IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL L. HARRIS, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:13-CV-857

)

COMMISSIONER, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Michael L.

Harris, on August 22, 2013. For the reasons set forth below, the

petition (DE 1) is DENIED and Harris is DENIED a certificate of

appealability. 

BACKGROUND

Michael L. Harris, a pro se prisoner, is challenging his

conviction for failing to register as a sex offender and three year

sentence imposed on February 27, 2012, by the Elkhart Superior

Court under cause number 20D06-0911-FD-383. Harris filed a direct

appeal; the Court of Appeals of Indiana affirmed in Harris v.

State, 985 N.E.2d 767 (Ind. Ct. App. 2013) (DE 7-6); and the

Indiana Supreme Court denied transfer. (DE 7-2 at 2). In this

habeas corpus petition, Harris raises three grounds for habeas

corpus relief. 
DISCUSSION

Ground One

Harris argues that Indiana’s sex offender registry

requirements violate his First Amendment right to free expression

on the internet by preventing him from making anonymous comments.

Specifically, he challenges Indiana Code § 11-8-8-8(a)(7) which

requires that he register with law enforcement officials “Any

electronic mail address, instant messaging username, electronic

chat room username, or social networking web site username that the

sex or violent offender uses or intends to use.” Though this

requirement does not prohibit him from speaking, Harris argues it

has a chilling effect because he wants to make political statements

about sex offender laws without the government knowing that it was

him. The Court of Appeals of Indiana addressed this claim, but

held, “we reject Harris’s claim that I.C. § 11-8-8-8(a)(7) chills

his expression under the First Amendment.” Harris, 785 N.E.2d at

776. 

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) 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.

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28 U.S.C. § 2254(d). 

Harris argues that the “Indiana Court of Appeals decision in

this cause, misinterpreted Doe v. Shurtleff, 628 F.3d 1217 (10th

Cir. 2010) in denying Harris’s petition.” DE 10 at 6. However, that

is not a basis for habeas corpus relief. Indeed, none of Harris’s

citations to non-United States Supreme Court cases are relevant. As

the United States Supreme Court recently explained, 

AEDPA’s standard is intentionally difficult to meet.

We have explained that clearly established Federal law

for purposes of §2254(d)(1) includes only the holdings,

as opposed to the dicta, of this Court’s decisions. And

an unreasonable application of those holdings must be

objectively unreasonable, not merely wrong; even clear

error will not suffice. To satisfy this high bar, a

habeas petitioner is required to show that the state

court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.

Woods v. Donald, 575 U.S. __, __; No. 14-618, slip op. at 4. (March

30, 2015) (quotation marks and citations omitted). Moreover, “if

the circumstances of a case are only ‘similar to’ our precedents,

then the state court’s decision is not ‘contrary to’ the holdings

in those cases.” Id., slip op. at 6. 

Though Harris cites to a number of United States Supreme Court

cases, none of them address the obligation of sex offenders to

disclose their internet usernames and email addresses to law

enforcement officials. Indeed, none of them discuss what

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limitations can be placed on sex offenders at all.1 “[W]here the

precise contours of a right remain unclear, state courts enjoy

broad discretion in their adjudication of a prisoner’s claims.”

Id., slip op. at 6-7 (quotation marks, brackets and citations

omitted). Thus, though the United States Supreme Court has

addressed the application of the First Amendment in many contexts,

it has not explained its applicability to monitoring convicted sex

offenders. As such, the Indiana decision cannot have been an

unreasonable application of clearly established Supreme Court law.

See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our

cases give no clear answer to the question presented . . . it

cannot be said that the state court unreasonably applied clearly

established Federal law.” (quotation marks, brackets, and citation

1 Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (teacher’s union

dues); Broadrick v. Oklahoma, 413 U.S. 601 (1973) (state employee political

activity); Elrod v. Burns, 427 U.S. 347 (1976) (public employee patronage);

