Opinion
Civil No. 00-1946 (JRT/ESS).
July 2, 2003.
David Duane Cox, Attorney for Petitioner, pro se
LaMar Thomas Piper, Piper Law Firm, St. James, MN, Attorney for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on petitioner David Duane Cox's objections to the Report and Recommendation of Magistrate Judge E. S. Swearingen dated August 23, 2000. The Magistrate Judge recommends that petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus be denied. The Court has conducted a de novo review of petitioner's objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation and denies the petition.
Petitioner is apparently a party to a state court proceeding, and claims that the state court in that case lacks jurisdiction to adjudicate his claimed "white citizen right to a trial by certificate." As the Magistrate Judge observed, petitioner does not appear to be charged with or convicted of any crime, nor is he incarcerated. In his objections, petitioner does not dispute this characterization of his status, nor does he allege, in the "First Amended, Application, (Petition) for Writ of Habeas Corpus" attached to his objections, that he is incarcerated. Instead, he claims that he is being restrained from "claiming a civil right in an administrative action," apparently on the basis that the state court denied his motion to dismiss for lack of subject matter jurisdiction.
Section 2254(a) plainly requires that a habeas petition may be entertained only on behalf of a person in custody. See Snelling v. Missouri, 26 F.3d 127, No. 93-3642, 1994 WL 203383, at *1 (8th Cir. May 17, 1994) (explaining that a writ of habeas corpus is available only to a person in "custody" and holding that economic hardships resulting from a conviction and a fine do not constitute "custody"). The state court's assertion of jurisdiction over petitioner in a civil proceeding does not constitute a significant restraint on petitioner's liberty within the meaning of the custody requirement. Cf. id. The Court therefore denies petitioner's habeas petition.
ORDER
Based upon all of the files, records, and proceedings herein, the Court OVERRULES petitioner's objections [Docket No. 4] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 2]. IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus [Docket No. 1] is DENIED.