registration imposed under Ohio’s sex offender law did

not meet the custody requirement); Henry v. Lungren, 164

F.3d 1240, 1241-42 (9th Cir. 1999) (same result under

California’s statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th

Cir. 1999) (Oregon’s statute); Williamson v. Gregoire, 151

F.3d 1180, 1184-85 (9th Cir. 1998) (Washington’s statute). In

Gregoire, a former Washington state prisoner filed a habeas
No. 06-3322 21

20 The Ninth Circuit has applied this holding and reiterated this

reasoning in two subsequent cases dealing with similar statutes

(continued...)

action challenging the requirement that he register under

Washington’s sexual offender statute. 151 F.3d at 1181-82.

The Ninth Circuit concluded that the petitioner did not

meet the in custody requirement, reasoning that registration did not constitute a significant restraint on the petitioner’s “physical sense of liberty.” Id. at 1183, 1184-85. The

registration statute itself did not place any physical restraints on the petitioner’s freedom of movement because

the law did not specify any place within or without Washington where the petitioner could not travel. Id. at 1184. He

did not have to register personally at the sheriff’s office but

could effectuate registration by mail. Id. at 1183-84. The

court recognized that “the registration and notification

provisions might create some kind of subjective chill on”

the petitioner’s “desire to travel.” Id. at 1184. This restriction, however, constituted no greater a burden on the

petitioner’s freedom of movement than the loss of a

driver’s license, which, the court noted, is insufficient to

satisfy the custody requirement. Id. (citing Lillios v. New

Hampshire, 788 F.2d 60, 61 (1st Cir. 1986); Harts, 732 F.2d at

96-97; Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.

1970)). Although failure to comply with the registration

requirements could lead to future incarceration, the court

explained that “this potentiality . . . , dependent entirely on

whether [the petitioner] chooses to obey the Washington

statute, actually makes the sex offender law very similar to

the restitution orders that other courts have found not to

create custody.” Id. (citing United States v. Michaud, 901 F.2d

5, 7 (1st Cir. 1990)).20
22 No. 06-3322

20 (...continued)

in the states of California and Oregon. See Henry v. Lungren, 164

F.3d 1240, 1241-42 (9th Cir. 1999); McNab v. Kok, 170 F.3d 1246,

1247 (9th Cir. 1999).

In Leslie v. Randle, the Sixth Circuit was confronted with

this same issue in a case with a similar posture as the one

before this court. In Leslie, a petitioner filed a habeas action

challenging the constitutionality of Ohio’s sexual predator

statute; the action was filed during the term of his incarceration. Leslie, 296 F.3d at 522. Employing reasoning similar

to that of the Ninth Circuit in Gregoire, the Sixth Circuit

held that, despite the fact that the petitioner was incarcerated at the time of his petition, his challenge to the registration portion of his sentence was not cognizable in habeas.

Id. at 523. Although Ohio’s statute required the petitioner

to “verify his address with the sheriff every 90 days even

if he never leaves his house,” the statute did not condition

his “ability to move to a different community or

residence . . . on approval by a government official.” Id. at

522. Additionally, the court explained, the petitioner’s

“freedom is not conditioned on his ability to remain

employed, nor is he prohibited from engaging in any legal

activities.” Id. Finally, the court noted that the Supreme

Court of Ohio has held that the sexual-predator statute is

remedial rather than punitive; a remedial statute, according

to the court, is more analogous to collateral consequences

than to “severe restraints on freedom of movement.” Id. at

523.

In this case, the Wisconsin sexual offender registration

statute, Wis. Stat. § 301.45 et seq., does not impose any

significant restriction on a registrant’s freedom of movement. Like the statutes in place in Washington and Ohio,
No. 06-3322 23

21 The statute does prevent certain registrants from establishing

or changing their residence. Wis. Stat. § 301.45(4r). This restriction, however, applies only to individuals who are otherwise in

custody—those on parole or extended supervision—and who

have not complied with the statute’s reporting requirements. Id.

Thus, in addition to not applying to non-custodial registrants,

registrants themselves can control whether this provision is

triggered. Williamson v. Gregoire, 151 F.3d 1180, 1184-85 (9th Cir.

1998).

22 A registrant must provide the WDOC with, among other

information, his or her name, address, date of birth, gender,

race, weight, hair and eye color, the specific statute that the

registrant violated as well as the name and address of the

registrant’s employer or school. See Wis. Stat. § 301.45(2), (4m).

the Wisconsin statute itself does not limit where a registrant may move or travel within Wisconsin, within the

United States or internationally.21 Although registrants are

required to keep the Wisconsin Department of Corrections

(“WDOC”) apprised of certain personal information22 and

to update this information every ninety days, Wis. Stat.

