                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3322

ALBERT M. VIRSNIEKS,
                                            Petitioner-Appellant,

                               v.

JUDY P. SMITH, Warden,
                                           Respondent-Appellee.
                        ____________
            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 03 C 670—Aaron E. Goodstein, Magistrate Judge.
                        ____________
     ARGUED NOVEMBER 2, 2007—DECIDED APRIL 2, 2008
                        ____________




  Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
  RIPPLE, Circuit Judge. Albert M. Virsnieks pleaded nolo
contendere to one count of burglary with intent to commit a
felony, in violation of section 943.10(1)(a) of the Wisconsin
Statutes, in exchange for the dismissal of one count of
second-degree sexual assault, see Wis. Stat. § 940.225(2)(a).
A Wisconsin trial court sentenced Mr. Virsnieks to the
2                                                 No. 06-3322

statutory maximum of 10 years’ imprisonment and also
ordered him to register under Wisconsin’s sexual offender
statute. See id. § 973.048(1m). After exhausting his state
remedies and while serving his sentence of imprisonment,
Mr. Virsnieks filed in the district court a pro se petition for
a writ of habeas corpus under 28 U.S.C. § 2254. The district
court denied his petition. Mr. Virsnieks timely filed a
notice of appeal and obtained a certificate of appealability.
  For the reasons set forth in this opinion, we affirm the
judgment of the district court.


                              I
                     BACKGROUND
                              A.
  On February 19, 1999, Mr. Virsnieks entered the home of
Joanne M. Buechel, with whom he previously had been
involved romantically. After Buechel discovered Mr.
Virsnieks in her home, an argument ensued; he allegedly
engaged in forcible sexual intercourse with her. The
criminal complaint filed against Mr. Virsnieks alleged both
burglary and second-degree sexual assault. The burglary
count stated that Mr. Virsnieks had entered Buechel’s home
with intent to commit a felony, but it did not identify
explicitly the felony as second-degree sexual assault. After
a preliminary hearing, the Wisconsin trial court determined
that probable cause existed to prosecute Mr. Virsnieks for
both charges. The State then filed an information charging
burglary and second-degree sexual assault; the information
did not state explicitly that the burglary charge was
predicated on the sexual assault.
No. 06-3322                                                 3

  Mr. Virsnieks and the State subsequently reached a plea
agreement. In exchange for a no contest plea on the bur-
glary charge, the State agreed to drop the second-degree
sexual assault charge. The plea agreement provided that
“[n]o promises have been made regarding sentencing
recommendations to be made in this case. Both sides are
free to argue as to the sentence. Both parties agree that a
pre-sentence investigation should be ordered.” R.8, Ex. I.
  The Wisconsin trial court held a plea hearing. The court
explained the burglary charge to which Mr. Virsnieks had
agreed to plead guilty: “What the State would have to
prove at a trial is that you intentionally entered a dwelling,
that the dwelling belonged to someone else, that you did
not have the person’s consent to enter into that residence,
that you were aware that you did not have permission to
enter into that residence, and that you intended to commit
a felony when you entered into that residence.” R.8, Ex. Q
at 7-8. Mr. Virsnieks indicated to the court that he under-
stood the elements of burglary and that he had discussed
the case with counsel. During the plea colloquy, the trial
court did not make explicit that the predicate felony for the
burglary charge was sexual assault. The parties agreed to
use the criminal complaint and Buechel’s preliminary
hearing testimony as the factual basis for Mr. Virsnieks’
plea. The sexual assault featured prominently in Buechel’s
preliminary hearing testimony.
  Prior to the sentencing hearing, Mr. Virsnieks submitted
to a court-ordered psychosexual evaluation that concluded
that he was sexually assaultive. Mr. Virsnieks also obtained
an expert, Dr. Michael Nelson, to conduct a psychological
evaluation. Dr. Nelson opined that, in terms of dangerous-
ness and risk of recidivism, Mr. Virsnieks was at the mean
of the incarcerated population and just outside the range
4                                                   No. 06-3322

for sexual predators. The pre-sentence report (“PSR”)
contained numerous references to Mr. Virsnieks’ sexual
assault of Buechel during the burglary, and it recom-
mended that the court order him to register as a sexual
offender.
  At the sentencing hearing, Mr. Virsnieks presented the
testimony of Dr. Nelson. After both parties had examined
the expert, the trial court posed several questions. The trial
court asked: “You do understand, that as far as the instant
offense here, the burglary is connected, and there was a
sexual assault charge connected with it, and the nature of
this charge is burglary with intent to commit a felony, i.e.,
a sexual assault; correct?” R.8, Ex. R at 25-26. In addition,
the trial court noted: “[T]he charge he pled to was burglary
with intent to commit a felony, which was a rape, a sexual
assault. I think that is my understanding. Counsel, correct
me if I am wrong.” Id. There is no indication in the record
that Mr. Virsnieks or his attorney objected to the trial
judge’s understanding of the case. In his statement to the
trial court, Mr. Virsnieks apologized for entering Buechel’s
home, but he did not address the sexual assault allegations.
  In light of the alleged sexual assault on Buechel during
the burglary, the PSR recommended, and the State urged,
that the trial court exercise its discretion under Wisconsin
law1 to order Mr. Virsnieks to register as a sex offender.2


1
   Wisconsin law provides for automatic registration for defen-
dants convicted of certain sexual offenses. See Wis. Stat.
§ 301.45(1)(g). Wisconsin law also gives trial courts the discre-
tion to order defendants convicted of burglary to register if “the
court determines that the underlying conduct was sexually
motivated . . . and that it would be in the interest of public
                                                   (continued...)
No. 06-3322                                                     5

Both Mr. Virsnieks and his counsel stated that they had
read the PSR. The Wisconsin trial court gave Mr. Virsnieks’
counsel an opportunity to address any factual inaccuracies
in the PSR; counsel declined. After hearing the testimony
and both parties’ arguments, the court sentenced Mr.
Virsnieks to 10 years’ imprisonment and ordered him to
register as a sex offender.