Frisby v. Schultz, 487 U.S. 474 (1988) (abortion protesters); Garrity v. New

Jersey, 385 U.S. 493 (1967) (coerced confessions); Hoffman v U.S., 341 U.S. 479

(1951) (grand jury witness); Lefkowwitz v. Cunningham, 431 U.S. 801 (1977) (grand

jury witness); Mcintyre v. Ohio Elections Comm., 514 U.S. 334 (1995) (anonymous

political leaflets); NAACP v. Button, 371 U.S. 415 (1963) (legal assistance and

referrals); New York Times Co. v. Unities States, 403 U.S. 713 (1971)

(publication of classified documents); Riley v. National Federation of the Blind

of North Carolina, Inc., 487 U.S. 781 (1988) (charitable solicitations); Simon

& Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)

(publication of descriptions of criminal activities); Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (disclosure of prescription records); Turner Broadcasting

System, Inc. v. F.C.C., 512 U.S. 622 (1994) (local stations on cable television);

United States v. Carotene Products Co., 304 U.S. 144 (1938) (regulation of milk

products); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000)

(regulation of cable television transmission of sexually explicit material);

United States v. Stevens, 559 U.S. 460 (2010) (over broad statute criminalizing

depictions of animal cruelty); United States v. Williams, 553 U.S. 285 (2008)

(child pornography statute not over broad); Reno v. ACLU, 521 U.S. 844 (1997)

(regulation of internet pornography); Virginia State Bd. Of Education v.

Barnette, 319 U.S. 624 (1943) (school children required to salute the flag); Ward

v. Rock Against Racism, 491 U.S. 781 (1989) (sound systems at public band shell

performances); Washington v. Glucksberg, 521 U.S. 702 (1997) (assisted suicide);

Wooley v Maynard, 430 U.S. 705 (1979) (automobile licence plates). 

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omitted.)). Therefore Ground One is not a basis for habeas corpus

relief.

Ground Two

Harris argues that requiring him to disclose his usernames and

email addresses to law enforcement as a part of registering as a

sex offender is a violation of his Fifth Amendment right against

self incrimination. Though the Court of Appeals of Indiana did not

provide a written explanation for rejecting this claim, there is a

strong presumption that it was nevertheless adjudicated on the

merits. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).

Because Harris has not rebutted this presumption,2

 AEDPA deference

applies to this claim as well. Thus, because there is no clearly

established Supreme Court law establishing the applicability of the

Fifth Amendment to sex offender registry requirements, Harris has

not demonstrated that the Indiana ruling was unreasonable. 

Moreover, the “Fifth Amendment comes into play only when the

accused is compelled to make a testimonial communication that is

incriminating.” Doe v. United States, 487 U.S. 201, 221 n.8 (1988)

(quotation marks and citation omitted). Usernames and email

addresses are personal identifiers or aliases. “An individual's

identity is more than just his name or Social Security number, and

2 In his traverse, Harris made no mention of the absence of an explicit

discussion of this claim by the Court of Appeals of Indiana. He made no attempt

to rebut the strong presumption that the State courts adjudicated this claim on

the merits. 

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the government’s interest in identification goes beyond ensuring

that the proper name is typed on the indictment. Identity has never

been considered limited to the name on the arrestee’s birth

certificate.” Maryland v. King, 133 S. Ct. 1958, 1971 (2013).

Therefore Ground Two is not a basis for habeas corpus relief. 

Ground Three

Harris argues that there was insufficient evidence to have

found him guilty of failing to register as a sex offender. The

Court of Appeals of Indiana found that there was sufficient

evidence. 

Harris also argues that because he personally did

not use or intend to use certain unregistered email

addresses, he complied with the I.C. § 11-8-8-8(a)(7)

requirement that a sex or violent offender register those

email addresses the offender uses or intends to use. We

characterize this argument as a sufficiency of the

evidence claim.

In order to convict Harris of failing to register

under I.C. § 11-8-8-17, as a Class D felony, the State

was required to prove beyond a reasonable doubt that

Harris, a sex offender, acting with the culpability

required for commission of the crime:

(1) failed to register when required to

register under this chapter;

(2) failed to register in every location where

the sex or violent offender is required to

register under this chapter;

(3) made a material misstatement or omission

while registering as a sex or violent offender

under this chapter.

I.C. § 11-8-8-17(a). The statute requires that the sex or

violent offender knowingly or intentionally commit the

violation for culpability. I.C. § 11-8-8-17.

