Walker v. State of North Carolina

• Decision Date: 03 August 1966
• Docket Number: Civ. No. 2524.
• Citation: 262 F. Supp. 102
• Parties: James R. WALKER, Petitioner, v. STATE OF NORTH CAROLINA and City of Charlotte, Respondents.
• Court: U.S. District Court — Western District of North Carolina

262 F. Supp. 102

James R. WALKER, Petitioner, v. STATE OF NORTH CAROLINA and City of Charlotte, Respondents.

Civ. No. 2524.

United States District Court W. D. North Carolina, Asheville Division.

August 3, 1966.

James R. Walker, pro se.

Paul L. Whitfield and Henry W. Underhill, Jr., Charlotte, N. C., for respondent, City of Charlotte.

Ralph White, Jr., Staff Atty., Raleigh, N. C., for respondent, State of N. C.

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

CRAVEN, Circuit Judge.^*

James R. Walker petitions this court for a writ of habeas corpus asserting that he is unconstitutionally restrained of his liberty by reason of a suspended sentence imposed by the Mecklenburg County Superior Court on February 17, 1965.

The facts as developed at a plenary hearing are as follows:

The Superintendent of Building Inspection of the City of Charlotte charged, by affidavit, that on June 23, 1964, petitioner unlawfully violated Section 5-4(c) of the City Code by remodeling and repairing his residence located at 1447 South Church Street without first applying for and obtaining a written permit from the Building Inspection Department of the city in violation of N.C.G.S. Section 14-4. Petitioner was arrested and brought into Recorder's Court under a warrant based upon the Superintendent's affidavit.

At the trial, petitioner interposed as a defense the same constitutional objections which he now asserts in this habeas corpus petition: (1) that Section 5-4(c) is unconstitutional in that it violates the petitioner's "inalienable and vested right of use, possession, and maintenance" of his residence; (2) that the conduct described in the Code and in the warrant of arrest is privileged conduct protected by the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution; (3) that any verdict rendered would be an unconstitutional abridgement of petitioner's rights as a property owner including his right of renovation and repair of his residence. The state introduced testimony as to the dilapidated condition of the petitioner's building, i. e., that it was unfit for human habitation, and that it was beyond reasonable repair, and that it could not be altered or improved so as to meet the minimum housing standards of the City Housing Code.¹ A verdict of guilty was entered against the petitioner, and, upon the posting of $200.00 bond, an appeal to the Mecklenburg County Superior Court was noted.

In the superior court, petitioner's motion to quash was denied, and the state repeated its evidence. The jury returned a verdict of guilty against petitioner, and a thirty-day jail sentence was imposed, suspended on the condition that petitioner comply with the City Building and Housing Codes and pay the costs of court.² Petitioner excepted and appealed to the Supreme Court of North Carolina, wherein he again challenged the constitutionality of Section 5-4(c) of the Charlotte Building Code and N.C.G.S. Section 14-4, which makes violation of the Code a misdemeanor. The North Carolina Supreme Court, upholding petitioner's conviction, stated: "The Charlotte ordinance and the Legislative enactments involved in this case are not shown to be violative either of the Constitution of North Carolina or of the United States." State v. Walker, 265 N.C. 482, 144 S.E.2d 419 at 421 (1965).

In his petition for writ of habeas corpus filed in this court on May 10, 1966, petitioner asserted that he was "unconstitutionally detained and in custody * * * by virtue of a JUDGMENT and Jail Sentence pronounced upon him by the Superior Court of Mecklenburg County, North Carolina, on the 17th day of February, 1965, upon the conviction of the crime of VIOLATING CITY BUILDING CODE, Section 5-4(c) and NORTH CAROLINA GENERAL STATUTES, 14-4 * * *."

MOTION TO DISMISS

The state seeks to dismiss this petition on two grounds: (1) the petitioner has not applied to the state court for relief under North Carolina's Post-Conviction Hearing Act, N.C.G.S. Section 15-217 to 15-222, and, therefore, has not exhausted his state remedies as required by 28 U.S. C.A. Section 2254; and (2) the petitioner, by reason of the suspended sentence, is not in custody within the meaning of 28 U.S.C.A. Section 2241.

The petitioner maintains that he is detained pursuant to an unconstitutional judgment based upon unconstitutional statutes. He raised this issue at his trial, and again on direct appeal, and the Supreme Court of North Carolina has passed upon his constitutional objections. Under these circumstances, it is not necessary for him to raise them again in state collateral proceedings, i. e., via the Post-Conviction Hearing Act. Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964); Thomas v. Cunningham, 313 F.2d 934 (4th Cir. 1964). The state's first ground for dismissal is not well taken.

Its second ground for dismissal (the custody requirement) raises a more serious question. Federal habeas corpus is available to "a person in custody my italics pursuant to the judgment of a State court * * *." Title 28 U.S.C.A. Section 2254. Is this petitioner, by reason of a thirty-day suspended sentence, in custody within the meaning of the statute?

At the time of his petition, petitioner was not (and is not now) physically incarcerated or confined. No order of commitment has been issued against him, and no active sentence has been invoked. If the petitioner fails here, it is probable that the active sentence will be invoked. But, is the expectation of future imprisonment sufficient to bring petitioner within the "in custody" requirement?

It is clear that to invoke the Writ one need not be physically detained in a jail or prison. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); see also Ex parte Fabiani, 105 F.Supp. 139 (E.D.Pa.1952). It is only necessary to show that there are impediments which "significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do." Jones v. Cunningham, 371 U.S. at 243, 83 S.Ct. at 377. In further explaining the meaning of "custody", the Supreme Court has said: "History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, my italics which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Id. at 240, 83 S.Ct. at 376.

In my opinion, petitioner suffers from a restraint "not shared by the public generally" and, therefore, is "in custody" within the meaning of 28 U.S.C.A. Section 2241. Jones v. Cunningham, supra; see also: Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Martin v. Commonwealth of Virginia, 349 F.2d 781 (4th Cir. 1965).

The motion to dismiss for the reasons hereinabove stated is denied.

MERITS

Petitioner's constitutional objections are without merit. As the Supreme Court of North Carolina has already stated concerning this...