Tinder v. Paula

• Decision Date: 23 February 1984
• Docket Number: No. 83-1507,83-1507
• Citation: 725 F.2d 801
• Parties: Robert L. TINDER, Petitioner, Appellant, v. Sister Rose PAULA, SND, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 801

725 F.2d 801

Robert L. TINDER, Petitioner, Appellant, v. Sister Rose PAULA, SND, et al., Respondents, Appellees.

No. 83-1507.

United States Court of Appeals First Circuit.

Argued Nov. 8, 1983.

Decided Jan. 16, 1984.

As Amended on Denial of Rehearing Feb. 23, 1984.

Robert W. Hagopian, Cambridge, Mass., with whom John Stopa, Cambridge, Mass., was on brief, for petitioner, appellant.

Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Frederick W. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., were on brief, for respondents, appellees.

Before CAMPBELL, Chief Judge, SWYGERT, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

SWYGERT, Senior Circuit Judge.

Petitioner-appellant Robert Tinder appeals from the dismissal on the merits of his habeas corpus petition by the United States District Court for the District of Massachusetts. We find that there is no federal jurisdiction over Tinder's claim because Tinder was not "in custody" as required by the habeas statute at the time he filed the present petition.

On June 7, 1977, Tinder, then a fourteen-year-old juvenile, was charged in the Municipal Court of West Roxbury, Massachusetts, with being a "delinquent child" by reason of having committed arson, Mass.Gen.Law ch. 266, Secs. 1 & 2. Tinder was tried with codefendant William Santana, also a juvenile, in a nonjury trial. Four of the five witnesses testifying for the Commonwealth, while indicating a motive for the offense for Tinder's codefendant, Santana, and placing Santana at the scene of the crime, did not in any way implicate Tinder in the offense. The fifth witness, who was the arresting officer and the prosecutor in the case, testified that "both boys admitted ... that they were a part of the incident ...." The officer also stated, "[Santana] told me, without questioning him, Billy [sic] Tinder was involved with him." Tinder objected and continues to object to the admission of both of these statements. The United States magistrate who considered Tinder's present habeas petition determined, however, that Santana's hearsay statement was not considered against Tinder by the trial court.

Santana testified on his own behalf. He denied having confessed to the arresting officer that he and Tinder had set the fire. He stated that he and Tinder were together on the day of the fire but that they were not involved in the incident.

On the basis of this evidence, the court adjudged Tinder and Santana delinquent and sentenced them to three-year suspended terms with the Massachusetts Department of Youth Services and ordered them each to pay restitution in the amount of $2,250.00. Tinder's probation expired on June 3, 1980. Tinder has never paid the restitution.

Tinder initially appealed for a trial de novo before the second tier of Massachusetts's two-tier criminal justice system, but later withdrew his appeal. Instead, Tinder filed a petition for a writ of certiorari in the United States Supreme Court, maintaining that the judgment of the Municipal Court was, in his case, a judgment from the highest state court. The Court denied certiorari. Tinder v. Massachusetts, 434 U.S. 1039, 98 S.Ct. 779, 54 L.Ed.2d 789 (1978).

Tinder then filed a petition for a writ of habeas corpus in the federal district court which was dismissed on the grounds that Tinder had not exhausted his state court remedies. Tinder v. Sister Rose Paula, 468 F.Supp. 792 (D.Mass.1979). This court affirmed, Memorandum and Order, Misc. No. 79-8054 (July 5, 1979), and the Supreme Court denied certiorari, Tinder v. Sister Rose Paula, 445 U.S. 918, 100 S.Ct. 1281, 63 L.Ed.2d 603 (1980).

Tinder then brought a civil action in the Massachusetts Supreme Judicial Court seeking review pursuant to the court's powers of general superintendence, Mass.Gen.Law ch. 211, Sec. 3. The petition was dismissed.

The instant petition for a writ of habeas corpus was then filed on September 15, 1980. Tinder alleges that the evidence was insufficient to support the Municipal Court's finding of delinquency, that the admission of certain evidence violated his constitutional rights, and that his double jeopardy rights were violated by Massachusetts's two-tier trial system. The case was referred to a magistrate who initially found that Tinder had failed to exhaust state remedies. The district court rejected this finding and remanded the case to the magistrate for consideration on the merits. On remand, the magistrate found that Tinder's remedy for the introduction of inadmissible evidence was to exercise his right to a trial de novo and that this system did not violate his right against double jeopardy. The magistrate concluded that the evidence was sufficient to support the court's delinquency adjudication. The district court adopted these findings and dismissed the petition.

