decided: January 29, 1979.
KENNETH WARREN HANSON, PETITIONER-APPELLANT,
CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT OF ILLINOIS, RESPONDENT-APPELLEE.
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.
I. The Facts
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 fine-only conviction constitutes custody. Petitioner argues:
Since the Court has determined that non-physical restraints on liberty may be severe enough to warrant invocation of the writ, there is no basis in law for the district court's conclusive presumption that Petitioner's conviction and fine only sentence cannot under any circumstances be severe enough to justify issuance of a writ of habeas corpus. The arbitrariness of the district court's conclusive presumption of no habeas jurisdiction whenever there is no physical confinement is manifest from its anomalous effect in the following situations: one who spends only ten minutes in jail as a result of an unconstitutional minor misdemeanor conviction would automatically be granted habeas review, while one who is not so imprisoned, but who loses his job, his right to vote, his reputation and a substantial part of his assets as a result of an unconstitutional fine only felony conviction would automatically be denied habeas review.
We think that the authority relied upon by petitioner is distinguishable. Despite the broad, sweeping language of the Supreme Court's opinions, each decision's holding is narrow.*fn2 Jones found the severe restrictions on a parolee's freedom of movement sufficient to constitute custody.*fn3 Hensley held that the restraints on one on bond pending completion of his habeas attack equally as severe.*fn4 In Carafas the Court's discussion of the civil disabilities imposed on convicted criminals merely related to the issue of mootness. The Court's holding on the jurisdictional issue of custody was unexceptional: events occurring after the filing of a petition do not oust a federal court of jurisdiction.*fn5
Admittedly, once the notion that custody means only confinement within the four walls of a prison is abandoned, finding a principled basis upon which to draw lines is difficult. See generally The Supreme Court 1967 Term, 82 Harv.L.Rev. 93, 249-54 (1968). We must, however, attach some meaning to the Congressional limitation on habeas corpus jurisdiction; Congress did not authorize the federal courts to be roving commissions to correct all constitutional errors in state criminal proceedings. We do not "suffocate the writ in stifling formalisms or hobble its effectiveness," Hensley, 411 U.S. at 350, 93 S. Ct. at 1574, by refusing to extend the availability of the writ to situations clearly beyond those intended by Congress. Although the restraints in Jones, Carafas, and Hensley and those confronting the petitioner here may differ only in degree, we think the degree of difference is significant. The Supreme Court has declared the purpose of the custody requirement to be "to preserve the writ of habeas corpus as a remedy for Severe restraints on individual liberty." Id. at 351, 93 S. Ct. at 1574 (emphasis added.) We hold that a fine-only conviction is not a restraint on individual liberty.*fn6 Moreover, we hold that the ordinary collateral consequences or civil disabilities flowing from a fine-only conviction, although they may be restraints on liberty, are not severe enough to put the convicted person in custody within the meaning of the habeas corpus statute.*fn7
III. Constructive Custody
Petitioner advances a second basis for finding him to be in custody within the meaning of 28 U.S.C. § 2254. Petitioner is now serving a term of imprisonment in California. He maintains that California parole authorities are required by law to consider his prior conviction in making a parole determination.*fn8 Thus, petitioner argues that under these particular circumstances in which the challenged conviction will increase his confinement under a subsequent conviction that he is in custody for the purpose of attacking the prior conviction.*fn9 We have no doubt that petitioner is in custody. Furthermore, it seems clear that he is "in custody pursuant to the judgment of a State court" within the meaning of section 2254. The judgment under which he is in custody, however, is a California judgment, not an Illinois judgment. It would seem to follow that his custodian, the proper party respondent in a habeas corpus action, is California, not Illinois.
A petition for a writ of habeas corpus must "name . . . the person who has custody over" the petitioner, 28 U.S.C. § 2242, and any writ issued "shall be directed to the person having custody of the person detained." Id. § 2243. The Supreme Court, despite its expansion of the custody requirement, has reaffirmed the necessity for jurisdiction over the person of the custodian: "The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody." Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 93 S. Ct. 1123, 1129, 35 L. Ed. 2d 443 (1973). We do not believe that any Illinois official can be deemed to have custody over the petitioner who is now confined in a California penitentiary.
Petitioner has presented a two-pronged argument that Illinois is his "constructive" custodian. Petitioner relies on Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), to establish the first prong of his argument that a prisoner can attack a conviction other than the one under which he is currently confined. Peyton abandoned the prematurity doctrine and permitted a prisoner serving the first of two consecutive sentences to attack the conviction underlying the second. Thus, it is not applicable here. Petitioner, however, cites decisions of lower federal courts which have extended the principle to permit a prisoner confined pursuant to one judgment of conviction to attack the validity of a separate, prior conviction if it prolongs the period of his confinement.*fn10 These decisions have held that the prior conviction may be attacked even though the sentence imposed under that conviction has been completely served.