                               B.
  After sentencing, Mr. Virsnieks, with the assistance of his
appellate counsel, filed a post-conviction motion in the trial
court.3 He submitted that, under Wisconsin law, his plea
was not knowing or voluntary because he had not under-
stood that the sexual assault was the felony underlying the
burglary charge and thus had not realized that he could be
ordered to register as a sex offender. Mr. Virsnieks claimed
that his trial counsel had told him that the predicate felony


1
   (...continued)
protection to have the person report.” Id. § 973.048(1m). A
“sexually motivated” act is defined as an act that “is for the
actor’s sexual arousal or gratification or for the sexual humilia-
tion or degradation of the victim.” Id. § 980.01(5).
2
  The trial court and the pre-sentence report noted that Mr.
Virsnieks previously had served prison time for assaulting his
then-wife and forcing her to perform fellatio on him. In addition,
Buechel claimed that, prior to this incident, Mr. Virsnieks had
drugged her and, while she was unconscious, had taken
photographs of her and had engaged in sexual activity.
3
  Wisconsin law allows a convicted defendant to file a post-
conviction motion in the trial court as part of his or her direct
appeal. See Wis. Stat. § 974.02.
6                                                    No. 06-3322

was “use of the facilities.”4 Notably, during this hearing,
his new counsel explicitly stated that Mr. Virsnieks’ claim
was not based on ineffective assistance of trial counsel.
  After listening to Mr. Virsnieks’ testimony and the
arguments presented by both parties, the trial court denied
the motion for post-conviction relief. It found Mr.
Virsnieks’ testimony “incredible.” R.8, Ex. S at 24. In the
court’s view, the fact that Mr. Virsnieks underwent a court-
ordered psychosexual evaluation prior to sentencing
should have raised a “red flag” about the significance of
the sexual assault. Id., Ex. S at 22. The court determined
that Mr. Virsnieks’ plea had been knowing based on the
information contained in the complaint and the PSR, which
both Mr. Virsnieks and his trial counsel had stated that
they had read. The court also noted that Mr. Virsnieks had
failed to object during the sentencing hearing at which the
sexual assault was mentioned repeatedly and that he had
declined the opportunity to refute the facts corresponding
to the underlying sexual assault, despite having agreed that
the criminal complaint and Buechel’s preliminary hearing
testimony would be used as the factual basis for the plea.
  After the trial court’s denial of the post-conviction
motion, Mr. Virsnieks, with the assistance of counsel,
appealed to the Court of Appeals of Wisconsin. He raised
two arguments; both centered on his claim of ignorance
that the predicate felony for the burglary charge was sexual
assault. None of his arguments were based on federal law,
and he did not claim ineffective assistance of trial counsel.
The court of appeals affirmed the conviction on state law
grounds. The Supreme Court of Wisconsin later denied Mr.



4
    “Use of the facilities” is not a felony under Wisconsin law.
No. 06-3322                                                 7

Virsnieks’ petition, which also raised only state law
arguments.
  Having exhausted his direct appeals, Mr. Virsnieks
turned to his state habeas remedies. He filed a pro se
motion for post-conviction relief and raised the following
claims: (1) his plea was not knowing and voluntary because
he was not apprised that the predicate felony was sexual
assault; (2) the factual basis for his plea was insufficient
because the sexual assault count had been dismissed; (3)
based on the factual predicate for his guilty plea, the trial
court could not impose the sentence that he received; (4)
the State violated its plea agreement and the trial court
erred by receiving arguments based on the dismissed
sexual assault count; (5) his trial counsel was ineffective
because he did not object to the prosecutor’s or the victim’s
statements at sentencing about the sexual assault, because
he did not inform Mr. Virsnieks of the predicate felony and
because he did not allow Mr. Virsnieks to speak on his own
behalf; (6) his appellate counsel was ineffective for not
raising the ineffectiveness of trial counsel. The state trial
court denied the motion; it explained that these issues
already had been addressed adequately in Mr. Virsnieks’
previous post-conviction motions and appeals.
  Mr. Virsnieks then raised the same issues in an appeal to
the Court of Appeals of Wisconsin. The appellate court
determined that all of the issues, except for the ineffective
assistance of trial and appellate counsel claims, were
procedurally barred. As to the ineffective assistance of trial
counsel claim, the court determined that, on direct appeal,
Mr. Virsnieks, through his own testimony and through his
appellate counsel’s representations to the court, explicitly
had disclaimed that his trial counsel was ineffective. The
appellate court also rejected his ineffective assistance of
8                                                No. 06-3322

appellate counsel claim because it was premised on an
argument that the court already had rejected—namely, that
he had not been apprised of the underlying felony. The
Supreme Court of Wisconsin denied Mr. Virsnieks’ petition
for review, which raised the same arguments.
  Mr. Virsnieks subsequently filed a pro se petition for a
writ of habeas corpus in the United States District Court for
the Eastern District of Wisconsin. Mr. Virsnieks raised
three arguments: (1) that his plea was not voluntary and
intelligent because he had not known that the sexual
assault was the predicate felony; (2) that his trial counsel
was ineffective for having failed to inform him that the
State was relying on the sexual assault as the predicate
felony; and (3) that his appellate counsel was ineffective for
waiving any potential ineffective assistance of trial counsel
claim.
  The district court denied Mr. Virsnieks’ petition. With
respect to the voluntariness of his plea, the district court
held that the record demonstrates that Mr. Virsnieks’ plea
had been entered freely and knowingly. The court noted
that, to prove burglary under Wisconsin law, the State need
not prove the specific felony that a defendant intended to
commit. The court read Mr. Virsnieks’ petition as possibly
raising an Apprendi violation. The court rejected this
argument because any finding by the sentencing court that
the underlying felony was a sexual assault did not increase
Mr. Virsnieks’ sentence beyond the maximum statutorily
authorized sentence. Mr. Virsnieks did not argue in his
habeas petition that the order to register as a sex offender
was beyond the maximum statutorily authorized sentence.
  The district court also rejected Mr. Virsnieks’ ineffective
assistance of counsel claims. With respect to the claim
regarding his trial counsel, the court determined that,
No. 06-3322                                                   9

