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Harvey v. State of S. D

United States Court of Appeals, Eighth Circuit
Dec 11, 1975
526 F.2d 840 (8th Cir. 1975)

Summary

holding that loss of right to work in certain professions and the right to carry a firearm does not constitute "custody"

Summary of this case from Villegas v. Clinton

Opinion

No. 75-1479.

Submitted November 11, 1975.

Decided December 11, 1975. Rehearing Denied January 7, 1976.

William E. Harvey, filed brief and reply brief for appellant, pro se.

William J. Janklow, Atty. Gen., and Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., filed brief for appellee.

Appeal from the United States District Court for the District of South Dakota.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.


William E. Harvey appeals from dismissal of his petition for a writ of habeas corpus. We affirm for the reason that the federal courts do not have jurisdiction in this case.

Harvey was convicted of grand larceny in the South Dakota courts in 1968 and sentenced to three years' imprisonment. He was unconditionally released no later than March 20, 1971. The conviction was affirmed on direct appeal in State v. Harvey, 84 S.D. 70, 167 N.W.2d 161 (1969). Plaintiff unsuccessfully sought state post-conviction relief beginning in 1969. This federal action was not filed until August, 1974, at least three years after he had completed serving his sentence.

According to Harvey his sentence was completed December 24, 1970. It is not clear whether this was the end of his incarceration or the time when incarceration and parole, if any, terminated. In state post-conviction proceedings Judge Bottum found that Harvey's sentence was "concluded" March 20, 1971.

The writ of habeas corpus is only available to one who is in custody. 28 U.S.C. § 2241(c). This requirement of custody has been equated with significant restraint on liberty, such as parole, Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), or release on the individual's own recognizance, Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Harvey contends that the disabilities which arise from a conviction constitute custody within the meaning of the federal habeas corpus statutes. He points out that he is unable to pursue certain professions under South Dakota law or to possess a firearm, and that he occupies the status of a recidivist if he commits another crime.

In Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) the Court held that because of the "collateral consequences" of a conviction, the case of a habeas corpus petitioner who had been released from custody did not become moot. However, Carafas had filed his habeas corpus petition while he was still incarcerated. The Court was careful to point out that jurisdiction had attached when the petition was filed, while the petitioner was "in custody." Carafas v. LaVallee, id., 391 U.S. at 238, 88 S.Ct. 1556. The collateral consequences of conviction only kept the case from becoming moot; they did not suffice to give the federal courts jurisdiction.

To hold that Harvey is "in custody" because of his conviction would render Congress' words meaningless. The restraints on Harvey's liberty are "neither severe nor immediate." Hensley v. Municipal Court, supra, 411 U.S. at 351, 93 S.Ct. 1571. He is not in custody within the meaning of the statute and the writ of habeas corpus is therefore not available.

Petitioner also contends that his failure to file his petition while he was in custody is due to state delay in processing his attempts to obtain post-conviction relief and therefore it should not be fatal to his cause. It would appear that much of the delay in petitioner's case in state court was attributable to his own inaction. But even if this were not so, we are powerless to grant the federal courts subject matter jurisdiction; only Congress or the Constitution may do so. Kline v. Burke Construction Co., 260 U.S. 226, 233-234, 43 S.Ct. 79, 67 L.Ed. 226 (1922).

Accordingly, the judgment of the district court dismissing the petition for a writ of habeas corpus is affirmed.


Summaries of

Harvey v. State of S. D

United States Court of Appeals, Eighth Circuit
Dec 11, 1975
526 F.2d 840 (8th Cir. 1975)

holding that loss of right to work in certain professions and the right to carry a firearm does not constitute "custody"

Summary of this case from Villegas v. Clinton

concluding that the inability to pursue certain professions, the inability to possess a firearm and the status of a recidivist if he commits another crime do not qualify as severe or immediate restraints on his liberty, and, therefore, he is not in custody for purposes of 28 U.S.C. § 2254

Summary of this case from Young v. Kucera

stating "custody" for habeas purposes "has been equated with significant restraint on liberty, such as parole, or release on the individual's own recognizance."

Summary of this case from Rufus v. Sayler

noting "the writ of habeas corpus is only available to one who is in custody"

Summary of this case from Seidel v. Bureau of Indian Affairs

being barred from certain profession or from possessing or owning firearms, coupled with the status of being a recidivist if another crime was committed, did not equal "custody"

Summary of this case from U.S. ex Rel. Sherman v. People

stating that, in the context of a petition for federal habeas corpus filed by a state prisoner, the custody requirement has been equated with significant restraint on liberty

Summary of this case from Payer v. Turtle Mountain Tribal Council
Case details for

Harvey v. State of S. D

Case Details

Full title:WILLIAM E. HARVEY, APPELLANT, v. STATE OF SOUTH DAKOTA, APPELLEE

Court:United States Court of Appeals, Eighth Circuit

Date published: Dec 11, 1975

Citations

526 F.2d 840 (8th Cir. 1975)

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