Lefkowitz v. Fair

• Decision Date: 13 April 1987
• Docket Number: Nos. 86-1723,86-1962,s. 86-1723
• Citation: 816 F.2d 17
• Parties: Alan LEFKOWITZ, Petitioner, Appellant, v. Michael FAIR, Commissioner, Department of Corrections, et al., Respondents, Appellees. Arif HUSSAIN, et al., Petitioners, Appellees, v. Michael FAIR, etc., et al., Respondents, Appellees, Alan Lefkowitz, Petitioner, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 17

816 F.2d 17

Alan LEFKOWITZ, Petitioner, Appellant, v. Michael FAIR, Commissioner, Department of Corrections, et

al., Respondents, Appellees.

Arif HUSSAIN, et al., Petitioners, Appellees, v. Michael FAIR, etc., et al., Respondents, Appellees, Alan Lefkowitz, Petitioner, Appellant.

Nos. 86-1723, 86-1962.

United States Court of Appeals, First Circuit.

Argued March 4, 1987.

Decided April 13, 1987.

Gail S. Strassfeld, Boston, Mass., with whom Silverglate, Gertner, Fine, Good & Mizner, Boston, Mass. was on brief, for petitioner, appellant.

Paula J. DeGiacomo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees.

Before BOWNES and SELYA, Circuit Judges, and PETTINE, ^* Senior District Judge.

SELYA, Circuit Judge.

Alan Lefkowitz, M.D., petitioner-appellant, asks us to review orders of two different judges of the United States District Court for the District of Massachusetts, the net effect of which was to frustrate his belated attempt to have a state conviction screened by means of habeas corpus, 28 U.S.C. Secs. 2241-54, for federal constitutional error. Having surveyed the scene, we affirm the judgments entered below.

I.

In June 1981, the appellant, then a thirty year old physician, was convicted, along with two other men, of rape. He was sentenced to imprisonment for a term of three to five years (six months to be served, the balance suspended), together with a period of probation. In the aftermath of this conviction, Lefkowitz's license to practice medicine in Massachusetts was revoked. He and his codefendants appealed the convictions to the state's highest tribunal, but without success. See Commonwealth v. Sherry, 386 Mass. 682, 437 N.E.2d 224 (1982). On July 7, 1982, the same day that he began serving his jail term, ¹ Lefkowitz filed a petition for writ of habeas corpus in the federal court (Habeas I ). On the authority of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district court (Keeton, J.) ruled that the petitioner had failed to exhaust, within the purview of 28 U.S.C. Sec. 2254, one of the two claims upon which his habeas application rested. Accordingly, Lefkowitz was properly confronted with the alternative of amending his petition (to delete the neoteric claim) or revisiting the state courts (to exhaust his remedies fully). See, e.g., Rose, 455 U.S. at 520-21, 102 S.Ct. at 1204. The appellant elected to return to state court and Judge Keeton dismissed his federal habeas petition without prejudice. That dismissal was not appealed.

While Lefkowitz was engaged in the pursuit of his unexhausted claim in the Massachusetts courts, he completed serving his sentence. He was unconditionally released from state custody when his probationary period expired on March 20, 1984. Although the parties trade allegations as to who--if anyone--was responsible for the relative languor which attended the proceedings in federal district court and for the delay in postconviction review in the state judicial system, we deem that wrangling to comprise a nonissue; we will not gratuitously troll in such troubled waters. Suffice it to say that, when the remedial gamut had been run in the Commonwealth's courts, Lefkowitz filed a new application for habeas relief (Habeas II ) in the federal district court on April 18, 1986. ² As a new case, Habeas II was assigned to Judge Skinner through the district's random lottery. The court summarily dismissed Habeas II on initial perscrutation, see Rule 4, 28 foll. Sec. 2254, finding that it was an original proceeding in which the applicant lacked standing because he was not "in custody" as of the filing date.

Lefkowitz struck back on two fronts at once. He asked Judge Skinner to reconsider the dismissal of Habeas II and also asked Judge Keeton to amend the order dismissing Habeas I to indicate that the court had retained jurisdiction over the proceeding when Habeas I was jettisoned. Neither motion bore fruit. These appeals ensued.

II.