given the totality of the circumstances, it was entirely
reasonable for trial counsel to have assumed that Mr.
Virsnieks was aware that sexual assault was the underlying
felony. The district court also ruled that the Court of
Appeals of Wisconsin’s decision that Mr. Virsnieks was
judicially estopped from raising the claim of ineffective
assistance of trial counsel by not raising it in the post-
conviction hearing was an adequate and independent state
law ground. Finally, the court determined that, because it
already had determined that his trial counsel was not
ineffective, his appellate counsel could not have been
ineffective for having declined to make the argument.
  Mr. Virsnieks timely filed a notice of appeal and sought
a certificate of appealability (“COA”) on all three issues
that he had raised before the district court. In his request
for a COA, he alerted the district court for the first time
that he had been ordered to register as a sex offender. The
district court explained that, “[b]ased on this additional
fact, only now presented, jurists of reason could disagree
as to whether the government was required to indicate in
the information that sexual assault was the specific crime
that Virsnieks had intended to commit when he entered the
residence.” R.31 at 4. Accordingly, the court granted Mr.
Virsnieks’ request for a COA.5



5
  Mr. Virsnieks was scheduled to be paroled by the Wisconsin
Department of Correction on October 17, 2006. Six days prior to
his parole date, however, the State of Wisconsin initiated
proceedings to have Mr. Virsnieks civilly committed indefinitely
as a sexually violent person. See Wis. Stat. § 980 et seq. These
proceedings are pending, and Mr. Virsnieks is presently in the
physical custody of the Wisconsin Department of Health and
                                                  (continued...)
10                                                 No. 06-3322

                               II
                       DISCUSSION
A. Habeas Corpus Standards of Review
  We review de novo the district court’s denial of a habeas
petition. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir. 2007).
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), we may grant habeas relief only if the state
court’s “decision was contrary to, or involved an unreason-
able application of, Supreme Court precedent,” id., or
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” 28 U.S.C. § 2254(d)(2). To
grant habeas relief under the “contrary to” clause, we must
find that the state court reached a result opposite to that
reached by the Supreme Court on materially indistinguish-
able facts. See Terry Williams v. Taylor, 529 U.S. 362, 405
(2000); Jackson v. Miller, 260 F.3d 769, 774 (7th Cir. 2001). To
obtain relief under the “unreasonable application” clause,
a habeas petitioner must show that the state court’s
decision unreasonably applied clearly established Supreme
Court precedent by unreasonably extending a rule to a
context where it should not have applied or by unreason-
ably refusing to extend a rule to a context where it should
have applied. Jackson, 260 F.3d at 774. The state court’s
factual findings are presumed correct; this presumption
can be rebutted by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 348
(2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005).


5
  (...continued)
Family Services. Any potential issues arising from these pending
proceedings are not before this court.
No. 06-3322                                                     11

In short, the state court decision must be “both incorrect
and unreasonable.” Washington v. Smith, 219 F.3d 620, 628
(7th Cir. 2000) (emphasis in original); see also Terry Williams,
529 U.S. at 407-08.
  Mr. Virsnieks raises three claims on appeal: (1) that his
plea was not voluntary and intelligent because he had not
been informed that sexual assault was the predicate felony
for the burglary charge; (2) that the order requiring him to
register as a sex offender violated Apprendi because in his
case such an order is punitive, despite Smith v. Doe, 538
U.S. 84 (2003),6 and exceeds the maximum statutorily
authorized penalty for burglary; and (3) that his trial and
appellate counsel provided ineffective assistance.


B. Voluntary and Intelligent Plea
  Mr. Virsnieks asserts that the Wisconsin trial court’s
determination that he knew that his plea involved the
sexual assault was unreasonable.7 He further submits that
the Wisconsin court’s decision was contrary to, and an


6
  In Smith, the Supreme Court held that Alaska’s sexual offender
statute was not punitive for purposes of the Ex Post Facto
Clause. Smith v. Doe, 538 U.S. 84, 105-06 (2003).
7
  The Wisconsin Court of Appeals adjudicated on the merits Mr.
Virsnieks’ claim that his plea was involuntary and unintelligent,
but it did so without reference to federal law. The Supreme
Court has held that this is of no consequence. See Early v. Packer,
537 U.S. 3, 8 (2002) (holding that, under AEDPA, a state court
need not cite or even be aware of Supreme Court precedent, “so
long as neither the reasoning nor the result of the state-court
decision contradicts” the Court’s precedents); see also Harrison v.
McBride, 428 F.3d 652, 665-67 (7th Cir. 2005).
12                                                No. 06-3322

unreasonable application of, clearly established Supreme
Court precedent because his plea had been neither volun-
tary nor intelligent. In support of this contention, Mr.
Virsnieks points to the lack of any explicit statement, in
either the information or the criminal complaint, at the
preliminary hearing or at the plea hearing, that sexual
assault was the predicate felony for the burglary charge.


