The Supreme Court Press
Petition of the Month™
McClamma v. Remon
Summer — June 2014
The Supreme Court Press “Petition of the Month”TM for June 2014 is Kyle E. McClamma v. Josepha Michele Remon, Supreme Court Dkt. No. TBD, an appeal coming out of the Eleventh Circuit. The petition was filed pro se by the petitioner Kyle E. McClamma, a resident of the Tampa, Florida Region.
Whether a probation officer has the power to forbid a person from living in his own home, despite there being no residency restriction in the sentencing order. (paraphrasing three questions)
- Supervised release conditions are often contained on a “check the box” form where a judge can tick off the conditions applicable to an offense. In a case of possession of child pornography, one check the box item is a restriction on contact with minors or frequenting a place where minors congregate. However, when such a check box item becomes artfully interpreted by a zealous probation officer, it can lead to absurd consequences as it did for petitioner Kyle McClamma.McClamma, a first time offender convicted of a single count of possession of child pornography, was deemed by the sentencing judge to be a low risk to the community and given a downward departure in sentencing. When he returned home from incarceration, his creative probation officer informed him that, since he had a newborn child at home, could not be at that home since it contained a minor (his child). She demanded he evict himself from his home and not see his baby without a supervising adult present. Nowhere in the sentencing order was mention made of a ban on contact with his baby or that he could not live in his own house. Predictable mayhem ensued – lack of stable housing, financial woes, and divorce – hardly the stated goals of supervised release.
McClamma filed a 2255 petition to challenge these conditions, which stand in conflict to the majority of circuits that have found a ban on familial contact to be an unconstitutional infringement upon the home. This petition has stagnated for 2.5 years without action by the court. McClamma also filed a Bivens action, the subject of this petition, claiming damages for his forced homelessnes and other damages. The lower court stood by the probation officer and granted her conditional immunity. The petition McClamma v. Remon, Supreme Court Dkt. TBD, takes on this issue, asking the fundamental question – who is in charge of sentencing – judges or probation officers?
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