Unpublished Disposition, 872 F.2d 427 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1988)

Frank Austin ENGLAND, III Plaintiff-Appellant,v.Dorcus HARDY, Commissioner of of Social Security, Defendant-Appellee.

No. 88-2479.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 5, 1989.Decided April 10, 1989.

Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

In July 1984, Frank Austin England, III ("England" or "appellant") began correspondence with the Social Security Administration ("SSA"), indicating his belief in a lawful right to withdraw from the Social Security program. He was informed by the SSA that the law does not permit individuals to voluntarily withdraw from the program. Nonetheless, England renewed his insistence on a right to withdraw from the program. England was again denied his request.

On February 8, 1988, England filed an application for writ of habeas corpus claiming that he was being denied his liberty to withdraw from the Social Security program. On March 28, 1988, the district court dismissed the petition for lack of subject matter jurisdiction. England timely appeals.

ANALYSIS

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

Appellant argues that he is within the meaning of being either a "prisoner" or in "custody" in that he is being forced to contribute to the Social Security program by way of imposed taxes. Thus, he seeks relief by way of a writ of habeas corpus from the imposition of involuntary support of the federal Social Security system pursuant to 28 U.S.C. § 2241 et seq.

Section 2241(c) states that:

The writ of habeas corpus shall not extend to a prisoner unless--

(1) He is in custody under or by color of the authority of the United States ...

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress ...

(3) He is in custody in violation of the Constitution of laws ...

(4) He, being a citizen of a foreign state and domiciled therein, is in custody ...

(5) It is necessary to bring him into court to testify or for trial ...

Section 2241(c) has been interpreted as extending the jurisdiction of the court to issue a writ of habeas corpus only to a prisoner who is in custody. Peyton v. Rowe, 391 U.S. 54, 58-59 (1968).

England contends that he is within the meaning of being either a prisoner or in custody relying in part on definitions of "prisoner" and "custody" provided in Black's Law Dictionary, 2d ed. (1910).

England purports to find support in Jones v. Commissioner, 371 U.S. 236 (1963), where the Court said that "besides physical imprisonment, there are other restraints on a man's liberty, restraints that shared by the public generally, which have been though sufficient in the English-speaking world to support the issuance of habeas corpus." Id. at 240. Presumably, England perceives his mandatory contributions to the Social Security system to be a restraint on his liberty to be free of tax obligations, a restraint sufficient to support the issuance of habeas corpus.

Yet, a careful reading of Jones clearly distinguishes it from the instant case. In Jones, the Court noted that the petitioner had not been unconditionally released from jail. Further, the Court noted that in some of the cases upon which the court of appeals relied, "the petitioner had been completely and unconditionally released from custody; such cases are obviously not controlling here...." Jones, 371 U.S. at 241 (footnote omitted). Thus, even Jones requires physical custody before appellant may have a cause of action. Id.

The facts in the present case do not show that England was ever in custody or a prisoner in the sense espoused by Jones. See generally Jones, 371 U.S. at 236. Because England is neither a prisoner nor in custody, the district court lacked subject matter jurisdiction. Therefore, the action was properly dismissed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3