Covington, 395 U.S. 57 (1969), Grosso v. United States, 390 U.S. 62 (1968), and
Marchetti v. United States, 390 U.S. 39 (1968), which found certain statutes requiring
registration unconstitutional because they violated the privilege against self-
incrimination. All of these cases are inapposite because they deal with the Fifth
Amendment privilege against self-incrimination, not the Ex Post Facto clause. To the
extent that Lewis now claims the Registration Act violates the privilege against self-
incrimination, he loses because he failed to exhaust his state remedies on this issue,
because he improperly raised this issue for the first time in his reply brief (and it does
not rebut anything in the State’s answer brief), and because the argument is without
merit. The Registration Act does not require unknown sex offenders to come forward
and admit their wrongdoing. It only requires those already convicted to provide
personal information so the public can be made aware of their presence.

While the State has no burden of persuasion in this proceeding, it too appears
to have lost sight of the applicable standard. Instead of focusing on the issue (whether
the Registration Act violates the Constitution as clearly interpreted by the Supreme
Court), the State simply requests this court to adopt the holding in state court.
Additionally, the State improperly re-argues that Lewis’s claims are non-cognizable.

In our earlier decision, denying the State’s motion to dismiss Lewis’s habeas petition,



disclosed); Paul P. v. Verniero, 170 F.3d 396, 404 (3rd Cir. 1999) (because state’s
interest in preventing future sex offenses is compelling, the state can disclose sex
offenders’ addresses even if a fundamental right of privacy is implicated); Russell v.
Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997) (sex offender notification statute does
not violate right to privacy). The Registration Act does not violate a fundamental
privacy right.

I. Cruel and Unusual Punishment

Lewis contends that the Registration Act violates the Cruel and Unusual
Punishment clause of the Eighth Amendment to the Constitution as applied to Illinois
pursuant to the Fourteenth Amendment. Lewis never raised this issue in state court.
See Lewis Petition at 8-9. Nevertheless, we have jurisdiction to rule against Lewis on
this issue. 28 U.S.C. § 2254(b)(2) (“An application for writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).

Lewis notes that the maximum punishment for failing to register under the
Registration Act exceeds the maximum punishment for sexually exploiting a
child—-which crime is the basis for Lewis having to register. Without citing any case
law in support, Lewis concludes that this is a violation of the Cruel and Unusual

Punishment clause. The Cruel and Unusual clause prohibits punishment that is

-9-



resulting in his having to provide the additional information as to where he is
employed.

Lewis’s first argument is erroneous as it based on a misreading of the
Registration Act. The version of the statute that was on the books at the time of his
conviction on June 26, 2000, requires registration by those convicted of a sex offense
after July 1, 1999. 730 Ill. Comp. Stat. 150/2 (1999). Although he committed the
offense in 1995, he was not convicted for it until after July 1, 1999. Thus, the statute
as written was properly applied to Lewis.

The question remains, however, whether the statute as written violates the Ex
Post Facto clause for imposing additional punishment for a crime committed prior to
the effective date of the Registration Act. While it appears that the Registration Act
has a long history of revisions, the State does not argue that an earlier applicable
version was already on the books when Lewis committed the crime of exploitation of
a child in October 1995. Instead, the State argues that the Ex Post Facto clause does
not apply to the Registration Act because the Act does not impose any punishment.
See Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 639 (7th Cir. 1990) (if statutory
provisions are not penal legislation, "they do not fall within the protection of the rule
against ex post facto law-making"). The Supreme Court has yet to determine whether

any state’s sex offender registration statute is punitive and therefore limited to post-

-6-


we definitively held that we had statutory and Constitutional jurisdiction over the
petition.

