[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12540

____________________

LOUIS MATTHEW CLEMENTS, 

Petitioner-Appellant,

versus

STATE OF FLORIDA, 

FLORIDA ATTORNEY GENERAL, 

SECRETARY, DOC, 

Respondents-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:17-cv-00396-JLB-NPM

____________________

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2 Opinion of the Court 21-12540

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

JORDAN, Circuit Judge:

When Congress first gave federal courts the authority to issue writs of habeas corpus, it limited relief to persons held by federal authorities. See Judiciary Act of 1789, § 14, 1 Stat. 81, 81-82; Ex 

Parte Dorr, 44 U.S. 103, 105 (1845). Congress generally extended

habeas corpus relief to state prisoners after the Civil War and did 

so by making the writ available to “any person” who “may be restrained of his or her liberty” in violation of the laws of the United 

States. See Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385, 

385-86; Dep’t. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 

1976 (2020). See generally Brandon L. Garrett & Lee Kovarsky, 

Federal Habeas Corpus: Executive Detention and Post-Conviction 

Litigation 100 (Foundation Press 2013) (“Passed alongside the Civil 

War Amendments, the Habeas Corpus Act of 1867 permitted all 

state prisoners to file habeas petitions in federal court.”). 

Since 1874, a person seeking federal habeas corpus relief 

from a state court judgment must—among other things—be “in 

custody.” See Medberry v. Crosby, 351 F.3d 1049, 1055 (11th Cir. 

2003) (quoting former Rev. Stat. § 753). The “in custody” requirement has remained unchanged through subsequent legislative revisions of the various habeas corpus statutes. See, e.g., Brown v. 

Allen, 344 U.S. 443, 462 n.17 (1953) (quoting the 1948 version of 28 

U.S.C. § 2254); Act of Nov. 2, 1966, Pub. L. 89-711, § 2, 80 Stat. 1104, 

1105 (placing “in custody” language in § 2254(a)). The 

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Antiterrorism and Effective Death Penalty Act, passed by Congress 

in 1996, left intact the “in custody” language in § 2254(a). See Pub. 

L. 104-132, Title I, § 104, 110 Stat. 1214, 1217. See also Brian R. 

Means, Introduction to Habeas Corpus: A Primer on Federal Collateral Review 105-06 (2022) (“Nor did Congress when enacting the 

dramatic changes to federal postconviction review as part of the 

1996 Antiterrorism and Effective Death Penalty Act affect the Supreme Court’s custody jurisprudence.”). 

As relevant here, custody generally means physical detention or confinement. See, e.g., 1 Shorter Oxford English Dictionary 

584 (5th ed. 2002) (“Imprisonment.”); The American Heritage Dictionary of the English Language 450 (4th ed. 2009) (“The state of 

being detained or held under guard, especially by the police.”). 

Since the early 1960s, however, the Supreme Court has not interpreted the “in custody” requirement literally. As a result, certain 

restraints on a person’s liberty, short of physical detention, can satisfy the “in custody” requirement. See, e.g., Justices of Boston 

Mun. Ct. v. Lydon, 466 U.S. 294, 301 (1984) (defendant released on 

his own recognizance pending retrial following vacatur of conviction was “in custody” under § 2254). 

The question before us in this appeal—one of first impression—is whether Florida’s registration and reporting requirements 

for sex offenders render those offenders “in custody” within the 

meaning of § 2254(a). Though the question is difficult given Supreme Court and Eleventh Circuit precedent, our answer is no.

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I

In 2008, Louis Clements pled guilty to a charge of lewd or 

lascivious conduct in violation of Fla. Stat. § 800.04(6)(b) and was 

sentenced to five years of sexual offender probation. The terms of 

that probation provided that he “qualifie[d] and shall register with

the Florida Department of Law Enforcement as a sexual offender 

pursuant to [Fla. Stat.] § 943.0435.” See also Fla. Stat. 

§ 943.0435(1)(h)1.a.(I) (defining a sex offender as any person convicted of various sexual offenses, including a violation of § 800.04). 

Nine years later, in 2017, Mr. Clements—proceeding pro 

se—sought federal habeas corpus relief from his conviction pursuant to 28 U.S.C. § 2254. The state moved to dismiss the petition for 

lack of jurisdiction because he was not “in custody” under

§ 2254(a). Because his probationary sentence had expired in June 

of 2013, the state argued that Mr. Clements was not in its physical 

custody at the time he filed his petition. Mr. Clements responded 

that his lifetime sex offender registration, “along with all the other 

restrictions that come with being a registered sex offender,” significantly restrained his individual liberty such that he was “in custody” for purposes of § 2254(a). 

The district court dismissed Mr. Clements’ § 2254 petition 

for lack of jurisdiction. Without a controlling Eleventh Circuit decision, the district court found persuasive cases from the Fourth, 

Fifth, Sixth, Seventh, Ninth, and Tenth Circuits holding that the 

registration and reporting requirements of various state sex offender statutes were not so onerous as to place persons “in 

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custody” for purposes of § 2254(a). The district court explained 

that the only appellate court to hold otherwise, the Third Circuit, 

had found the punitive nature of Pennsylvania’s sex offender registration statute dipositive. The Florida sex offender registration 

statute, in contrast, did not impose a “sentence” and did not constitute “punishment.” 

Turning to Mr. Clements’ arguments, the district court 

acknowledged that the sex offender registration and reporting requirements were inconvenient. But it concluded that they did not 

restrict Mr. Clements’ freedom of movement. Nor did they require 

Mr. Clements to obtain the state’s approval before finding a residence or prevent him from participating in legal activities. Accordingly, it ruled that Florida’s sex offender registration and reporting 

requirements were collateral consequences of his conviction. 

II 

 Before addressing the “in custody” question, we summarize

the requirements of Florida’s sex offender registration and reporting scheme and explain what is—and is not—before us. We set out 

the requirements of the scheme in more detail in Part III.C. 

A 

In Florida, persons convicted of a qualifying sexual offense—

like Mr. Clements—are subject to registration and reporting requirements for life. See Fla. Stat. § 943.0435(1)(h), (11). Upon initial in-person registration, sex offenders must provide the state 

with all of their personal and identifying information. See

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§ 943.0435(2)(b), (3). This information is generally available to the 

public. See Fla. Stat. § 119.071. 

Sex offenders in Florida have an obligation to keep their registration up to date. At a minimum, they must report to their local 

sheriff’s office in person every six months. See § 943.0435(14)(a). 

Any changes with respect to a vehicle or residency or any travel 

plans must generally be reported in person within 48 hours. See § 

943.0435(2), (4), (7). Any changes to employment, telephone numbers, email addresses, or internet identifiers must be made online 

within 48 hours. See § 943.0435(4)(e). Failure to report is a felony 

offense. See, e.g., § 943.0435(8), (9)(a). 

B 

After Mr. Clements filed his pro se brief, we appointed counsel for him. Counsel chose not to file a separate brief but presented 

oral argument on behalf of Mr. Clements. 

In his brief, Mr. Clements contends that Florida’s sex offender registration and reporting requirements place him “in custody” for purposes of § 2254(a). But he also argues for the first time 

that he is “in custody” in part due to the separate residency restrictions imposed by his sex offender status and by state and local

laws. See, e.g., Fla. Stat. § 775.215(2)(a) (stating that a sex offender 

may not reside within 1,000 feet of any school, childcare facility, 

park, or playground); Lee County, Fla., Ordinance No. 11-05 (2011) 

(creating a “Child Safety Zone” that prohibits sex offenders loitering or prowling within 300 feet of certain specified locations that 

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are primarily designed for or used by children, or areas where children congregate, mirroring Fla. Stat. § 856.022). 

Sex offenders in Florida do face a number of residency restrictions in addition to state registration and reporting requirements. But for several reasons we decline to address those residency restrictions in this appeal and leave them for another day. 

First, as the district court noted, Mr. Clements was not subject to 

the conditions of his sex offender probation, which expired in 2013, 

when he filed his § 2254 habeas petition in 2017. Because 

“‘[c]ustody’ is determined as of the time of the filing of the petition,” Patel v. United States Attorney General, 334 F.3d 1259, 1263 

(11th Cir. 2003), any residency restrictions resulting from the term 

of probation are not relevant to the custody issue. Second, in the 

district court Mr. Clements did not brief the residency restrictions 

or analyze their impact on the “in custody” determination. Although he mentioned in his response to the state’s motion to dismiss that “all the other restrictions that come with being a registered sex offender” rendered him “in custody,” he did not set out 

what those restrictions were. Third, from a factual perspective Mr. 

