                Case: 13-11279   Date Filed: 09/02/2014   Page: 1 of 10


                                                              [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 13-11279
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 1:12-cv-02959-VEH

JIM WINDWALKER,

                                                   Plaintiff - Appellant,

versus

GOVERNOR OF ALABAMA,
ATTORNEY GENERAL, STATE OF ALABAMA,

                                                   Defendants - Appellees.

                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                 (September 2, 2014)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Appellant Jim Windwalker appeals from the district court’s dismissal of his

amended complaint challenging the Alabama Sex Offender Registration and

Community Notification Act (“ASORCNA”), Ala. Code §§15-20A-1 et seq.
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Windwalker was convicted in Florida in 1985 for having oral sex with a child

under 12. Windwalker later moved to Clay County, Alabama, and because of his

Florida conviction, was required to register as a sex offender under ASORCNA. In

2012, he challenged its constitutionality in this lawsuit, which the district court

dismissed for failure to state a claim. On appeal, Windwalker argues that the

district court erred in concluding that ASORCNA does not violate: (1) the Ex Post

Facto Clause; (2) due process; (3) equal protection; and (4) the free exercise of

religion. He also argues that he was entitled to an opportunity to amend his

complaint. After careful review, we affirm.

      We review de novo the grant of a motion to dismiss under Fed.R.Civ.P.

12(b)(6), accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff. Speaker v. U.S. Dep’t of Health & Human

Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To survive dismissal for failure to

state a claim, “a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). A plaintiff must assert “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

       First, we are unpersuaded by Windwalker’s argument that ASORCNA

violates the Ex Post Facto Clause. As a general rule, a law may constitute an ex


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post facto violation if it is intended to impose a retroactive punishment or if it has

the effect of transforming an otherwise civil remedy into a criminal penalty. Smith

v. Doe, 538 U.S. 84, 92 (2003). To make this determination, the Supreme Court

says that we first must look to the statutory text and structure to determine whether

the legislature “either expressly or impliedly [indicated] a preference for one label

or the other.” Id. at 93 (quotation omitted). “If the intention of the legislature was

to impose punishment, that ends the inquiry.” Id. at 92. “If, however, the intention

was to enact a regulatory scheme that is civil and nonpunitive, we must further

examine whether the statutory scheme is so punitive either in purpose or effect as

to negate [the State’s] intention to deem it civil.” Id. (quotation omitted).

      The second step -- the “effects” analysis -- involves consideration of the

factors set out in Kennedy v. Mendoza-Martinez, which include whether, in its

necessary operation, a regulatory scheme: has been regarded in our history and

traditions as a punishment; imposes an affirmative disability or restraint; requires a

finding of scienter; applies to behavior that is already a crime; promotes traditional

aims of punishment; has a rational connection to a nonpunitive purpose; or is

excessive with respect to this purpose. 372 U.S. 144, 168-69 (1963). “Because we

ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice

to override legislative intent and transform what has been denominated a civil

remedy into a criminal penalty.” Smith, 538 U.S. at 92 (quotation and citation


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omitted; emphasis added). In Smith, the Supreme Court addressed whether “a sex

offender registration and notification law constitute[d] retroactive punishment

forbidden by the Ex Post Facto Clause,” and concluded “that respondents [did not]

show, much less by the clearest proof, that the effects of the law negate[d]

Alaska’s intention to establish a civil regulatory scheme.” Id. at 91, 105.

      Here, the stated purpose of ASORCNA is to regulate sex offenders for the

sake of public safety. See Ala. Code §15-20A-2(5) (declaring its intent “not to

punish sex offenders but to protect the public and, most importantly, promote child

safety.”). The act has three main parts: (1) quarterly in-person registration with

law enforcement to provide personal information, and, in case of travel for more

than three days, information for a travel permit; (2) community notification about

sex offenders’ identity and location, and a sex offender designation on drivers’

licenses; and (3) restrictions on sex offenders’ proximity to vulnerable potential

victims.   Having reviewed the statute, we conclude that Windwalker has not

offered the necessary “clearest proof” to override the legislature’s intent that the

act be nonpunitive and transform it into a criminal penalty. Indeed, of the several

factors to consider, many cut against Windwalker, and we need only mention three

-- affirmative disability or restraint, rational connection, and excessiveness.

