                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Submitted March 28, 2006*
                               Decided July 14, 2006

                                         Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. FRANK H. EASTERBROOK, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge


No. 04-3281

ROBERT C. THOMAS,                           Appeal from the United States District
          Petitioner-Appellant,             Court for the Northern District of Illinois,
                                            Eastern Division
      v.
                                            No. 01 C 646
JOHN E. ZARUBA, Sheriff of
DuPage County, Illinois,                    Rebecca R. Pallmeyer,
          Respondent-Appellee.              Judge.

                                      ORDER


      Robert Thomas filed a habeas corpus petition, 28 U.S.C. § 2254, in January
2001, arguing that his 1998 Illinois state conviction for driving while his license was
revoked should be set aside. The district court, though, dismissed the petition on
its own motion because it determined that Thomas was not in custody when he filed

*

        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3281                                                                     Page 2

the petition; the court determined that his 24-month term of probation “had
completely expired” prior to January 2001. Thomas asked the court to reinstate the
petition, insisting that he was still subject to a term of probation because the state
filed a petition to revoke probation in July 1998. The court denied his request, but
we summarily vacated the court’s order and remanded the case for a determination
of whether the state’s revocation petition was pending in January 2001. See
Thomas v. Zaruba, No. 02-1060 (7th Cir. Apr. 22, 2002).

       On remand, the district court conducted an evidentiary hearing. Rather than
limit its inquiry to determining whether the revocation petition was pending, the
court interpreted our order to direct an analysis of whether the conditions of
Thomas’s probation (during the pendency of the revocation petition) rose to the level
of custody. The conditions did not, the court found, and thus it dismissed Thomas’s
§ 2254 petition a second time. Our concern, however, was not with the limitations
on Thomas’s liberty. When Thomas first sought our review, the record on appeal
did not reveal the status of the revocation petition, and thus we were unable to
judge the veracity of his assertion that he was in custody when he filed his § 2254
petition. If the revocation petition was pending, we observed in our order, the
expiration of Thomas’s probation was tolled, see 730 Ill. Comp. Stat. 5/5-6-4(a), and
thus, as a probationer, he remained in custody for purposes of pursuing relief under
§ 2254, see Maleng v. Cook, 490 U.S. 488, 491 (1989); Cates v. Superintendent, Ind.
Youth Ctr., 981 F.2d 949, 952 (7th Cir. 1992).

       The district court’s order on remand confirms that Thomas was in custody at
the time he filed his § 2254 petition. The court remarked that “[i]t is undisputed
that on January 30, 2001, when Thomas filed his habeas petition, the Illinois court
had not yet disposed of the state’s petition to revoke probation.” The State’s
Attorney who handled the revocation petition until January 2002 also testified that
“[u]ntil an order is entered terminating [Thomas] from probation by the court that
has him on probation, in my opinion he is still on probation,” and that, to his
knowledge, no such order had been issued. Though the district court observed that
Thomas “flouted the terms of his sentence” of probation, he was nevertheless
subject to the terms of probation as a matter of law, including the possibility that
the state could subject him to physical custody for a probation violation that is not
otherwise a crime, and thus in custody. See Jones v. Cunningham, 371 U.S. 236,
242 (1963) (describing the restrictions imposed by parole that constitute custody,
including the threat that the parolee may be returned to physical custody); Cochran
v. Buss, 381 F.3d 637, 640 (7th Cir. 2004); Harts v. State of Ind., 732 F.2d 95, 96 n.1
(7th Cir. 1984) (“A rationale governing these decisions appears to be the conditional
nature of release; a violation of the conditions of bail, parole or probation may send
the petitioner back to prison.”). It was error, therefore, to dismiss the petition. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“in custody” provision of § 2254 requires
only that petitioner is “in custody” at time petition is filed).
No. 04-3281                                                          Page 3


       Accordingly, we VACATE the order of the district court and REMAND the
case for consideration of Thomas’s properly presented claims.
