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IN RE MARDEUSZ

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 Page 2 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.

20040315

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