      As for whether ASORCNA imposes an affirmative disability or restraint,

this factor does not tip the balance in favor of Windwalker. In analyzing this issue,


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we must keep in mind that “[i]f the disability or restraint is minor and indirect, its

effects are unlikely to be punitive.” Smith, 538 U.S. at 100.      As a result, we’ve

found no punitive restraining effect even where the federal Sex Offender

Registration and Notification Act (“SORNA”) required in-person reporting and

mandated dissemination on the internet of information regarding the whereabouts

of convicted sex offenders. See United States v. W.B.H., 664 F.3d 848, 857 (11th

Cir. 2011). We said that “[a]ppearing in person may be more inconvenient, but

requiring it is not punitive.” Id. We also recognized that “[a]lthough the public

availability of the information may have a lasting and painful impact on the

convicted sex offender, these consequences flow not from the Act’s registration

and dissemination provisions, but from the fact of conviction, already a matter of

public record.” Id. (quoting Smith, 538 U.S. at 101). To the extent ASORCNA

imposes additional burdens, we still fail to find it punitive.

      As for rational connection, we remain unconvinced. Whether the regulatory

scheme has a “rational connection to a nonpunitive purpose” is the most

“significant” factor in the ex post facto analysis.         Smith, 538 U.S. at 102.

Nevertheless, the requirement of a “rational connection” is not demanding: A

“statute is not deemed punitive simply because it lacks a close or perfect fit with

the nonpunitive aims it seeks to advance.” Id. Thus, in W.B.H., we disposed of

this factor quickly: SORNA’s “registration requirements have a rational


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relationship to promoting public safety in the same way that those involved in

[Smith] did.” 664 F.3d at 859. We reach the same result for ASORCNA.

      Lastly, as for excessiveness, the Supreme Court has already permitted sex

offenders to be regulated as a class regardless of individualized risk assessments:

      The Ex Post Facto Clause does not preclude a State from making reasonable
      categorical judgments that conviction of specified crimes should entail
      particular regulatory consequences. We have upheld against ex post facto
      challenges laws imposing regulatory burdens on individuals convicted of
      crimes without any corresponding risk assessment. . . . . Doubtless, one who
      has violated the criminal law may thereafter reform and become in fact
      possessed of a good moral character. But the legislature has power in cases
      of this kind to make a rule of universal application.

Smith, 538 U.S. at 103-04 (quotation and citation omitted). Citing sex-offender

recidivism studies, the Supreme Court specifically approved a state’s conclusion

“that a conviction for a sex offense provides evidence of substantial risk of

recidivism.” Id. at 103. What’s more, Smith acknowledges that “[c]ontrary to

conventional wisdom, most reoffenses do not occur within the first several years

after release, but may occur as late as 20 years following release.” Id. at 104

(quoting National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept.

of Justice, Child Sexual Molestation: Research Issues 14 (1997)).

      We also rejected a similar claim in W.H.B. -- that SORNA was excessive

because he was convicted as a youthful offender at age eighteen, and, according to

W.B.H, those who are young when they commit sex offenses have a lower rate of

recidivism than those who do so as adults. 664 F.3d at 860. We said that “when it
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comes to answering the excessiveness question, the Supreme Court has warned

against ‘determining whether the legislature has made the best choice possible.’”

Id. (citing Smith, 538 U.S. at 105). So too here -- if those who claim a lower rate

of recidivism cannot claim excessiveness, then neither can Windwalker. In short,

Windwalker has failed to show us that ASORCNA is “so punitive either in purpose

or effect” that it has overridden the legislature’s stated intent that it be a civil

regulatory statute. Smith, 538 U.S. at 92 (quotation marks omitted). As a result,

the district court did not err in dismissing his ex post facto claim.

      Windwalker’s substantive due process claim fails as well. We analyze a

substantive due process claim by first crafting a “careful description of the asserted

right.” Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005) (quotation omitted).

Second, we determine whether the asserted right is “one of those fundamental

rights and liberties which are, objectively, deeply rooted in this Nation's history

and tradition, and implicit in the concept of ordered liberty, such that neither

liberty nor justice would exist if they were sacrificed.” Id. (quotation omitted).

