                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2003

Obado v. State of NJ
Precedential or Non-Precedential: Precedential

Docket 02-4080




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Recommended Citation
"Obado v. State of NJ" (2003). 2003 Decisions. Paper 510.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/510


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                                 PRECEDENTIAL

                                              Filed May 9, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-4080


                       DENNIS OBADO,
                               Appellant
                                v.
          STATE OF NEW JERSEY; ATTORNEY
        GENERAL OF THE STATE OF NEW JERSEY

     On Appeal From the United States District Court
               For the District of New Jersey
                (D.N.J. Civ. No. 02-cv-2646)
       District Judge: Honorable Faith S. Hochberg

           Submitted Under 28 U.S.C. § 2253(c)(1)
                     February 6, 2003
  Before: BECKER,* Chief Judge, ALDISERT and WEIS,
                    Circuit Judges

                      (Filed: May 9, 2003)


                  OPINION OF THE COURT

PER CURIAM:
   Appellant Dennis Obado petitions this Court for the
issuance of a certificate of appealability (COA) from the
District Court’s dismissal of his habeas corpus petition for

* Judge Becker completed his term as Chief Judge on May 4, 2003.
                                    2


want of subject matter jurisdiction, pursuant to 28 U.S.C.
§ 2253. For the following reasons, we will decline to issue a
COA.

                                    I.
  In 1990, Dennis Obado was convicted in the Superior
Court of New Jersey, Middlesex County, for possession of
CDS1 with the intent to distribute on or near a school zone.
Obado was sentenced to 364 days imprisonment and 4
years probation. On May 31, 2002, Obado filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his petition, he conceded he was no longer in confinement.
Upon an order to show cause, Obado argued that, because
he was still paying restitution as a term of his probation, he
was “in custody” for the purposes of § 2254(a).
   The District Court dismissed the action for lack of subject
matter jurisdiction, ruling that Obado was no longer “in
custody” within the meaning of the habeas statute when he
filed his section 2254 petition, and that neither the
possibility of collateral consequences nor existence of an
outstanding fine or restitution are themselves sufficient to
render a person “in custody” for the purpose of habeas
relief. Obado timely appealed.

                                   II.
   28 U.S.C. § 2254, gives federal courts jurisdiction to
entertain habeas corpus petitions from individuals who are
“in custody” pursuant to a state court judgment. 28 U.S.C.
§ 2254(a). Before an appeal of a district court’s denial of a
habeas petition, a prisoner must first seek and obtain a
COA from a circuit justice or judge. 28 U.S.C. § 2253(c)(1).
A COA may issue only where a petitioner has made a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Because petitioner has not “sho[wn]
that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further,” we decline to issue a

1. It is not clear from the District Court record just what “CDS” is.
                                    3


COA. Miller-El v. Cockrell, 123 S.Ct.                    1029,     1039
(2003)(internal citation, quotation omitted).

                                   III.
   While the “in custody” requirement is liberally construed
for purposes of habeas corpus, for a federal court to have
jurisdiction, a petitioner must be in custody under the
conviction he is attacking at the time the habeas petition is
filed. See Maleng v. Cook, 490 U.S. 488, 490-92 (1989). The
meaning of “custody” has been broadened so that it is no
longer limited in the § 2254(a) context to physical custody
alone but also applies where individuals are subject both to
“significant restraints on liberty . . . which were not shared
by the public generally,” along with “some type of
continuing governmental supervision.” Barry v. Bergen
County Probation Dept., 128 F.3d 152, 160 (3d Cir. 1997)
(quoting Jones v. Cunningham, 371 U.S. 236, 240, 242
(1963), and Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.
1984)).
  Several courts have held that a fine-only conviction is not
enough of a restraint on liberty to constitute “custody”
within the meaning of the habeas corpus statutes, 28
U.S.C. §§ 2254 and 2255. See, e.g., Barnickel v. United
States, 113 F.3d 704, 706 (7th Cir. 1997); Tinder, 725 F.2d
at 804 (1st Cir. 1984) (citing cases). Particularly relevant to
the instant case is the reasoning in Tinder, where the First
Circuit held that continuing liability under a restitution
order was, “like a fine-only conviction, . . . not a serious
restraint on . . . liberty as to warrant habeas relief.” Id. at
805.
  In the present appeal, Obado argues that the
restitutionary payments he makes are sufficient to meet the
jurisdictional requirements of § 2254.2 Following the

2. Obado also argues that his conviction imposes continuing restraints
on his liberty by depriving him of his right to enlist in the military, to
vote, and to serve on a jury. In addition, he claims that his conviction
cost him a substitute teaching position in an elementary school.
However, the Supreme Court in Maleng, 490 U.S. at 492, rejected the
notion that after a prisoner’s sentence has expired, collateral
consequences of the conviction, such as inability to vote, engage in
certain businesses, hold public office or serve as a juror, constitute
“custody” for habeas corpus purposes.
                              4


reasoning in Tinder, we disagree. At the time Obado filed
his § 2254 petition in May 2002, he had long completed his
prison sentence. He is no longer subject to the terms of his
probation, nor is his conduct subject to the supervision of
the probation authorities. The payment of restitution or a
fine, absent more, is not the sort of “significant restraint on
liberty” contemplated in the “custody” requirement of the
federal habeas corpus statutes.
  The unavailability of habeas relief does not leave
deserving petitioners entirely without recourse because they
may be able to bring claims via a writ of error coram nobis.
The status of that writ is a murky one. Rule of Civil
Procedure 60(b) purported to abolish the writ. However, in
United States v. Morgan, 346 U.S. 502 (1954), the Supreme
Court relied on the existence of coram nobis despite Rule
60(b), and the writ has been utilized on numerous
occasions by the lower federal courts since that time.
Although the remedy has been described as a “hybrid,” see
3 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 592 ( ___ ed. ___ ), we have noted that Rule
60(b) “abolished the writ of coram nobis in civil cases.”
United States v. Stoneman, 870 F.2d 102, 106 n.6 (3d Cir.
1989).
  We have concluded that to qualify for relief under coram
nobis after a sentence has been served, the petitioner must
show exceptional circumstances and continuing collateral
disadvantages. United States v. Osser, 864 F.2d 1056, 1059
(3d Cir. 1989). Moreover, coram nobis is not available when
a petitioner is in custody and may not be used to avoid
AEDPA’s gatekeeping requirements. United States v.
Baptise, 223 F.3d 188, 189-90 (3d Cir. 2000).
  Four Courts of Appeals have held that coram nobis is not
available in a federal court as a means of attack on a state
criminal judgment. Lowery v. McCaughtry, 954 F.2d 422,
423 (7th Cir. 1992) (coram nobis applicant is to be sent to
court that issued judgment); Sinclair v. Louisiana, 679 F.2d
513, 514 (5th Cir. 1982) (same); Thomas v. Cunningham,
335 F.2d 67, 69 (4th Cir. 1964) (same); Rivenburgh v. Utah,
299 F.2d 842, 843 (10th Cir. 1962) (coram nobis petition
set forth no claim for relief cognizable in federal court).
                               5


  Those cases, however, involve situations where the
petitioner sought relief from convictions in federal courts.
Here, a state prisoner seeks relief from a state court
conviction. Obado can seek coram nobis relief only in state
court.
  For the foregoing reasons, we will deny the application for
a certificate of appealability.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