                              1.
   The principles that govern our inquiry are well settled. A
guilty plea8 must be voluntary and intelligent. Parke v.
Raley, 506 U.S. 20, 29 (1992). To enter a voluntary and
intelligent plea, a defendant must have full awareness of
the plea’s “direct consequences,” Brady v. United States, 397
U.S. 742, 755 (1970), “real notice of the true nature of the
charge against him,” Henderson v. Morgan, 426 U.S. 637, 645
(1976), and understand “the law in relation to the facts,”
McCarthy v. United States, 394 U.S. 459, 466 (1969). Whether
a plea was entered knowingly and voluntarily is deter-
mined from “all of the relevant circumstances surrounding
it.” Brady, 397 U.S. at 749. Guilty pleas “are accorded a
great measure of finality” because they “are important
components of this country’s criminal justice system.”
Blackledge v. Allison, 431 U.S. 63, 71 (1977). As a result, the
defendant bears the burden of proving that the plea he
entered was involuntary and unintelligent. Marx v. United
States, 930 F.2d 1246, 1250 (7th Cir. 1991).



8
  We employ the same standard in determining whether a no
contest plea was entered knowingly and voluntarily. See, e.g.,
McGrath v. United States, 402 F.2d 466, 467 (7th Cir. 1968).
No. 06-3322                                                     13

                                2.
  Under AEDPA, we generally must accept a state court’s
factual findings. Araujo v. Chandler, 435 F.3d 678, 682 (7th
Cir. 2005) (citing 28 U.S.C. §§ 2254(d)(2); 2254(e)(1)).
Therefore, as a threshold matter, Mr. Virsnieks must
overcome the state court’s factual determination that he
knew that the offense underlying the burglary charge was
the sexual assault.
  Mr. Virsnieks has failed to show that the state court’s
decision “was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). The Wisconsin
trial court found “incredible” Mr. Virsnieks’ testimony that
his trial counsel had told him that the predicate felony was
“use of the facilities,” a non-felony in Wisconsin. R.8, Ex. S
at 24. The court further discredited Mr. Virsnieks’ claim
that he did not know that the sexual assault was the
predicate felony for the burglary.
  Mr. Virsnieks points out that the information, criminal
complaint, preliminary hearing and plea hearing did not
state explicitly that sexual assault was the predicate felony.
Nevertheless, the Wisconsin court made a credibility
determination—which we generally are required to accept
under AEDPA9—that, given the strong suggestions to that
effect contained in the criminal complaint, information and
Buechel’s preliminary hearing testimony, Mr. Virsnieks
must have known that the sexual assault was the predicate
offense for his plea. Although the information available in


9
  See Murrell v. Frank, 332 F.3d 1102, 1112 (7th Cir. 2003) (noting
that we extend “great deference” to a state court’s credibility
determinations); Ward v. Sterns, 334 F.3d 696, 710 (7th Cir. 2003).
14                                                        No. 06-3322

the PSR and the statements made by the trial judge in his
questioning of Dr. Nelson during the sentencing hearing
post-dated Mr. Virsnieks’ plea hearing, his failure to object,
or even inquire as to whether the sexual assault was the
predicate felony for his guilty plea to burglary, buttresses
the state court’s credibility determination.


                                    3.
  Mr. Virsnieks’ claim that his plea cannot stand because
he was not informed adequately about the potential that he
would be ordered to register as a sex offender cannot
succeed for an additional reason. The registration order
was a collateral consequence about which the State was not
required to inform him. The Supreme Court has held that
a guilty plea is voluntary and intelligent if the defendant
enters the plea with full awareness of its “direct conse-
quences.” Brady, 397 U.S. at 755. Thus, although a defen-
dant must be informed of the direct consequences flowing
from a plea, he need not be informed of collateral conse-
quences.10 Warren v. Richland County Circuit Court, 223 F.3d
454, 457 (7th Cir. 2000).11


10
  We have defined direct consequences as the “immediate, and
automatic consequences of the guilty plea.” United States v.
Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (internal quotation
marks and citation omitted); see also Little v. Crawford, 449 F.3d
1075, 1080 (9th Cir. 2006); Wilson v. McGinnis, 413 F.3d 196, 199
(2d Cir. 2005); Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004);
George v. Black, 732 F.2d 108, 110 (8th Cir. 1984); Bryant v. Cherry,
687 F.2d 48, 49-50 (4th Cir. 1982).
11
     See also Wilson, 413 F.3d at 199-200; Steele, 365 F.3d at 17; United
                                                          (continued...)
No. 06-3322                                                     15

  The Supreme Court has not delimited comprehensively
the particular consequences that are direct or collateral for
purposes of evaluating the voluntariness of a guilty plea.
See Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir. 2005).
Under its “contrary to” clause, AEDPA prohibits a federal
court from granting habeas relief unless the state court’s
decision contradicts “clearly established Federal law as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). As we have explained previously,
“[t]here can be no Supreme Court precedent to be contra-
dicted or unreasonably applied,” and therefore no habeas
relief, when there is no Supreme Court precedent on point
or where the Court has reserved the question. Lockhart v.
Chandler, 446 F.3d 721, 724 (7th Cir. 2006); Simpson v.
Battaglia, 458 F.3d 585, 597 (7th Cir. 2006).
  To a very limited extent, reference to lower court hold-
ings may be evidence of a rule mandated implicitly by the
Supreme Court. For example, we held in Dalton that, for
purposes of habeas review under AEDPA, the potential
length of incarceration to which a prisoner exposed himself
by pleading guilty was a direct consequence of a guilty
plea. Dalton, 402 F.3d at 733.
  Unlike in Dalton, the issue here—whether being ordered
to register as a sexual offender is a direct or collateral
consequence—is not sufficiently clear cut to permit us to
conclude that the state court’s decision was contrary to, or
an unreasonable application of, Brady. Indeed, to the very


