. Relying on Hanson v. Circuit Court of First Judicial Circuit, 591 F.2d 404, 406 (7th Cir. 1979), certiorari denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143, the district court decided that the conditions of Payne's parole were not restrictive enough to amount to custody and denied Payne's motion on the basis of lack of jurisdiction. The court also determined that Payne's substantive allegations were "insufficient grounds to warrant relief" (App. 4).
The Corporation also seeks expungement of the record of its conviction, return of the fine and costs paid upon conviction, and an injunction restraining appellee from taking any action based on the record of that conviction. In Hanson v. Circuit Court of the First Judicial Circuit of Illinois, 591 F.2d 404 (7th Cir.), cert. denied, ___ U.S. ___, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979), we answered in the negative the question whether Congress vested federal courts with jurisdiction to entertain a civil rights suit under section 1983 collaterally attacking a state court criminal conviction of an individual not held in custody and therefore ineligible for habeas corpus relief. Habeas corpus, we said, is "the exclusive federal remedy for all who seek to attack state court judgments of convictions." Id. at 410 (emphasis added).
More specifically, the issue is whether the Plaintiff (who has been convicted in state court but, by virtue of being released from custody, is no longer able to maintain a habeas action) can use § 1983 to collaterally attack his conviction. The Court of Appeals for the Seventh Circuit has addressed this issue directly, albeit nearly three decades ago, in Hanson v. Circuit Court of the First Judicial Circuit of Illinois, 591 F.2d 404 (7th Cir. 1979) (Hanson). In Hanson, the court held that § 1983 could not be used to challenge state-court judgment of conviction: "Congress intended that habeas corpus provide not only the exclusive federal remedy for those in custody, but also the exclusive federal remedy for all who seek to attack state court judgments of convictions.
In accordance with these principles, courts have held that orders of restitution, fines and the revocation of medical and driver's licenses do not satisfy the "in custody" requirement. See, e.g., Smullen v. United States, 94 F.3d 20, 25 (1st Cir. 1996); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (per curiam); Harts, 732 F.2d at 96-97; Hanson v. Circuit Court, 591 F.2d 404, 407 (7th Cir. 1979). In contrast, a sentence of 500 hours of community service has been held to restrict sufficiently an individual's physical liberty of movement to satisfy the requirement.
The district court rested its decision on two Seventh Circuit cases which held that section 1983 does not create a cause of action in federal courts for plaintiffs who attack the validity of their state court criminal convictions. See Waste Management of Wisconsin, Inc. v. Fokakis, 614 F.2d 138 (7th Cir. 1980); and Hanson v. Circuit Court of First Judicial Circuit, 591 F.2d 404 (7th Cir. 1979). Hanson involved a claim filed by a prisoner who was convicted and fined in Illinois and later convicted and imprisoned in California on another unrelated charge.
Thus, for example, habeas is not available as a remedy for fine-only convictions although the defendant remains subject to the supervision of the court and failure to pay the fine could result in incarceration. See Spring v. Caldwell, supra, 692 F.2d at 996-97; Duvallon v. Florida, 691 F.2d 483, 484-85 (11th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1533, 75 L.Ed.2d 953 (1983); Hanson v. Circuit Court of the First Judicial Circuit, 591 F.2d 404, 407 (7th Cir.), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); Wright v. Bailey, 544 F.2d 737, 739 (4th Cir. 1976), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Russell v. City of Pierre, 530 F.2d 791, 792 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). The fine itself is not a serious restraint and the possibility that the court will resort to imprisonment to enforce the fine is considered too remote and speculative to warrant the invocation of federal habeas jurisdiction.
Several cases have considered whether a federal district court in one state has jurisdiction to hear a habeas petition challenging a prior state conviction in that state, the sentence for which was fully served, when the petitioner is imprisoned in another state which used the prior conviction to enhance the sentence imposed. In Hanson v. Circuit Court, 591 F.2d 404 (7th Cir. 1979), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143, we considered exactly this issue. The petitioner was convicted in Illinois of a state weapons offense and was fined $150, which he paid. Subsequently, he was convicted in California of a different state offense.
The district court below, in dismissing Siano's action against the Justices, relied on the view expressed in earlier Fifth and Seventh Circuit opinions — "a view which I believe the First Circuit Court of Appeals would adopt if squarely presented the issue — that an action pursuant to 42 U.S.C. § 1983 cannot be used to attack the validity of a state court conviction. Hanson v. Circuit Court of First Judicial Circuit, 591 F.2d 404, 410-11 (7th Cir.) cert. denied, 444 U.S. 907[, 100 S.Ct. 220, 62 L.Ed.2d 143] (1979); Cavett v. Ellis, 578 F.2d 567, 568-69 (5th Cir. 1978)." While Siano's case squarely poses the issue, and the Fifth Circuit's rule is likely to be recognized as the law, we do not presently rest our decision on this point.
434 F.2d at 624-25 (emphasis added). All the circuit courts that have addressed the issue of federal habeas jurisdiction in fine-only cases have reached an identical result: Hanson v. Circuit Court of First Judicial Circuit of Illinois, 591 F.2d 404 (7th Cir.), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Russell v. City of Pierre, S.D., 530 F.2d 791 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Edmunds v. Won Bae Chang, 509 F.2d 39 (9th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). The court below distinguished the fine-only rule from the present case by stressing that Spring faced imminent incarceration as a sanction for refusing to pay the fine, and that only a stay by the district court thwarted the execution of the capias.
A conviction resulting in a fine is not a sufficient restraint on liberty to constitute custody for purposes of habeas corpus. See, e.g., Dremann v. Francis, 828 F.2d 6, 7 (9th Cir.1987); Hanson v. Circuit Court, 591 F.2d 404, 407 (7th Cir.1979); Edmunds v: Won Bae Chang, 509 F.2d 39, 41 (9th Cir.1975). This is true even though failure to pay the fine may result in incarceration.