[00:00] Intro: This episode of Registry Matters is proudly brought to you by our amazing pledge patrons, Justin, Brian, Michael, Joel, James. Your support makes this podcast possible. Thank you, and don’t forget FYP.
[00:15] Andy: Recording live from FYP Studios East and West, transmitted across the Internet. This is episode 352 of Registry Matters. What’s up, man? How are you?
[00:24] Larry: Doing awesome. I’m glad you made it back from your lovely weekend or week at the beach.
[00:30] Andy: It was quite delightful. And I I we had a little bit of a miscommunication. Sorry about that. I I swore we were not recording tonight because you told me there was not anything going on. So I was sitting on the couch watching television, but here we are.
[00:45] Larry: That shows the dedication to of the many, many workers who put together this quality con content
[00:52] Andy: from coast to coast. And the dedicated people are you and me, which mostly you for putting the content together. So you don’t think we have a team dedicated from coast to coast working on this? Yeah. We have a team of you and me. Yeah. That’s a team. It’s pretty much coast to coast. With some of gaps in between. Yep. We do have one dedicated patron listening to us live. Thank you very much for joining us. And you’re on time, which I know you’re gonna leave us in a moment and go have dinner. What are we doing tonight, Larry?
[01:26] Larry: Well, you forgot to tell people to sign up.
[01:30] Andy: Well, please head over, like, subscribe, five star ratings, notification bell, share it. If you’re over there on the, subreddit for the PFR subreddit, please thumbs up when I post the episode on there, and everybody will be super happy about it, and we can drive more listeners in here. There. Now, what are we doing tonight?
[01:54] Larry: Well, I hate to break the studio audience part, but it’s just mister doom and gloom chance cannot be with us probably until later this month. He’s got other conflicts, so it’s just me. But we have a case from the United States Court of Appeals for the Eleventh Circuit. It’s not a huge win for PFRG yet, but it could become so in the near future. Also, we have we have a belated phone message that I should have covered months ago. We have a question from Frank about your favorite topic, the Kabuki machine. I like the Kabuki machine. Also we have an article that I’d set up for Chance and he was in it was intended to be covered by him. But since he’s not here, it’ll be mister doom and gloom for that as well. So I think we’ve got a little bit of of content going tonight.
[02:53] Andy: Fantastic. Alright. Well, let’s dive right into the letter, the handwritten letter from Frank. And it says, dear sir, please forward this to the legal corner. A couple of years ago, NARSO published an article regarding polygraphs and our rights. To avoid the yes no trap and the issue of self incrimination, you suggested we respond, I request that my attorney respond to that particular question. Can we still use that? Is this still a good method of defense?
[03:26] Larry: Well, the what caught my eye about that, I’ve been intending to cover that, was that I generally write all the things legally for the Arsenal newsletter. And I don’t recall writing that because yes no questions are the way the polygraph is designed. It’s not a narrative.
[03:43] Andy: Yeah. It’s not an open question of, hey. Can you tell me what you did last year for Christmas? It’s like, that’s not gonna be a yes or no. Is your name John Doe? Yes. That’s how that works.
[03:55] Larry: That is how it works. I can’t imagine that that I would have written anything of that nature. But in terms of Frank’s question, I’m not a big believer in being at the poll, polygrapher’s office and saying my attorney should answer that question. That’s why I don’t think I wrote that. That is the quickest way to get yourself a, violation of supervision if you were to do that. You don’t think they’d find that funny? Well, I would agree with you. You say nothing’s funny. This this this would not that would not be funny. I can’t imagine who the attorney was that wrote that, that said that, and how it escaped my scrutiny because, really, they’re a practitioner and they tell a person, you can’t take your attorney to a polygraph exam. Have you ever heard of such a thing?
[04:48] Andy: No. I can’t. I would like to bring my my attorney with me to these questions, and he’s going to then answer for the ones that would incriminate me.
[04:58] Larry: Now, that having said that, Frank, you do not give up your right against self incrimination. That is something that you can do, But you gotta do it very judiciously. We had a case in Georgia early on in this program’s history where the guy told them what they could do with their polygraph. You remember who I’m talking about, don’t you? I do. He wasn’t going to take any polygraph questions. Wasn’t going to be examined at all. That’s not the correct way to invoke your right not to incriminate yourself because the entire exam may not be incriminating. It’s only a particular question that might incriminate you. So, each question has to be evaluated in the pretest interview. And you would tell the examiner in that situation, I won’t be able to answer that question because and then all the furniture on the Titanic’s deck will shift like you’ve never seen before. They’ll start pushing buttons to get the probation officer in there and they’ll threaten you with all sorts of bad things if you don’t cooperate with the exam. That’s what will happen if you do that. But if you don’t want to go to prison for incriminating yourself, you just have to stand firm and say, I can’t answer that particular question, but I am cooperating with the exam except for that question.
[06:13] Andy: Now let me let me dig into this a a little bit. Can you you can help them encourage them at whatever the terms we wanna use there. If the question might be too broad, or but then it can be you can get them to focus it so that you don’t have to answer to something. Do you do you see what I’m saying? Like, if they Well, I I don’t know. If if they ask you, did you do the bad thing to this person? You could get them to be more specific, etcetera, or less specific in a way that you can answer it where you’re not gonna ping the, the Kabuki machine?
