NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JEFFREY N. MOORE, :

:

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, et al., :

:

Respondents. :

 :

Civil Action No. 11-3150 (PGS)

OPINION

SHERIDAN, U.S.D.J. 

Jeffrey N. Moore filed a Petition for a Writ of Habeas Corpus challenging an order

requiring him to register for life under Megan’s Law, N.J. Stat. Ann. §§ 2C:7-1 to 21. For the

reasons expressed below, this Court will summarily dismiss the Petition for lack of jurisdiction

and deny a certificate of appealability.

I. BACKGROUND

On June 1, 2011, the Clerk received from Petitioner a Petition for writ of habeas corpus. 

Petitioner asserts as follows:

1. Challenging the legality of the Megan’s Law on grounds of 401

NJ Super 392 . . . 58 NJ 98, 107 . . . 3 NJ 235 240-69.

2. Against the United State’s Constitution to impose sentence of a

level 1 Megan’s Law offence when the act was consensual and all

parties agreed and the victim nor her legal guardians did not file

any criminal case against the defendant. The victim . . . admittedly

lied about her age. She said she was 17 years old at the time.

3. For petitioner is not challenging the fact or the duration of his

confinement, just the legality of the Megan’s Law.

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4. Relief orders State of New Jersey to lift any order of a parole for

life registration under Megan’s Law.

(Docket Entry #1, p. 1.)

II. STANDARD OF REVIEW

“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.

Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to “specify all the

grounds for relief available to the petitioner,” “state the facts supporting each ground,” “state the

relief requested,” be printed, typewritten, or legibly handwritten, and be signed under penalty of

perjury. 28 U.S.C. § 2254 Rule 2(c). 

Habeas Rule 4 requires a judge to sua sponte dismiss a § 2254 petition without ordering a

responsive pleading “[i]f it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district court.” 28 U.S.C. § 2254 Rule 4. Thus, “Federal

courts are authorized to dismiss summarily any habeas petition that appears legally insufficient

on its face.” McFarland, 512 U.S. at 856. Dismissal without the filing of an answer or the State

court record has been found warranted when “it appears on the face of the petition that petitioner

is not entitled to relief.” Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.

1025 (1989); see also McFarland, 512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437

(3d Cir. 2000) (habeas petition may be dismissed where “none of the grounds alleged in the

petition would entitle [the petitioner] to relief”).

The Supreme Court explained the pleading requirements under the Habeas Rules as

follows:

Under Rule 8(a), applicable to ordinary civil proceedings, a

complaint need only provide “fair notice of what the plaintiff’s

claim is, and the grounds upon which it rests.” Conley v. Gibson,

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355 U.S. 41, 47 . . . (1957). Habeas Rule 2(c) is more demanding. 

It provides that the petition must “specify all the grounds for relief

available to the petitioner” and “state the facts supporting each

ground.” See also Advisory Committee’s note on subd. (c) of

Habeas Corpus Rule 2, 28 U.S.C., p. 469 (“In the past, petitions

have frequently contained mere conclusions of law, unsupported by

any facts. [But] it is the relationship of the facts to the claim

asserted that is important . . . .”); Advisory Committee’s Note on

Habeas Corpus Rule 4, 28 U.S.C., p. 471 (“‘[N]otice’ pleading is

not sufficient, for the petition is expected to state facts that point to

a real possibility of constitutional error.” (internal quotation marks

omitted)) . . . . 

 A prime purpose of Rule 2(c)’s demand that habeas petitioners

plead with particularity is to assist the district court in determining

whether the State should be ordered to “show cause why the writ

should not be granted.” § 2243. Under Habeas Corpus Rule 4, if

“it plainly appears from the petition . . . that the petitioner is not

entitled to relief in district court,” the court must summarily

dismiss the petition without ordering a responsive pleading. If the

court orders the State to file an answer, that pleading must “address

the allegations in the petition.” Rule 5(b).

Mayle v. Felix, 545 U.S. 644, 655 (2005).

III. DISCUSSION

A. Jurisdiction

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to

entertain a habeas petition as follows: 

[A] district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of

a State court only on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). 

Similarly, 28 U.S.C. § 2241 provides in relevant part:

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(c) The writ of habeas corpus shall not extend to a prisoner unless

– . . . He is in custody in violation of the Constitution or laws or

treaties of the United States.

28 U.S.C. § 2241(c)(3). 

Lack of subject matter jurisdiction may be raised by the Court sua sponte at any time. 

See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Louisville & Nashville

Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908); Van Holt v. Liberty Mutual Fire Ins. Co., 163

F.3d 161, 166 (3d Cir. 1998). To invoke habeas corpus review by a federal court under either of

the above statutes, the petitioner must satisfy two jurisdictional requirements: the status

requirement that the person be “in custody,” and the substance requirement that the petition

challenge the legality of that custody on the ground that it is in violation of the Constitution or

laws or treaties of the United States. See Maleng v. Cook, 490 U.S. 488, 490 (1989); 1 James S.

Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 8.1 (4th ed. 2001). 

The Supreme Court has “interpreted the statutory language as requiring that the habeas

petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is

filed.” Maleng, 490 U.S. at 490-91; see also Spencer v. Kemna, 523 U.S. 1, 7 (1998) (custody

requirement is satisfied where the petitioner is incarcerated at the time the petition was filed). 

The “in custody” requirement is satisfied where the state has imposed “significant restraints on

petitioner’s liberty . . . which are in addition to those imposed by the State upon the public

generally.” Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 508 (1982)

(quoting Jones v. Cunningham, 371 U.S. 236, 242 (1963)); see also Hensley v. Mun. Court, San

Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973) (“The custody requirement of the habeas

corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints

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on individual liberty”). While collateral consequences, such as the ability to vote, engage in

certain businesses, hold public office, or serve as a juror, may avoid mootness of a petition where

the petitioner was released after the petition was filed, collateral consequences are not sufficient

to satisfy the custody jurisdictional requirement. See Spencer, 523 U.S. at 7-8; Maleng, 490 U.S.

at 491-92.

Megan’s Laws generally require mandatory registration of certain convicted sex offenders

with law enforcement authorities and community notification. See Smith v. Doe, 538 U.S. 84,

89 (2003) (holding that retroactive application of Alaska’s Megan’s Law does not violate Ex Post

Facto Clause because it imposes a non-punitive regulatory regime). The United States Court of

Appeals for the Third Circuit described the registration requirement of New Jersey’s Megan’s

Law as follows:

The registrant must provide the following information to the chief

law enforcement officer of the municipality in which he resides:

name, social security number, age, race, sex, date of birth, height,

weight, hair and eye color, address of legal residence, address of

any current temporary legal residence, and date and place of

employment. N.J.S.A. 2C:7-4b(1). He must confirm his address

every ninety days, notify the municipal law enforcement agency if

he moves, and re-register with the law enforcement agency of any

new municipality. N.J.S.A. 2C:7-2d to e.

The information provided by the registrant is put into a central

registry, open to other law enforcement personnel but not to public

inspection. Law enforcement officials then use the data provided to

apply a “Risk Assessment Scale,” a numerical scoring system, to

determine the registrant's “risk of offense” and the tier in which the

registrant should be classified. In the case of Tier 1 registrants,

notification is given only to law enforcement agents “likely to

encounter” the registrant. Tier 2, or “moderate risk,” notification is

given to law enforcement agents, schools, and community

organizations “likely to encounter” the registrant. Tier 3, or “high

risk,” notification goes to all members of the public “likely to

encounter” the registrant. Notifications generally contain a warning

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that the information is confidential and should not be disseminated

to others, as well as an admonition that actions taken against the

registrant, such as assaults, are illegal.

The prosecutor must provide the registrant with notice of the

proposed notification. A pre-notification judicial review process is

available for any registrant who wishes to challenge his or her

classification.

Paul P. v. Verniero,170 F.3d 396, 399 (3d Cir. 1999) (citations and internal quotation marks omitted).

The threshold question in this case is whether Petitioner satisfies the “in custody”

requirement under § 2254(a) and/or 2241(c)(3) with respect to the requirement that he register for

life under Megan’s Law. Although the Third Circuit has not decided the issue, circuit “courts

have rejected uniformly the argument that a challenge to a sentence of registration under a sexual

offender statute is cognizable in habeas.” Virsnieks v. Smith, 521 F. 3d 707, 718 (7th Cir. 2008);

see also Leslie v. Randle, 296 F. 3d 518, (6th Cir. 2002); Henry v. Lungren, 164 F. 3d 1240,

1241-42 (9th Cir. 1999); McNab v. Kok, 170 F. 3d 1246, 1247 (9th Cir. 1999). Similarly, this

Court has held that the statutory classification, registration and community notification

provisions under New Jersey’s Megan’s Law are merely collateral consequences of the

conviction but do not constitute a severe and immediate restraint on liberty sufficient to satisfy

the “in custody” requirement for habeas corpus review. See, e.g., Bango v. Green-Allen, 2011

WL 9500 (D.N.J. Jan. 3, 2011); Coleman v. Arpaio, 2010 WL 1707031 (D.N.J. Apr. 27, 2010);

Shakir v. State of New Jersey, 2006 WL 126437 (D.N.J. Jan. 17, 2006). This Court holds that

Petitioner is not “in custody” under Megan’s Law. Id. Because Petitioner was not “in custody”

at the time he filed the Petition, this Court lacks jurisdiction over Petitioner’s challenge to

Megan’s Law and will dismiss the Petition for lack of jurisdiction.

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B. Certificate of Appealability

This Court denies a certificate of appealability because Petitioner has not made “a

substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See

Miller-El v. Cockrell, 537 U.S. 322 (2003).

IV. CONCLUSION

Based on the foregoing, the Court dismisses the Petition for lack of jurisdiction and

denies a certificate of appealability. 

 

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

May 3, 2012

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