How do I challenge my 290 sex offender registration requirement, residency restrictions, or other conditions of parole?

You may think you have good legal grounds to challenge a 290 registration requirement, other statutory requirement (such as GPS tracking, or a restriction on where you can live or go or a public notification provision), or parole condition. The procedures you can use to fight the restriction or requirement will depend on which part of the state government set the rule, the point in time at which you are filing your case, whether or not you are still in custody or on some type of supervised release (parole, PRCS or probation), and whether the issue is a matter of state law or federal law. Sometimes you will have several different options. The following sub-sections very briefly and generally summarize the available legal procedures.

No matter what type of court action you file, can request that the court stay enforcement of the requirement or restriction while your case is going on. A court is more likely to grant your request if you can convince the court that your fundamental rights are being violated in a manner that will cause you irreparable harm and that you are likely to eventually win your case.[585] You should state on the cover page of your first petition or complaint that you are making a “Request for Stay,” and then in the next few pages explain why the court should stay the requirement or restriction.

Upon request, the Prison Law Office can provide free, detailed information on each of these types of actions. Information manuals and forms are also available on the Resources page of the Prison Law Office website at www.prisonlaw.com. You can write them at:

Prison Law Office
General Delivery
San Quentin, CA 94964

Administrative Appeal

If you are challenging a condition of parole set by CDCR (and which is not a condition required by a state statute or court order), you almost always must file a CDCR Form 602 administrative appeal before you can file any type of court action in either state or federal court. If your administrative appeal is denied, you should keep re-filing it until you get responses at all three levels of review.

If you are challenging a requirement set by a state statute or a court order, then you do not need to go through the 602 administrative appeal process. The 602 appeals process is described in detail starting on PG. 178.

Direct Criminal Appeal

If you were very recently convicted of a sex crime and your sentencing included a registration order, or if you recently had your parole revoked or were otherwise subjected to a court order imposing a new condition of probation or parole, then you can challenge the court’s order in a direct appeal. You can also file a direct appeal from a conviction for violating the registration laws. You must file a notice of direct appeal within 60 days after you are sentenced.

You can raise both state law and federal law issues in a direct appeal. However, if you pled guilty or no contest, the types of issues you can raise will be limited. If you do not have money to pay a lawyer, the court will appoint a lawyer to represent you in your direct appeal case.

State Habeas Corpus Petition

If you are in custody or on parole, probation, or PRCS, then you can file a state court petition for writ of habeas corpus challenging a sex offender requirement or restriction imposed by the court, state law, CDCR parole officials, or local probation officials. You can raise state and/or federal legal claims. Be aware that if you could have raised your issue on direct appeal, or if you delayed in filing your habeas petition, you may have to convince the court why your case should be allowed to proceed anyway. Otherwise, state habeas procedures are relatively simple and speedy.

If the court allows the case to proceed, it must appoint an attorney for you if you want and can’t afford one. If a local superior court denies your petition, you can re-file it, first in the Court of Appeal, then in the California Supreme Court.

State Petition for Writ of Mandate

If you are NOT either incarcerated or under parole, probation or PRCS supervision, then you CANNOT file a state habeas petition. Instead, you can challenge your sex offender registration or other requirement by filing a petition for writ of mandate.[586] Mandate procedures are somewhat similar to habeas corpus procedures. If your petition for writ of mandate is denied, you can re-file your case to the court of appeal and then to the California Supreme Court. The court has discretion to appoint an attorney to represent you, but there appears to be no requirement that it do so.

Federal Habeas Corpus Petition

If you are in custody or on parole, probation, or PRCS for your sex offense, you can file a federal habeas corpus petition challenging your sex offender requirements or restrictions.[587] However you must first have presented your issues to the California Supreme Court, either through a direct appeal or a state habeas corpus petition.

Federal habeas involves very strict timelines and procedural requirements, and the federal courts have limited authority to overturn state court decisions. Also, you can only raise federal law claims. The court has discretion to appoint an attorney to represent you, but there is no requirement that it do so in most cases. If your petition is denied, you may be able to appeal to the Ninth Circuit Court of Appeals.

Federal Civil Rights (§ 1983) Lawsuit

If you are either in OR out of custody, you can challenge a sex offender requirement or restriction by filing a federal civil rights (§ 1983) lawsuit. However, your lawsuit must not attack the validity of your criminal conviction or sentence OR seek a speedier release from parole.[588] You can generally raise only federal law issues (although there may be circumstances in which you can also include closely related state law claims). You may be able to ask for injunctive relief (an order that the state do or stop doing something) and/or money damages.

Unfortunately, federal civil rights lawsuits can involve complicated and slow procedures. Also, the court can ask an attorney to represent you only in exceptional circumstances. If you lose your case, you may be able to appeal to the Ninth Circuit Court of Appeals.[589]

  1. 585

    See, e.g., In re E.J., 47 Cal.4th 1258 (2010) (staying enforcement of residence restriction pending determination of petitions for writ of habeas corpus); see also In re Alcala, 222 Cal.App.3d 345, 352 & n.4 (1990) (noting that temporary restraining order had been issued pursuant to habeas petition, enjoining enforcement of prison restrictions on clothing); Faucette v. Dunbar, 253 Cal.App.2d 338, 340, 346 (1967) (affirming preliminary injunction enjoining revocation of petitioner's parole); Diamontiney v. Borg, 918 F.2d 793 (9th Cir. 1990); Taylor v. Honig, 910 F.2d 62 (9th Cir. 1990).

  2. 586

    People v. Picklesimer, 48 Cal.4th 330 (2010) ; In re Stier, 152 Cal.App.4th 63 (2007).

  3. 587

    Bagley v. Harvey (9th Cir.1983) 718 F.2d 921, 922–23 (state parolee may challenge parole conditions through a federal habeas petition).

  4. 588

    Thornton v. Brown (9th Cir. 2013) 757 F.3d 834; Shoemaker v. Harris (2013) 214 Cal.App.4th 1210.

  5. 589

    The information in this section on sex offender registration and residency requirements/Proposition 83 is largely adapted from an informational letter from the Prison Law Office, Information Regarding California’s Sex Offender Registration, Tracking, Residency And Public Notice Requirements, http://prisonlaw.com/wp-content/uploads/2015/09/SexOffender-Prop83May2015.pdf (updated May 2015).