Clements did not present any allegations or provide any empirical 

evidence as to how much land he was practically excluded from 

due to state and local residency restrictions. As a result, the state’s 

reply discussed only the registration and reporting requirements, 

and the district court’s dismissal order understandably did not go 

beyond those requirements. 

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We recognize that Mr. Clements was proceeding pro se in 

the district court. Nevertheless, the residency restrictions were not 

litigated below and are not properly before us. We generally “do 

not consider issues or arguments raised for the first time on appeal,” Ferguson v. Secretary for the Department of Corrections, 

580 F.3d 1183, 1193 (11th Cir. 2009), even when pro se litigants are 

involved, see Tannenbaum v. United States, 148 F.3d 1262, 1263 

(11th Cir. 1998) (per curiam), and given the undeveloped record 

with respect to the residency restrictions, we see no reason to depart from our normal practice here. See Juris v. Inamed Corp., 685 

F.3d 1294, 1325 (11th Cir. 2012) (“[I]f a party hopes to preserve a 

claim, argument, theory, or defense on appeal, [it] must first clearly 

present it to the district court, that is, in such a way as to afford the 

district court an opportunity to recognize and rule on it.”) (citation 

and quotation marks omitted). 

As an appellate court, we do not sit as a collective trier of 

fact. Without access to appropriate and detailed maps and plats—

at a minimum—we cannot take judicial notice of how much land 

is covered by state and local residency restrictions in Florida for sex 

offenders. This is in part because the residency restrictions that 

have been cited to us are triggered by and are dependent on the 

location of certain facilities used or frequented by children (e.g., 

schools). We do not know where such facilities are situated, and 

we do not have the means to sketch out the residency buffer zones

as experts might do. See Fed. R. Evid. 201(a)-(b). Cf. Wallace v. 

New York, 40 F. Supp. 3d 278, 328 & n.43 (E.D. N.Y. 2014) (taking 

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judicial notice of map, provided by town at court’s request, which 

showed that 45.5% of town’s land (40.11 square miles) was not covered by sex offender residency restrictions). Even on appeal, Mr. 

Clements does not provide the specifics necessary for us to evaluate the effect of the residency restrictions.1

Moreover, it is unclear whether local residency restrictions, 

imposed not by the state but by its municipalities, are properly considered in determining whether a person is “in custody” pursuant 

to a judgment of a state court for purposes of § 2254(a). Absent 

briefing on this legal issue, we decline to take it up and resolve it 

ourselves. We therefore limit our discussion and ruling to whether 

Florida’s sex offender registration and reporting requirements 

placed Mr. Clements “in custody.” 

III

The “in custody” requirement of § 2254(a) is jurisdictional, 

so we must address it first and before any merits-related matters 

like the applicable statute of limitations. See Maleng v. Cook, 490 

U.S. 488, 490, 493-94 (1989); Diaz v. State of Fla. Fourth Jud. Cir. ex 

1 Examples of scholarly articles trying to contextualize and quantify the effect 

of certain sex offender residency restrictions include Songman Kang, The Consequences of Sex Offender Residency Restriction: Evidence from North Carolina, 49 Int’l Rev. of L. & Econ. 10 (2017); Jacqueline A. Berenson & Paul S. 

Appelbaum, A Geospatial Analysis of the Impact of Sex Offender Residency 

Restrictions in Two New York Counties, 35 L. & Hum. Behav. 235 (2011); and 

Paul Zandbergen et al., Residential Proximity to Schools and Daycares: An 

Empirical Analysis of Sex Offense Recidivism, 37 Crim. Just. & Beh. 482 (2010). 

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rel. Duval Cnty., 683 F.3d 1261, 1263 (11th Cir. 2012). Our review 

of the district court’s dismissal of Mr. Clements’ habeas corpus petition is plenary. See Diaz, 683 F.3d at 1263.2 

A

In Wales v. Whitney, 114 U.S. 564 (1885), the Supreme 

Court addressed the question of custody in a habeas corpus case 

arising out of a pending court-martial proceeding. The petitioner, 

the medical director (and former surgeon general) of the navy, was 

served with an order of the secretary of the navy which (1) informed him that he was to be tried by a court-martial, (2) told him 

that he was “placed under arrest,” and (3) instructed him to “confine [him]self to the limits” of Washington, D.C. See id. at 566. 

The petitioner—who was not physically detained—sought habeas 

corpus relief with respect to the court-martial, but the Supreme 

Court ruled that he was not in custody and could not avail himself 

of the writ. First, he was “under no physical restraint” and was able 

to “walk[ ] the streets of Washington with no one to hinder his 

movements[.]” Id. at 569. Second, to the extent that he was 

2 Other federal habeas corpus and post-conviction statutes, like those codified 

as 28 U.S.C. §§ 2241(c)(1)-(4) & 2255(a), contain the same “in custody” language as § 2254(a). Because of the identical phrasing, we cite to and discuss 

“in custody” decisions involving these statutes in our opinion. See 3 Sarah N. 

Welling, Fed. Prac. & Proc. Crim. § 630 (5th ed. & Nov. 2022 update) (“[The 

term ‘in custody’] has exactly the same meaning for § 2255 actions as it does 

for § 2254 habeas corpus applications, . . . and habeas corpus cases can be 

looked to as authority for the term in § 2255.”). 

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ordered to stay in Washington, that was no more than he was required to do as medical director of the navy before he was served 

with the secretary’s order. See id. at 570 (“If there is no restraint 

there is no right in the civil [habeas] court to interfere.”). Third, if 

he decided to leave Washington, his arrest would require another 

order from the secretary. See id. at 572. 

The Supreme Court explained that “[s]omething more than 

moral restraint is necessary to make a case for habeas corpus. 

There must be actual confinement or the present means of enforcing it.” Id. at 571-72 (italics deleted). Citing with approval to a state 

case holding that a person granted bail was not in custody for purposes of habeas corpus, the Court concluded that under the circumstances there was no “actual restraint” on the petitioner’s personal liberty. See id. at 573-75 (citing Respublica v. Arnold, 3 Yeates 

263 (Pa. 1801)). 

This understanding of custody remained the same through 

the first half of the 20th century. The rule continued to be that 

“[w]ithout restraint of liberty, the writ [of habeas corpus] w[ould] 

not issue.” McNally v. Hill, 293 U.S. 131, 138 (1934). Our predecessor, the former Fifth Circuit, therefore remarked in 1938 that a 

“prisoner out on parole probably cannot maintain habeas corpus 

against anyone. No one has his body in custody, or could lawfully 

arrest him by virtue of his parole status so long as he observes its 

conditions.” Van Meter v. Sanford, 99 F.2d 511, 511 (5th Cir. 1938).

Things changed in the early 1960s with Jones v. Cunningham, 371 U.S. 236 (1963), in which the Supreme Court 

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unanimously held that a defendant released on parole was “in custody” for purposes of 28 U.S.C. § 2241, one of the federal habeas 

corpus statutes. The Supreme Court cited to an 18th-century English case, Rex v. Clarkson, 1 Strange 444, 445, 93 Eng. Rep. 625 (K.B. 

1722), where the tribunal inquired whether the person on whose 

behalf the writ was sought was under “illegal restraint” but did not 

grant relief because she was “at her liberty to go where she 

please[s].” See Jones, 371 U.S. at 238-39 & nn. 4-7. Surveying other 

relevant decisions, the Court explained that “[h]istory, usage 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. 

The petitioner in Jones was confined “to a particular community, house, and job at the sufferance of his parole officer[,]” 

could not “drive a car without permission[,]” had to “periodically 

report to his parole officer, permit the officer to visit his home and 

job at any time,” and generally had to “follow the officer’s advice.” 

Id. at 242. “He [was] admonished to keep good company and good 

hours, work regularly, keep away from undesirable places, and live 

a clean, honest, and temperate life.” Id. A violation of any restriction could result in his immediate imprisonment. See id. The 

Supreme Court analogized parole to more traditional, physical restrictions upon liberty, but stressed that the writ “is not now and 

never has been a static, narrow, formalistic remedy; its scope has 

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grown to achieve its grand purpose.” Id. at 243. It reasoned that 

the petitioner had satisfied the “in custody” requirement because 

the attendant conditions and restrictions significantly restrained his 

freedom. See id. at 242-43. “Such restraints,” the Court held, were 

“enough to invoke the help of the Great Writ.” Id. at 243. See also 

Carafas v. LaVallee, 391 U.S. 234, 239-40 (1968) (extending the “in 

custody” requirement to situations where a petitioner files the writ 

while incarcerated but is unconditionally released from his sentence while awaiting appellate review). 