[06:53] Larry: You’re correct. And I had that experience myself with the one and only PFR exam I took as the question needed to be narrowed because they asked, have you ever had any any sexual activity with someone below the age of consent? And I told them that’s not a good question. What do you mean we ask that all the time? And I said, well, you make a mistake all the time if you’re asking it if if you’re phrasing it this way. I’m laughing because you’re directing them over. If that’s how you’re asking it, that’s not a good question. Oh, and I said, so we we got variables here. I said, first of all, I need to know, was I above the age of consent at the time I had the sex? I see what you’re saying. But could the law have changed also in the time that they’re asking the question? That’s where I’m headed. I have been here a long number of decades and the law has changed. When I moved here, the age was 13 and I was considerably younger than I am now. And at the time when the age of consent was 13, I was in my early twenties. But still it was it would have been unlawful if they were below 13, but it would have been completely lawful if they were above 13, even though I was in my twenties. And I told him, I said, so you need to phrase the question like this. Have you, since achieving the age of majority of 18, knowingly had sex with anyone who was below the age of consent at the time you had the sex? Right. Right. I gotcha. I said, and they agreed to, modify the question because I said otherwise it can trigger a response because I have had sex with people under the current age of consent.
[08:34] Andy: I mean, this is making me it’s reminding me of the is it Doug Moore that was the somebody in Alabama, and he was catching all kinds of heat for forty years ago having a relationship or whatever that was. Is that the guy’s name? Yes. That was the, Supreme Court Chief Justice Roy Moore. And, so looking back in the seventies or eighties, the age difference wasn’t looked at it wasn’t looked at the same way that it is now.
[09:04] Larry: That that is correct. If I remember right, he was a young person himself, and he was working at a restaurant called the Old Hickory House. And, he had, maybe worked up to where he was a supervisory type person, but he had sex allegedly with someone underage. And it was just nothing but rumor and gossip and, and malicious attack on him because there’s no way he could defend himself. You can’t find someone from the nineteen seventies that you supervised as a teenager and find all the people to find out if that was consensual or not. I mean, it was just crazy, but that’s what they did to him because they’re looking for ways to discredit him.
[09:42] Andy: Right. And so let’s go back to to Frank. So if they are going to so anyway, if they start asking you questions like, what is your name? Do you live at this address? Those kind of control questions, and then they’re gonna hit the the specific ones that would entrap you in in a sense. You need to answer all of the ones that you can and then work with them to make the question not roast you for the ones that, that are gonna well roast you.
[10:09] Larry: Correct. And that should be determined in the pretest interview. They don’t just hook you up and start asking you questions. You are apprised of what the questions are gonna be in advance. If you’re not apprised of those questions, then you’re not taking a bonafide polygraph exam from accredited examiner. I know from what you think about it, but still there’s a process to do it. And that’s not the process if they just wire you up and start asking you questions without you having any idea what’s coming at you. It’s just funny because to me,
[10:37] Andy: here’s the placebo, aspirin. And if you if you are not taking a bonafide placebo, aspirin, and it doesn’t make your headache go away, then you’re not taking a it’s like it’s pseudoscience, and it’s not real. It’s all in your head. And so we’re talking about a real thing in your head. Got it. Well, there’s a process to follow for Right. For the calligraphy business.
[11:01] Larry: I don’t know that it deviates anywhere coast to coast. So if you are hooked up and they just start asking you questions, that’s that’s totally junk.
[11:10] Andy: I gotcha. Alright. I think that was fantastic. That was a lot of fun. Kabuki machine. Alright. Well, then we will head over to this question from Derek. And I remember sending this to you, like, I don’t know, a decade ago.
[11:27] Larry: Well, I don’t think it was quite that long, but I do feel bad about it. I was that it’s lingered for months. I totally lost it until it popped up into my briefcase last night. I was going through trying to make it lighter and throwing out cases that I take home to review. You know, they’re thirty, forty, 50 pages on Yeah. Sure. I had printed this with the intent of calling Derek, and then it fell off my radar. So, Derek, I apologize. I intended on calling you, but you wouldn’t have answered your phone anyway, but still I intended on calling you. Nobody answers anymore. Well, this is what he said. He said, I’m a long time lurker and Patreon contributor to registry matters. The amount of time and effort that you, Larry, and Chance spend on this critical issue is incredible, and I’m very appreciative of it. I do, of course, have a registration question that I need help in determining what my next steps should be.
[12:16] Andy: If you have a couple minutes this week that I can lay on you, that would be awesome. I live in Texas charged with possession of CP at the federal level. One count, but I still have to register for life here in Texas. I’ve made peace with it. Now I have been with my partner for over five years. We actually knew each other before I went to prison, but he didn’t know what I was doing illegally. Anyway, we finally met up at the 2019, and he lives in Indiana, and he’s on disability. He has been amazing because for five years now, he has split his time flying between Texas to me and going back up to handle the rest of his affairs. His being on disability hurts his opportunities in Texas to get the same level of care that he’s getting in Indiana. There’s currently a three year waiting period to get Medicaid through Texas. He owns his own place in Indiana inherited through his grandmother, but his place is right next to a public park. I thought Medicaid was federally funded? Was it his three year wait what is this three year waiting list about? Is that actually something that to get your Medicaid, like, transferred into Texas, it’ll take multi, multi years?