§ 301.45(3)(b)(1m), registrants may do so by mail. Wis.

Admin. Code § DOC 332.06(2). Moreover, a registrant may

update the WDOC with any changes by using a telephonic

registration system. See id. § DOC 332.06(2)(a). Accordingly,

the Wisconsin statute imposes minimal restrictions on a

registrant’s physical liberty of movement.

Our circuit’s case law, as well as ample case law from

other circuits, dictates that the future threat of incarceration

for registrants who fail to comply with the statute is

insufficient to satisfy the custody requirement. Hanson, 591

F.2d at 407 & n.6 (holding that the potential that nonpayment of a fine will result in incarceration is insufficient to

satisfy the custody requirement); see also Leslie, 296 F.3d at
24 No. 06-3322

522; Gregoire, 151 F.3d at 1184; Tinder v. Paula, 725 F.2d 801,

804 (1st Cir. 1984) (collecting cases); cf. Maleng, 490 U.S. at

492. As the First Circuit explained in Tinder, “the possibility

that the court will resort to imprisonment to enforce the

fine is considered too remote and speculative to warrant

the invocation of federal habeas jurisdiction.” 725 F.2d at

804; cf. Maleng, 490 U.S. at 492 (holding that a habeas

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”).

Like the statutes in Gregoire and Leslie, the Wisconsin

sexual offender registration statute is considered remedial,

rather than punitive, in nature. State v. Bollig, 605 N.W.2d

199, 205 (Wis. 2000). In Bollig, the Supreme Court of

Wisconsin held that “Wisconsin’s registration statute does

not evince the intent to punish sex offenders, but rather

reflects the intent to protect the public and assist law

enforcement.” Id.; see also Smith v. Doe, 538 U.S. 84 (2003)

(holding that Alaska’s sexual offender registration statute

is not punitive for purposes of the Ex Post Facto Clause).

These authorities support our conclusion that the registration requirements resemble more closely those collateral

consequences of a conviction that do not impose a severe

restriction on an individual’s freedom of movement. See

United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988)

(“[C]ivil disabilities alone are not ‘custody’ authorizing

collateral litigation.”); see also Leslie, 296 F.3d at 522-23;

Bunn, 309 F.3d at 1008; Gregoire, 151 F.3d at 1184-85.

Consequently, we hold that Mr. Virsnieks’ Apprendi

argument, standing alone, does not satisfy the habeas
No. 06-3322 25

23 We note that neither Smith v. Doe, 538 U.S. 84, 91 (2003), nor

Connecticut Department of Public Service v. Doe, 538 U.S. 1, 6

(2003), the two cases in which the Supreme Court has considered

challenges to sex offender registration statutes, assist Mr.

Virsnieks’ habeas claim. The plaintiffs in these cases employed

42 U.S.C. § 1983, rather than habeas corpus, as the vehicle for

challenging the registration statutes. We express no view as to

whether Mr. Virsnieks may proceed under section 1983. 

statute’s “in custody” requirement.23

2.

Even though Mr. Virsnieks’ habeas petition includes an

independent, custodial claim—albeit one whose merits we

already have rejected—he may not bypass the habeas

statute’s “in custody” requirement. In other words, a court

does not have “pendent” jurisdiction over non-cognizable

habeas claims. See, e.g., Kaminski v. United States, 339 F.3d

84, 88 (2d Cir. 2003).

We begin with the text of the statute. Section 2254

authorizes federal courts to “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 plain language of the statute therefore

commands that courts entertain habeas petitions “only” on

the ground that a prisoner is “in custody,” and, by linking

a court’s ability to entertain a habeas petition to the particular relief sought, the language of the statute prevents

consideration of pendent challenges.
26 No. 06-3322

Several of our sister circuits have considered this issue in

the context of section 2255, and they all have reached the

same conclusion. Kaminski, 339 F.3d at 89; United States v.

Thiele, 314 F.3d 399, 402 (9th Cir. 2002); United States v.

Smullen, 94 F.3d 20, 25-26 (1st Cir. 1996); United States v.

Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994). One of the

concerns underpinning their answer is the potential that

allowing pendent jurisdiction could result in incongruent

access to federal habeas review among prisoners. In Segler,

for example, a federal habeas petitioner brought several

challenges to his sentence of imprisonment as well as an

ineffective assistance of counsel claim relating to a fine that

the district court had imposed. The Fifth Circuit held that

his ineffective assistance of counsel claim relating to the

fine was not cognizable in habeas notwithstanding the fact

that the other claims brought in the same petition were

cognizable. The court explained that section “2255’s

limitation on who may seek release from federal custody

also implies a limitation on the claims they may assert to

obtain a release.” Segler, 37 F.3d at 1137. Although the

petitioner was a federal prisoner, thus “bring[ing] him

clearly within the class of petitioners described in

§ 2255 . . . his ineffective assistance of counsel claim

relating to his fine raises the question whether his claim

arises under § 2255.” Id. (emphasis in original). The court

held that a habeas petitioner who brings an ineffective

assistance of counsel claim “must satisfy Strickland’s

prejudice requirement by showing harm that relates to his

custody.” Id. This conclusion, the court explained, stemmed

from the potential incongruence that could result from a

contrary rule: 

A convicted defendant who receives an allegedly

erroneous fine because of constitutionally inadequate
No. 06-3322 27

assistance of counsel cannot seek post-conviction relief

under § 2255 and neither should a petitioner who is

both fined and imprisoned have an opportunity to

assert an identical fine-related claim under § 2255.

Id. (internal citation omitted). Under the court’s “reading of

the plain language of § 2255,” it found “no reason why

Congress would have intended to treat these two identical

ineffective assistance of counsel claims differently.” Id.;

United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999)

(reaffirming the holding in Segler).

The First, Second and Ninth Circuits similarly have

recognized that permitting habeas petitioners who proceed

under section 2255 to bring non-cognizable claims could

result in incongruent access to federal habeas review. See,

e.g., Kaminski, 339 F.3d at 88 (discussing the Fifth Circuit’s

incongruence rationale); Thiele, 314 F.3d at 401-02

(“[C]ognizable [habeas] claims in a § 2255 motion do not

run interference for non-cognizable claims.”); Smullen, 94

F.3d at 23-26 (adopting the Fifth Circuit’s holding and

relying on the incongruence rationale).

These courts have recognized that the potential for

incongruent access to federal habeas review is unwarranted

by section 2255’s language and purpose. Section 2255

affords relief to prisoners who are “in custody” and who

“claim[] the right to be released,” see 28 U.S.C. § 2255, and

the statute “lies to allow attacks on wrongful custodies,”

Kaminski, 339 F.3d at 89. Given the statute’s uniform focus

on custodial sentences, “there is . . . no reason why the

presence of a plausible claim against a custodial punishment should make a noncustodial punishment more

amenable to collateral review than it otherwise might be.”

Id.; Segler, 37 F.3d at 1137. In addition to finding no support

in the statutory language, such incongruence would
28 No. 06-3322

encourage prisoners to bring frivolous claims against

custodial sentences in order to trigger federal habeas

review of non-custodial sentences or of the collateral

consequences of a conviction. Kaminski, 339 F.3d at 88.

Although these cases have arisen within the context of

section 2255, their teachings apply as well in the context of

section 2254. Indeed, allowing state habeas petitioners to

bring such claims would increase the potential for incongruence. Because every prisoner convicted and sentenced

in federal court is subjected to the same sentencing regime,

there is some limitation on disparities among the sentences

imposed by federal courts. In contrast, state prisoners, as a

class, are subjected to an assortment of sentencing regimes

depending on the state in which they are convicted and

sentenced; moreover, states diverge widely in the degree of

sentencing discretion with which they endow their judges.

Permitting habeas petitioners who proceed under section

2254 to bring non-custodial claims therefore would add an

additional dimension of potential incongruence—among

prisoners sentenced in different states employing different

sentencing regimes. A prisoner convicted in a state that

statutorily mandates the imposition of incarceration and a

fine should not have greater access to federal habeas

review of his fine than a prisoner from another state who,

because of the sentencing discretion that the state affords

its judges, only had a fine imposed on him.

Consequently, we conclude that Mr. Virsnieks may not

bypass the “in custody” requirement simply because his

petition includes an independent, cognizable claim. Mr.

Virsnieks’ Apprendi argument does not satisfy the habeas

statute’s “in custody” requirement, and therefore we do not

address its merits.
No. 06-3322 29

D. Ineffective Assistance of Trial Counsel

Mr. Virsnieks contends that his trial counsel was ineffective because he misinformed Mr. Virsnieks that the predicate felony to the burglary charge was “use of the facilities.” The Wisconsin courts rejected this contention as a

factual matter because they did not find that such advice

was given. As we have already discussed, this finding is

entitled to deference, and Mr. Virsnieks has not established

that the state court’s finding was based on an unreasonable

determination of the facts. Accordingly, we cannot accept

Mr. Virsnieks’ ineffective assistance of trial counsel claim.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

USCA-02-C-0072—4-2-08