In the 1970s and 1980s, the Supreme Court extended the 

Jones rationale to release on personal recognizance. See Hensley 

v. Mun. Ct., 411 U.S. 345, 351-52 (1973) (release pending appeal); 

Lydon, 466 U.S. at 301 (release pending retrial). The petitioner in 

Hensley could not “come and go as he please[d],” and his “freedom 

of movement rest[ed] in the hands of state judicial officers, who 

[could] demand his presence at any time and without a moment’s 

notice.” Hensley, 411 U.S. at 351-52 (further explaining the necessity of habeas relief in this instance to avoid imprisonment without 

an adequate federal remedy). Likewise, the petitioner in Lydon

was subject to restraints not shared by the public generally because 

he was obligated to appear for trial on a specified date or face criminal charges, could “not depart without leave,” and had to “keep 

the peace and be of good behavior.” Lydon, 466 U.S. at 301

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(citation omitted). These cases reaffirmed and solidified the modern (and broad) understanding of the “in custody” requirement.3 

Despite its breadth and flexibility, the “in custody” requirement retains a tensile strength. For example, the Supreme Court 

has explained that “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.” Maleng, 490 U.S. at

491-92 (providing as examples of collateral consequences the “inability to vote, engage in certain businesses, hold public office, or 

serve as a juror”). “[A] contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless 

challenge the conviction for which it was imposed at any time on 

federal habeas.” Id. at 492. See, e.g., Westberry v. Keith, 434 F.2d 

623, 624-25 (5th Cir. 1970) (holding that the imposition of a fine and 

3 In describing these Supreme Court decisions, and attempting to summarize 

their holdings, we have endeavored to note the rationale provided and the 

facts that were deemed material to the outcome. It is not just what the Court 

says, but what it does, that matters. See Texas & P. Ry. Co. v. La. Oil Refin. 

Corp., 76 F.2d 465, 467 n.4 (5th Cir. 1935) (“The ratio decidendi, the reason for 

the decision, the principle of the case, is not found in the reasons or the rule of 

law set forth in the opinion, nor by a consideration of all of the ascertainable 

facts of the case and the [court’s] decision . . . [but rather] by taking account of 

the facts treated by the [court] as material and [its] decision upon them, taking 

also into account those facts treated by [the court] as immaterial.”) (citation 

and internal quotation marks omitted).

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the revocation of a driver’s license for a year did not render the 

defendant “in custody” under § 2254).4 

B 

At the time Congress first placed the “in custody” language 

in § 2254, sex offender registration and reporting statutes “were not 

remotely within anyone’s contemplation.” Wilson v. Flaherty, 689 

F.3d 332, 340 (4th Cir. 2012) (Davis, J., concurring). So we are 

tasked with applying “in custody” precedent to a fairly new reality. 

As noted, the great majority of the circuits have held that 

persons subject to sexual offender registration and reporting statutes are not “in custody” for purposes of habeas corpus relief. See 

Williamson v. Gregoire, 151 F.3d 1180, 1183-84 (9th Cir. 1998) 

(Washington); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 

1999) (California); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 

1999) (Oregon); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 

2002) (Ohio); Virsnieks v. Smith, 521 F.3d 707, 719-20 (7th Cir. 

2008) (Wisconsin); Wilson, 689 F.3d at 335-39 (Texas and Virginia); 

Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1073-74 (10th Cir. 

2014) (Colorado); Sullivan v. Stephens, 582 F. App’x 375, 375 (5th 

Cir. 2014) (Texas); Hautzenroeder v. Dewine, 887 F.3d 737, 739-40 

(6th Cir. 2018) (Ohio); Munoz v. Smith, 17 F.4th 1237, 1244 (9th 

Cir. 2021) (Nevada). Only the Third Circuit has come to a contrary 

4 We recognize that the Supreme Court decided Maleng at a time when §§ 

2254 and 2255 did not have limitations periods. That is no longer the case. 

See §§ 2254(d) & 2255(f). 

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conclusion. See Piasecki v. Ct. of Common Pleas, Buck Cnty., Pa.,

917 F.3d 161, 177 (3d Cir. 2019) (Pennsylvania).5

Normally, we might begin by discussing (and giving serious 

consideration to) the decisions of our sister circuits, but here those 

decisions are of limited assistance because sex offender and registration statutes differ (sometimes greatly) from state to state and 

change over time. See Calaway, Sex Offenders, 92 St. John L. Rev. 

at 780 (“Courts generally cite to a series of cases across the circuits 

that have declined to expand the definition of custody to individuals under a sex offender registration law. The issue with this analysis is that the statutory schemes at issue across the states vary 

markedly in their restrictions and requirements.”) (footnotes omitted). Nevertheless, we cite to and refer to those decisions where 

appropriate.

5 A number of commentators take the position that, as a general matter, sex 

offender registration and reporting statutes place offenders “in custody” for 

federal habeas corpus and post-conviction purposes. See Katherine A. Mitchell, Of What Consequence?: Sexual Offender Laws and Federal Habeas Relief, 

75 U. Miami L. Rev. 76, 100-04 (2020); Wendy R. Calaway, Sex Offenders, 

Custody and Habeas, 92 St. John’s L. Rev. 755, 768-93 (2018); Kimberley A. 

Murphy, The Use of Federal Writs of Habeas Corpus to Release the Obligation to Report under State Sex Offender Statutes: Are Defendants “In Custody” for Purposes of Habeas Corpus Review?, 2000 L. Rev. M.S.U.-D.C.L.

513, 536-41 (2000); Tina D. Santos, Williamson v. Gregoire: How Much is 

Enough? The Custody Requirement in the Context of Sex Offender Registration and Notification Statutes, 23 Seattle U. L. Rev. 457, 476-79 (1999). 

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C 

To recap and fully detail the requirements of Florida’s 

scheme, sex offenders like Mr. Clements are subject to registration 

and reporting requirements for life. See Fla. Stat. § 943.0435(1)(h), 

(11). Upon initial registration, which must be in person, sex offenders must provide the state with all of their personal and identifying 

information, secure a state driver’s license or state identification 

card, and provide a set of fingerprints. See § 943.0435(2)(b), (3). 

This information—including the offender’s picture, date of birth, 

addresses, vehicles, and sexual offense convictions—is available to 

the public unless exempt or confidential. See Fla. Stat. § 119.071. 

Sex offenders have an obligation to keep their registration 

up to date. At a minimum, they must report to their local sheriff’s 

office in person every six months. See § 943.0435(14)(a). Any 

changes with respect to a vehicle or residence must be reported in 

person within 48 hours. See § 943.0435(2), (4). Sex offenders who 

become transient or homeless must report in person within 48 

hours any shelter or location (including those with no specific address) at which they spend more than three days on aggregate in a 

calendar year, and report in person every 30 days thereafter. See

§§ 943.0435(4)(b)2 & 775.21(2)(o). Sex offenders must update their 

driver’s licenses within 48 hours of the renewal date or of any 

change in name or address. See § 943.0435(4)(a). Sex offenders 

who plan to leave the state must report in person 48 hours beforehand, or at least 21 days before any international trip of five days 

or more. See § 943.0435(7). Any changes to employment, 

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telephone numbers, email addresses, or internet identifiers must be 

made online within 48 hours. See § 943.0435(4)(e). Failure to report generally is a third-degree felony offense, with violations of 

certain reporting requirements related to residency being seconddegree felonies. See, e.g., § 943.0435(8), (9)(a). 

Florida’s sex offender registration and reporting statute also 

contains several legislative findings. First, sex offenders “often pose 

a high risk of engaging in sexual offenses even after being released,” 

and therefore “have a reduced expectation of privacy because of 

the public’s interest in public safety and in the effective operation 

of government.” § 943.0435(12). Second, “[t]he designation of a 

person as a sexual offender is not a sentence or a punishment but is 

simply the status of the offender which is the result of a conviction 

for having committed certain crimes.” Id. 

D 

The question is whether the reporting and registration requirements constitute a sufficient restraint on the personal liberty 

of sex offenders in Florida to render someone like Mr. Clements “in 

custody.” Supreme Court and Eleventh Circuit cases make this a 

hard question to answer. 