[13:24] Larry: It can. And I learned that with my sister moving from Florida to Georgia, but she had an ex Medicaid friend that had worked in the bureaucracy and they were able to cut that weight down to just thirty, forty five days. But it’s, jointly funded by the Federal Government and the states, share that with the federal government. But the federal government picks up the larger share and many states do have waiting lists, for Medicaid. So you don’t just because you’re eligible, magically get on it. It’s kind of like, section eight housing.
[13:56] Andy: Everybody says, well, go get section eight. Well, there’s a three year waiting list, so you don’t get on it right away. Alright. Well, then he went on to say Indiana has a 1,000 foot residency restriction that they placed on SVPs and offenders against children. I found that they also give a clear definition of what constitutes an SVP, an offender against a child. But when my partner called the Allen County Sheriff, they completely shot it down without my partner even giving him my name or case number. I’m pretty sure that the sheriff was giving incorrect information. Now I’m not looking to pick up a registry violation. However, what would be the best way to reapproach the sheriff?
[14:36] Larry: Well, I still do need to speak with Derek for, for a point of clarification, but it sounds to me like Texas intends to enforce Indiana’s BFR restrictions. And I’m not sure they can do that. Cause Indiana is no longer in control if he were to move to Texas. So that’s a question we need to resolve. Is this a Texas law that says that he can’t live there? Because he mentioned the park in Indiana.
[15:02] Andy: And if he’s living there, then obviously it’s not a problem in Indiana. Right? No. No. What what the way that I’m reading this is that he’s going to try to move to Indiana to be with his partner, and his partner lives next to a park, and there’s the thousand foot restriction. So him moving to Indiana is gonna be a challenge.
[15:20] Larry: That’s what I’m reading. I read just the opposite. He was gonna move to Texas.
[15:25] Andy: But he is already in Texas.
[15:27] Larry: No. But the partner’s not. The partner’s in Indiana, and the partner’s going to move to Texas, and that’s where the Medicare whatever thing kicks in. Well, that’s what I’ve done. We’re saying the same thing, though. But but I it seems like that India, Texas is trying to enforce Indiana’s, restrictions. And I’m not sure they can do that because Indiana would no longer be in control. But the question would be, that’s my first question. Do I have this right, Derek? Is that what we’re talking about? And then the next question will be, does Texas have a provision in their law that requires them to enforce another state’s registration requirements? As wacky as Texas is, they’re right behind Alabama and wacky. But I wouldn’t be surprised as a deterrent to keep BFRs out of Texas. They would put something like that in their code that says that whatever restrictions that are another state would follow you there. But if they’ve gotten that in in their code, that is within its own most constitutional challenge because there’s also the full faith and credit and equal protection clause and all that and the the, the equal protection clause. If he becomes a resident of Texas, he has the right to be treated like a Texan. I understand. So with, what we know, what do you recommend for sure? Well, we need to do the point of clarification. So he can either call in again or agree to answer his phone, and I’ll call him now that it’s come back on my radar. But we need to know that clarification, and we need to have a legal opinion once we ascertain the facts, which I can get from an attorney in Texas. Do they have that provision in their law that they enforce out of state restrictions? But this is quite interesting. He can’t he can’t live with his with his partner because Yeah. Allen County Sheriff said no way. It’s like, really?
[17:16] Andy: Now now just from what you remember of this, and does it is he just, quote unquote, just on registration or is he still under some kind of supervision?
[17:26] Larry: Oh, that point is not clear also. But Okay. But by the way the letters the voicemail was constructed, it’s fairly certain that he’s not under supervision because he said he’s been commuting back and forth for five years. And I can’t imagine them letting him go back and forth to Texas if he were under supervision to see another PFR. I just can’t see that being approved.
[17:48] Andy: I don’t think his partner’s a PFR. Yeah. We need to get clarification because I think we’re reading different things out of this. I think we are. I don’t think I don’t think his partner is any kind of PFR. He’s just
[18:04] Larry: somehow he met him and he’s in Indiana. That’s what I’ve got. But I don’t yeah. I can see how you’re reading it that way. But I don’t see what if he’s a non PFR, what the hell does has to do with anything? Because it’s just like anybody else moving. But does this Texas tell you who you can live and be be, in love with and who you can be? Texas?
[18:23] Andy: Really? I can imagine that they would have an issue with a PFR living with a dude. I can totally see that. No. Not because we don’t. This is this is a state of Adam and Eve, not Adam and Steve. Come on, man. Not a state that believes in individual liberty and all that kind of stuff. Really? Not Texas. Not a chance. And then the whole Medicare thing, oh my god. You can’t move there and and just show up and end up taking money from the coffers. So, yeah, they would be very is the word reticent to let his partner move from Indiana and then immediately end up starting collecting a check? Benefits. And I don’t mean this in any disparaging way whatsoever. If the guys on disability, the guys on disability, but Texas, I would imagine they are not a fan of having somebody else show up, Especially gay living with a gay that’s PFR. No.
[19:15] Larry: Well, Google Allen County and find out. I didn’t take the time to do that. Find out if that’s Podunk City or where it is. But it sounds like a bastion of progression progressive thinking to me, doesn’t it, to you?
