Pueschel v. Leuba

Decision Date16 October 1974
Docket Number15893.,No. 14798,14798
Citation383 F. Supp. 576
PartiesFrederick J. PUESCHEL v. Robert C. LEUBA et al. Frederick PUESCHEL v. John R. MANSON, Commissioner of Corrections et al.
CourtU.S. District Court — District of Connecticut

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Herbert Watstein, Bristol, Conn., for petitioner.

Stephen J. O'Neill, Asst. Atty. Gen., Hartford, Conn., for respondents.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

These related suits involving a habeas corpus petition and Civil Rights Act claims pose interesting questions concerning the relationship between state and federal court adjudicative systems. Both cases arise out of the suspension of a driver's license and the subsequent imposition of a $100 fine. Common undisputed facts are involved.

In June, 1970, plaintiff Pueschel was involved in an automobile accident and failed to comply with the provisions of the Connecticut financial responsibility law then in force, Conn.Gen.Stat. § 14-117. As a result of his failure to comply, the Commissioner of Motor Vehicles suspended his license and registration effective January 6, 1971, pursuant to Conn.Gen.Stat. § 14-117(b). No appeal was taken from the suspension order.1 Plaintiff continued to drive despite the suspension, and in February, 1971, was arrested for operating a motor vehicle while his license was under suspension, in violation of Conn.Gen.Stat. § 14-215.

In May, 1971, the United States Supreme Court held unconstitutional Georgia's financial responsibility law, which was virtually identical to Connecticut's, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Connecticut thereafter amended its statutes to satisfy the newly-announced requirements of due process. Plaintiff was nevertheless tried and convicted for violating the motor vehicle statute, and in November, 1971, was fined $100. At trial the court refused to allow plaintiff to introduce evidence attacking the suspension order on the ground that he had not been given a hearing before his license was suspended.

Plaintiff then brought an action against two successive Commissioners of Motor Vehicles, under 42 U.S.C. § 1983 (Civil No. 14,798), seeking reinstatement of his license and damages; this Court abstained, pending appeal of the criminal conviction in the state courts, both because of comity considerations and possible clarification of state law. The Appellate Division of the Court of Common Pleas affirmed, State v. Pueschel, 30 Conn.Supp. 556, 303 A.2d 117 (1973), on the ground that Bell v. Burson, supra, should not be applied retroactively and that the evidentiary rulings at trial had therefore been correct.2 The Connecticut Supreme Court denied Pueschel's petition for certification for appeal, 34 Conn.L.J. No. 38, 15 (1973), and the United States Supreme Court denied certiorari, sub nom. Pueschel v. State of Connecticut, 414 U.S. 934, 94 S.Ct. 237, 38 L.Ed.2d 163 (1973) (Douglas, J., dissenting).

Rather than pursue the § 1983 action, plaintiff then petitioned for habeas corpus relief, Civil No. 15,893, challenging the $100 fine. The Commissioner of Correction, the Clerk of the Seventeenth Circuit Court, and that Court itself were named as respondents. Cross motions for summary judgment are still pending in the civil rights action,3 and respondents have moved for summary judgment in the habeas corpus action. All motions may now be decided.

I.

The Habeas Corpus Action (Civ. No. 15,893)

The habeas corpus petition encounters an initial obstacle of jurisdiction. A district court may entertain an application for a writ of habeas corpus only in behalf of a person "in custody" pursuant to the judgment of a state court. 28 U.S.C. § 2254(a). The jurisdictional counterpart of the habeas statute, 28 U.S.C. § 2241(c), imposes the same requirement. Petitioner contends that the sole punishment inflicted on him by the State of Connecticut, a $100 fine, is sufficient interference with his liberty to constitute custody within the meaning of the statute.

Though the concept of custody has been broadly interpreted in recent years to include increasingly less severe forms of restraint, see Preiser v. Rodriguez, 411 U.S. 475, 486, n. 7, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), there still remains as a requirement of the habeas corpus jurisdiction of a district court that the petitioner be subject to some "physical restraint," id. at 486, 93 S.Ct. 1827. This need not be actual confinement, but can include supervisory control over the person of the petitioner. See Hensley v. Municipal Court, 411 U. S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (release on personal recognizance); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); cf. Dodd v. United States Marshal, 439 F.2d 774 (2d Cir. 1971); Jhirad v. Ferrandina, 355 F. Supp. 1155 (S.D.N.Y.), rev'd on other grounds, 486 F.2d 442 (2d Cir. 1973).

