Hanson v. Circuit Court of First Judicial Circuit of Illinois, 78-1296

Citation591 F.2d 404
Decision Date29 January 1979
Docket NumberNo. 78-1296,78-1296
PartiesKenneth Warren HANSON, Petitioner-Appellant, v. CIRCUIT COURT OF the FIRST JUDICIAL CIRCUIT OF ILLINOIS, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Hazel Fisher, Certified Senior Law Student, Northwestern University Legal Clinic, Chicago, Ill., for petitioner-appellant.

Fred H. Montgomery, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before FAIRCHILD, Chief Judge, and PELL and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

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, 1 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. 2 Jones found the severe restrictions on a parolee's freedom of movement sufficient to constitute custody. 3 Hensley held that the restraints on one on bond pending completion of his habeas attack equally as severe. 4 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. 5

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. 6 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. 7

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. 8 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. 9 We have no doubt...

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