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Expungement of Arrest Records Post Habeas Success

A federal court has authority to order a state court to expunge [destroy] records relating to an unconstitutional conviction.

A district court can also order expunction of federal court convictions and arrests as a matter of ancillary jurisdiction over the convictions themselves. U.S. v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). This jurisdiction is limited, however, to the expunction of unlawful or unconstitutional arrests or convictions or to correcting clerical errors. Id. Prior to Sumner, some Ninth Circuit courts had held that federal convictions could be expunged pursuant to equitable considerations where "extraordinary circumstances" existed even though there was no allegation that the underlying conviction was constitutionally infirm. See, e.g., Doe v. United States, 964 F.Supp. 1429 (S.D.Cal. 1997) (issuing order to show cause why plaintiffs record should not be expunged where harm to plaintiff s employment outweighed state's interest in maintaining record of youthful conviction). However, Sumner indicated that the required "extraordinary circumstances" relate to the circumstances of the underlying conviction or arrest rather than its later effects and that such circumstances are only found where the arrest or conviction is unlawful or a clerical error has occurred.

Thus, whether an individual's criminal record contains federal or state convictions, constitutional infirmity in the conviction constitutes grounds for expunction. Consequently, Defendant's argument that prejudice to Plaintiff's employment prospects and unjustified exposure to longer sentencing do not provide the "exceptional circumstances" for expunction misses the point. The distinction is well illustrated by United States v. Vasquez, 74 F.Supp.2d 964, 968 (S.D.Cal. 1999), in which the Court held that, despite plaintiff's employment hardship and clean record, it lacked authority to expunge her record specifically because she had alleged no constitutional violation in the recorded conviction. Id., at 968 citing U.S. v. Smith, 940 F.2d 395, 396 (9th Cir. 1991). The Vasquez Court recognized that "Smith and other Ninth Circuit cases suggest that a defendant must establish some form of structural error that erodes the lawfulness or validity of her underlying conviction before expungement may be granted." Id. Whatever the overall scope of the "exceptional circumstances" warranting expunction may be, constitutional infirmity in either state or federal convictions is sufficient. 

A district court can also order expunction of federal court convictions and arrests as a matter of ancillary jurisdiction over the convictions themselves. U.S. v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). This jurisdiction is limited, however, to the expunction of unlawful or unconstitutional arrests or convictions or to correcting clerical errors. Id. Prior to Sumner, some Ninth Circuit courts had held that federal convictions could be expunged pursuant to equitable considerations where "extraordinary circumstances" existed even though there was no allegation that the underlying conviction was constitutionally infirm. See, e.g., Doe v. United States, 964 F.Supp. 1429 (S.D.Cal. 1997) (issuing order to show cause why plaintiffs record should not be expunged where harm to plaintiff s employment outweighed state's interest in maintaining record of youthful conviction). However, Sumner indicated that the required "extraordinary circumstances" relate to the circumstances of the underlying conviction or arrest rather than its later effects and those circumstances are only found where the arrest or conviction is unlawful or a clerical error has occurred.

Thus, whether an individual's criminal record contains federal or state convictions, constitutional infirmity in the conviction constitutes grounds for expunction. Consequently, Defendant's argument that prejudice to Plaintiff's employment prospects and unjustified exposure to longer sentencing do not provide the "exceptional circumstances" for expunction misses the point. The distinction is well illustrated by United States v. Vasquez, 74 F.Supp.2d 964, 968 (S.D.Cal. 1999), in which the Court held that, despite plaintiff's employment hardship and clean record, it lacked authority to expunge her record specifically because she had alleged no constitutional violation in the recorded conviction. Id., at 968 citing U.S. v. Smith, 940 F.2d 395, 396 (9th Cir. 1991). The Vasquez Court recognized that "Smith and other Ninth Circuit cases suggest that a defendant must establish some form of structural error that erodes the lawfulness or validity of her underlying conviction before expungement may be granted." Id. Whatever the overall scope of the "exceptional circumstances" warranting expunction may be, constitutional infirmity in either state or federal convictions is sufficient.

A district court sitting in habeas shall "dispose of the matter as law and justice shall require" (28 U.S.C. § 2243), and the goal of the remedy is to "put the defendant back in the position he would have been in if the [constitutional] violation never occurred."  Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) quoting United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994).  It follows that the district court has latitude to fashion an appropriate remedy.  Hilton v. Braunskill, 481 U.S. 770, 775 (1987) ("[A] court has broad discretion in conditioning a judgment granting habeas relief.").  

