Federal Court Has The Authority to Order The State to Expunge Records Relating t

o an Unconstitutional Conviction.
By Darren Chaker www.DarrenChaker.com
A district court sitting in habeas shall "dispose of the matter as law and justi
ce shall require" (28 U.S.C. 2243), and the goal of the remedy is to "put the de
fendant back in the position he would have been in if the [constitutional] viola
tion never occurred." Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) quot
ing United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994). It follows th
at the district court has latitude to fashion an appropriate remedy. Hilton v. B
raunskill, 481 U.S. 770, 775 (1987) ("[A] court has broad discretion in conditio
ning a judgment granting habeas relief.").
One form of relief that a district court can order in a habeas proceeding is exp
ungement of records relating to an unconstitutional conviction. In Woodall v. Pe
ttibone, 465 F.2d 49 (4th Cir. 1972), the Fourth Circuit held that a prior decis
ion, in which a Maryland statute requiring juveniles in a certain geographic are
a to be tried as adults was unconstitutional, should be applied retroactively. I
d. at 52. The case came before the Fourth Circuit on appeal from the district co
urt's denial of a habeas petition, and the court found that those prosecuted und
er the unconstitutional statute were presumptively entitled to have their convic
tions declared null and void and expunged. Id. at 52-53. Notably, the court reje
cted the State's argument that expunging the records of some 122 individuals sub
ject to the decision was overly burdensome. Id. The court stated that expungemen
t "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 h
ad been violated, the court affirmed the granting of the writ and explicitly ord
ered the State of Illinois to expunge the petitioner's adjudication of juvenile
delinquency unless it gave him a new trial. Id. at 797-802.
Tellingly, in Ward v. Wolfenbarger, 340 F.Supp.2d 773 (E.D. Mich. 2004), the cou
rt found that the habeas petitioner's 1971 conviction was unconstitutional. Id.
at 774. In considering the appropriate relief, the court stated that "[a] federa
l 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 ma
intain custody of such records." Id. at 776. The court then ordered as follows:
Accordingly, the judgment of conviction against petitioner for the offenses of p
ossession 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 s
hall forward a copy of this Court's order to any person or agency that was notif
ied of petitioner's arrest or conviction involved with these offenses. [Citation
omitted]. A certificate of compliance shall be filed with this Court within 30
days of the receipt of this order. Id. at 777; see also Scott v. District Attorn
ey, Jefferson Parish, 309 F.Supp. 833, 835 n. 2, 839 (E.D. La. 1970) (granting h
abeas writ to petitioner convicted of misdemeanor vagrancy to prevent petitioner
from suffering collateral consequences of criminal record) affirmed without opi
nion at 437 F.2d 500.
The Ninth Circuit has also found expungement to be an appropriate remedy in a su
ccessful 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 rev
ocation 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 r
ather than for the parole revocation that was the subject of the petition. Id. a
t 290. The court held that the collateral consequences to the petitioner of the
conviction, including possible employment discrimination and use of the revocati
on 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 stat
e, the Ninth Circuit has not hesitated to confirm that district courts have ampl
e authority to order expungement. Wilson v. Webster, 467 F.2d 1282, 1283 (9th Ci
r. 1972) (holding that plaintiffs alleging unconstitutional arrests could bring
action for expungement of state arrest records under 42 U.S.C. 1983); Shipp v. T
odd, 568 F.2d 133, 133-34 (9th Cir. 1978) (holding that plaintiff alleging uncon
stitutional burglary conviction could bring action for expungement of state reco
rds under 42 U.S.C. 1983); Maurer v. Los Angeles County Sheriff's Dept., 691 F.2
d 434, 437 (9th Cir. 1982) (holding that plaintiff could seek expungement of all
egedly unconstitutional arrest by LAPD under 42 U.S.C. 1983). This authority ste
ms 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.
In sum, the opportunity to destroy records is available and a federal court is v
alidated to destroy state records when the conviction is reversed on constitutio
nal grounds.