Although he now challenges the State’s authority to force his registration, Lewis
specifically agreed to register as a sex offender pursuant to his plea bargain which
resulted in two counts of aggravated sexual abuse charges against him being dropped.
See Lewis Petition at 11 (admitting that “[a]s part of the agreement, [he] was to register
as a sex offender”). Thus, even if the Registration Act is unconstitutional as Lewis
contends, he would still be obligated to register under the terms of his plea bargain.
I. Ex Post Facto Clause

The Constitution prohibits ex post facto laws. U.S. Const. art. 1§ 10, cl. 1 (“No
State shall. . . pass any . . . ex post facto law”). This prohibition applies to the states
as well as to the federal government. Dobbert v. Florida, 432 U.S. 282, 308 n.8 (1977)
(“Unlike the procedural guarantees in the Bill of Rights which originally were
applicable only to the Federal Government, the Ex Post Facto Clause has always
applied to the States.”). Lewis contends that the Registration Act violates the Ex Post
Facto clause in three ways: (1) the Illinois statute only requires registration if the sex
offense occurred on or after January 1, 1996, and he committed his sex offense on
October 14, 1995; (2) the Illinois statute did not become effective until July 1,

1999-—well after the committed offense; and (3) in 2001, the registration rules changed



Il. Right to Privacy

Lewis argues that having his place of employment and residence broadly
disseminated to the public pursuant to the Registration Act violates his right to privacy.
His entire argument consists of the following brief paragraph:

Like the requirement that he list his place of work, the requirement that

Lewis list his home address amounts to broad dissemination of his home

address. Thus, the notification law violates his right privacy under the

federal constitution as described in the [state] appellate brief which he has
adopted for purposes of this action.
Lewis Petition at 14. Lewis cannot rely on arguments not presented to this court. Even
if he had placed his Illinois Appellate brief before us, he could not incorporate it by
reference because he would exceed the fifteen-page limit for legal briefs. See Local
Rule 7.1.

Far from relying on clear Supreme Court precedent, Lewis simply sets forth his
own legal conclusion that the Registration Act violates his Constitutional right to
privacy and asks us to adopt his view. Such a position is inappropriate in seeking relief
pursuant to 28 U.S.C. § 2254. Furthermore, our independent legal research only hurts
Lewis’s position. We are unable to locate any Supreme Court case on point. The few
Courts of Appeals that have addressed the issue have rejected sex offenders’ privacy

claims. See Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999) (sex offender

does not have Constitutional right of privacy in keeping his residence from being

8.



‘Misia. Ordes Form (06/97)

, TN 6 United States District Court, Northern District of Illinois

Name of Assigned Jud, Sitting Judge if Och
enor Magistrate Judge Charles P. Kocoras han ‘Ascigned Judge
CASE NUMBER 02 C 4472 DATE 1/17/2003
CASE Lewis vs. People of the State of Ilinois
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
|
DOCKET ENTRY:
¢}) a} Filed motion of [ use listing in “Motion” box above.)
(Q) o Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due :
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to} [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .
) oO Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao «off [Other docket entry] ENTER MEMORANDUM OPINION: We deny the petition for writ of
habeas corpus. .
(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge’a staff.

Notified counsel by telephone.

a | Docketing to mail notices.

av | Mail AQ 450 form.
Copy to judgtfnagistrate judge, dunoa ! Sla'sn
sct ae Sos RY LI aureu
initials . - Teed
OT Qefearckaet Smee



disproportionately large relative to the offense committed. Atkins v. Virginia, 122 S.
Ct. 2242, 2246-47 (2002). Lewis’s argument appears to be based on the false belief
that the proportionality requirement of the Cruel and Unusual clause requires the
punishment for not registering to be proportionate to the original offense which serves
as the basis for mandatory registration in the first place. There is no legal basis for this
argument. The Registration Act does not violate the Cruel and Unusual Punishment
clause of the Eighth Amendment.
CONCLUSION

Based on the foregoing analysis, we deny the petition for writ of habeas corpus.