One form of relief that a district court can order in a habeas proceeding is expungement of records relating to an unconstitutional conviction.  In Woodall v. Pettibone, 465 F.2d 49 (4th Cir. 1972), the Fourth Circuit held that a prior decision, in which a Maryland statute requiring juveniles in a certain geographic area to be tried as adults was unconstitutional, should be applied retroactively.  Id. at 52.  The case came before the Fourth Circuit on appeal from the district court's denial of a habeas petition, and the court found that those prosecuted under the unconstitutional statute were presumptively entitled to have their convictions declared null and void and expunged.  Id. at 52-53.  Notably, the court rejected the State's argument that expunging the records of some 122 individuals subject to the decision was overly burdensome.Id.  The court stated that expungement "is an equitable remedy to be granted in the balancing of the interests of the defendants and the state."  Id. at 52. 

In A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004), the Seventh Circuit considered the State of Illinois' appeal of the district court's grant of a writ of habeas corpus.  Id. at 789.  After holding that the petitioner's Sixth Amendment rights had been violated, the court affirmed the granting of the writ and explicitly ordered the State of Illinois to expunge the petitioner's adjudication of juvenile delinquency unless it gave him a new trial.  Id. at 797-802.

In Ward v. Wolfenbarger, 340 F.Supp.2d 773 (E.D. Mich. 2004), the court found that the habeas petitioner's 1971 conviction was unconstitutional.  Id. at 774.  In considering the appropriate relief, the court stated that "[a] federal district court has the authority, in a habeas corpus proceeding, to order the expungement of a habeas petitioner's criminal records against all persons who maintain custody of such records."  Id. at 776.  The court then ordered as follows:

Accordingly, the judgment of conviction against petitioner for the offenses of possession of LSD and possession of marijuana from the Huron County Circuit Court from January 20, 1971 is vacated and the record of conviction shall be expunged.  [Citation omitted].  The Clerk of the Circuit Court of Huron County, Michigan shall forward a copy of this Court's order to any person or agency that was notified of petitioner's arrest or conviction involved with these offenses.  [Citation omitted].  Id. at 777;[2] see also Scott v. District Attorney, Jefferson Parish, 309 F.Supp. 833, 835 n. 2, 839 (E.D. La. 1970) (granting habeas writ to petitioner convicted of misdemeanor vagrancy to prevent petitioner from suffering collateral consequences of criminal record) affirmed without opinion at 437 F.2d 500.

The Ninth Circuit has also found expungement to be an appropriate remedy in a successful habeas proceeding.  In White v. White, 925 F.2d 287 (9th Cir. 1991), the Ninth Circuit considered a federal inmate's habeas petition challenging the revocation of his parole.  Id. at 288.  The government claimed that the case was moot because the petitioner was, at the time, in custody for subsequent misconduct rather than for the parole revocation that was the subject of the petition.  Id. at 290.  The court held that the collateral consequences to the petitioner of the conviction, including possible employment discrimination and use of the revocation findings in a subsequent action, justified continued jurisdiction.  Id.  Then, after finding that the petitioner had been denied his due process rights in the parole revocation proceeding, the court directed the district court to issue the writ and order the expungement of the petitioner's parole violation record.  Id. at 292.

When called upon to address unconstitutional arrests and convictions by the state, the Ninth Circuit has not hesitated to confirm that district courts have ample authority to order expungement.  Wilson v. Webster, 467 F.2d 1282, 1283 (9th Cir. 1972) (holding that plaintiffs alleging unconstitutional arrests could bring action for expungement of state arrest records under 42 U.S.C. § 1983); Shipp v. Todd, 568 F.2d 133, 133-34 (9th Cir. 1978) (holding that plaintiff alleging unconstitutional burglary conviction could bring action for expungement of state records under 42 U.S.C. § 1983); Maurer v. Los Angeles County Sheriff's Dept., 691 F.2d 434, 437 (9th Cir. 1982) (holding that plaintiff could seek expungement of allegedly unconstitutional arrest by LAPD under 42 U.S.C. § 1983).  This authority stems from the recognition that even where the defendant has served his sentence, "the maintenance of his criminal records continues to operate to his detriment."  Shipp, 568 F.2d at 133-34.

As such, the A.M. v. Butler, Woodall v. Pettibone, and White v. White decisions all support the proposition to all the court to order destruction of records.  Both 28 U.S.C. § 2254 and 42 U.S.C. § 1983 serve as vehicles to redress constitutional violations by the state.  Neither type of action is confined to enumerated remedies; on the contrary, both call upon the court to exercise broad authority to fashion adequate and complete relief.

About the Author

It's a little too much to write here, so see Extended Author Bio.. Darren Chaker

"Mega-Builder" Harold Shipp + $$$$$ + Toronto Sun's Ted Wolonshyn = Team Hazel?

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