When reviewing the sufficiency of the evidence to

support a conviction, we will consider only the probative

evidence and reasonable inferences supporting the

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verdict. We will affirm the conviction unless no

reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Because knowledge

is the mental state of the actor, it may be provided by

circumstantial evidence and inferred from the

circumstances of each case. 

Harris does not dispute that he did not list the

email addresses when he updated his registration on June

1, 2009. However, Harris argues that he was aware of the

requirement to register and as a result he never

personally used or intended to use the unregistered email

addresses or social networking website user names.

Instead, he claims that the unregistered email addresses

and social networking usernames were registered under his

wife’s name, used in connection with the promotion of his

services as an actor and filmmaker, and part of the

“brand name” of his business carried out through his

corporation. According to Harris, in such case, the law

does not require him to register the email addresses or

social networking user names.

At trial, the State offered screen shots of Harris’s

MySpace profile page and his IndianaActors.com profile

page. The MySpace profile page contained Harris’s

photograph, a narrative of his likes and dislikes, listed

his marital status as single, and a user name of

filmmaker1954@aol.com. Further, the State provided

records from MySpace showing that the profile page was

created on May 5, 2009, and an associated email address

of filmmakerl954@aol.com. The IndianaActors.com profile

page contained photographs of Harris, listed an email

address of michaharr5@aol.com, and stated contact Michael

L. Harris directly if you are interested in his talents.

Harris did not register either email address until

December 3, 2009.

Based on the foregoing, we deem Harris’s arguments

merely a request to reweigh the evidence. We decline to

do so. There is sufficient evidence from which the jury

could infer that Harris used or intended to use such

email addresses and failed to register these email

addresses on June 1, 2009. We therefore reject Harris’s

sufficiency of the evidence claim.

Harris v. State, 985 N.E.2d 767, 783-84 (Ind. Ct. App. 2013)

(brackets, citations, quotation marks, and footnote omitted).

The standard of review is a rigorous one: evidence,

viewed in the light most favorable to the State, is

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sufficient to support a conviction so long as any

rational trier of fact could find the essential elements

of the offense to have been proved beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Because we consider this claim on collateral review

rather than direct appeal, [AEDPA] imposes an additional

layer of defense onto this inquiry: we may grant relief

on this claim only if the [State] Appellate Court applied

the Jackson standard unreasonably to the facts of [the]

case.

Jones v. Butler, 778 F.3d 575, 581-82 (7th Cir. 2015) (parallel

citations omitted). 

Harris does not dispute any of the factual findings set forth

by the Court of Appeals of Indiana. Rather, he argues that, “There

is no direct eviden[ce] that Harris personally responded to any

email correspondence, nor that he intended to do so.” DE 10 at 18.

However, the lack of direct evidence of intent is not a basis for

habeas corpus relief because “a federal habeas corpus court faced

with a record of historical facts that supports conflicting

inferences must presume – even if it does not affirmatively appear

in the record – that the trier of fact resolved any such conflicts

in favor of the prosecution, and must defer to that resolution.”

Jackson v. Virginia, 443 U.S. 307, 326 (1979). Here, the evidence

was that Harris had two email accounts that he did not report even

though they were advertized on the internet with his photo and

invited others to contact him personally. Despite his assertion

that these were his wife’s accounts, he listed himself as single

and made no mention of her in his online postings. Based on this

evidence, it was not unreasonable for the Court of Appeals of

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Indiana to have found that it was reasonable for a jury to have

found that Harris intended to violate the law requiring him to

register his email addresses. Therefore Ground Three is not a basis

for habeas corpus relief. 

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,

the court must consider whether to grant a certificate of

appealability. To obtain a certificate of appealability under 28

U.S.C. § 2253(c), the petitioner must make a substantial showing of

the denial of a constitutional right by establishing “that

reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement

to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, Harris has not made such a showing and will be denied a

certificate of appealability. 

CONCLUSION

For the reasons set forth above, the habeas corpus petition

(DE 1) is DENIED and Harris is DENIED a certificate of

appealability. 

DATED: April 2, 2015 /s/RUDY LOZANO, Judge

United State District Court

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