IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RAYMOND FLOYD HESS,

(ASO681 #K1-125U)

 

Petitioner

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vs.

STATE OF ALABAMA, et al.,

 

 Respondents. 

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CIVIL ACTION NO.12-00664-KD-B

Report and Recommendation

Raymond Floyd Hess, an inmate who is currently incarcerated 

at the Blackwater Correctional facility in Milton, Florida, has 

petitioned this Court for federal habeas corpus relief pursuant 

to 28 U.S.C. § 2254 (Docs. 1, 3). The petition has been 

referred to the undersigned Magistrate Judge for a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. 

GenLR 72(2)(R), and Rule 8 of the Rules Governing Section 2254 

Cases. The undersigned has conducted a careful review of the 

record and finds that no evidentiary hearing is required to 

resolve this case. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 

1317 (11th Cir. 2004). 

Having carefully considered Hess’ petition and Respondents’ 

response, the undersigned recommends that Hess’ petition be 

dismissed for lack of jurisdiction, that judgment be entered in 

favor of Respondents and against Hess, pursuant to 28 U.S.C. § 

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2244, and that any request by Hess for the issuance of a 

certificate of appealability, and to appeal in forma pauperis be 

denied. 

I. Background

Hess was found guilty of sexual abuse 1st degree in Mobile

County Circuit Court on March 17, 1992, and he was sentenced to 

five (5) years imprisonment. (Docs. 1, 3, 10-1). The sentence 

was suspended, and Hess was placed on probation for four (4) 

years. (Docs. 3 at 2-6, 10-1 at 2). Hess did not appeal his 

conviction or his sentence. (Id.)

According to Hess, when he was convicted of sexual abuse in

Alabama, he was not required to register as a sex offender. 

(Doc. 3 at 6-7) However, because Alabama has designated him as a 

sex offender, he is now incarcerated in Florida for failing to 

register as a sex offender, and the State of Alabama is 

responsible. (Id.). 

Records submitted by Respondents reflect that on December 

11, 2006, Hess pleaded guilty to failure to comply with 

Alabama’s Community Notification Act. (Doc. 10-2 at 2). Hess 

was sentenced to four years imprisonment. The prison term was 

suspended, and Hess was placed on probation for two years. (Id.) 

Subsequent thereto, Hess’ probation was revoked and he was 

committed to the Alabama Department of Corrections. (Id. at 3). 

He was released from custody on November 20, 2008. (Doc. 10-3).

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On December 30, 2010, Hess was arrested in Mobile County, 

Alabama for being a fugitive from the State of Florida. (Doc. 

10-4). This charge was nolle prossed on January 7, 2011. (Id.). 

Later, on April 25, 2011, Hess was sentenced in Florida for 

multiple violations of Florida’s sexual offender registration 

laws. (Doc. 10-5). Hess has been incarcerated at the Blackwater 

River facility in Milton, Florida since May 10, 2011. (Docs. 10-

5, 10-6).

II. Discussion

“The federal statute gives the United States District 

Courts jurisdiction to entertain petitions for habeas relief 

only from persons who are ‘in custody in violation of the 

Constitution or laws or treaties of the United States.’ 28 

U.S.C. § 2241 (c)(3); see also 28 U.S.C. §2254(a)”. Maleng v. 

Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 104 L. Ed. 2d 540 

(1989). Accordingly, a petitioner “must be ‘in custody’ under 

the conviction or sentence under attack at the time his petition 

is filed.” Id. at 490-91; See also Young v. Warden, FCC 

Coleman, 508 Fed. Appx. 918, 2013 U.S. App. LEXIS 2936, 2013 WL 

530596, *2 (llth Cir. 2013)(“to satisfy the “in custody” 

requirement, “the habeas petitioner [must] be ‘in custody’ under 

the conviction or sentence under attack at the time his petition 

is filed.”).

A petitioner is not in custody “when the sentence imposed 

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for that conviction has fully expired at the time his petition 

is filed.” Maleng, 490 U.S. at 491; See also Diaz v. State of

Fla. Fourth Judicial Circuit, 683 F.3d 1261, 1264 (llth Cir. 

2012)(“[petitioner’s] state sentence had fully expired at the 

time he filed his § 2254 petition and therefore deprived the 

district court of jurisdiction to decide the petition’s 

merits.”) 

In this case, it is clear that Hess is currently 

incarcerated in Florida for violation of Florida law, namely 

failure to register as a sex offender. It is also clear that 

Hess’ sentence for his 1992 conviction for sexual abuse fully 

expired when he completed probation in 1996. Because Hess is 

not currently ‘in custody’ pursuant to his 1992 conviction, he 

cannot challenge that conviction. Maleng, 490 U.S. at 490-492. 