      Windwalker says that ASORCNA violates several of his fundamental rights:

“e.g., his right to privacy, his right to find and retain housing, his right to find and

keep employment, his right to free travel and movement, his right to be free from

interference in his religious practices, and his right to be free of threats and

harassment.” However, in Doe, we held that “[t]hough the Supreme Court has not


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addressed whether substantive due process invalidates sex offender registration

statutes, we can find no history or tradition that would elevate the issue here to a

fundamental right.” Id. at 1345 (citation omitted); see also id. at 1344 (“The circuit

courts that have considered this substantive due process argument regarding sex

offender registries have upheld such registration and publication requirements

finding no constitutional infirmities.”). Indeed, when “carefully described” in the

context of a regulation designed to protect the public from sex offender recidivism,

none of Windwalker’s asserted rights are so “deeply rooted in this Nation’s history

and tradition, and implicit in the concept of ordered liberty, such that neither

liberty nor justice would exist if they were sacrificed.” Id. at 1344 (quotation

omitted). This reasoning applies notwithstanding differences between the sex-

offender statute at issue in Doe and the one at issue here. Thus, the district court

did not err in dismissing the substantive due process claim.

      We also reject Windwalker’s equal protection claim. As we explained in

Doe, where the appellants “argue[d] that the Sex Offender Act impermissibly

treat[ed] sex offenders differently from other felony offenders,” “[s]ince sex

offenders are not considered a suspect class in general, and the various sub-

classifications presented by the Appellants do not implicate a suspect class, we

review those classifications under a rational basis test asking whether they are

rationally related to a legitimate governmental purpose.” Id. at 1346 (citations and


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quotations omitted). Because Windwalker has not presented any classifications or

subclassifications under the ASORCNA that would trigger heightened equal

protection scrutiny, consistent with Doe, ASORCNA is subject to the rational-basis

test.1 Further, under this test, where a statute is constitutionally sufficient “when

there is any reasonably conceivable state of facts that could provide a rational basis

for it,” id. (quotations omitted), Windwalker cannot state a rational-basis equal

protection claim, especially given ASORCNA’s expressly incorporated legislative

findings articulating several reasonable bases for enacting the law, see Ala. Code §

15-20A-2(1)-(5).

       Finally, we find no merit to his free exercise claim. While his complaint

does not clarify how the ASORCNA might burden his exercise of religious

freedom, regardless, Windwalker cannot plausibly state a Free Exercise Clause

claim. In particular, the Supreme Court has made it clear that “the right of free

exercise does not relieve an individual of the obligation to comply with a valid and

neutral law of general applicability on the ground that the law proscribes (or

prescribes) conduct that his religion prescribes (or proscribes).” Hosanna-Tabor

Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694, 706 (2012)

(quotation omitted). Moreover, nothing contained in the ASORCNA relates to a


1
  Moreover, to the extent Windwalker argues that strict scrutiny is appropriate because he “has
alleged violations of his fundamental rights,” we’ve already concluded that no fundamental
rights are involved here, and thus, strict scrutiny does not apply.
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person’s religious practice except in a single provision permitting sex offenders to

change their name for religious reasons. See Ala. Code § 15-20A-36(a) (“No sex

offender shall change his or her name unless the change is incident to a change in

the marital status of the sex offender or is necessary to effect the exercise of the

religion of the sex offender.”).

      A court should give leave to amend freely “when justice so requires.”

Fed.R.Civ.P. 15(a). We’ve said that “[w]here a more carefully drafted complaint

might state a claim, a plaintiff must be given at least one chance to amend the

complaint before the district court dismisses the action with prejudice,” unless the

plaintiff has indicated that he does not wish to amend his complaint or if a more

carefully drafted complaint could not state a valid claim. Bank v. Pitt, 928 F.2d

1108, 1112 (11th Cir.1991), overruled on other grounds by Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.2002) (en banc). Here,

however, Windwalker knew how to ask to amend his complaint. He had already

done so once, and the district court instructed him on how to do it and then

accepted his amended complaint. But in any event, we fail to see how a more

carefully drafted complaint might state a claim in this case. Accordingly, the

district court did not err in dismissing the case with prejudice.

      AFFIRMED.




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