We have said that the “in custody” requirement should be 

construed “very liberally.” Howard v. Warden, 776 F.3d 772, 775 

(11th Cir. 2015) (citation omitted). To that end, we have held that 

non-citizens released on supervision while awaiting a final decision 

in their immigration proceedings are deemed to be “in custody” for 

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purposes of habeas corpus. See United States ex rel. Marcello v. 

Dist. Dir. of INS, New Orleans, 634 F.2d 964, 971 & n.11 (5th Cir. 

1981) (petitioner subject to deportation order was “in custody” for 

federal habeas corpus purposes because he was on supervised parole, he had to report quarterly to immigration authorities, and he 

had to notify those authorities if he intended to leave the state for 

more than 48 hours); Romero v. Sec’y, DHS, 20 F.4th 1374, 1379 

(11th Cir. 2021) (applying Marcello and holding that petitioner, 

who was subject to a deportation order, was “in custody” under § 

2241 because she was in an immigration supervision program, had 

to appear in person at the government’s request, could not travel 

outside the state for more than 48 hours without advance notice, 

was required to apprise the government of any changes in residence or employment, had to participate in a more stringent supervision program if directed to do so, and was subject to a plan of 

action which required her to depart the country or be forcibly removed). In contrast, we have held that a dead-docketed indictment, pending for more than 19 years, did not place the petitioner 

“in custody” because it did “not currently subject [him] to any reporting requirements, or limit his ability to work, travel, or reside 

where he pleases.” Howard, 776 F.3d at 776. 

Marcello and Romero lend some support to Mr. Clements’ 

position. To use just two of the registration and reporting obligations in Marcello and Romero as markers, Mr. Clements—like the 

petitioners in those two cases—has to report in person to the authorities periodically and has to provide advance notification if he 

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20 Opinion of the Court 21-12540

is going to leave the state (two days’ notice for domestic trips and 

21 days’ notice for international trips). Compare Marcello, 634 F.2d 

at 971 & n.11; Romero, 20 F.4th at 1379. Mr. Clements, in fact, 

must provide that advance notification in person, making the requirement more burdensome and restrictive of his personal liberty. 

But the petitioners in Marcello and Romero were situated differently from Mr. Clements in a significant way—both were subject 

to deportation orders from the federal government when they 

were released with conditions. Mr. Clements is under no similar 

order of expulsion from the country or the state, and we believe 

that is an important distinction for purposes of the “in custody” 

analysis. 

As Jones explained, “what matters” is whether the legal requirements in question “significantly restrain [the person’s] liberty 

to do those things which in this country free men are entitled to 

do.” 371 U.S. at 242-43. For our part, we have said that the “in 

custody” requirement “is satisfied if restrictions have been placed 

on a petitioner’s freedom of action or movement.” Djadju v. Vega, 

32 F.4th 1102, 1106 (11th Cir. 2022) (§ 2241 case interpreting Jones). 

Accord Note, Developments in the Law—Federal Habeas Corpus: 

Custody and Remedy, 83 Harv. L. Rev. 1038, 1073 & n.5 (1970) 

(asserting that whether a given set of legal restraints place a person 

“in custody” should be determined based on “the severity of the 

restraints”). 

In our view, the proper inquiry here under Jones and its 

progeny is whether Florida’s registration and reporting 

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21-12540 Opinion of the Court 21

requirements substantially limit Mr. Clements’ actions or movement. See Williamson, 151 F.3d at 1183; Leslie, 296 F.3d at 522; 

Virsnieks, 521 F.3d at 718. See also 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus and Procedure § 8.2[a], at 461 (7th ed. 

2021) (explaining that “any person who cannot come and go and as

she pleases” satisfies the “in custody” requirement); Custody and 

Remedy, 83 Harv. L. Rev. at 1078 (asserting that, even after Jones, 

“some restraint on [the] petitioner’s liberty more substantial than 

civil disabilities is required”). Though habeas corpus is no longer 

simply a remedy for unlawful physical custody, the focus on liberty 

of movement at least has the benefit of “comport[ing] with the 

original conception of the writ as a remedy for unlawful restriction 

of physical mobility.” Custody and Remedy, 83 Harv. L. Rev. at 

1076. And it provides a stopping point of sorts for the concept of 

being “in custody.” See Howard, 776 F.3d at 775 (“[A]lthough the 

word ‘custody’ is elastic, all definitions of it incorporate some concept of ongoing control, restraint, or responsibility by the custodian.”) (citation and quotation marks omitted). Cf. Hensley, 411 

U.S. at 354 (Blackmun, J., concurring in the result) (explaining that, 

given the trajectory of the Supreme Court’s broad understanding 

of custody, “[o]ne wonders where the end is”).6

6 Justice O’Connor sketched out a different “in custody test” in Lydon: “[A] 

state [offender] should be considered ‘in custody pursuant to the judgment of 

a [s]tate court’ . . . only where he is under physical restraint, or under a legal 

restraint that can be converted into physical restraint without a further judicial 

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22 Opinion of the Court 21-12540

We acknowledge, of course, that the lifetime registration 

and reporting requirements imposed on Mr. Clements by Florida 

law are demanding and not the sort of obligations and restraints 

“shared by the public generally[.]” Jones, 371 U.S. at 240. Nevertheless, the requirements are less oppressive in terms of personal 

liberty than the restraints faced by the parolee in Jones, 371 U.S. at 

242, or the persons released on personal recognizance bonds in 

Hensley, 411 U.S. at 351-52, and Lydon, 466 U.S. at 301, or the 

noncitizens subject to deportation and under supervision in Marcello, 634 F.2d at 971 & n.11, and Romero, 20 F.4th at 1379. After 

a quantitative and qualitative analysis, we conclude—admittedly 

with some hesitation—that as a whole Florida’s registration and reporting requirements for sex offenders did not render Mr. Clements “in custody” at the time he filed his habeas corpus petition. 

First, though Mr. Clements has to report in person to the 

authorities periodically and provide them with all sorts of information and updates, he knows exactly when he must do so: during 

his birthday month and six months thereafter. See Fla. Stat. 

§ 943.0435(14)(a). He is not at the beck and call of state officials, 

and those officials cannot “demand his presence at any time and 

without a moment’s notice.” Hensley, 411 U.S. at 351. Compare

Romero, 20 F.4th at 1379 (noncitizen subject to removal was “in 

custody” in part because she was required to “appear in person at 

hearing.” Lydon, 466 U.S. at 339 (O’Connor, J., concurring in the judgment) 

(citation omitted). But her proposal did not garner a majority of the Court.

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21-12540 Opinion of the Court 23

the government’s request”). Under the circumstances, the periodic 

in-person reporting did not place Mr. Clements “in custody.” See 

Henry, 164 F.3d at 1242 (holding that in-person registration was 

not a severe enough restriction to place a sex offender “in custody”).

Second, Mr. Clements is not required to live in a certain 

community or home and does not need permission to hold a job

or drive a car. Compare Jones, 371 U.S. at 242. And he can engage 

in legal activities without prior approval or supervision. See Hautzenroeder, 887 F.3d at 741 (pointing out that under Ohio’s sex offender registration and reporting statutes the petitioner was not 

“prohibited from engaging in any legal activities”); Wilson, 689 

F.3d at 338 (recognizing the same for the sex offender statutes of 

Virginia and Texas).

Third, Mr. Clements has to provide in-person advance notice of trips outside the state and outside the country, but the trips

themselves do not require permission or approval by state officials. 

See Williamson, 151 F.3d at 1184 (noting that Washington’s sex offender registration statute did not limit where offenders could go). 

Mr. Clements can—subject to the residency restrictions which we 

leave for another day—generally “come and go as he pleases[,]” 

and his “freedom of movement” does not “rest[ ] in the hands” of 

state officials. See Hensley, 411 U.S. at 351. 