[19:27] Andy: Yes. See, and I’m thinking Allen County is then in Indiana. So, yeah. There’s an Allen, Texas. So I’m thinking it’s Allen County, Indiana. Well, we’ll have to get this cleaned up. But anyway, I wanted to get it back on the radar because it had fallen off. It is. It is Allen County in Indiana. So that’s what he’s talking about. He’s talking about him trying to move up there, calling the sheriff’s office there in Indiana to try and figure out what the deal is gonna be if he moves. And they’re giving him the runaround, which is what I’m sure every PFR office does for the most part is give everyone the runaround because they don’t want you to move in there either. However, his partner lives next door to a park. So that’s gonna be negative right out of the gate. You got that right. If if if you’ve interpreted it correctly, I think you have them. He’s gonna have a tough road to overcome to get there because But if that’s Okay. That’s you. So here, I’m gonna put on my love counselor hat. If the two of you are made for this and he’s inherited the house, then sell the house and move someplace where they can’t mess with you and you have that thousand foot restriction and move there.
[20:31] Larry: Well, tell me tell me about Allen County. Where is it? What’s the name of the county seat?
[20:35] Andy: Oh, good grief. Alright. Allen County is twenty twenty sent sent hey. It’s 385,000
[20:42] Larry: people. What’s the county seat? It’s the,
[20:45] Andy: a county I don’t even know how to understand what county seat means. If I if I search for seat on Wikipedia? Yeah. If you’re in the Wikipedia, it’ll say it’ll say the county seat. Fort Wayne.
[20:57] Larry: So okay.
[20:59] Andy: And I’m assuming that’s a good thing being, Fort Wayne, Indiana. Right? Well, being 385000
[21:05] Larry: people, that sheriff’s department has the power to enough manpower to be to be thorough.
[21:11] Andy: Okay. But isn’t wouldn’t if it were 2,000 people, then they’re going to be very aggressive about having a PFR to monitor. But three eighty five is a pretty substantial city. It is a pretty substantial population.
[21:25] Larry: But nobody wants PFRs to come. Period.
[21:30] Andy: I gotcha. Okay. Well, after we’ve, noodled around with that for a little while, do you have any, closing remarks before we head over to the main event? The main event. Let’s do it. Alright then. So this is a case that you put in here, you people have put in here from the Eleventh Circuit Court of Appeals. And I read it over while I was driving back today. For six hours, I was reading this. And I see some justification for this case consuming FYP’s valuable airtime. The issue is a habeas corpus. Now how’s that so far? So far so good, so keep going. Alright. The name of the case is Louis Matthew Clements versus secretary of the Department of Corrections. And in 02/2008, Clements plead guilty to a single count of lewd and lascivious conduct in violation of Florida statutes. He was sentenced to five years of PFR probation. No time, just PFR probation. The terms of which provided that he qualified and shall register with the Florida Department of Law Enforcement as a PFR pursuant to Florida statute nine four three dot zero four three five. Do we need to describe PFR probation a little bit? We probably should because if it’s Florida, it’s going to be worser than anywhere else.
[22:48] Larry: Well, in most instances, with the exception of those supervised in Houston County, Georgia.
[22:54] Andy: I think I think that’s a dig at me.
[22:57] Larry: PFR probation is much stricter than any other form of community supervision. It involves frequent home visits, so called treat, but then involves the use of polygraph examinations, strict curfews, and really strict travel restrictions, except for Houston County, Georgia. So anybody who wants wants to be under lack supervision, transfer your PFR supervision to Halston County, Georgia.
[23:21] Andy: Alright. Well, I can’t really argue with this. In 02/2017, roughly four years after the expiration of his probation term, Clements proceeded, pro se, filed his first, twenty two fifty four petition in the United States District Court of Middle District of Florida challenging his conviction on various grounds. The district court dismissed the petition for lack of jurisdiction concluding that Clement’s obligation to comply with Florida’s registration and reporting requirements for PFRs did not place him in custody for habeas purposes. Now did Clement appeal that denial?
[23:58] Larry: He did. And on appeal, the court of appeals affirmed the district judge holding with some hesitation that the restrictions on freedom of his movement imposed by Florida’s lifetime registration and reporting requirements were not severe enough to place PFRs in custody under 2,254, which is a Federal law that limits habeas to review of state convictions to those who are in custody. And that was reported as Clements versus Florida. That’s Clements one fifty nine, Federal fourth at 12 o four to twelve fifteen, eleventh circuit. And a cert petition was filed with the United States Supreme Court, and it was denied.
[24:43] Andy: Alright. Well, then, do me a favor, please, and explain the significance of what the in custody requirement is for habeas corpus.
[24:52] Larry: Sure. In order to be able to utilize habeas corpus as a vehicle to seek judicial relief, a person must be in some form of custody. In custody is broadly interpreted to include probation and parole, but simply being on the PFR registry, I think has been denied as custody excepted one Federal Circuit. And I didnit do the research, but I think one Federal Circuit has held that it is, it does constitute custody. If itis not a Federal Circuit, itis a, itis a State Court, but I think itis a Federal Circuit. But a person who, who is not in custody, they’re, if they’re only required to register, they’re not under any form of restraint of their liberties according to the court. So therefore, you’re not in custody. You’re in a civil regulatory framework.
[25:36] Andy: Alright. But during his first appeal, Clements argued for the first time in his pro se brief that the residency restrictions in Florida impose excuse me, registry restrictions Florida imposes on PFR contributed to his, quote unquote, being in custody. Now what did they say in response to that argument?