All of these decisions, however, have involved the situation in which the conviction under which the petitioner was confined and the conviction which he attacked were imposed by the same state. Petitioner therefore maintains that Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), establishes the second prong of his argument: that the habeas petition may be brought in the state where it can be most effectively litigated. Since the invalidity of the Illinois conviction forms the basis of petitioner's claim, he maintains that the federal court in Illinois is the proper forum for his lawsuit.
Even if the first prong of petitioner's argument is sound, petitioner's claim must fail. Braden merely discussed which federal court is the proper forum when a prisoner attacks an interstate detainer in federal habeas corpus. The Court refused to give a narrow construction to the statutory requirement that federal courts grant writs of habeas corpus only "within their respective jurisdictions." 28 U.S.C. § 2241(a). Thus, the Court permitted a petitioner imprisoned in Alabama to attack in a federal district court in Kentucky a detainer lodged against him by Kentucky. Braden, however, does not establish any liberal choice of forum rule which permits petitioner to ignore service on his custodian. The court reaffirmed the statutory requirement that the writ acts upon the custodian. Moreover, the court relied on very narrow grounds in holding, as a preliminary matter, that the petitioner was in the custody of Kentucky officials:
Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is "in custody" for purposes of 28 U.S.C. § 2241(c)(3). On the facts of this case, we need not decide whether, if no detainer had been issued against him, petitioner would be sufficiently "in custody" to attack the Kentucky indictment by an action in habeas corpus.
410 U.S. at 489 n.4, 93 S. Ct. at 1127. In the present case, California can in no sense be deemed the agent of Illinois. Unlike Kentucky whose detainer against Braden clearly indicated the state's resolve to subject the petitioner to trial and later imprisonment, Illinois has no interest in the present or future confinement of the petitioner. Illinois has obtained its conviction and extracted its punishment, the payment of the $150 fine. Although the Illinois conviction may result in prolonging the petitioner's confinement in California's prisons, that is not the result of any Illinois law. The adverse consequences that the conviction may have on petitioner are due only to the force which California by its laws chooses to give to the conviction.
IV. Relief Under Section 1983
Petitioner's alternative position is that if we find that the district court was without jurisdiction to consider his petition sounding in habeas corpus, the petition nevertheless alleges a valid cause of action under 42 U.S.C. § 1983. Petitioner maintains that Congress had a "unity of purpose" in enacting section 1983 and the habeas corpus statute a purpose to make one or the other of the statutes available to ensure the role of the federal courts as the ultimate guardians of federal rights. Although petitioner acknowledges that sometimes neither statute provides an appropriate remedy for the violation of federal civil rights, Cf. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), he contends that only clear statutory directives or compelling reasons of judicial policy should preclude providing a federal forum to one whose constitutional rights have been violated. Petitioner argues that neither of these exceptions apply here and urges us to permit him to seek declaratory relief invalidating the Illinois judgment of conviction. We do not quarrel with petitioner's assertion that the federal courts are usually the ultimate guardians of federal rights. The question presented here, however, is whether section 1983 provides a federal court with the power to inquire into the validity of his fine-only conviction by the Illinois courts.*fn11 We hold that it does not.
Petitioner, in essence, seeks to collaterally attack the state court judgment of conviction. This is a matter traditionally regarded as within the core of habeas corpus "an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism." Hensley, 411 U.S. at 351, 93 S. Ct. at 1574. Yet, as we hold above, petitioner cannot seek a writ of habeas corpus against Illinois because he is not in the state's custody.
In Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), the Supreme Court held that habeas corpus provides the exclusive federal remedy for prisoners attacking the fact or duration of their confinement. Consequently, it would not permit a section 1983 attack in an action in which habeas would lie. We think that Congress intended that habeas corpus provide not only the exclusive federal remedy for those in custody, but also the exclusive federal remedy for all who seek to attack state court judgments of convictions. Thus, convictions not subject to question in habeas are immune from collateral inquiry by the federal courts. The broad, general terms of section 1983 must necessarily yield to the narrower terms of the habeas corpus statute; limitations contained within the more specific statute also limit the availability of remedies under the more general statute. We therefore adopt the reasoning of Cavett v. Ellis, 578 F.2d 567 (5th Cir. 1978):
Stripped to the bone, the plaintiff's action under § 1983 is little more than a habeas corpus action without a custody requirement. We do not believe that § 1983 was meant to be a substitute for habeas corpus when there is no custody. Under 28 U.S.C. § 2254, we have authority to grant habeas corpus relief to persons in custody pursuant to judgments of state courts. This is the Great Writ, and we endeavor to make it available to those suffering under unconstitutional imprisonment. We have, however, refused to extend habeas corpus relief to those not in custody. Under his theory of § 1983, the appellant would have us sit in perpetual review of all criminal decisions. We will not make the appellant's § 1983 action the greater writ by avoiding the custody requirement of § 2254 indirectly while refusing to extend the custody requirement directly.
