Unpublished Dispositionlenvill Spencer, Petitioner-appellant, v. Bluegrass Insurance Company and Ohio Casualty Insurance Co.,respondent-appellees, 758 F.2d 654 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 654 (6th Cir. 1985) 2/20/85


BEFORE: KEITH and JONES, Circuit Judges; and NEWBLATT, District Judge.* 

Petitioner appeals the district court's March 20, 1984, order dismissing his habeas corpus petition brought under 28 U.S.C. § 2254. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of petitioner's briefs and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The district court dismissed the petition on the grounds that petitioner's claims against the respondent insurance companies were not cognizable in a habeas corpus proceeding and petitioner had failed to exhaust his state remedies under Rule 11.42, Kentucky Rules of Criminal Procedure. Our review of the record reveals that petitioner was finally released from parole on August 29, 1983, and therefore was no longer in custody when the petition was filed on November 15, 1983. Relief under Rule 11.42, Kentucky Rules of Criminal Procedure, is not available when the sentence under attack has been fully served. Wilson v. Commonwealth, 403 S.W.2d 710 (Ky. 1966). Section 2254 relief also is not available unless the petitioner is in actual physical custody or subject to restraints not shared by the public generally. Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984). Whether the petitioner is 'in custody' is determined at the time the complaint is filed. Sevier v. Turner, supra. Petitioner was not in physical custody when he filed the petition and has not alleged any continuing collateral disabilities resulting from his conviction. Therefore, habeas corpus relief is not available.

Accordingly, it is ORDERED that the district court's judgment is affirmed. Sixth Circuit Rule 9(d) (3).


The Honorable Judge Stewart A. Newblatt, U.S. District Judge for the Eastern District of Michigan, sitting by designation