I

The federal habeas corpus statute provides that habeas corpus shall apply "in behalf of a person in custody pursuant to the judgment of a State court." 28 U.S.C. Sec. 2254(a) (1976). Custody is determined from the date that a habeas petition is first filed. Carafas v. LaVallee, 391 U.S. 234, 238-40, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968); Marchand v. Director, United States Probation Office, 421 F.2d 331, 332 n. 1 (1st Cir.1970). The custody provision does not require incarceration or other actual, physical restraint of a person. See Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (parolee is in custody); Helm v. Jago, 588 F.2d 1180, 1181 (6th Cir.1979) (probationer is in custody); United States v. Hopkins, 517 F.2d 420, 423-24 (3d Cir.1975) (person serving suspended sentence is in custody). The provision does require, however, that the person be subject to "restraints not shared by the public generally," Jones v. Cunningham, supra, 371 U.S. at 240, 83 S.Ct. at 376, at the least there must be some type of continuing governmental supervision over the person, see Spring v. Caldwell, 692 F.2d 994, 997-98 (5th Cir.1982). Probationers and parolees have been found to be under governmental supervision because parolees are generally released to the custody of the parole authorities and probationers are generally placed in the custody of probation officers. After the expiration of a term of imprisonment, parole, or probation, however, the state no longer has special supervisory authority over the person. Thus, 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. See Siano v. Justices of Massachusetts, 698 F.2d 52, 55 (1st Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 80, 78 L.Ed.2d 91 (Oct. 3, 1983); Harrison v. State, 597 F.2d 115, 118 (7th Cir.1979); Harvey v. State, 526 F.2d 840, 841 (8th Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2236, 48 L.Ed.2d 837 (1976); Carter v. Hardy, 526 F.2d 314, 315 (5th Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976).

In addition, the custody requirement serves to "preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. 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 v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973); accord Bailey v. United States Commanding Officer, 496 F.2d 324, 325 (1st Cir.1974). Probation and parole are frequently conditioned upon terms that seriously restrain the individual's liberty. See Jones v. Cunningham, supra, 371 U.S. at 237, 83 S.Ct. at 374. Moreover, the possibility that probation or parole will be revoked and the individual will be incarcerated for the remainder of the sentence is ever imminent. See id. at 242, 83 S.Ct. at 376.

Penalties that do not impose such a restraint or the imminent threat of such a restraint do not meet the custody requirement of the habeas statute. Thus, for example, habeas is not available as a remedy for fine-only convictions although the defendant remains subject to the supervision of the court and failure to pay the fine could result in incarceration. See Spring v. Caldwell, supra, 692 F.2d at 996-97; Duvallon v. Florida, 691 F.2d 483, 484-85 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1533, 75 L.Ed.2d 953 (1983); Hanson v. Circuit Court of the First Judicial Circuit, 591 F.2d 404, 407 (7th Cir.), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); Wright v. Bailey, 544 F.2d 737, 739 (4th Cir.1976), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Russell v. City of Pierre, 530 F.2d 791, 792 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). The fine itself is not a serious restraint and the possibility that the court will resort to imprisonment to enforce the fine is considered too remote and speculative to warrant the invocation of federal habeas jurisdiction. See Hanson v. Circuit Court of the First Judicial Circuit, supra, 591 F.2d at 407 n. 6; Edmunds v. Won Bae Chang, supra, 509 F.2d at 41. In addition, persons subject to fines maintain greater "control" over the threat of imprisonment than do probationers or parolees, see Hensley v. Municipal Court, supra, 411 U.S. at 351-52, 93 S.Ct. at 1574-75, they generally can avoid the possibility of incarceration simply by paying the fine, see Spring v. Caldwell, supra, 692 F.2d at 998.

II

Tinder's probationary period expired approximately three and one-half months before his petition for a writ of habeas corpus was filed. Tinder claims that...