[25:56] Larry: Well, they actually declined to consider the impact of those restrictions because Clements had not raised the argument below in the district court, and the record was undeveloped as to that issue. They even refused to take judicial notice of how much land was covered by these residence restrictions without access to appropriate and detailed maps and plots. And they explained that without knowing where Florida schools, daycares, parks and playgrounds were located, they could not sketch out the residency buffer zones as experts might do. And Clements did not provide the specifics necessary to evaluate the impact of these restrictions on appeal. Thus, they expressly reserved consideration of the issue for another day.
[26:41] Andy: And that day has now arrived.
[26:44] Larry: Correct. It has arrived.
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[27:36] Andy: Alright. Then in April 2024, Clements filed his second Prose twenty two fifty four petition, again challenging the constitutionality of his conviction. This petition provides the basis for the instant appeal. Clements’ petition included the explanation regarding lack of custody, which acknowledged the questions, question left open in Clements one, and Clements one is his first pro se whatever. Right? Right. Okay. So, opened by Clements one and argued that because Florida restricted PFRs to living in only 50% of the state’s land, the district court should conclude that he was, quote, unquote, in custody for habeas purposes. Did the district court agree?
[28:22] Larry: They did not. Of course. District court. The district court acting on its own accord dismissed Clements’ petition for, lack of jurisdiction. The court stated that Clements had failed to address his custody status or assert that it had changed. So it was bound by Clements one’s determination that he was not in custody. It noted the fact that Clements now believed he had a new basis to bring the twenty two fifty four petition did not alter the fact that the court was without jurisdiction to consider it. The district court basically flushed the case.
[28:56] Andy: So Clements then moved for reconsideration and argued among other things that Clements won did not address the impact of the residency restrictions on his custody status. The district court denied Clements’ motion. First, it stated that it would not ignore this court’s binding decision in Clements one just because Clements had identified an alternate reason for why he was in custody. Second, the court found that Clements’ motion merely restated the arguments in his petition, which was insufficient to carry his burden for reconsideration. So he appealed.
[29:31] Larry: He did indeed.
[29:33] Andy: And I think I’ve heard you pontificate that a certificate of appealability is required to file a second habeas. Am I losing my mind? Am I having amnesia way too early for my age?
[29:46] Larry: No. You’re not. I did mention that at some point in our relationship. And the court addressed that in footnote one. They stated, ordinarily, a certificate of appealability is required to appeal to the denial of a 22, 54 petition. And they cited the appropriate US court, United States Court, code section. However, Clements was not required to obtain a COA in this instant case because his petition was dismissed for a lack of subject matter jurisdiction, and they cited Hubbard versus Campbell. And that’s three seventy nine federal third at twelve forty five to twelve forty seven. And that’s a 20000 2004 case, from the eleventh circuit. So he didn’t need to have a certificate of appealability. That’s funny.
[30:30] Andy: So what is the standard of review for this kind of appeal?
[30:33] Larry: Well, the court answered that for us. They said, quote, we review de novo a district court’s dismissal of a twenty two fifty four petition for lack of jurisdiction. They cited Diaz versus Florida. And that’s a 2012 case from the from the eleventh
[30:48] Andy: circuit. If we can circle back, I’d like to focus a bit more on what, quote, unquote, in custody means. The decision says federal courts may hear petitions for habeas relief filed by 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. Accordingly, federal courts lack jurisdiction to consider a twenty two fifty four petition from a petitioner who was not in custody at the time of filing. And that’s citing, Malang versus Cook, four ninety US four eighty eight, pages four ninety and four ninety one, and that’s nineteen eighty nine. How was custody determined?
[31:33] Larry: Well, section twenty two fifty four a’s custody requirement is construe to be construed very liberally. An individual need not be physically imprisoned to be in custody for habeas purpose, Jones versus Cunningham. That’s way back from 1963, US Supreme Court. Instead, significant restraints on a person’s liberty to do the things which, in this country, free men are entitled to do when the constraints are not shared by the public, generally. That can be sufficient to satisfy the in custody requirement. The relevant inquiry is whether a petitioner’s actions and movements are substantially limited when looking at the cumulative effect of the restrictions on the petitioners autonomy. Now that’s what I keep telling people about the registry. If you’re free to come and go, just being registered is not enough. But the states that keep piling on these restrictions, they eventually are building a new vehicle for you to challenge aspects of the registry because you’re in custody.
[32:33] Andy: Now this situation seems to be a no brainer to me. PFRs in Florida have significant restraints on their liberty. Florida argued that Clements one was binding and that the matter had already been previously decided. What did the court say in response to that?
[32:49] Larry: They said, contrary to the district court’s belief, Clements One is not binding as to whether Clements is in custody for purposes of the instant petition. In the prior case, we expressly reserved consideration of the residency requirements for another day. As claimants had neither raised the argument in district court nor developed a complete factual record.
[33:09] Andy: No. Do me a favor. Repeat what you just said. I think you said something about development of a factual record.
[33:15] Larry: I did. I said that claimants had neither raised the argument below in district court nor developed a complete factual record. You need to have a fully developed record when you go up on appeal. I mean, hello, folks? This is serious business. When you’re in appellate court, they don’t develop the record. They review the record. Alright. So you’re on a roll. Keep going. They said Florida’s PFA PFR residence requirements are more than an alternate reason why Clements may be in custody for the purpose of instant case. These restrictions present a potential custodial constraint on Clements Liberty, and our court explicitly left open the consideration of these restrictions. As such, the District Court erred by not considering Clements new in custody arguments and by suis ponte dismissing the petition before the state could even respond, thereby denying the parties the opportunity to follow develop their arguments regarding the impact of Florida’s residence restrictions on Clements custody status.
