Opinion
Civil No. 01-71923-DT
June 6, 2001
OPINION AND ORDER OF SUMMARY DISMISSAL
Donald P. Kohn, Jr., ("petitioner"), has brought a petition for writ of habeas corpus under 28 U.S.C. § 2254, claiming that he is being illegally and unlawfully restrained in violation of the United States Constitution. For the reasons stated below, the petition for writ of habeas corpus is summarily dismissed.
I. BACKGROUND
Petitioner is not currently incarcerated in any state or federal prison. In his application for a writ of habeas corpus, petitioner claims that the petition arises from "an electronic tether equavalent (sic) with no conviction." Petitioner also claims that his application arises due to "third party domicile control and Michigan State Police and Federal Bureau of Investigation refusal to enter third party information into court."
Petitioner has brought four claims for relief. In his first claim, petitioner alleges that he was denied the effective assistance of counsel in divorce proceedings. In his second and third claims, petitioner claims that he is being imprisoned without having been convicted of any crime. In support of the second claim, petitioner alleges that there is "complete domicile control, apparent mapping, or view from helicopter, airplane, or satellite, that shows residence and residence of others in a typical pattern, centered around a baseball field, 1st baseline, in the shape of (N) near dead end streets apparent entrapment or imprisonment. Also a "V" pattern or a arch pattern". In support of his third claim, petitioner alleges that he is being imprisoned in the form of "dates of girlfriends with specific birthdates, or conception, dates and names, controlling domicile". In his fourth claim, petitioner claims that he is being imprisoned in the form of continual police ticketing on his [Ford] Escort, which has lead to traffic tickets, court appearances, license suspensions, and fines.
II. DISCUSSION
The petition for writ of habeas corpus must be dismissed because petitioner has failed to allege any facts showing that he is being detained in violation of the United States Constitution. In order for a claim in a habeas petition to be sufficient, it must describe a substantial infringement of a constitutional right and include a factual statement which, if true, would entitle the petitioner to relief. Gardner v. Norris, 949 F. Supp. 1359, 1368 (E.D. Ark. 1996). A habeas petition must state facts that point to a real possibility of constitutional error. Blackledge v. Allison, 431 U.S. 63, 75, fn. 1 (1977); Alcorn v. Sparkman, 39 F.3d 1181, 1994 WL 592935, *2 (6th Cir. October 27, 1994). A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it may summarily be dismissed. Marmol v. Dubois, 855 F. Supp. 444, 446 (D. Mass. 1994). Federal courts are also authorized to dismiss any habeas petition that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994), citing to Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. Rule 4 dismissals are not limited to petitions that raise legally frivolous claims, but also extend to petitions which contain factual allegations that are "palpably incredible" or false. Carson v. Burke, 178 F.3d 434, 436-437 (6th Cir. 1999). Finally, clearly baseless factual contentions in a habeas petition also include those allegations which are fanciful or delusional. See Moore v. Hawley, 7 F. Supp.2d 901, 905 (E.D. Mich. 1998) (Duggan, J.).
Petitioner's first claim involving the alleged ineffective assistance of counsel in his divorce case does not state a claim upon which habeas relief can be granted. The Sixth Amendment, which provides that an accused shall have the assistance of counsel in criminal cases, does not apply to civil cases. Hullom v. Burrows, 266 F.2d 547, 548 (6th Cir. 1959). Because there is no constitutional or statutory right to the effective assistance of counsel in a civil case, litigants in a civil proceeding may not attack an adverse judgment on the grounds of ineffective assistance of trial counsel and should instead pursue malpractice claims against their attorneys. Williams v. Kaiser, 2001 WL 493386, *2 (6th Cir. May 1, 2001). Because petitioner does not have a constitutional right to counsel in divorce proceedings, he cannot obtain habeas relief on his claim that his divorce attorney was ineffective. See Dews v. Dews, 632 A.2d 1160, 1162, fn. 1 (D.C. 1993); See also Sunbye v. Ogunleye, 3 F. Supp.2d 254, 262, fn. 14 (E.D.N.Y. 1998) (family court proceedings are civil in nature, not criminal; therefore, Sixth Amendment right to counsel does not attach to such proceedings).
Petitioner's second and third claims must also be dismissed, because petitioner has failed to allege any facts in support of these claims that he is being imprisoned without a conviction. At best, petitioner's claims appear delusional, fanciful, or frivolous, and are therefore subject to summary dismissal.
Petitioner's fourth claim involving the traffic tickets that he is continuing to receive is also subject to dismissal. The "in custody" language of the habeas corpus statute requires that a habeas petitioner be "in custody" under the conviction of sentence under attack at the time that the habeas petition is filed. Maleng v. Cook, 490 U.S. 488, 490-491 (1989). The "in custody" requirement is designed to preserve the writ of habeas corpus for "severe restraints" on an individual's liberty. Hensley v. Municipal Court, San Jose Milpitas Judicial Dist., Santa Clara County, California, 411 U.S. 345, 351 (1973).
Numerous courts have held that the imposition of traffic tickets or fines or even the suspension of driving privileges is not a severe enough restraint on a petitioner's liberty to satisfy the "in custody" requirement of the habeas corpus statute. See Lillios v. State of N.H., 788 F.2d 60, 61 (1st Cir. 1986) (fines and driver's license suspensions imposed upon petitioner were not the sort of severe restraint on individual liberty for which habeas relief was reserved, and thus did not satisfy the "in custody" requirement of the habeas corpus statute); Harts v. State of Ind., 732 F.2d 95, 96-97 (7th Cir. 1984) (one year suspension of petitioner's driving privileges for refusing to submit to a breathalyzer test does not satisfy "in custody" requirement); Westberry v. Keith, 434 F.2d 623, 624-625 (5th Cir. 1970) (petitioner who had been fined and whose state driver's license had been revoked upon conviction for traffic violation was not "in custody" as required by § 2254).
III. ORDER
Based upon the foregoing, the Court SUMMARILY DISMISSES the petition for writ of habeas corpus pursuant to Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.