11
  (...continued)
States v. Sambro, 454 F.2d 918, 922 (D.C. Cir. 1971) (en banc) (“We
presume that the Supreme Court meant what it said when it
used the word ‘direct’; by doing so, it excluded collateral conse-
quences.” (emphasis in original)).
16                                               No. 06-3322

limited extent that the decisions of the courts of appeals
can “guide us in determining what constitutes an unrea-
sonable application” of clearly established Supreme Court
precedent, see Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir.
2005), these decisions indicate that no clearly established
federal law requires that defendants be informed of the
possibility that they could be ordered to register as sexual
offenders. See, e.g., Steele, 365 F.3d at 16-17 (holding that
“the possibility of commitment for life as a sexually
dangerous person is a collateral consequence of pleading
guilty”); Warren, 223 F.3d at 456 (holding that the failure of
a state court to inform a defendant prior to his Alford plea
of the possibility that his probation could be revoked if he
did not admit during counseling sessions that he had
committed a sexual offense is a collateral consequence);
George v. Black, 732 F.2d 108, 110 (8th Cir. 1984) (holding
that the possibility of confinement pursuant to civil
commitment proceedings after the expiration of a criminal
sentence is a collateral consequence); cf. United States v.
Kikuyama, 109 F.3d 536, 538 (9th Cir. 1997) (holding that a
“consequence is ‘collateral’ where it lies within the discre-
tion of the court to impose it” and therefore that a defen-
dant’s consecutive sentence was collateral); Wall v. United
States, 500 F.2d 38, 39 (10th Cir. 1974) (same).
No. 06-3322                                                     17

C. Apprendi Claim12
  Mr. Virsnieks next submits that the order requiring him
to register as a sex offender increased the penalty for
burglary beyond the maximum statutorily authorized
sentence because the Wisconsin burglary statute does not
include registration as an available sentencing option.13
According to Mr. Virsnieks, the finding of fact that sup-
ported the sex offender registration order—that a sexual
assault occurred during the course of the burglary—either
must have been admitted by him or must have been
submitted to a jury and proven beyond a reasonable doubt.
Because neither of these adjudicatory procedures were
followed and because the order requiring him to register as
a sexual offender, in his view, is punitive, the Wisconsin
courts ran afoul of Apprendi.


12
   This argument does not require the retroactive application of
Apprendi. See Curtis v. United States, 294 F.3d 841, 845 (7th Cir.
2002) (holding that Apprendi does not apply retroactively under
the principles established by Teague v. Lane, 489 U.S. 288 (1989)).
Mr. Virsnieks’ conviction became final after June 26, 2000, the
date on which the Supreme Court issued Apprendi. See Spreitzer
v. Peters, 114 F.3d 1435, 1442 (7th Cir. 1997) (“A state conviction
and sentence become final for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certio-
rari has elapsed or a timely filed petition has been finally
denied.” (internal quotation marks omitted)).
13
  Mr. Virsnieks was ordered to register under a Wisconsin
statute separate from the burglary provision. Wis. Stat.
§ 973.048(1m). This provision gives trial courts the discretion to
order defendants convicted of burglary to register if “the court
determines that the underlying conduct was sexually
motivated . . . and that it would be in the interest of public
protection to have the person report.” Id.
18                                                       No. 06-3322

  Were Mr. Virsnieks’ Apprendi argument successful, we
would issue a writ of habeas corpus releasing him from the
obligation to register as a sex offender. We begin by
considering whether this relief is cognizable under the
habeas statute.


                                  1.
  The United States Congress has authorized federal courts
to entertain petitions for a writ of habeas corpus only
where the individual seeking the writ is “in custody.” 28
U.S.C. § 2241(c); see also id. § 2254(a). Historically, federal
courts interpreted the “in custody” requirement strictly;
they required that an individual be in the state’s physical
custody at the time that he or she filed the habeas petition.
See Richard H. Fallon, Jr., Daniel J. Meltzer & David L.
Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System 1395 (5th ed. 2003) (citing Wales v. Whitney,
114 U.S. 564 (1885); Stallings v. Splain, 253 U.S. 339 (1920);
Weber v. Squier, 315 U.S. 810 (1942)). In more recent times,
beginning with Jones v. Cunningham, 371 U.S. 236, 242-43
(1963), the Supreme Court has broadened the definition of
custody. Habeas corpus is now available, for example, to
prisoners who are released on parole,14 personal recogni-
zance,15 and bail,16 as well as those serving consecutive




14
     Jones v. Cunningham, 371 U.S. 236, 242-43 (1963).
15
  Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S.
345, 346 (1973); see also Justices of Boston Mun. Court v. Lydon, 466
U.S. 294, 300 (1984).
16
     Lefkowitz v. Newson, 420 U.S. 283, 286 n.2 & n.8 (1975).
No. 06-3322                                                        19

sentences;17 to aliens seeking entry into the United States;18
and to individuals seeking to challenge their induction into
military service.19
  Despite this expansion of the definition of custody,
habeas petitioners must establish that they are subject to
conditions that “significantly restrain . . . [their] liberty.”
Jones, 371 U.S. at 243; see also Hensley v. Mun. Court, San Jose
Milpitas Judicial Dist., 411 U.S. 345, 351 (1973) (“The custody
requirement of the habeas corpus statute is designed to
preserve the writ of habeas corpus as a remedy for severe
restraints on individual liberty.” (emphasis added)); Harts
v. Indiana, 732 F.2d 95, 96 (7th Cir. 1984) (per curiam). In
Jones and other cases expanding the definition of custody,
the Court emphasized the physical nature of the restraints
on liberty that satisfied the custody requirement. Jones,
Hensley and Peyton, each involved restraints on a habeas
petitioner’s ability to move about freely. Jones, 371 U.S. at
242 (“Petitioner is confined by the parole order to a particu-
lar community, house, and job at the sufferance of his
parole officer. He cannot drive a car without permission.”);
Peyton v. Rowe, 391 U.S. 54, 67 (1968) (holding that “a
prisoner serving consecutive sentences is ‘in custody’
under any one of them”); Hensley, 411 U.S. at 351 (empha-
sizing that the petitioner “cannot come and go as he
pleases” and that his “freedom of movement rests in the
hands of state judicial officers, who may demand his
presence at any time and without a moment’s notice”).


