Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division. Civ. No. 77-4158 - James L. Foreman, Judge.
Before Fairchild, Chief Judge, and Pell and Wood, Circuit Judges.
The petitioner, Kenneth Warren Hanson, appeals to this court from the trial court's dismissal of his petition for a writ of habeas corpus. Three questions are raised. First, is a fine-only conviction a sufficient restraint on liberty to constitute "custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2254? Second, if not, does the consideration of one state's judgment of conviction by parole authorities in another state cause the prisoner to be in the custody of authorities of the state which rendered the conviction? Third, if a convicted person cannot maintain a habeas corpus action because he is not in custody, can he maintain an action under 42 U.S.C. § 1983 to challenge the conviction? Finding that the answer to each of the questions is no, we affirm the dismissal of the petition.
On December 16, 1975, after a trial in which he was represented by counsel, petitioner was found guilty of unlawful use of weapons by a Jackson County, Illinois, jury. Petitioner was fined $150. Petitioner filed a timely Pro se notice of appeal and requested the trial court, the Illinois Appellate Court and the state appellate defender to provide counsel for his appeal. Although petitioner alleged that he was indigent, owned no personal or real property, and had only thirty dollars in cash, his requests for counsel were denied. Petitioner's request for a transcript of proceedings before the trial court and a common law record in order to perfect his appeal was also unavailing.
On March 5, 1976, petitioner was removed from the custody of Illinois authorities. He was taken by California officials to California, tried and convicted of a crime which does not appear in the record, and committed to the custody of the Director of the California Department of Corrections. In May 1977, on the motion of the State's Attorney for Jackson County, petitioner's appeal of the Illinois weapons conviction was dismissed for lack of diligent prosecution. Petitioner remains in the custody of California officials until the present time.
Petitioner filed his petition for a writ of habeas corpus in the federal district court in the Eastern District of Illinois in 1977. He maintained there, and urges upon us here, that he was denied appellate counsel and a transcript because of indigency contrary to requirements of the equal protection and due process clauses of the Fourteenth Amendment. See Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Mayer v. City of Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971). The district court, however, never reached the merits of petitioner's claim. It held that "the mere imposition of a fine is an insufficient restraint to satisfy the custody requirement" of the federal habeas corpus statute and dismissed the petition.
II. The Custody Requirement
The question which the trial court certified for appeal, and the initial question which we examine here, is whether a state court conviction for which the only punishment is a fine is subject to collateral attack in federal habeas corpus. Restated, the question is whether a "fine-only" criminal conviction constitutes "custody" within the meaning of 28 U.S.C. § 2254. As have the other federal circuit courts which have considered the issue,*fn1 we answer the question in the negative.
Petitioner relies on a series of Supreme Court decisions beginning with Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), for the proposition that custody as used in the habeas corpus statutes is not limited solely to physical restraints upon the person of the petitioner. See Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) (custody is determined when petition is filed; subsequent release of petitioner does not moot the case); Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973) (release on personal recognizance prior to imprisonment constitutes "custody"). See generally 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4262 (1978); Developments in the Law Habeas Corpus, 83 Harv.L.Rev. 1038, 1073-79 (1970). Jones listed the numerous restrictions imposed on parolees "significant restraints . . . in addition to those imposed by the State upon the public generally" and found them onerous enough to invoke the protection afforded by the Great Writ. 371 U.S. at 241-43, 83 S. Ct. at 376-377. Similarly, Carafas recited the civil disabilities attendant upon a criminal conviction even after release from imprisonment. Furthermore, in Hensley the Court declared:
Our recent decisions have reasoned from the premise that habeas corpus is not "a static, narrow, formalistic remedy," . . . but one which must retain the "ability to cut through barriers of form and procedural mazes." . . . "The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."
Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. The demand for speed, flexibility, and simplicity is clearly evident in our decisions.
411 U.S. at 349-50, 93 S. Ct. at 1574.
Petitioner relies upon the collateral consequences of a criminal conviction similar to those which the Supreme Court referred to and the liberal construction given the statute in support of his claim that a ...