Earl D. Harts, Petitioner-appellant, v. State of Indiana, Respondent-appellee, 732 F.2d 95 (7th Cir. 1984)

Earl D. Harts appeals from the district court's denial of a writ of habeas corpus. Harts was convicted by an Indiana state court of refusing to submit to a breathalyzer test in violation of IND.CODE Sec. 9-4-4.5-3 (1980) (repealed). The sentence for this refusal was a one year suspension of his driving privileges. The conviction and sentence were affirmed in all respects by the Court of Appeals of Indiana. Harts v. State, 441 N.E.2d 714 (Ind.App.1982).

The district court denied the petition for a writ of habeas corpus on the ground that Harts was not in custody within the meaning of 28 U.S.C. § 2254(a). Habeas corpus lies only if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." Id. See also United States ex rel. Grundset v. Franzen, 675 F.2d 870, 872 (7th Cir. 1982). Harts raises ten issues for review by this court but we find it necessary to address only the issue of whether a one year suspension of driving privileges amounts to custody within 28 U.S.C. § 2254.

It is well settled that the custody requirement may be met even if the petitioner is not actually imprisoned. See Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); Grundset, supra, 675 F.2d at 872; Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982); Burris v. Ryan, 397 F.2d 553, 555 (7th Cir. 1968). Whether someone who is not under physical constraint can be considered in custody depends on the amount of restriction placed on his or her individual liberty. See Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S. Ct. 1571, 1573, 36 L. Ed. 2d 294 (1973). Thus, we have held that a prisoner, free on bail pending final disposition of his case, satisfied the "in custody" requirement. Grundset, supra. See also Hensley v. Municipal Court, supra, 411 U.S. at 351, 93 S. Ct. at 1574. Similarly, we have held that probation and parole may be "custody" for habeas corpus purposes. See Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir. 1977) (probation); United States ex rel. Baker v. Finkbeiner, 551 F.2d 180, 182 n. 3 (7th Cir. 1977) (parole). See also Jones v. Cunningham, supra.¹ 

In Jones v. Cunningham, Justice Black wrote that conditions which "significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do ... are enough to invoke [habeas corpus]." Id., 371 U.S. at 243, 83 S. Ct. at 377. Not every restraint on liberty, however, is significant enough to meet this test. We agree with the district court that the suspension of driving privileges in this case is not a severe enough restraint on liberty to be properly characterized as "custody." See also Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir. 1970) ($250 fine and one year driver's license revocation not custody within 28 U.S.C. § 2254); Whorley v. Brilhart, 359 F. Supp. 539, 541-42 (E.D. Va. 1973) (ten year license revocation not custody). We recognize that, in our society, loss of driving privileges may entail hardship. However, suspension of driving privileges is not the sort of "severe restraint [ ] on individual liberty" for which habeas corpus relief is reserved. Hensley, 411 U.S. at 353, 93 S. Ct. at 1575.

Because Harts is not "in custody" within the meaning of 28 U.S.C. § 2254 he is not entitled to invoke the federal habeas corpus jurisdiction. Therefore, the decision of the district court is affirmed.