17
  Peyton v. Rowe, 391 U.S. 54, 67 (1968); see also Garlotte v. Fordice,
515 U.S. 39, 46-47 (1995).
18
     Jones, 371 U.S. at 240 n.9 (collecting cases).
19
     Id. at 240 n.11.
20                                                No. 06-3322

Thus, the collateral consequences of a conviction, those
consequences with negligible effects on a petitioner’s
physical liberty of movement, are insufficient to satisfy the
custody requirement. See Maleng v. Cook, 490 U.S. 488, 491-
92 (1989); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); cf.
Bunn v. Conley, 309 F.3d 1002, 1008 (7th Cir. 2002) (holding
that a prisoner’s challenge to 18 U.S.C. § 4042(b), which
requires that the Bureau of Prisons notify a state’s chief law
enforcement officer that a prisoner convicted of a crime of
violence is being released, is not cognizable in habeas).
  In accordance with these principles, courts have held that
orders of restitution, fines and the revocation of medical
and driver’s licenses do not satisfy the “in custody”
requirement. See, e.g., Smullen v. United States, 94 F.3d 20, 25
(1st Cir. 1996); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir.
1986) (per curiam); Harts, 732 F.2d at 96-97; Hanson v.
Circuit Court, 591 F.2d 404, 407 (7th Cir. 1979). In contrast,
a sentence of 500 hours of community service has been held
to restrict sufficiently an individual’s physical liberty of
movement to satisfy the requirement. Barry v. Bergen
County Prob. Dep’t, 128 F.3d 152, 162 (3d Cir. 1997).
  Indeed, given the habeas statute’s “in custody” require-
ment, courts have rejected uniformly the argument that a
challenge to a sentence of registration under a sexual
offender statute is cognizable in habeas. See Leslie v. Randle,
296 F.3d 518, 521-23 (6th Cir. 2002) (holding that a sentence
of registration imposed under Ohio’s sex offender law did
not meet the custody requirement); Henry v. Lungren, 164
F.3d 1240, 1241-42 (9th Cir. 1999) (same result under
California’s statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th
Cir. 1999) (Oregon’s statute); Williamson v. Gregoire, 151
F.3d 1180, 1184-85 (9th Cir. 1998) (Washington’s statute). In
Gregoire, a former Washington state prisoner filed a habeas
No. 06-3322                                                  21

action challenging the requirement that he register under
Washington’s sexual offender statute. 151 F.3d at 1181-82.
The Ninth Circuit concluded that the petitioner did not
meet the in custody requirement, reasoning that registra-
tion did not constitute a significant restraint on the peti-
tioner’s “physical sense of liberty.” Id. at 1183, 1184-85. The
registration statute itself did not place any physical re-
straints on the petitioner’s freedom of movement because
the law did not specify any place within or without Wash-
ington where the petitioner could not travel. Id. at 1184. He
did not have to register personally at the sheriff’s office but
could effectuate registration by mail. Id. at 1183-84. The
court recognized that “the registration and notification
provisions might create some kind of subjective chill on”
the petitioner’s “desire to travel.” Id. at 1184. This restric-
tion, however, constituted no greater a burden on the
petitioner’s freedom of movement than the loss of a
driver’s license, which, the court noted, is insufficient to
satisfy the custody requirement. Id. (citing Lillios v. New
Hampshire, 788 F.2d 60, 61 (1st Cir. 1986); Harts, 732 F.2d at
96-97; Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.
1970)). Although failure to comply with the registration
requirements could lead to future incarceration, the court
explained that “this potentiality . . . , dependent entirely on
whether [the petitioner] chooses to obey the Washington
statute, actually makes the sex offender law very similar to
the restitution orders that other courts have found not to
create custody.” Id. (citing United States v. Michaud, 901 F.2d
5, 7 (1st Cir. 1990)).20


20
  The Ninth Circuit has applied this holding and reiterated this
reasoning in two subsequent cases dealing with similar statutes
                                                 (continued...)
22                                                 No. 06-3322



   In Leslie v. Randle, the Sixth Circuit was confronted with
this same issue in a case with a similar posture as the one
before this court. In Leslie, a petitioner filed a habeas action
challenging the constitutionality of Ohio’s sexual predator
statute; the action was filed during the term of his incarcer-
ation. Leslie, 296 F.3d at 522. Employing reasoning similar
to that of the Ninth Circuit in Gregoire, the Sixth Circuit
held that, despite the fact that the petitioner was incarcer-
ated at the time of his petition, his challenge to the registra-
tion portion of his sentence was not cognizable in habeas.
Id. at 523. Although Ohio’s statute required the petitioner
to “verify his address with the sheriff every 90 days even
if he never leaves his house,” the statute did not condition
his “ability to move to a different community or
residence . . . on approval by a government official.” Id. at
522. Additionally, the court explained, the petitioner’s
“freedom is not conditioned on his ability to remain
employed, nor is he prohibited from engaging in any legal
activities.” Id. Finally, the court noted that the Supreme
Court of Ohio has held that the sexual-predator statute is
remedial rather than punitive; a remedial statute, according
to the court, is more analogous to collateral consequences
than to “severe restraints on freedom of movement.” Id. at
523.
  In this case, the Wisconsin sexual offender registration
statute, Wis. Stat. § 301.45 et seq., does not impose any
significant restriction on a registrant’s freedom of move-
ment. Like the statutes in place in Washington and Ohio,