Id. at 569.*fn12
Our holding that the habeas corpus statute carries with it a penumbral effect which precludes a 1983 action which would nullify a prior state criminal conviction is consistent with the principles of federalism, comity, and equity which govern the exercise of the power of the federal courts.*fn13 In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), the Court, although in a context different than the one presented here, noted the narrow role of federal courts when reviewing matters which could have been raised on appeal in the state courts:
Federal post-trial intervention, in a fashion designed to annul the results of a state trial . . . deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction. We think this consideration to be of some importance because it is typically a judicial system's appellate courts which are by their nature a litigant's most appropriate forum for the resolution of constitutional contentions. . . . In short, we do not believe that a State's judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State's appellate courts.
Id. at 609, 95 S. Ct. at 1210-1211.*fn14 It is true that the gist of petitioner's claim is that he was afforded inadequate resources to prosecute his appeal. Nevertheless, given the lack of severity of his sentence and the interests of finality of state court judgments, we think it is inappropriate for a federal court to grant petitioner the relief he seeks. To do so would be to expand the scope of section 1983 far beyond that contemplated by Congress. Petitioner's claim is one that should have been vindicated by appeal to the Illinois Supreme Court and, if necessary, to the United States Supreme Court. See Mayer v. City of Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971). Direct review by the United States Supreme Court is sufficient to preserve the role of the federal courts as the ultimate guardians of federally guaranteed rights.
The Supreme Court has noted that:
Resort to habeas corpus . . . results in serious intrusions on values important to our system of government. They include "(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded."
Stone v. Powell, 428 U.S. 465, 491 n.31, 96 S. Ct. 3037, 3051, 49 L. Ed. 2d 1067 (1976). We decline to accept petitioner's invitation to impinge upon these values in the absence of unambiguous Congressional authorization.*fn15 We hold that petitioner fails to state a cause of action under 42 U.S.C. § 1983.
Our decision in this case does not necessarily foreclose the petitioner from obtaining relief against the use of the Illinois conviction by California parole authorities. Although we, of course, express no opinion on the merits, we note that petitioner may have several nonfrivolous theories to prevent California parole officials from considering his allegedly void Illinois conviction. First, the federal courts in the Ninth Circuit may hold that California's custody of petitioner provides a sufficient jurisdictional basis to inquire into the validity of the Illinois conviction if, as petitioner alleges, the conviction prolongs petitioner's confinement in prison. See Cases cited note 10 Supra. Second, in United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972), and Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972), the Supreme Court held that the use of a prior, constitutionally infirm conviction to "enhance punishment" or "support guilt" amounted to an independent violation of due process. Although Tucker and Loper involved the use of prior convictions obtained in violation of the defendant's Sixth Amendment right to counsel, lower courts subsequently have extended the rule to embrace prior convictions tainted by other constitutional defects. See, e. g., Jefferson v. United States, 488 F.2d 391 (5th Cir. 1974) (self-incrimination). But see Tisnado v. United States, 547 F.2d 452 (9th Cir. 1976) (Fourth Amendment). Arguably, petitioner's claim under the Griffin-Douglas principle casts sufficient doubt on the probativeness of his Illinois conviction to fall within the Tucker-Loper rule. If so, and if the courts extend the principle to exclude consideration of void prior convictions by parole authorities, See Strader v. Troy, 571 F.2d 1263, 1269-70 (4th Cir. 1978), petitioner may maintain an appropriate action against the California parole authorities to prevent them from considering the Illinois conviction. In any event, these are theories that petitioner may pursue against California not Illinois officials.
It may seem anomalous that petitioner, in order to attack the validity of his Illinois conviction, must maintain his action against California and not directly against Illinois. Such an indirect route to challenge the conviction may seem wasteful of judicial resources.*fn16 Nevertheless, the custody requirement of the federal habeas corpus statute dictates that petitioner has no federally cognizable action against Illinois either in habeas corpus or under section 1983.
The custody requirement of the federal statute and many state provisions for post-conviction relief have been criticized as overly restrictive. The ABA Standards, for example, would abandon the requirement and permit collateral attack "even though the applicant has completely served the challenged sentence (or) even though the challenged sentence did not commit the applicant to prison, but was rather a fine, probation, or suspended sentence." Standards Relating to Post-Conviction Remedies 2.3 (Approved Draft, 1968). The commentary accompanying the Standards explains the reason for the proposal:
Frequently, this is made necessary by the application of multiple offender laws which upgrade the authorized or prescribed sentence for a present offense on the strength of the defendant's prior record. Parole consideration is likely to be influenced by the number of previous or concurrent convictions. Civil disabilities of more or less impingement frequently continue after a sentence has been completed.
Petitioner's complaint would seem to fall precisely within the class of cases which the drafters of the Standards had in mind. The need for relief may be apparent, but the abandonment of the custody requirement is a matter for legislative, not judicial, action. Both Congress and the Illinois legislature can fashion appropriate relief for persons in petitioner's predicament. We decline to do so, either by reading the custody requirement out of the federal habeas statute or by circumventing the requirement by an expansive construction of section 1983.
The judgment of the district court is AFFIRMED.