Wright v. Bailey, Civ. A. No. 74-C-2-C

• Decision Date: 15 August 1974
• Docket Number: Civ. A. No. 74-C-2-C,74-C-3-C.
• Court: U.S. District Court — Western District of Virginia
• Parties: Steven Wise WRIGHT, Petitioner, v. George BAILEY, and Raymond L. Bell, Respondents. Clarence Edward WRIGHT, Jr., Petitioner, v. George BAILEY, and Raymond L. Bell, Respondents.

381 F. Supp. 924

Steven Wise WRIGHT, Petitioner, v. George BAILEY, and Raymond L. Bell, Respondents.

Clarence Edward WRIGHT, Jr., Petitioner, v. George BAILEY, and Raymond L. Bell, Respondents.

Civ. A. Nos. 74-C-2-C, 74-C-3-C.

United States District Court, W. D. Virginia, Charlottesville Division.

August 15, 1974.

S. W. Tucker, Hill, Tucker & Marsh, Richmond, Va., for petitioners.

Charles R. Haugh, Haugh & Helvin, Charlottesville, Va., for respondent.

OPINION AND JUDGMENT

DALTON, District Judge.

Petitioner Steven Wright was convicted in the Circuit Court of the County of Albermarle, Virginia, of disorderly conduct and resisting arrest. His brother, petitioner Clarence Wright, was contemporaneously convicted of assault and battery and resisting arrest. Herein, they petition this court for federal habeas corpus relief pursuant to 28 U.S.C § 2254, alleging that their convictions are constitutionally invalid. Since their convictions arise out of the same incident and involve the same defendants, the petitions have been consolidated for disposition.

Petitioner Steven Wright contends that his convictions should be vacated because: 1) Virginia's disorderly conduct statute (§ 18.1-253.2) is facially invalid and was unconstitutionally applied to him in violation of the First and Fourteenth Amendments; 2) the evidence was insufficient to sustain a conviction for disorderly conduct; 3) the conviction for disorderly conduct violates the due process clause of the Fourteenth Amendment because there was no evidence to support petitioner's guilt; and 4) the altercation which resulted in petitioner's arrest and conviction for resisting arrest was the means by which petitioner was denied rights of speech protected by the First and Fourteenth Amendments.

The court does not reach the merits of petitioner's first three contentions because of a jurisdiction obstacle which prevents consideration. This court's habeas corpus jurisdiction is limited to consideration of applications for writs of habeas corpus filed "in behalf of persons in custody pursuant to the judgment of a State court . . ." 28 U.S.C. § 2254(a) (emphasis supplied). Petitioner was ordered to pay a fine of $50 and costs and, therefore, was not "in custody" pursuant to the conviction for disorderly conduct. Consequently, the court does not have the statutory authority to rule on his contentions.¹

Pursuant to his conviction for resisting arrest, Steven Wright was sentenced to thirty days imprisonment, the execution thereof being suspended for a period of twelve months, and therefore is "in custody" within the meaning of § 2254(a). Walker v. Dillard, No. 73-1108 (4th Cir., June 20, 1973) (mem. dec.). Upon consideration of the merits of his contention regarding his resisting arrest conviction, however, the court finds no violation of petitioner's right of free speech since he was not engaging in protected activity at the time of arrest. The arresting officer testified at trial that when he placed petitioner under arrest for disorderly conduct he caught him by the arm and started to his police car when petitioner jerked free. "As he jerked free," the officer related, "I tried to catch his arm again and this is when he drew back . . . I struck him with a billie—the thing I had at the time." Certainly, petitioner's action in twice jerking his arm free of the grasp of a police officer attempting to effect an arrest does not constitute speech or symbolic speech and, therefore, the arrest did not infringe his First and Fourteenth Amendment rights.²

Petitioner Clarence Wright contests the validity of his convictions asserting that they are invalid because: 1) the altercation in which he sought to aid his brother and for his participation in which he was arrested and convicted of assault and battery and resisting arrest, was the means by which he was denied rights of speech protected by the First and Fourteenth Amendments; 2) his convictions depend upon the conviction of his brother for alleged violation of Virginia's disorderly conduct statute which on its face and as...