20
  (...continued)
in the states of California and Oregon. See Henry v. Lungren, 164
F.3d 1240, 1241-42 (9th Cir. 1999); McNab v. Kok, 170 F.3d 1246,
1247 (9th Cir. 1999).
No. 06-3322                                                     23

the Wisconsin statute itself does not limit where a regis-
trant may move or travel within Wisconsin, within the
United States or internationally.21 Although registrants are
required to keep the Wisconsin Department of Corrections
(“WDOC”) apprised of certain personal information22 and
to update this information every ninety days, Wis. Stat.
§ 301.45(3)(b)(1m), registrants may do so by mail. Wis.
Admin. Code § DOC 332.06(2). Moreover, a registrant may
update the WDOC with any changes by using a telephonic
registration system. See id. § DOC 332.06(2)(a). Accordingly,
the Wisconsin statute imposes minimal restrictions on a
registrant’s physical liberty of movement.
  Our circuit’s case law, as well as ample case law from
other circuits, dictates that the future threat of incarceration
for registrants who fail to comply with the statute is
insufficient to satisfy the custody requirement. Hanson, 591
F.2d at 407 & n.6 (holding that the potential that nonpay-
ment of a fine will result in incarceration is insufficient to
satisfy the custody requirement); see also Leslie, 296 F.3d at



21
   The statute does prevent certain registrants from establishing
or changing their residence. Wis. Stat. § 301.45(4r). This restric-
tion, however, applies only to individuals who are otherwise in
custody—those on parole or extended supervision—and who
have not complied with the statute’s reporting requirements. Id.
Thus, in addition to not applying to non-custodial registrants,
registrants themselves can control whether this provision is
triggered. Williamson v. Gregoire, 151 F.3d 1180, 1184-85 (9th Cir.
1998).
22
  A registrant must provide the WDOC with, among other
information, his or her name, address, date of birth, gender,
race, weight, hair and eye color, the specific statute that the
registrant violated as well as the name and address of the
registrant’s employer or school. See Wis. Stat. § 301.45(2), (4m).
24                                                No. 06-3322

522; Gregoire, 151 F.3d at 1184; Tinder v. Paula, 725 F.2d 801,
804 (1st Cir. 1984) (collecting cases); cf. Maleng, 490 U.S. at
492. As the First Circuit explained in Tinder, “the possibility
that the court will resort to imprisonment to enforce the
fine is considered too remote and speculative to warrant
the invocation of federal habeas jurisdiction.” 725 F.2d at
804; cf. Maleng, 490 U.S. at 492 (holding that a habeas
petitioner does not “remain ‘in custody’ under a conviction
after the sentence imposed for it has fully expired, merely
because of the possibility that the prior conviction will be
used to enhance the sentences imposed for any subsequent
crimes of which he is convicted”).
   Like the statutes in Gregoire and Leslie, the Wisconsin
sexual offender registration statute is considered remedial,
rather than punitive, in nature. State v. Bollig, 605 N.W.2d
199, 205 (Wis. 2000). In Bollig, the Supreme Court of
Wisconsin held that “Wisconsin’s registration statute does
not evince the intent to punish sex offenders, but rather
reflects the intent to protect the public and assist law
enforcement.” Id.; see also Smith v. Doe, 538 U.S. 84 (2003)
(holding that Alaska’s sexual offender registration statute
is not punitive for purposes of the Ex Post Facto Clause).
These authorities support our conclusion that the registra-
tion requirements resemble more closely those collateral
consequences of a conviction that do not impose a severe
restriction on an individual’s freedom of movement. See
United States v. Keane, 852 F.2d 199, 202 (7th Cir. 1988)
(“[C]ivil disabilities alone are not ‘custody’ authorizing
collateral litigation.”); see also Leslie, 296 F.3d at 522-23;
Bunn, 309 F.3d at 1008; Gregoire, 151 F.3d at 1184-85.
  Consequently, we hold that Mr. Virsnieks’ Apprendi
argument, standing alone, does not satisfy the habeas
No. 06-3322                                                  25

statute’s “in custody” requirement.23


                              2.
  Even though Mr. Virsnieks’ habeas petition includes an
independent, custodial claim—albeit one whose merits we
already have rejected—he may not bypass the habeas
statute’s “in custody” requirement. In other words, a court
does not have “pendent” jurisdiction over non-cognizable
habeas claims. See, e.g., Kaminski v. United States, 339 F.3d
84, 88 (2d Cir. 2003).
  We begin with the text of the statute. Section 2254
authorizes federal courts to “entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a) (em-
phasis added). The plain language of the statute therefore
commands that courts entertain habeas petitions “only” on
the ground that a prisoner is “in custody,” and, by linking
a court’s ability to entertain a habeas petition to the particu-
lar relief sought, the language of the statute prevents
consideration of pendent challenges.




