In In re Douglas, 200 Cal.App.4th 236, 132 Cal.Rptr.3d 582, 590-91 (4th Dist. October 27, 2011), the court of appeal held that a habeas petitioner is not in custody, for purposes of attacking a 1997 conviction by habeas corpus, even though he is in current constructive custody as a result of later convictions for failure to register as a sex offender based on the registration requirement imposed as a result of the 1997 conviction.

The court reasoned as follows:

Sex offender registration requirements have repeatedly been expressly excluded from the expanded constructive custody definition. (Resendiz v. Kovensky (9th Cir.2005) 416 F.3d 952, 959; Stier, supra, 152 Cal.App.4th at pp. 81"83; People v. Pickelsimer (2010) 48 Cal.4th 330, 338"39.) Rather, the registration requirement is merely a collateral consequence of conviction that is not [itself] sufficient to render an individual in custody for the purposes of a habeas attack upon it. [Citation].' [Citations.] Stier, supra, at p. 83.) Even collateral consequences that may later form the basis of new criminal convictions are not themselves sufficient to constitute constructive custody for habeas corpus purposes. (People v. Villa, supra, 45 Cal.4th at p. 1070.) Courts have further explained that registration requirements do not establish constructive custody because, by themselves, they do not impose a severe restraint on an individual's liberty. (Resendiz v. Kovensky, supra, 416 F.3d at p. 959.)

Defendant's case bears similarity to Stier, where the petitioner desired access to an expired conviction because he did not want to comply with the sex offender registration requirement. (Stier, supra, 152 Cal.App.4th at pp. 70-72.) The petitioner, a physician, was convicted of taking indecent liberties with a child in North Carolina in 2000 but had his probation transferred to California where he lived. (Id. at p. 70.) In 2002, the petitioner successfully completed probation in California but continued to register as a sex offender as required. (Id. at pp. 70"71.) In 2004, new legislation provided for the revocation of medical licenses of those required to register as sex offenders under section 290. (Stier, supra, at p. 71.) The petitioner filed a petition for writ of habeas corpus, alleging that his liberty is unlawfully restrained and he is subject to constructive custody or may face criminal prosecution unless his duty to register is terminated. (Ibid.) The trial court granted relief and the appellate court reversed, holding that the speculative risk of future custody in the event [the petitioner] fails to register as a sex offender [does not] prove [ ] constructive custody as required in a habeas corpus action. [Citations.] (Id. at pp. 82"83.)

Defendant concedes the mere registration requirement itself does not constitute constructive custody for habeas corpus purposes, but argues that his situation differs from that in Stier. Instead of merely being in threat of future custody, Defendant contends that because he was arrested, charged with failing to register in 2008, 2009, and 2010, and is now out on bail, he is currently in constructive custody. We disagree that Defendant is in constructive custody for the conviction under attack. California courts have previously determined that once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and [the] avenue [of petition for writ of habeas corpus] is foreclosed. [Citation.] People v. Pickelsimer, supra, 48 Cal.4th at p. 339.) When Defendant's probation concluded in 2000, constructive custody ended and habeas corpus ceased to be the appropriate avenue by which to seek relief.

Defendant's argument that he is in constructive custody and should therefore have access to his expired conviction is unavailing because he is not currently in constructive custody for the conviction he wishes to attack. Instead, he is in constructive custody for the failure to register charges. Defendant is hopeful that we will choose to follow the Ninth Circuit's approach in Zichko v. Idaho (9th Cir.2001) 247 F.3d 1015 (Zichko ). In Zichko, the petitioner was convicted of raping his minor daughter in 1987. ( Id. at p. 1017.) In 1997, one month before his 10"year sentence was set to expire, he filed a petition for habeas corpus. (Id. at pp. 1018"1019.) At the time he filed his petition, he was incarcerated for failing to register as a sex offender. (Id. at p. 1019) The Ninth Circuit held that the petitioner was in constructive custody for the purposes of the federal habeas corpus statute because the expired conviction [was] a necessary predicate to the failure to register charge. [Citation]. (Ibid.) Zichko may deal with similar facts to the case at hand, but we are not bound by the opinions of the lower federal courts and we decline to extend its holding here. (People v. Cleveland (2001) 25 Cal.4th 466, 480.) The end result of applying Zichko is that failure to register as a sex offender, resulting in subsequent arrest and charges, is rewarded with access to expired convictions.

Such a result is untenable and contrary to principles described in Supreme Court case law. In Maleng v. Cook (1989) 490 U.S. 488 ( Maleng ), the Court addressed the issue of an old conviction being used to enhance a later one. The petitioner was in custody on a later offense and filed a petition for writ of habeas corpus attacking an earlier, expired conviction because it had been used to enhance his sentence on the later offense. (Id. at pp. 489"90.) The Supreme Court stated: We have never held, however, that a habeas petitioner may be in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Id. at p. 491.) The Supreme Court then elaborated that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it. (Id. at p. 492.) In the present case, Defendant is in custody pursuant to his second offense (failing to register as a sex offender), not pursuant to his earlier offense (sexual battery). His detention and probation were fully complete as of 2000, and sex offender registration was a collateral consequence. For our purposes, it is of no import that the failure to comply with the requirements of the collateral consequence led to his current constructive custody.

The Supreme Court revisited the issue of custody and collateral attacks in Daniels v. U.S. (2001) 532 U.S. 374 (Daniels ) and Lackawanna County Dist. Attorney v. Coss (2001) 532 U.S. 394 (Lackawanna ). In Daniels, the petitioner was convicted in 1994 of being a felon in possession of a firearm. (Daniels, supra, at p. 376.) While in custody for the 1994 conviction, he attempted to attack several of his old convictions, which had been used to enhance his current sentence. (Id. at pp. 376"77.) The Court held that despite being in custody on a new conviction, the petitioner could not challenge his old convictions, reasoning that the presumption of validity that attached to the prior conviction at the time of sentencing is conclusive.... (Id. at p. 382.) Lackawanna similarly involved a prisoner challenging prior, expired convictions that had been used to enhance the sentence he was currently serving. (Lackawanna, supra, at pp. 398"99.) The Court extended the holding in Daniels to cover federal habeas corpus petitions brought to challenge state convictions, noting the importance of finality of convictions and ease of administration. (Lackawanna, supra, at pp. 402"04.)

The principle underlying the Supreme Court decisions in Maleng, Daniels, and Lackawanna is that, for habeas corpus purposes, custody on a later case does not allow an earlier, expired conviction to be collaterally challenged, even if it is used to enhance a later case. Such collateral attacks on expired convictions amount to nothing more than end run[s] around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly. Daniels, supra, 532 U.S. at p. 383.) Extending this principle to the case before us, we find that Defendant has not been in constructive custody for the 1997 conviction since his probation ended in 2000. Ignoring his legal obligation to register as a sex offender should not give him access to expired convictions. Even if we were to find that Defendant was in constructive custody for the purposes of a habeas corpus petition, Defendant defaulted on his obligation to seek a timely legal remedy and is thus not entitled to relief.

(Id. at 590-91.)