Accordingly, Hess’ habeas petition is due to be dismissed for 

lack of subject-matter jurisdiction as Hess is not “in custody” 

on the 1992 conviction that he seeks to challenge in the instant 

petition.

While Hess’ contends that Alabama’s designation of him as a 

sex offender, due to his 1992 conviction, is the reason that 

Florida has required him to register in the first instance; the 

undersigned finds that such a designation does not render him 

‘in custody’ for purposes of habeas relief. Indeed, numerous 

courts have held that habeas corpus actions are not the 

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appropriate vehicle to challenge registration as a sex offender. 

See Holloway v. G.C. Giles, 2013 U.S. Dist. LEXIS 69187, 2013 WL 

2067471 (M.D. Ala. April 22, 2013), report and recommendation 

adopted, 2013 U.S. Dist. LEXIS 68232, 2013 WL 2071771 (M.D. Ala. 

May 14, 2013(collecting cases); Ridley v. Hetzel, 2011 U.S. 

Dist. LEXIS 88450, 2011 WL 3475292, at *1 (M.D. Ala. July 7, 

2011)(“[N]umerous courts have found uniformly that sex offender 

registration requirements do not satisfy the “in custody” 

requirements for habeas corpus claims and that, therefore, 

challenges to registration as a sex offender are not cognizable 

in habeas corpus actions.”)(citations omitted.), report and 

recommendation adopted, 2011 U.S. Dist. LEXIS 88334, 2011 WL 

3474415 (M.D. Ala. August 9, 2011). Accordingly, the undersigned 

finds that Alabama’s designation of Hess as a sex offender does 

not establish perpetual custody for the purpose of allowing him 

to attack his fully expired 1992 conviction and sentence. 

Accordingly, the undersigned recommends that Hess’ petition be 

dismissed for lack of jurisdiction. 

III. Certificate of Appealability

Pursuant to Rule 11(a) of the Rules Governing § 2255 

Proceedings, the undersigned recommends that a certificate of 

appealability in this case be DENIED. 28 U.S.C. § 2255, Rule 

11(a) (“The district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the 

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applicant.”). The habeas corpus statute makes clear that an 

applicant is entitled to appeal a district court’s denial of his 

habeas corpus petition only where a circuit justice or judge 

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). 

A certificate of appealability may be issued only where “the 

applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). 

Where a habeas petition is being denied on procedural 

grounds without reaching the merits of an underlying 

constitutional claim, “a COA should be issued [only] when the 

prisoner shows . . . that jurists of reason would find it 

debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct 

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 

120 S. Ct. 1595, 1604 146 L. Ed. 2d 542 (2000). Where a habeas 

petition is being denied on the merits of an underlying 

constitutional claim, a certificate of appealability should be 

issued only when the petitioner demonstrates “that reasonable 

jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Id. (“To obtain a COA 

under § 2253(c), a habeas prisoner must make a substantial 

showing of the denial of a constitutional right, a demonstration 

that, under Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 

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3383, 3394 77 L. Ed. 2d 1090 (1983)], includes showing 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.”) (internal quotation 

marks omitted); accord Miller El v. Cockrell, 537 U.S. 322, 336, 

123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

Hess’ petition does not warrant the issuance of a 

certificate of appealability as this Court is without 

jurisdiction to entertain his claim. Indeed, under the facts of 

this case, a reasonable jurist could not conclude either that 

this Court is in error in dismissing the instant petition or 

that Petitioner should be allowed to proceed further. Slack, 529 

U.S. at 484 (“Where a plain procedural bar is present and the 

district court is correct to invoke it to dispose of the case, a 

reasonable jurist could not conclude either that the district 

court erred in dismissing the petition or that the petitioner 

should be allowed to proceed further.”). Accordingly, the 

undersigned recommends that the Court conclude that no 

reasonable jurist could find it debatable whether Hess’ petition 

should be dismissed and as a result, he is not entitled to a 

certificate of appealability.

IV. Conclusion.

Based on the foregoing, it is the recommendation of the 

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undersigned Magistrate Judge that Hess’ petition for habeas 

corpus be dismissed for lack of jurisdiction, and that judgment 

be entered in favor of the Respondents and against Hess. It is 

further recommended that any motion for a Certificate of 

Appealability or for permission to appeal in forma pauperis be 

denied.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

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identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this the 20th day of January, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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