As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #23:
Petitioner filed a Habeas Petition, claiming that he was “in custody” for Habeas purposes because he was required to register as a sex offender. The court disagreed, stating that “where sex offender registration statutes are remedial, rather than punitive, the registration requirements…do not satisfy the ‘in custody’ requirements” for a Habeas Petition.
Ward v. Tennessee, 2009 Tenn. Crim. App. LEXIS 43 (Jan. 14, 2009)
In this Habeas petition, the court found that the requirement to register as a sex offender is a collateral consequence of the underlying criminal conviction. The trial court did not commit plain error by failing to advise him of the requirement.
People v. Mosley, 168 Cal. App. 4th 512 (Nov. 19, 2008)
Mosley was convicted by a jury of assault, but acquitted at trial of committing a sex offense against a minor. The trial court, based on its own fact-finding, ordered him to register as a sex offender, and thus submitting him to the residency restrictions in place in California. The Court of Appeals held that the residency restriction is punitive (per Mendoza-Martinez) and, therefore, Apprendi requires a hearing where facts supporting the imposition of the residency requirement are proven beyond a reasonable doubt to a jury.