[34:20] Andy: And what you’re talking about there with fully developed is similar to the thing that we talk about all the time of a summary judgment?
[34:27] Larry: Yes. That is not what it’s not exactly identical here in this habeas, but you’ve got to have the records
[34:35] Andy: developed below. The appellate courts are already reviewing the records. You don’t get to admit new evidence. You get to argue about the evidence that was put into the record below. Alright. Well, then the court stated, we must now consider whether despite the district court’s error, the record on appeal is sufficiently developed for our court to resolve Clements’ new in custody arguments. Now what did Clements do to better develop the record?
[35:00] Larry: Well, Clements took the first step by arguing in his pro safe filings that before the district court that Florida’s PFR residence requirements along with his registration and reporting requirements sufficient to restrict his liberty as to so to render him in custody. They noted that now that he is represented by counsel, that’s the court. They noted, Clements maintains this argument, but attempts to supplement his contentions by providing maps, as well as citing studies and academic briefs articles in his brief. However, much of the information is not part of the record on appeal because it was not first presented to the district court. You’ve got to let the district court have the first bite at the apple.
[35:46] Andy: Now it sounds like the record is still undeveloped. I’ve heard you say over the years that appellate courts excuse me, appellate courts do not admit new evidence. Did they allow it in this case?
[35:58] Larry: They did not. They stated we ordinarily do not review materials outside the record on appeal, and and as an appellate court, we do not sit in as a collective trier of fact. We therefore decline to consider Clements’ evidence regarding Florida’s residence restrictions in the first instance and conclude that the record is undeveloped at this stage for meaningful review of the issues Clements presents on appeal.
[36:26] Andy: Does that mean this case is going back to the district court for a third time?
[36:31] Larry: It does mean that. The court said, we we remand this case to district court to permit the parties the opportunity to develop the record as to the restrictions imposed by Florida’s residence requirements. The district court shall then rule on whether these residence restrictions, considered in combination with the registration and reporting requirements, render Clements in custody for habeas purposes. Mister Clements, I know you’re listening. Make sure that if your attorney isn’t doing the job that you don’t let this case go up undeveloped. You probably won’t get a force bite at the apple.
[37:08] Andy: So Well, but then by by what is happening here, what do you think the court is telegraphing?
[37:13] Larry: Oh, I actually think they’re telegraphing that they’re seriously considering the argument that being on Florida’s PFR registry meets the in custody requirements for federal habeas. And if they do that, if they come back with that decision and it holds up on appeal, that’s gonna be gargantuan. You would have another circuit to join that has said that it is in custody. And that’s a brand new vehicle for people to use because they no longer have to be under supervision. They don’t have to be in in a hard custodial situation. They just have to merely be registered. So Florida, keep on amping up your registry requirements. Keep doing what you’re doing, and you’re gonna be the downfall of the very thing that you’re trying to protect, which is your precious registry. Isn’t that funny? That what can you help me extrapolate that out to the people that live under bridges? Does this apply to them potentially? I don’t know if I follow the question. Under bridges, what does that have to do with anything? Well, be, like, the there are so many people,
[38:21] Andy: like, from the, is it Untouchable? The the documentary about Ron Book. They’re all the people in Dade County, I guess it is, where they can’t live anywhere, so they end up finding a place under a bridge somewhere that because of the way the residency restrictions are, that they would fall and then these people would be able to potentially find housing? Would this then give them relief?
[38:42] Larry: Well, yes. Now follow your question. If if the ruling goes the way we hope, this is determined to be in custody and he gets to cite constitutional arguments. He gets to raise, contingents on the constitution of every aspect of the Florida registry because he now has a vehicle to use. And he’s, I think he’s going to win this. I think the odds are better than fifty fifty that this eleventh circuit is going to rule in his favor. Ultimately, if the if the attorney doesn’t botch this case. Are are you in a position to be in contact with? Do you know who that is? I don’t know. I could figure it out, but why would they listen to me? I don’t have a law degree.
[39:24] Andy: Yes. I understand that, Larry. I I I do that you don’t have the letters, But that doesn’t mean you don’t know the arguments and the strategy and the opposing arguments and all that that you couldn’t be of great value to them.
[39:40] Larry: Well, I might I might reach out if I can determine who it is. I’d have to do some work, but if Clements is listening, you can contact the program.
[39:50] Andy: Yeah. No doubt. As he should be. And if anybody in Florida knows who this dude is, please point them in this direction so that he can get on board. Like,
[40:00] Larry: I’m assuming, Larry, that you could come up with all of the arguments that we should present and then what the opposing side would present in return. I’m assuming you could put that together. Oh, I think I could because I know what they’re gonna do. They’re gonna argue and argue and argue that he’s not in custody. They’re gonna argue and argue that their registry is merely civil, non punitive, or regulatory. And these all these restrictions are narrowly tailored.
