Westberry v. Keith, 29919 Summary Calendar.
| Decision Date | 01 February 1971 |
| Docket Number | No. 29919 Summary Calendar.,29919 Summary Calendar. |
| Parties | Jo Ann WESTBERRY, Petitioner-Appellant, v. Major C. W. KEITH, Director, Division of Drivers' Licenses, Department of Highway Safety and Motor Vehicles, State of Florida, Richard Brinker, Clerk, Metropolitan Court, in and for Dade County, Florida, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bruce S. Rogow, Miami, Fla., for petitioner-appellant.
Richard E. Gerstein, State's Atty., Miami, Fla., for respondents-appellees.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied February 1, 1971.
Appellant was convicted of "failure to yield the right away (sic)" in the Metropolitan Court for Dade County, Florida, and sentenced to a $250.00 fine and revocation of her Florida driver's license for one year. After paying the fine and surrendering her driver's license to the Clerk of Court, appellant sought relief by petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida by claiming that she was not informed of her right to be represented by counsel. The petition was dismissed by the district court for want of jurisdiction on the ground that appellant was not in custody pursuant to a judgment of a state court as required by 28 U.S.C. § 2254.1
We agree with appellant's contention that the phrase "in custody" as used in § 2254 has undergone a metamorphosis in recent years to the extent that it is no longer necessary for a person to be under actual physical restraint in order to obtain habeas relief. See Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. In Jones v. Cunningham, supra, the Supreme Court held that a former prisoner on parole was sufficiently confined to come within the meaning of the habeas corpus statute and in Carafas v. LaVallee, supra, the Court found habeas corpus was available even though the petitioner's sentence had fully expired after the initial application for the writ but before appellate review. These cases, however, involved petitioners who applied for the writ while either incarcerated under or paroled from prison sentences. We can find no decision by the Supreme Court nor by this circuit which would allow federal courts to take habeas corpus jurisdiction under § 2254 when the petitioner has applied for the writ after suffering a fine and the revocation of the right to drive on the state's highways. To allow such circumstances to form the basis of a claim that appellant was in custody would go far beyond that degree of confinement found sufficient in Carafas and Jones, supra.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
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Spring v. Caldwell
...have held, however, that the imposition of a fine alone is not within the intendment of federal habeas jurisdiction. Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970). Accord, Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976); Russell v. City of Pierre, South Dakota, 530 F.2d 791 (8th Cir. 1976......
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Hanson v. Circuit Court of First Judicial Circuit of Illinois, 78-1296
...1976); Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976), Cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970); Russell v. City of Pierre, 530 F.2d 791 (8th Cir.), Cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Edmund......
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Lehman v. Lycoming County Children's Services Agency
...is no longer necessary for a person to be under actual physical restraint in order to obtain habeas relief." Westberry v. Keith, 434 F.2d 623, 624 (5th Cir. 1970) (per curiam). The Commonwealth's supervisory control over the children in the case before us is sufficient to meet the custody r......
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Fischer v. Ozaukee County Circuit Court, Case No. 10–C–553.
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