In reaching our conclusion, we have also considered the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 105-06 (2003), 

which held that the retroactive application of Alaska’s sex offender 

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24 Opinion of the Court 21-12540

registration law did not violate the Ex Post Facto Clause because 

the law was not punitive. See also Houston v. Williams, 547 F.3d 

1357, 1364 (11th Cir. 2008) (relying on Smith in holding that Florida’s sex offender registration statute did not violate the Ex Post 

Facto Clauses of the Florida and the U.S. Constitutions). In our 

view, some aspects of the analysis in Smith counsel against a conclusion that Mr. Clements was “in custody” due to Florida’s sex offender registration and reporting requirements.7 

In one part of its opinion, the Supreme Court in Smith addressed whether the Alaska law imposed an “affirmative disability 

or restraint” on sex offenders. See Smith, 538 U.S. at 99-100. The 

Court concluded that it did not for a number of reasons. For starters, the law did not “restrain activities sex offenders may pursue 

[and] leaves them free to change jobs or residences.” Id. at 100. In 

addition, “[a]lthough the public availability of the information 

[posted online] may have a lasting and painful impact on the convicted sex offender, th[o]se consequences flow not from the [law’s] 

7 In analyzing the matter of custody, some circuits have considered whether 

a sex offender law is punitive or remedial. See Piasecki, 917 F.3d at 175; Hautzenroeder, 887 F.3d at 744; Leslie, 296 F.3d at 522-23; Calhoun, 745 F.3d at 

1074. With respect, we do not think the punitive/remedial distinction is very 

helpful, for Supreme Court and Eleventh Circuit precedent demonstrates that 

custody under the habeas statutes does not require criminal punishment. For 

example, in Lydon, the petitioner’s criminal conviction had been vacated 

pending retrial. See 466 U.S. at 300. And in our immigration cases neither 

petitioner was subject to a criminal judgment. See Marcello, 634 F.2d at 966; 

Romero, 20 F.4th at 1377. 

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registration and dissemination provisions, but from the fact of conviction, already a matter of public record.” Id. at 101. Finally, the 

argument that the law was akin to probation or supervised release 

had “some force,” but it did not carry the day because sex offenders 

subject to the law were “free to move where they wish and to live 

and work as other citizens, with no supervision.” Id. 

We recognize that Smith—which did not address the meaning of the phrase “in custody” in the habeas context—is not controlling. And we realize that on its facts Smith is also not a perfect 

fit. For example, the Supreme Court noted that the updating of 

information by sex offenders in Alaska did not have to be in person. 

See id. at 100. Although Florida does not require that all changes of 

information be made in person, see, e.g., § 943.0435(4)(a), an offender like Mr. Clements must appear in person at the sheriff’s office for (a) his initial registration, (b) two annual visits, (c) changes 

to his vehicle or residence, and (d) trips outside of the state or country. That makes Florida’s sex offender registration and reporting 

requirements different (and more burdensome) than Alaska’s at the 

time Smith was decided. Despite the differences, we conclude that 

Mr. Clements was not “in custody” due to Florida’s registration 

and reporting requirements for sex offenders. The restrictions on 

freedom of movement are not severe enough. Cf. United States v. 

Juvenile Male, 560 U.S. 558, 560-61 (2010) (dicta: “Perhaps the most 

likely potential ‘collateral consequenc[e]’ that might be remedied 

by a judgment in [the government’s] favor is the requirement that 

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26 Opinion of the Court 21-12540

[the defendant] remain registered as a sex offender under Montana 

law.”).

After giving the matter due consideration, we choose not to 

follow the Third Circuit’s contrary decision in Piasecki, 917 F.3d at 

177, which held that Pennsylvania’s sex offender statute satisfied 

§ 2254’s “in custody” requirement. For starters, Piasecki is distinguishable on its facts because Pennsylvania imposes more onerous 

reporting and registration requirements on sex offenders than Florida. See Munoz, 17 F.4th at 1244 (“Piasecki involved much more 

burdensome conditions than those addressed in our prior cases.”). 

Mr. Piasecki, for example, had to appear in person four times a year

for the rest of his life, was required to update all of his personal and 

identifying information in person, and had no “computer internet 

use.” See Piasecki, 917 F.3d at 164-65. As we have explained, the 

“in custody” inquiry considers the severity—the degree—of the restraints. The cumulative effect of the restrictions on Mr. Piasecki’s 

autonomy was more akin to physical custody than what we have 

here. In addition, the Third Circuit in Piasecki acknowledged that 

its prior precedent concerning a sentence of community service 

supported an “in custody” finding due to Mr. Piasecki’s obligation 

to report his travel, even in the absence of a pre-approval requirement. See id. at 172 (citing Barry v. Bergen Cnty. Prob. Dep’t, 128 

F.3d 152, 161 (3d Cir. 1997) (holding that requirement of 500 hours 

in county community service program, imposed as part of the sentence, rendered a defendant “in custody”)). There is no such analogous precedent in the Eleventh Circuit. The Third Circuit 

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recognized that it had “departed from the courts that ha[d] held 

that registration requirements are not custodial because they do 

not require pre-approval from the government before a registrant 

travels, thus not limiting his or her ability to move freely.” Id. 

Mr. Clements submits that we should consider the stigma of 

being labeled a sex offender. But any fear or embarrassment that 

he may suffer as a result of his sex offender designation is not in and 

of itself a restraint on his liberty. See Carter v. Att’y Gen., 782 F.2d 

138, 140 n.1 (10th Cir. 1996) (explaining that, under Jones and its 

progeny, a habeas applicant “must labor under liberty restraints 

more severe than the stigma of a prior criminal conviction”). The 

stigma is not a condition imposed by Florida and is a practical consequence of the nature of Mr. Clements’ conviction. Florida “does 

not make the publicity and the resulting stigma an integral part of 

the objective of [its] regulatory scheme.” Smith, 538 U.S. at 99. 

IV

Florida’s lifetime registration and reporting requirements 

for sex offenders did not place Mr. Clements “in custody” under § 

2254(a). We therefore affirm the district court’s dismissal of his habeas corpus petition for lack of jurisdiction. 

AFFIRMED. 

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21-12540 NEWSOM, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

The majority opinion faithfully applies current doctrine, 

which obliges a court determining whether an individual is “in custody” within the meaning of the federal habeas corpus statutes to 

engage in an amorphous, eye-of-the-beholder inquiry: Is the petitioner subject to conditions that “significantly restrain [his] liberty 

to do those things which in this country free men are entitled to 

do”? Jones v. Cunningham, 371 U.S. 236, 243 (1963). And in applying the Jones “test”—such as it is—to hold that Mr. Clements is not 

“in custody,” the majority reaches what I think to be the correct 

result in this particular case. Accordingly, I join the majority opinion in full.

I write separately because I have come to believe that Jones

was a misstep. It marked a radical departure from the original and 

long-settled understanding of the term “custody,” and the nebulous things-that-free-men-can-do standard that it prescribed confers 

nearly limitless discretion on individual judges. I would return to 

ordinary meaning: An individual is “in custody” for habeas corpus 

purposes if, but only if, he is under close physical confinement.

Let me explain.

I 

“Custody” has been an essential feature of—and prerequisite

to—habeas corpus relief since the Founding. The Judiciary Act of 

1789 forbade the newly created federal courts to grant the writ to 

“prisoners in gaol, unless where they are in custody, under or by

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2 NEWSOM, J., Concurring 21-12540

colour of the authority of the United States.” 1 Stat. 73, 82 (1789) 

(emphasis added). So too, when Congress extended the privilege 

of the writ to state prisoners in 1867, it required a petitioning inmate to specify, among other things, “in whose custody he or she 

is detained.” 14 Stat. 385, 385–86 (1867). And when, some 80 years 

later, Congress codified the writ in its present form, it again predicated relief on a petitioner’s demonstration that he was “in custody.” The general habeas provision, titled “Power to Grant Writ,” 

states that “[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody.” 28 U.S.C. § 2241(c). And more 

targeted provisions—applicable to state and federal prisoners, respectively—authorize federal courts to entertain post-conviction 

petitions brought by those who are “in custody pursuant to the 

judgment of a [s]tate court,” id. § 2254(a), and those who are “in 

custody under sentence of a court established by Act of Congress,” 

id. § 2255(a).

A 

The crucial question, then: What is meant by the key term 

“custody”? For centuries, there wasn’t any doubt about that: It 

meant close physical confinement. Samuel Johnson’s 1755 English 

dictionary, for instance, defined the word by reference to “imprisonment.” 1 Samuel Johnson, A Dictionary of the English Language

532 (1755). As did Noah Webster’s 1828 American dictionary. See

Noah Webster, American Dictionary of the English Language 516 

(1828) (“[i]mprisonment; confinement; restraint of liberty”). Successive editions of Black’s defined the term in exactly the same way. 