The Great Writ, as habeas corpus has come to be known, is not casually available. In order to interest a federal court in using this power, one who protests his treatment in state criminal proceedings must be "in custody pursuant to the judgment of a State court." 28 U.S.C. Sec. 2254. This precondition traces its ancestry on this side of the Atlantic to the very first federal habeas statute, 1 Stat. 82 (1789), and derives from the historic practice in England. For centuries, the essence of the procedure has been to direct the prerogative writ "to him who hath the custody of the body." Anon., 78 Eng. Rep. 27 (1586). As the Supreme Court has declared, this proviso "is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty." Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973). And, if the custody requirement is to continue to be a meaningful one, definition of the term must be constrained by its natural legal boundaries.

To be sure, there has been some subtle shifting since Chief Justice Marshall declared the "great object" of the writ to be "the liberation of those who may be imprisoned without cause," and likened it to "a writ of error, to examine the legality of the commitment." Ex parte Watkins, 28 U.S. (3 Peters) 193, 202, 7 L.Ed. 650 (1830). In the intervening years, the meaning of "custody" has been broadened by the courts so that, in the Sec. 2254 context, it is no longer limited to physical custody. See Justices of the Boston Municipal Court v. Lydon, 466 U.S. 294, 301, 104 S.Ct. 1805, 1809, 80 L.Ed.2d 311 (1984) (pretrial release on personal recognizance constitutes custody); Hensley, 411 U.S. at 349-51, 93 S.Ct. at 1573-74 (release on personal recognizance pending execution of sentence constitutes custody); Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 375-77, 9 L.Ed.2d 285 (1963) (parole tantamount to custody). Nevertheless, one constant has not changed over time: he who seeks the succor of habeas corpus must be subject then and there to "restraints not shared by the public generally," Jones v. Cunningham, 371 U.S. at 240, 83 S.Ct. at 376, and "at the least, to some type of continuing governmental supervision." Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984). Although a habeas petition does not automatically become moot if custody abates after the case is brought and while it is still pending, Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968), that is not Lefkowitz's lot. Rather, the appellant, insofar as Habeas II is concerned, runs up against the principle that "a sentence that has been fully served does not satisfy the custody requirement of the habeas statute, despite the collateral consequences that generally attend a criminal conviction." Tinder, 725 F.2d at 803.

In many respects, this appeal is a fair congener to Tinder; the cases possess important similarities. In Tinder, the appellant, then serving a suspended sentence, filed a habeas corpus petition which was promptly dismissed because he had neglected to explore available state court remedies. After the exhaustion requirement had been fulfilled, the applicant returned to federal court. By then, he had completed serving his sentence. Although Tinder had been in custody when he filed his initial petition, that was not so the second time around. We held, therefore, that he lacked standing to pursue his quest for habeas relief. 725 F.2d at 803-06. Lefkowitz, despite his valiant efforts to separate himself from the rationale of Tinder, cannot split the atom.

Insofar as the appellant urges that "custody" remains attached to a degree sufficient to warrant the exercise of federal habeas jurisdiction even after the expiration of his state sentence, he is whistling past the graveyard. His chief talking point is that the rape conviction led to the revocation of his license to practice medicine. His license remains revoked and, as he sees it, any chance of restoration effectively depends upon having the conviction erased. This concatenation of circumstances, he contends, amounts to a restraint on liberty severe enough to constitute "custody" for habeas purposes. Passing one obvious flaw in Lefkowitz's argument--it is nowhere clear from the record that vacatur of his conviction will ipso facto insure restoration of his medical license--we must disagree with his basic premise.

Habeas jurisprudence has traditionally been concerned with liberty rather than property, with freedom more than economics. We have regularly held that "some vaguely defined discrimination or some sort of economic duress" resulting from a conviction does not, by itself, confer standing to invoke the remedy of habeas corpus. Matter of Matheisel, 289 F.2d 824 (1st Cir.1961) (per curiam). He who seeks the writ must be incarcerated, or under imminent threat of incarceration, in order to meet the custody requirement of the habeas statute. Tinder, 725 F.2d at 803-04.

As the Court has put it:

Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.

Hensley, 411 U.S. at 351, 93 S.Ct. at 1574. Accord Bailey v. United States Commanding Officer, 496 F.2d 324, 325 (1st Cir.1974).

Viewed from this perspective, the revocation of a medical license by a state agency, although unquestionably a substantial blow to an individual desirous of practicing the healing arts in the Commonwealth, does not constitute the type of grave restraint on liberty or the sort of ongoing governmental supervision which are unavoidable prerequisites of actionable "custody." Adverse occupational and employment consequences are a frequent aftermath of...