[40:23] Andy: So, like, one of my big deals, Larry, was that can I go see a movie? I enjoy going to the movie theater. I like the big sound. I like sitting down with a big ass box of popcorn. But when I was on supervision, at least at the very beginning, I was not going anywhere near a movie theater even for a during the school day matinee where there wouldn’t be any kids there or anything like that and going to see, like, an r rated movie. No kids allowed. But to me, since I couldn’t go, that sounds to be more like a disability and our strength that sounds more like being in custody because you sure as heck can’t go to a movie while you’re in prison. So that’s just one of those things that you probably shouldn’t do is go see a movie, particularly one that has, like, you know, even if it’s adult, like, a Pixar kind of movie that has Shrek and adult jokes in it, but kids still end up there. Like, it’s just not a wise place to go. But that’s just an example I’m giving to say disability and restraint.
[41:22] Larry: Indeed. And, again, Florida legislature listened carefully. All legislatures around the country listened carefully. You can do almost anything, but you have to narrowly tailor it. You can apply it to all PFRs. If you’ll contact me for a minor fee, I will help you draft narrowly tailored legislation that will withstand constitutional challenge, But you have to target those restrictions like going to the picture show to a person who’s offended against a minor and more recently than than decades ago. But you can do almost anything if you narrowly tailor it.
[41:58] Andy: But that requires work for them to individually evaluate you to what your
[42:05] Larry: restrictions should be. Well, in addition to that, more importantly, it doesn’t play to the political machine. The victim’s advocates and the law enforcement apparatus, they do not want to hear about Narrow Taylor. They will tell you that there’s bracket creep, in which I’m using that term loosely, but they just because they didn’t offend against the child originally, that they progress and they escalate and they do all these things. So they want this you could never pass anything that’s sufficiently narrowly tailored because it wouldn’t make the victim’s apparatus happy.
[42:36] Andy: I gotcha. Now, someone posted in chat, they said, that they think that their a 2019 decision, the third circuit ruled that individuals required to register as PFRs in Pennsylvania were considered, quote unquote, in custody for habeas purposes. That’s exactly right. Allowing them to seek federal habeas. And he says that the case number is Piaseca versus Court of Common Pleas.
[43:02] Larry: I think I remember that. I think that’s exactly where I remember being from Pennsylvania.
[43:06] Andy: Okay. Well, there there there you go. It’s in the show notes for you to reference at your leisure.
[43:14] Larry: Thank you. Well, you put this You put this for the vast research the vast research of our audience.
[43:20] Andy: Yeah. That is, from, from 10 brands. Alright. Well, then you put this article in here from the AP, which has gotta be the most left leaning publication ever. It says the California Supreme Court handed down two decisions last week that could impact decades of sentencing for gang related offenses and allowing thousands of people to petition courts to reexamine their cases. That sounds like a bunch of liberal do gooders turning loose a tidal wave of crime on innocent Californians to me.
[43:51] Larry: So what do you expect from that place? It’s governed by communist who only care about power, not the people. But I put this in here for the sole purpose of making the point as we go through this. Keep in mind that gangsters are probably on the pecking order like number two or three below PFRs. So if a bunch of liberal do gooders, communist sympathizers can rule in favor of them, it’s possible that we might get some good rulings out of the California Supreme Court for us. So that’s why I put in here it’s hope. But, anyway, go ahead.
[44:30] Andy: Both rulings examined a 2021 law that raised the standard of evidence for proving that someone broke a law as part of criminal street gang activity. In different ways, the Supreme Court chose to apply the new standard to past convictions. One decision took an incarcerated person off of death row. The other sided with two incarcerated people who contested past strikes on the record that set them on a course for lengthy sentences. Now can you believe this? They’re siding with career criminals?
[45:00] Larry: Well, not so fast here. It’s uncertain how far reaching these two rulings will be. Both of them came in split decisions reflecting disagreements about how to apply the 2021 law. In one case, a four to three majority determined that prior gang related charges did not hold up under the new legal standards and thus could not be used as strikes. Larry Fletcher and Eric Anthony Taylor Jr. Argued that twenty fifteen gang enhancement convictions could not be applied as strikes toward three strikes sentenced for a 2020 attempted murder, as their convictions were still under appeal when the 2021 law took effect. It remains unclear exactly how Fletcher and Taylor decision will set precedent for other individuals looking to reverse sentences under the three strikes law, but it does have the potential to to let people out of prison. Chief justice Patricia Guerrero
[45:59] Andy: dissented from the decision. She admonished her fellow justices for invoking the authority to change the three strikes law under the guise of interpreting it. A second case ruled on Thursday upended a defendant’s death sentence and remanded his case back to trial court. The case was decided five to two upholding Jason oh, jeepers. Ag oh, Aguirre?
[46:21] Larry: Aguirre. That’s good enough. Aguirre,
[46:24] Andy: Jason Aguirre’s 2009 murder and attempted murder convictions, but sending it back to trial court in Orange County for what the court described as further proceedings. Both the majority and dissenting opinions said they would have reversed the defendant’s gang enhancements.