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21-12540 NEWSOM, J., Concurring 3

The inaugural installment, for instance, explained that “custody” 

meant “the detainer of a man’s person by virtue of lawful process 

or authority; actual imprisonment.” It then elaborated: “In a sentence that the defendant ‘be in custody until,’ etc., this term imports actual imprisonment. The duty of the sheriff under such a 

sentence is not performed by allowing the defendant to go at large 

under his general watch and control.” Black’s Law Dictionary 312 

(1st ed. 1891); accord Black’s Law Dictionary 309 (2d ed. 1910) 

(same); Black’s Law Dictionary 493–94 (3d ed. 1933) (same).

The close-confinement understanding of the term “custody” 

is confirmed by the writ’s origin and early application. Let’s start 

with the Latin: Translated literally, “habeas corpus” means “(that) 

you have the body”—plainly a reference to the subject’s actual, 

physical detention. Webster’s New International Dictionary 1121

(2d ed. 1944). And the history of the writ’s development in Stuart 

England perfectly comports with the Latin connotation. That 

story has been told elsewhere, see Boumediene v. Bush, 553 U.S. 

723, 739–42 (2008), so I’ll limit myself to a few key highlights. In 

1627, Parliament enacted the famous Petition of Right, which 

stated that no one should be “imprisoned without any cause” and 

that “no freeman, in any such manner as is before mencioned 

[shall] be imprisoned or deteined.” 16 Charles 1, ch. 1, § 8. When 

Parliament continued to face royal intransigence, it passed a second 

statute, the Habeas Corpus Act of 1640, which condemned the 

“great delays” imposed “by sheriffs, gaolers, and other officers, to 

whose custody, any of the King’s subjects have been committed for 

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4 NEWSOM, J., Concurring 21-12540

criminal, or supposed criminal matters, in making returns of writs 

of habeas corpus to them directed.” 16 Charles 1, ch. 10. Finally, 

in 1679, Parliament further tightened the screws: It gave jailers a 

presumptive three-day deadline for delivering the bodies of those 

“in . . . their Custody.” 31 Charles 2, ch. 2. There can be little doubt 

that Parliament’s serial codifications of the habeas remedy indicate 

a concern for prisoners in actual, physical “custody”—i.e., “imprison[ment],” “dete[ntion],” “commit[ment].”

Wholly unsurprisingly, Blackstone described the writ in similar terms. He characterized habeas corpus as a remedy for “removing the injury of unjust and illegal confinement”—“confinement,” he said, being synonymous with “imprisonment.” 3 Blackstone, Commentaries on the Laws of England, ch. 8, p. 137 (1768)

(emphasis omitted); see also 1 Blackstone, Commentaries, ch. 1, p. 

132 (1765) (defining “confinement” as “imprisonment”). To be 

sure, Blackstone recognized that “imprisonment” didn’t necessarily denote formal incarceration—it could be accomplished, for 

instance, by “keeping a man against his will in a private house, putting him in the stocks, [or] arresting or forcibly detaining him in the 

street.” 1 Blackstone, Commentaries, ch. 1, p. 132. But as his examples demonstrate, Blackstone clearly viewed habeas as a remedy 

for those who were in close physical confinement.

B 

So, importantly, did American jurists after the Revolution. 

Parliament’s 1679 act was the “genesis” of “[v]irtually all American 

habeas corpus legislation.” Dallin H. Oaks, Habeas Corpus in the 

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21-12540 NEWSOM, J., Concurring 5

States—1776-1865, 32 U. Chi. L. Rev. 243, 251 (1965). And as already explained, the Judiciary Act of 1789 described the writ as a 

means of “inquir[ing] into the cause of commitment” and limited 

the class of eligibles to “prisoners in gaol”—and, in particular, those 

prisoners who could prove that they were “in custody, under or by 

colour of the authority of the United States.” 1 Stat. at 82.

“Early state court decisions in this country were in agreement that the Habeas Corpus Act” covered only “persons who 

were within the four walls of a prison.” Dallin H. Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 469 

(1966) (quotations and citations omitted). Take, for example,

Respublica v. Arnold, 3 Yeates 263 (Pa. 1801). There, an individual 

who was free on bail sought habeas corpus relief. The Pennsylvania Supreme Court refused his request on the ground urged by the 

Commonwealth: that the state’s habeas statute—a verbatim copy 

of England’s 1679 act—didn’t “refer to any other cases, than where 

the party applying is in gaol, in actual custody.” Id. at 264 (emphasis added). So too, State v. Buyck, 3 S.C.L. 460 (S.C. Const. App. 

1804), in which a person charged with forgery but out on his own 

recognizance sought habeas relief. The court denied the petition 

because “the provisions of the habeas corpus act[] extend only to 

persons actually in prison, and not to persons under recognizance, 

and at large upon bail.” Id. at 461 (emphasis added). 

And so the law remained for almost two centuries: “Until 

the 1960s, courts interpreted the custody requirement strictly.” 

Richard H. Fallon, Jr., et al., Hart & Wechsler’s The Federal Courts 

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6 NEWSOM, J., Concurring 21-12540

and the Federal System 1354 (7th ed. 2015). Foremost among those 

“courts” was the United States Supreme Court, which uniformly 

respected the settled understanding that “custody”—as a necessary 

precondition to habeas corpus relief—entailed actual, physical confinement. Wales v. Whitney, 114 U.S. 564 (1885), is illustrative. 

There, the former surgeon general of the Navy, having been accused of “dereliction[] of duty” and given strict orders not to leave 

Washington, D.C., sought a writ of habeas corpus. Rejecting his 

request, the Supreme Court thought it “obvious” that the petitioner was “under no physical restraint,” as he could “walk[] the 

streets of Washington with no one to hinder his movements.” Id. 

at 567, 569. That fact, the Court held, was dispositive: “[T]o make 

a case for habeas corpus,” the Court said, “[t]here must be actual 

confinement” or the imminent threat thereof. Id. at 571–72. 

Stallings v. Splain, 253 U.S. 339 (1920), is to the same effect. In that 

case, a petitioner indicted for embezzlement but (effectively) out 

on bail unsuccessfully sought habeas relief. The Court explained 

that it was “well settled that under such circumstances a petitioner 

is not entitled to be discharged on habeas corpus.” Id. at 343 (citing 

Respublica and Buyck). “Being no longer under actual restraint,” 

the petitioner “was not entitled to the writ of habeas corpus.” Id. 

(citing Wales).

* * *

The picture that emerges from any honest appraisal of the 

historical record—stretching back hundreds of years—is clear: “If 

there was any single feature that characterized the writ of habeas 

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21-12540 NEWSOM, J., Concurring 7

corpus in both its early statutory and common-law forms, it was 

the requirement that adult prisoners be subject to an immediate 

and confining restraint on their liberty.” Oaks, Legal History, supra, at 469. And that original understanding persisted well into the 

20th century: “Only a person in actual custody [was] entitled to 

the writ of habeas corpus.” Note, Remedies Against the United 

States and Its Officials, 70 Harv. L. Rev. 827, 865 (1957); see also 

Note, Federal Habeas Corpus Review of “Final” Administrative 

Decisions, 56 Colum. L. Rev. 551, 551 n.7 (1956) (describing the 

actual-custody requirement as a “doctrine ... basic to habeas corpus review”).

II 

Then came the 1960s—when, as the majority says, “[t]hings 

changed.” Maj. Op. at 11. To call that an understatement would 

be, well, an understatement. As the leading federal-courts treatise 

has explained, in 1963 the Supreme Court “revolutionized” the 

meaning of the term “custody” in Jones v. Cunningham, 371 U.S. 

236 (1963). See Hart & Wechsler, supra, at 1354.

In Jones, the Supreme Court unanimously concluded that a 

state prisoner who was out on parole was, despite his release, “in 

custody” within the meaning of the general federal habeas corpus 

statute, 28 U.S.C. § 2241. In so holding, the Court acknowledged 

that “the chief use of habeas corpus ha[d] been to seek the release 

of persons held in actual, physical custody in prison or jail.” 371 

U.S. at 238. But citing to a mishmash of obscure cases involving 

spouses and children, aliens seeking entry at the border, and 

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8 NEWSOM, J., Concurring 21-12540

military enlistees, the Court decreed that the writ “can do more” 

than “reach behind prison walls and iron bars.” Id. at 243. Habeas, 

the Court said, “is not now and never has been a static, narrow, 

formalistic remedy”; rather, “its scope has grown to achieve its 

grand purpose” of protecting individual liberty more generally. Id. 