Per BP boeres

Charles P. Kocoras
Chief Judge
United States District Court

Dated: SAN 17 2003

-10-



enactment sex offenders by the Ex Post Facto clause. Last year, the Supreme Court
granted certiorari to review this very issue with respect to Alaska’s sex offender
registration act (Alaska Stat. §§ 12.63.010 - 12.63.100), which is somewhat similar to
Illinois’s Registration Act. Doe Iv. Otte, 259 F.3d 979 (9th Cir. 2001), cert. granted,
435 U.S. 1126 (2002). The Supreme Court, however, has yet to issue a ruling.
Furthermore, Lewis does not cite, and we cannot locate, any Supreme Court precedent
that is on point and favorable to Lewis’s position. Thus,-he has failed to meet his
burden in demonstrating that the adverse state court proceeding “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.” 28 U.S.C.
§ 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 379 (2000). Even were we
to address Lewis’ ex post facto argument under the normal legal standard of precedent
(and not the limited habeas standard), we would reject his claim. While not expressly
addressing an ex post facto argument with respect to Illinois’ Registration Act, this
court has nonetheless implicitly rejected the argument. U.S. v. Barberg, 2001 WL
1593149, *2 (N.D. Ill. Dec. 12, 2001) (enforcing Iinois’s Registration Act against a
defendant despite specifically noting that it was “retroactive, and required sex offenders
convicted of their crimes prior to [the effective date of the statute] to register.”). The

Registration Act does not violate the Ex Post Facto clause of the Constitution.

-7-


his right to privacy under the U.S. and Illinois Constitutions; and (3) the Registration
Act violates the Constitution! because the punishment for not complying with it is cruel
and unusual. We will not review Lewis’s arguments that the Registration Act violates
the Illinois Constitution. The federal habeas statute is only concerned with violations
of federal law. See 28 U.S.C. § 2254(a) (Federal courts are directed to entertain habeas
petitions “only on the ground that [the petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.”) (emphasis added). Moreover,
it generally is not our place to review a state court’s interpretation of its own
constitution, See Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the
ultimate expositors of state law”).

As an initial matter, we note that Lewis has utterly failed to cite any precedent
that demonstrates that the state court’s decision was contrary to, or involved an
unreasonable application of, clearly established federal Constitutional law as
determined by the Supreme Court of the United States. In his reply, Lewis does cite
five Supreme Court cases that held registration statutes unconstitutional, but his
reliance on them is misplaced. Lewis cites Albertson v. Subversive Activities Control

Bd., 382 U.S. 70 (1965), Leary v. United States, 395 U.S. 6 (1969), United States v.

' Allreferences to “Constitution” refer to the U.S. Constitution unless otherwise
specified.

-3-



“Registration Act”), 730 Ill. Comp. Stat. 150/1 et seg. While still on probation and,
therefore, in custody, he filed the present petition for writ of habeas corpus on June 24,
2002. He is no longer on probation but he must continue to register as a sex offender
for the next several years. The State moved to dismiss the petition on mootness and
jurisdictional grounds because Lewis was no longer in custody. We denied the motion
to dismiss because the habeas statute (28 U.S.C. § 2254) only requires the petitioner
to be in custody at the time he files his petition and because the Constitutional
requirement for case or controversy was satisfied by the ongoing collateral
consequences of having to register as a sex offender. Lewis has properly exhausted his
state remedies prior to bringing this petition. Thus, we now address the merits of the
petition.
LEGAL STANDARD

Lewis must demonstrate that the adverse state court proceeding “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.”
28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 379 (2000).

DISCUSSION
Lewis petitions this court on three grounds: (1) the Registration Act violates

federal and state prohibitions on ex post facto laws; (2) the Registration Act violates

2-



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEPHEN EDWARD LEWIS, )
)

Plaintiff, )

)

vs. ) 02 C 4472

)

PEOPLE OF THE STATE OF ILLINOIS, )
)

Defendant. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on Stephen Lewis’s petition for writ of
habeas corpus. For the reasons set forth below we deny relief.

BACKGROUND

On June 26, 2000, Lewis pled guilty in Cook County Court to sexual
exploitation of a child, a Class A misdemeanor in Illinois. The acts constituting the
offense occurred on October 14, 1995. In exchange for his plea and his agreement to
register as a sex offender, the Respondent People of the State of Illinois (the “State”)
dropped two counts of aggravated criminal sexual abuse. Lewis, after spending over
four years in prison, was required to serve two years of probation and register as a sex

offender for ten years pursuant to Illinois’s Sex Offender Registration Act (the