The obligation to pay a fine does not establish "custody" within the meaning of § 2254, Cohen v. Carberry (unreported, Civ. No. 71-2023, 9th Cir. May 23, 1972), cert. denied sub nom. Cohen v. Hongisto, 411 U.S. 964, 93 S.Ct. 2139, 36 L.Ed.2d 684 (1973); Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970); Walker v. Dillard, 353 F.Supp. 566 (W. D.Va.1972); contra, Edmunds v. Chang, 365 F.Supp. 941 (D.Hawaii 1973).

In Hensley, the Supreme Court placed some reliance, in finding sufficient custody, on the imminence of petitioner's incarceration, inasmuch as he was at liberty on his personal recognizance only by virtue of a stay pending appeal of his conviction and sentence. 411 U.S. at 351, 93 S.Ct. 1571. The imminence of incarceration appears to have been a factor strengthening the custodial aspect of the personal recognizance, rather than an independent basis of habeas corpus jurisdiction that would have sufficed in the absence of any present restraint on personal liberty. See Whorley v. Brilhart, 359 F.Supp. 539, 542 (E.D.Va.1973).

Pueschel is not now subject to any restraint on his personal liberty. It would be inappropriate to predicate habeas corpus jurisdiction on the speculative possibilities as to whether, following this litigation, he will decline to pay the fine and what the State might do in that event. Collection procedures might not necessarily involve risk of incarceration. Even if the State were to invoke Conn. Gen.Stat. § 18-63, providing for commitment in the event of nonpayment of a fine, it is not clear that incarceration would occur without prior court hearing. See State v. Brown, 5 Conn.Cir. 228, 249 A.2d 672 (1967).

The insufficiency of a fine to support habeas corpus jurisdiction in this case would be entirely free from doubt were it not for language in the recent decision of the Second Circuit in Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974). Appellants had been convicted in a state court and sentenced to pay a $10 fine or spend two days in jail. They paid the fine. In rejecting their suit brought under 42 U.S.C. § 1983 to attack the statute under which they were convicted, the Court of Appeals observed that "habeas corpus is generally available in situations similar to the one at hand." Id. at 343. It is not clear whether the Court was influenced by the jail alternative of the sentence that had been imposed, but in any event this dictum cannot be regarded as an abandonment of the traditional habeas corpus requirement of impairment of at least some aspect of personal liberty. The dictum in Thistlethwaite was followed by this sentence:

Should the appellants show "possible adverse collateral effects" of their conviction, they can gain a federal hearing by that route habeas corpus. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1968); see also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); and Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Ibid.

Benton and Sibron were before the Supreme Court on direct review from judgments of conviction; the existence of adverse collateral effects was relied upon to meet the objection that their appeals were not justiciable or were moot because the sentence in Benton was concurrent and the sentence in Sibron had been served. Carafas did involve review of a denial of habeas corpus relief. The Court also relied on adverse collateral effects to answer a claim of mootness based on the petitioner's release, but the Court's opinion was careful to observe that the mootness issue arose as to a case that had initially invoked the district court's habeas corpus jurisdiction, stating that "once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner . . . ." 391 U.S. at 238, 88 S.Ct. at 1560. It would thus be unwarranted to conclude that Thistlethwaite, which relies on Carafas, intended to permit habeas corpus jurisdiction to rest solely on the presence of adverse collateral consequences, even if federal jurisdiction had not been properly invoked because a petitioner was not under some form of custody.

In the absence of any indication that Pueschel properly invoked the habeas corpus jurisdiction of this Court, his petition for a writ of habeas corpus must be dismissed.

II.

The Civil Rights Action (Civ. No. 14,798)

Plaintiff's complaint seeks an injunction ordering the Commissioner to reinstate his driver's license "retroactive as of January 6, 1971," a declaration that the suspension of the license was void, and damages of $25,000. These claims pose perplexing questions concerning the availability of a § 1983 suit following a state criminal conviction and, if the suit is proper, the defense of collateral estoppel arising from the criminal case.

Preliminarily, it should be observed that Pueschel has no current controversy with the Commissioner concerning his present right to operate a motor vehicle. The Commissioner has acknowledged in an affidavit of his subordinate that Pueschel has been entitled to have his license reinstated upon his request, without a...

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