Accordingly, the Court concluded—in soaring terms—that what 

matters is whether the conditions to which a petitioner is subject 

“significantly restrain [his] liberty to do those things which in this 

country free men are entitled to do.” Id.

In holding that the petitioner before it qualified under that 

standard, the Court pointed to a grab-bag of considerations: He (1) 

was “confined by the parole order to a particular community,

house, and job at the sufferance of his parole officer”; (2) couldn’t 

“drive a car without permission”; (3) had to “periodically report to 

his parole officer, permit the officer to visit his home and job at any 

time, and follow the officer’s advice”; and (4) was “admonished 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. “Such restraints,” the Court held—without further 

elaboration—“are enough to invoke the help of the Great Writ.” 

Id. at 243.

Under Jones’s things-that-free-men-can-do standard, the 

class of petitioners who qualify for in-custody status has ballooned. 

In Hensley v. Municipal Court, for instance, the Supreme Court 

held that a defendant who had been released “on his own recognizance” and was thus “at large” was nonetheless “in custody” within 

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21-12540 NEWSOM, J., Concurring 9

the meaning of § 2241. See 411 U.S. 345, 347, 351 (1973). In so 

holding, the Court acknowledged an extension of Jones: “It is true, 

of course, that the parolee is generally subject to greater restrictions on his liberty of movement than a person released on bail 

or his own recognizance.” Id. at 348. But the Court rejected an 

understanding of the custody requirement that, in its words, would 

“suffocate the writ in stifling formalisms or hobble its effectiveness 

with the manacles of arcane and scholastic procedural requirements.” Id. at 350. Rather, the Court said, the habeas remedy 

should be deployed with “initiative and flexibility.” Id. (quoting 

Harris v. Nelson, 394 U.S. 286, 291 (1969)). The petitioner before 

it, the Court concluded, faced “restraints ‘not shared by the public 

generally’”—and was thus in custody—because (1) he couldn’t 

“come and go as he please[d],” (2) his “freedom of movement 

rest[ed] in the hands of state judicial officers, who [could] demand 

his presence at any time and without a moment’s notice,” and (3) 

“[d]isobedience [was] itself a criminal offense.” Id. at 351.

Over the last half-century, this circuit has applied Jones

many times—perhaps most recently in an opinion that I authored, 

Romero v. Secretary, U.S. Dep’t of Homeland Sec., 20 F.4th 1374 

(11th Cir. 2021). The question there was whether an immigrant 

subject to pre-deportation supervision was “in custody” for habeas

purposes. In concluding that she was, we held that her conditions 

of supervision were “similarly restrictive” to those that our predecessor court had deemed sufficient to constitute custody in United 

States ex rel. Marcello v. District Director of INS, 634 F.2d 964 (5th 

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Cir. 1981). In particular, we pointed to a collection of case-specific 

circumstances: The immigrant before us (1) had to “appear in person at the government’s request,” (2) couldn’t “travel outside Florida for more than 48 hours without advance notice,” (3) had to “apprise the government of any change in residence or employment,” 

and (4) had to “participate in a more stringent supervision program 

if directed to do so.” Id. at 1379 (internal quotations omitted). Because “those restraints [were] materially similar to the ones imposed on the petitioners in Jones and Marcello,” we held, she was 

“in custody” within the meaning of § 2241. Id.

* * *

Taking stock: Jones was a “revolution[]” indeed. Hart & 

Wechsler, supra, at 1354. In keeping with the writ’s “body”-based 

origins, the British Parliament had designed habeas corpus to remedy actual, physical confinement, and Blackstone had clearly explained the writ that way. On this side of the Atlantic, the same 

men who theorized the “judicial Power” and created the federal 

courts memorialized the close-confinement understanding of “custody” in the Judiciary Act of 1789. Framing-era decisions reflected 

that settled view, and for almost two centuries, the Supreme Court 

itself respected it. Jones abandoned all of that, substituting in its 

place an atextual, ahistorical, know-it-when-you-see-it criterion: 

whether the petitioner is prevented from “do[ing] those things 

which in this country free men are entitled to do.” 371 U.S. at 243.

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III 

If it were up to me, I would scrap Jones’s freewheeling, ad 

hoc approach in favor of a return to the ordinary and original understanding of the term “custody.” I say so for textual, historical, 

and practical reasons, which I will attempt to unpack in turn.

A 

First, the text. It is by now hornbook law that a court should 

“interpret[] a statute in accord with the ordinary public meaning of 

its terms at the time of its enactment.” Bostock v. Clayton County, 

140 S. Ct. 1731, 1738 (2020). The reasons, the Supreme Court has 

reminded us, are (1) that “only the words on the page constitute 

the law adopted by Congress and approved by the President,” and 

(2) that if “judges could add to, remodel, update, or detract from 

old statutory terms inspired only by extratextual sources and our 

own imaginations, we would risk amending statutes outside the 

legislative process reserved for the people’s representatives” and 

“deny the people the right to continue relying on the original 

meaning of the law they have counted on to settle their rights and 

obligations.” Id. 

There was no doubt—nor is there currently any dispute—

about the ordinary public meaning of the term “custody” at the 

times of any of the federal habeas statutes’ enactments. Custody 

meant then (as it means now) close physical confinement or detention—i.e., “actual imprisonment.” See supra at 2–4 (collecting historical definitions); see also Maj. Op. at 3 (collecting modern 

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definitions). Conspicuously, the Supreme Court in Jones made no 

effort to ground its flabby interpretation of “custody” in that term’s 

plain meaning. Quite the contrary, the Court jettisoned what it 

called “formalistic” considerations in favor of what it took to be the 

writ’s “grand purpose.” 371 U.S. at 243.

Such a lax mode of statutory interpretation was wrong in 

1963, and it is even more wrong—or more evidently wrong—today. The Supreme Court would do well to bring (or to restore, 

really) the same plain-meaning interpretive approach to the habeas 

statutes that it applies to other written laws.

B 

There’s also the related matter of history. Although the 

Jones Court didn’t spurn history to quite the extent that it disregarded statutory text, its historical analysis—as others have 

noted—leaves a lot to be desired. As Professor Oaks unmasked in 

his trenchant critique, “the Supreme Court’s statement that its decision . . . was supported by the ‘history of habeas corpus in both 

England and in this country’ falls considerably sort of complete accuracy.” Oaks, Legal History, supra, at 471 (quoting Jones, 371 U.S. 

at 238). In particular, he observed, the Court’s sourcing was startingly selective—“a regal patchwork of history that, on close examination, proves as embarrassingly illusory as the Emperor’s new 

clothes.” Id. at 472. Most notable, perhaps, were what Oaks called 

“sins of omission.” Id. at 468. In particular, the Court never grappled with early American decisions like Respublica and Buyck—

and perhaps even more jarringly, never even cited its own 

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decisions in Wales and Stallings, even though both were indisputably relevant, and even though both had been examined in the parties’ briefs and the lower courts’ opinions. Not good.

But there were sins of commission too. Having ignored 

what would seem to have been the key precedents, the Jones Court 

substituted a motley collection of its own. Again, Professor Oaks: 

“Although Mr. Justice Black,” who authored the opinion, “‘looked 

to common-law usages and the history of habeas corpus both in 

England and in this country,’ he chose his precedents from” among 

arcane decisions “involving aliens seeking entrance to this country, 

and common-law decisions under which the writ was issued to liberate wives or minor children ‘not under imprisonment, restraint 

or duress of any kind.’” Id. at 470 (quoting Jones, 371 U.S. at 238–

39). But neither of those categories of cases is particularly probative. Some of the domestic-relations cases are old, to be sure; they 

include several 18th- and 19th-century English decisions. See 371 

U.S. at 238–39. But they uniformly involved the use of the writ to 

free individuals from private custodians, a situation that goes well 

“beyond the reach of any habeas statute ever enacted by Congress”—all of which, of course, pertain to those in government custody. Department of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 

1959, 1972 (2020); see also 28 U.S.C. § 2241, 2254, 2255. From 

among that category, the Jones Court conspicuously ignored early 

English precedents that contradicted its conclusion. See, e.g., 

Palmer v. Forsyth and Bell, 107 E.R. 1108, 1109 (1825) (quashing 

the writ because the custodian “had no power at all over the body 

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of the defendants”); Rex v. Dawes and Rex v. Kessel, 97 E.R. 486, 

486 (1758) (refusing habeas relief to conscripted soldiers who had 

either (1) absconded or (2) been made a corporal on the ground 

that “neither of them was in custody”). 

