Sex Offender's Case Won't Face En Banc Rehearing

     PASADENA, Calif. (CN) - The full 9th Circuit should have been called to consider whether to let a sex offender challenge his parole conditions, as the question imperils "our constitutional system's respect for state sovereignty," five judges said Tuesday.
     William Thornton alleges that California prison officials violated his civil rights by imposing residency and GPS monitoring restrictions typically reserved for sex offenders, even though he had only been convicted in the Golden State for robbery. The state justified the Jessica's Law parole conditions because of Thornton's sexual battery conviction in Tennessee 27 years ago.
     Finding that Thornton could seek relief only from the restrictions via habeas petition, a federal judge dismissed Thornton's case.
     This past August, a divided three-judge panel of the 9th Circuit concluded that the trial court had misapplied the U.S. Supreme Court's decision in Heck v. Humphrey since Thornton had not challenged either his underlying conviction or the parole itself - only certain conditions of the parole.
     California Attorney General Kamala Harris met the reversal by petitioning for an en banc rehearing, but a majority of the circuit judges shot her down Tuesday.
     Joined by four colleagues, Judge Diarmuid O'Scannlain said the refusal for a full-court hearing ran roughshod over "the limitations Congress placed on federal judicial power."
     Thornton's filing of civil rights claims rather than going through the habeas process means the circuit court's decision to deny an en banc hearing has far-reaching implications on state sovereignty, according to the dissent.
     "State decisions about parole conditions will now be subject to far-reaching and searching review by federal courts in our circuit," O'Scannlain wrote. "Rather than reserving federal judicial intervention for cases of 'extreme malfunction' of state penal systems, as is the case with habeas review, federal judicial involvement in the setting of parole conditions will now become routine. As Judge Ikuta's dissent convincingly argues, challenges to parole conditions fall within the purview of the federal habeas statute, with all its attendant limitations on our power. By instead permitting such challenges to be brought under Section 1983, the panel has worked 'a major new intrusion into state sovereignty under our federal system,' something Congress expressly sought to avoid."
     The panel's finding also raises the question of attorneys' fees in civil rights actions - which are barred in habeas proceedings - and will mean "a rush of parolees to the federal courthouse steps," O'Scannlain added.
     "Given the predictable increase in Section 1983 litigation the panel's opinion will produce, one would expect the panel to articulate how litigants and district courts will determine when a challenge must be brought in habeas," the dissent continues. "But the panel remains coy, offering only hints at what may or may not be relevant considerations in future cases. The panel's proffered standard is a mystery, one that the district courts of this circuit must struggle now to solve."