23
  We note that neither Smith v. Doe, 538 U.S. 84, 91 (2003), nor
Connecticut Department of Public Service v. Doe, 538 U.S. 1, 6
(2003), the two cases in which the Supreme Court has considered
challenges to sex offender registration statutes, assist Mr.
Virsnieks’ habeas claim. The plaintiffs in these cases employed
42 U.S.C. § 1983, rather than habeas corpus, as the vehicle for
challenging the registration statutes. We express no view as to
whether Mr. Virsnieks may proceed under section 1983.
26                                                No. 06-3322

  Several of our sister circuits have considered this issue in
the context of section 2255, and they all have reached the
same conclusion. Kaminski, 339 F.3d at 89; United States v.
Thiele, 314 F.3d 399, 402 (9th Cir. 2002); United States v.
Smullen, 94 F.3d 20, 25-26 (1st Cir. 1996); United States v.
Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994). One of the
concerns underpinning their answer is the potential that
allowing pendent jurisdiction could result in incongruent
access to federal habeas review among prisoners. In Segler,
for example, a federal habeas petitioner brought several
challenges to his sentence of imprisonment as well as an
ineffective assistance of counsel claim relating to a fine that
the district court had imposed. The Fifth Circuit held that
his ineffective assistance of counsel claim relating to the
fine was not cognizable in habeas notwithstanding the fact
that the other claims brought in the same petition were
cognizable. The court explained that section “2255’s
limitation on who may seek release from federal custody
also implies a limitation on the claims they may assert to
obtain a release.” Segler, 37 F.3d at 1137. Although the
petitioner was a federal prisoner, thus “bring[ing] him
clearly within the class of petitioners described in
§ 2255 . . . his ineffective assistance of counsel claim
relating to his fine raises the question whether his claim
arises under § 2255.” Id. (emphasis in original). The court
held that a habeas petitioner who brings an ineffective
assistance of counsel claim “must satisfy Strickland’s
prejudice requirement by showing harm that relates to his
custody.” Id. This conclusion, the court explained, stemmed
from the potential incongruence that could result from a
contrary rule:
     A convicted defendant who receives an allegedly
     erroneous fine because of constitutionally inadequate
No. 06-3322                                                 27

    assistance of counsel cannot seek post-conviction relief
    under § 2255 and neither should a petitioner who is
    both fined and imprisoned have an opportunity to
    assert an identical fine-related claim under § 2255.
Id. (internal citation omitted). Under the court’s “reading of
the plain language of § 2255,” it found “no reason why
Congress would have intended to treat these two identical
ineffective assistance of counsel claims differently.” Id.;
United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999)
(reaffirming the holding in Segler).
  The First, Second and Ninth Circuits similarly have
recognized that permitting habeas petitioners who proceed
under section 2255 to bring non-cognizable claims could
result in incongruent access to federal habeas review. See,
e.g., Kaminski, 339 F.3d at 88 (discussing the Fifth Circuit’s
incongruence rationale); Thiele, 314 F.3d at 401-02
(“[C]ognizable [habeas] claims in a § 2255 motion do not
run interference for non-cognizable claims.”); Smullen, 94
F.3d at 23-26 (adopting the Fifth Circuit’s holding and
relying on the incongruence rationale).
  These courts have recognized that the potential for
incongruent access to federal habeas review is unwarranted
by section 2255’s language and purpose. Section 2255
affords relief to prisoners who are “in custody” and who
“claim[] the right to be released,” see 28 U.S.C. § 2255, and
the statute “lies to allow attacks on wrongful custodies,”
Kaminski, 339 F.3d at 89. Given the statute’s uniform focus
on custodial sentences, “there is . . . no reason why the
presence of a plausible claim against a custodial punish-
ment should make a noncustodial punishment more
amenable to collateral review than it otherwise might be.”
Id.; Segler, 37 F.3d at 1137. In addition to finding no support
in the statutory language, such incongruence would
28                                              No. 06-3322

encourage prisoners to bring frivolous claims against
custodial sentences in order to trigger federal habeas
review of non-custodial sentences or of the collateral
consequences of a conviction. Kaminski, 339 F.3d at 88.
   Although these cases have arisen within the context of
section 2255, their teachings apply as well in the context of
section 2254. Indeed, allowing state habeas petitioners to
bring such claims would increase the potential for incon-
gruence. Because every prisoner convicted and sentenced
in federal court is subjected to the same sentencing regime,
there is some limitation on disparities among the sentences
imposed by federal courts. In contrast, state prisoners, as a
class, are subjected to an assortment of sentencing regimes
depending on the state in which they are convicted and
sentenced; moreover, states diverge widely in the degree of
sentencing discretion with which they endow their judges.
Permitting habeas petitioners who proceed under section
2254 to bring non-custodial claims therefore would add an
additional dimension of potential incongruence—among
prisoners sentenced in different states employing different
sentencing regimes. A prisoner convicted in a state that
statutorily mandates the imposition of incarceration and a
fine should not have greater access to federal habeas
review of his fine than a prisoner from another state who,
because of the sentencing discretion that the state affords
its judges, only had a fine imposed on him.
  Consequently, we conclude that Mr. Virsnieks may not
bypass the “in custody” requirement simply because his
petition includes an independent, cognizable claim. Mr.
Virsnieks’ Apprendi argument does not satisfy the habeas
statute’s “in custody” requirement, and therefore we do not
address its merits.
No. 06-3322                                               29

D. Ineffective Assistance of Trial Counsel
   Mr. Virsnieks contends that his trial counsel was ineffec-
tive because he misinformed Mr. Virsnieks that the predi-
cate felony to the burglary charge was “use of the facili-
ties.” The Wisconsin courts rejected this contention as a
factual matter because they did not find that such advice
was given. As we have already discussed, this finding is
entitled to deference, and Mr. Virsnieks has not established
that the state court’s finding was based on an unreasonable
determination of the facts. Accordingly, we cannot accept
Mr. Virsnieks’ ineffective assistance of trial counsel claim.


                        Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                  AFFIRMED




                    USCA-02-C-0072—4-2-08