The Jones Court’s reliance on immigration-related cases was 

similarly misplaced, for at least two reasons. For one, those decisions aren’t particularly historical—most of them, like Jones itself, 

dated from the mid-20th century. See, e.g., Brownell v. We Shung, 

352 U.S. 180 (1956); Shaughnessy v. United States ex rel. Mezei, 345 

U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 

U.S. 537 (1950). For another, the Jones Court’s major premise—

that the aliens in those cases were “free to go anywhere else in the 

world,” 371 U.S. at 239—is false. The truth is that excludable immigrants were “locked up until carried out of the country against 

[their] will,” Chin Yow v. United States, 208 U.S. 8, 13 (1908), and 

the fact that they could voluntarily depart for China, Italy, or Ireland is irrelevant. Vis-à-vis this country—which is all that matters 

when one is seeking relief against this country’s agents—the immigrants to whom the Jones Court pointed were most assuredly in 

“custody.” See Mezei, 345 U.S. at 220 (Jackson, J., dissenting) (noting that those individuals were “incarcerated by a combination of 

forces which ke[pt them] as effectually as a prison, the dominant 

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and proximate of these forces being the United States immigration 

authority”).1

C 

Lastly, the practical. Even setting aside Jones’s glaring textual and historical deficiencies, the rudderless things-that-free-mencan-do inquiry that it decreed has left courts at sea in making caseby-case “custody” determinations. In applying that hopelessly 

opaque standard, judges are consigned to a gestalt totality-of-thecircumstances analysis, wondering whether a particular jumble of 

conditions are together “enough to invoke the help of the Great 

Writ.” Jones, 371 U.S. at 243.

The majority’s analysis in this case—although scrupulously 

conscientious—perfectly illustrates the problem. To its great 

credit, the majority admits the difficulty of the task before us: “The 

1 The Jones Court’s invocation of two mid-20th-century district court decisions involving military enlistees adds nothing to its historical analysis. See

371 U.S. at 240 & n.11 (citing Ex parte Fabiani, 105 F. Supp. 139 (E.D. Pa. 1952), 

and United States ex rel. Steinberg v. Graham, 57 F. Supp. 938 (E.D. Ark. 

1944)). Even setting aside those decisions’ recency, they were aberrant, and 

they were denounced at the time for having “not correctly state[d] the law.” 

Lynch v. Hershey, 208 F.2d 523, 524 (D.C. Cir. 1953) (observing that “constructive custody” was an “untenable” basis for habeas relief); see also, e.g., 

McDowell v. Sacramento Loc. Bd. Grp., Boards 21, 22 & 23, Selective Serv. 

Sys., 264 F. Supp. 492, 495 (E.D. Cal. 1967) (same). See generally Remedies 

Against the United States and Its Officials, supra, at 865 & n.240 (explaining, 

“contra” Fabiani, that “[o]nly a person in actual custody is entitled to the writ 

of habeas corpus”).

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question,” it says, “is whether the reporting and registration requirements” imposed by Florida’s sex-offender statute “constitute 

a sufficient restraint on the personal liberty of sex offenders in Florida to render someone like Mr. Clements ‘in custody.’” Maj. Op. 

18–19. But, it continues, “Supreme Court and Eleventh Circuit 

cases”—by which it means Jones and its progeny, including Hensley, Marcello, Romero, etc.—“make this a hard question to answer.” Id.; accord, e.g., id. at 3–4 (“[T]he question is difficult given 

Supreme Court and Eleventh Circuit precedent.”). Having canvassed the relevant precedents—and the attendant smorgasbord of 

contextual considerations—the majority is left to articulate the 

Court’s holding as follows: “After a quantitative and qualitative 

analysis, we conclude—admittedly with some hesitation—that as a 

whole Florida’s registration and reporting requirements for sex offenders did not render Mr. Clements ‘in custody’ at the time he 

filed his habeas corpus petition.” Id. at 22.

That is an admirably forthright statement and application of 

existing doctrine—and I think, under that doctrine, a correct decision. But the summary really says it all about the doctrine itself: 

We’ve explored all the relevant factors, along two vectors—both 

“quantitative” and “qualitative.” We’ve considered those factors’ 

interrelationship, “as a whole.” And although we’re “hesita[nt]” 

about our conclusion, we’ve determined, on balance, that Mr. 

Clements is indeed not “in custody.” Again, A+ for candor and 

conscientiousness. But the underlying doctrine, in my estimation, 

is fundamentally broken.

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The problem is that Jones’s things-that-free-men-can-do 

standard is so vague—and the considerations that courts must consult to operationalize it so multifarious—that many, if not most, 

cases can be decided either way. Compare, for instance, the razorthin distinctions that separate this case from Marcello and Romero, 

in which we held that the habeas petitioners were “in custody.” 

Mr. Marcello was on “supervised parole, which require[d] him to 

report quarterly to the INS and notify it whenever he intend[ed] to 

leave [his home state] for more than 48 hours.” 634 F.2d at 971 

n.11. Ms. Romero had to “appear in person at the government’s 

request,” give immigration authorities 48 hours’ notice before traveling outside her home state, and “apprise the government of any 

change in residence or employment.” 20 F.4th at 1379. For his 

part, Mr. Clements has to (among other things) appear in person at 

his county sheriff’s office twice a year, report to a drivers’ license 

office every time he changes residences, give 21 days’ notice before 

leaving the country, and give 48 hours’ notice before establishing 

any temporary residence in another state. While Marcello and 

Romero might have had it slightly worse, it’s hard to say that the 

conditions they faced were categorically more onerous than Clements’s.

Consider, as well, how just a tweak or two to Clements’s 

own situation might affect his “custody” status. What if he were 

trapped (so to speak) not in 65,000-square-mile Florida, but in 1200-

square-mile Rhode Island? Likelier in custody? What if Clements 

had to notify officials seven days before leaving the state, rather 

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than just two—custody? And how should we weigh routine inperson reporting requirements? They impede one’s freedom of 

movement, to be sure, but how much? And are they more restrictive than an official’s unfettered discretion to summon? Or perhaps 

less so? And might the answer to that question depend on the particular petitioner’s risk tolerance?

You get the point: Determining custody status under Jones

and its progeny isn’t—and will never be—remotely systematic or 

scientific. It will always be fraught with the risk of error—and, far 

worse, with the risk of manipulation. And that, to my mind, is no 

good. Cf. United States v. Jimenez-Shilon, 34 F.4th 1042, 1054 (11th 

Cir. 2022) (Newsom, J., concurring) (lamenting “judge-empowering” multifactor balancing tests); cf. also Antonin Scalia, The Rule 

of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178–82 (1989) 

(criticizing “discretion-conferring” standards as inviting unfairness, 

unpredictability, and arbitrariness).

* * *

Jones’s freewheeling things-that-free-men-can-do standard 

bears no connection to the plain meaning of the term “custody,” 

has no firm footing in the history of habeas corpus, and is infinitely 

manipulable in practice. It’s time, I think, for a course correction.

IV 

I’ll conclude by echoing Justice Blackmun’s penetrating critique of the Supreme Court’s modern “custody” jurisprudence: 

“[T]he Court has wandered a long way down the road in expanding 

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traditional notions of habeas corpus. . . . Although recognizing that 

the custody requirement is designed to preserve the writ as a remedy for severe restraints on individual liberty, the Court seems now 

to equate custody with almost any restraint, however[] tenuous. 

One wonders where the end is.” Hensley, 411 U.S. 353–54 

(Blackmun, J., concurring).

The solution, it seems to me—as it so often does—is “a return to first principles.” Club Madonna Inc. v. City of Miami 

Beach, 42 F.4th 1231, 1263 (11th Cir. 2022) (Newsom, J., concurring). Unless and until Congress itself expands the writ’s scope—

which, to be clear, would be fine by me—I would hold that an individual is “in custody” within the meaning of the federal habeas 

corpus statutes if, but only if, he is in close physical confinement. 

That understanding follows from the phrase’s original and ordinary 

meaning, jells with courts’ early (and longstanding) interpretations, 

and minimizes the risk that similarly situated individuals will be 

treated differently and that even well-meaning judges will find 

themselves “mak[ing] stuff up” as they go. Id. at 1261.

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