United States District Court, N.D. California
March 15, 2004.
In re CAROL MARDEUSZ, Petitioner
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER OF DISMISSAL
Carol Mardeusz has filed a pro se petition for a writ of habeas
corpus alleging that her "liberty is being restrained by being subjected
to [an unlawful] pre-filing order, $500.00 in attorney fees and $5,000.00
in sanctions issued by Bankruptcy Judge Alan Jaroslovsky." The petition
must be DISMISSED for lack of "in custody" jurisdiction.
The federal writ of habeas corpus is only available to persons "in
custody" at the time the petition is filed. See 28 U.S.C. § 2241(c),
2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This requirement
is jurisdictional. See id.
Although the custody requirement may be satisfied by restraints other
than incarceration, a petitioner must demonstrate that she is subject to
a significant restraint upon her physical liberty "not shared by the
public generally." Jones v. Cunningham, 371 U.S. 236, 239-40 (1963).
Here, the alleged restriction on
petitioner's liberty an unlawful "pre-filing order, $500.00 in attorney
fees and $5,000.00 in sanctions issued by Bankruptcy Judge Alan
Jaroslovsky" is not the sort of significant restriction on her physical
liberty necessary to render her "in custody" for purposes of the federal
habeas statutes. See, e.g., Williamson v. Gregoire, 151 F.3d 1180,
1183-85 (9th Cir. 1998) (sex offender registration statute does not place
petitioner in custody because it does not place "a significant restraint
. . . on physical liberty" by restricting the registrant's freedom to
move about); Dremann v. Francis, 828 F.2d 6, 7 (9th Cir. 1987) (sentence
which only imposes fine not enough to satisfy custody requirement even if
petitioner faces imprisonment for failure to pay); of Dow v. Circuit Court
of the First Circuit, 995 F.2d 922, 923 (9th Cir 1993) (mandatory
attendance at alcohol rehabilitation program satisfies custody
requirement because it requires petitioner's "physical presence at a
particular place"). The court is without subject matter jurisdiction to
entertain the instant petition for a writ of habeas corpus under the
habeas sections of Title 28.
The clerk shall close the file and terminate all pending motions as
moot. SO ORDERED.
© 1992-2004 VersusLaw Inc.