[46:41] Larry: Yeah. So you can see what these liberals are doing. They’re no wonder. The Gary was in his late twenties, a white man who prosecutors alleged hung up with a Vietnamese youth gang called Dragon Family Junior in Orange County. One night in twenty o three, he and a few younger accomplices chased a group of people from a restaurant to a cul de sac where members of the group crashed their car. Aguirre shot three of them and one, a 13 year old man, Tron, died. At trial, a detective testified that Aguirre shot three people for the reputational benefit of the gang. At the time, that was a valid reason for a prosecutor to pursue gang enhancements to a defendant’s sentence. That’s the kind of person I would want to live in my community, wouldn’t you? Without a doubt. So then in 2021,
[47:31] Andy: the law changed that. Now the law says that the gang enhancements have to show that any benefit the gang received from criminal activity has to be more than just reputational. I don’t understand what that means. Well, I guess they’re saying just,
[47:45] Larry: going out and killing somebody for to establish a rec reputation. I guess that’s what they’re saying, but I don’t really understand it either. It was noted when the trial took place, the defendant’s jury was not given instructions that tracked the revised language of the 2021 law. Guerrero wrote, in the majority opinion, would the relevant aspects of Assembly Bill three thirty three, the 2021 law, apply retroactively, this disconnect with the law as it has since been amended constitutes error affecting defendant’s conviction for active participation in a street gang. So they’re just looking for a way way to turn these criminals loose.
[48:23] Andy: I see. Aren’t gang enhancements pretty common across the country?
[48:27] Larry: Yes. Gang enhancements and so called three strike, laws date back decades to when California’s crime numbers were peaking in the late eighties and early nineties. State legislators in 1988 enacted the Street Terrorism Enforcement and Prevention, known as the STEP Act, in response to rising gang and crime violence, notably most visible in Los Angeles neighborhoods. Participation or association with alleged gang or gang members became highly subjective criminal acts that added sentencing enhancements for felonies committed to benefit a criminal street gang. Then during the era of so called Super Predator, voters in 2,000 approved Proposition 21, which expanded provisions of the Step Act to increase mandatory sentencing for gang related crimes. And that’s what when their prisons got so overcrowded out there.
[49:15] Andy: I see. And it’s in it’s what the people demanded over the next two decades, local prosecutors in California pursued allegations of criminal street gang activity for both violent and nonviolent felony charges.
[49:29] Larry: They did. And critics, activists, and reform advocates argued that gang allegations and gang enhancements disproportionately and fairly targeted defendants from minority and low income communities, and that the low thresholds of evidence led to prejudiced juries resulting in disproportionately severe sentences primarily for people of color.
[49:48] Andy: I can see it from that perspective, of course. The article notes that in 2021, the Step Forward Act, legislation authored by then assembly member Sydney, Cum Lager Dove of Los Angeles, attempted to address the inequities and excessive punitive impact of the original Step Act and its amendments. The Step Forward Act is the law at the center of the of the two new California Supreme Court rulings.
[50:13] Larry: That is that is correct. But, critics also say that current gang has some statutes criminalize entire neighborhoods historically impacted by poverty, racial inequality, and mass incarceration as they punish people based on cultural identity, who they know and where they live. I’m not so sure I completely understand that. I’m gonna have to have a little broader education on that. I don’t know how you punish a whole neighborhood, but maybe somebody could enlighten us.
[50:41] Andy: Maybe. Okay. So where else do we go from here? Is that is that all you wanna do with this particular article?
[50:50] Larry: It is. I think we’ve got all the content on the agenda done. And like I say, this is tangentially connected. If they’re willing to turn loose the tidal wave of crime of gangsters, it’s clear that they’re not worried about their reelection very much.
[51:05] Andy: Would that be because I I don’t know. What is it? Like an 80% blue state?
[51:10] Larry: I don’t know that I can say that, but it certainly is a blue state at the moment.
[51:15] Andy: I see. Well, it seems like they would have to all be the communist to let the forth the tidal wave of crime. Because you know they’re all moving from California to Texas. Right?
[51:25] Larry: Well, and and, of course, you know that liberals don’t care about people. They care about power. You understand that, don’t you? I’ve heard something about that too. Yes. Of course. Yep. Yes. So
[51:35] Andy: Well, I do wanna mention, Larry, now that we’re closing out the show, that we have two fine new patrons. One is named James and another is Joel. I would like to welcome them both to the FYP family. Roo roo rah rah rah and applause and all that fun stuff. Thank you guys for coming on board.
[51:55] Larry: Did they come on at stimulus level?
[51:58] Andy: Pretty close. One of them was much closer than the other one, and but the other one was quite generous as well.
[52:03] Larry: Alright. Thank you.
[52:06] Andy: Head over to registrymatters.c0 for show notes and email us at registrymatterscast@gmail.com. Even while I’m sitting on the beach, I will pick up your email and I will forward it to Larry. Leave an old fashioned voice mail message at (747) 227-4477. And please, as James and Joel have done, support us on Patreon at patreon.com/registrymatters. It takes a lot of time and effort to put the work into, to make these programs, and every little penny helps, show the support and love for this. So if you would be so kind to join us on Patreon, that would be immensely appreciated. Head over to f y p at, education.org/shop to find some merch, t shirts, and particularly the, Kabuki machine. It’s fantastic merch. Anything else? What are you doing this weekend, Larry? Well, I’m going home to visit with my kitty cat. Alright then. Fantastic. Well, I hope everybody has a great night and a good weekend, and stay warm or cool depending on where you are and what the weather is. I hope it’s all fantastic for you. And I will talk to you soon, my friend.
[53:09] Larry: Seven in the morning. Of course.
[53:12] Andy: Take care of my good night.
[53:17] Announcer: You’ve been listening to FYP.
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