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Westberry v. Keith

United States Court of Appeals, Fifth Circuit
Feb 1, 1971
434 F.2d 623 (5th Cir. 1971)

Summary

holding that the revocation of a petitioner's driver's license did not render her "in custody" because to hold otherwise "would go far beyond that degree of confinement found sufficient in Jones"

Summary of this case from Corridore v. Washington

Opinion

No. 29919 Summary Calendar.

Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.

November 11, 1970. Rehearing Denied and Rehearing En Banc Denied February 1, 1971.

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.



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.

28 U.S.C. § 2254 provides that "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." (Emphasis added.)

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.

The denial of the writ by the district court is

Affirmed.


ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC


The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.


Summaries of

Westberry v. Keith

United States Court of Appeals, Fifth Circuit
Feb 1, 1971
434 F.2d 623 (5th Cir. 1971)

holding that the revocation of a petitioner's driver's license did not render her "in custody" because to hold otherwise "would go far beyond that degree of confinement found sufficient in Jones"

Summary of this case from Corridore v. Washington

holding that the imposition of a fine and the revocation of a driver's license for a year did not render the defendant "in custody" under § 2254

Summary of this case from Clements v. State

In Keith, defendant was convicted of failure to yield the right of way, and sentenced to a $250 fine and revocation of her driver's license.

Summary of this case from Spring v. Caldwell

noting that a person is not "in custody" for purposes of habeas review of a fine and the revocation of a driver's license

Summary of this case from Villegas v. Clinton
Case details for

Westberry v. Keith

Case Details

Full title:Jo Ann WESTBERRY, Petitioner-Appellant, v. Major C.W. KEITH, Director…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 1, 1971

Citations

434 F.2d 623 (5th Cir. 1971)

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