                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0112p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                             X
                       Petitioner-Appellant, -
 FRANK J. LAWRENCE, JR.,
                                              -
                                              -
                                              -
                                                            No. 07-1094
           v.
                                              ,
                                               >
                                              -
                      Respondent-Appellee. -
 48TH DISTRICT COURT,
                                              -
                                             N

                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                     No. 05-72701—Paul D. Borman, District Judge.
                               Argued: December 12, 2008
                           Decided and Filed: March 24, 2009
                                                                                          *
  Before: KENNEDY and BATCHELDER, Circuit Judges; THAPAR, District Judge.

                                   _________________

                                        COUNSEL
ARGUED: Edward J. Christensen, LAW OFFICE, East Lansing, Michigan, for
Appellant. Michael L. Updike, SECREST, WARDLE, LYNCH, HAMPTON, TRUEX
& MORLEY, Farmington Hills, Michigan, for Appellee. ON BRIEF: Edward J.
Christensen, LAW OFFICE, East Lansing, Michigan, for Appellant. Mark S. Roberts,
William P. Hampton, SECREST, WARDLE, LYNCH, HAMPTON, TRUEX &
MORLEY, Farmington Hills, Michigan, for Appellee.
       KENNEDY, J., delivered the opinion of the court, in which BATCHELDER, J.,
joined. THAPAR, D. J. (p. 15), delivered a separate concurring opinion.




        *
        The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                              1
No. 07-1094            Lawrence v. 48th District Court                               Page 2


                                      _________________

                                             OPINION
                                      _________________

       KENNEDY, Circuit Judge. Frank J. Lawrence, Jr., filed a petition for a writ of
habeas corpus1 in federal district court after the 48th District Court in Bloomfield
Township, Michigan convicted him of interference with a police officer in the discharge
of his duties.2 The district court denied Lawrence’s petition. For the reasons that
follow, we affirm the judgment of the district court.

                                           BACKGROUND

       The Bloomfield Township Ordinance under which Lawrence was convicted, No.
137, § 16.01(a), titled “Interference with Police Department,” provides:

       No person shall resist any police officer, any member of the police
       department or any person duly empowered with police authority while
       in the discharge or apparent discharge of his duty, or in any way interfere
       with or hinder him with the discharge of his duty.
       Lawrence’s conviction was for circumstances that took place on August 19,
2000. Lawrence’s brother, Christian Lawrence, called 911 to report that his father, Frank
Lawrence, Sr., had struck him with a board. He reported that three people were in the
house, Lawrence, Lawrence’s father, and himself. The police arrived at the house and
looked in the doorway to see that Christian was in the home holding his eye. Christian
stepped outside where paramedics tended to him. Police next ordered Lawrence’s father
to exit the home, at which point he was arrested. Additional officers arrived on the scene
and inquired as to whether anyone else was inside of the home. The officers knew that
Lawrence remained inside the home, but did not know who else might also be inside.
An officer called to Lawrence to tell him to step outside the home pursuant to the
department’s General Order 95-40B which directed police officer response to domestic


       1
           Pursuant to 28 U.S.C. § 2254.
       2
           Pursuant to Bloomfield Township Ordinance No. 137, § 16.01(a).
No. 07-1094           Lawrence v. 48th District Court                                        Page 3


violence calls. Lawrence refused to exit, stating, “Fuck you,” in addition to citing some
case law, and demanding that the officers obtain a warrant before entering. The officer
informed Lawrence of the need to check for additional suspects, victims, or evidence,
but Lawrence refused to allow entry into the home, and blocked the door by standing in
front of it. The officer then pulled Lawrence out onto the porch, entered to conduct a
sweep of the home, and with Christian’s help retrieved the weapon, a board. Lawrence
was then placed under arrest.

        Lawrence was arraigned on September 11, 2000 in the 48th District Court. On
October 4, 2000, in federal district court, Lawrence brought a 42 U.S.C. § 1983 suit with
pendent state law claims against Bloomfield Township, police officers at the scene of
the incident, the police chief, and the township supervisor for the arrest. He then filed
a motion in federal district court for a preliminary injunction, seeking to enjoin the
enforcement of the ordinance against him in state court. The district court denied the
injunction and stayed the proceedings on the remaining claims in the district court
pending the resolution of the state prosecution.3 Lawrence then filed a motion to dismiss
in the 48th District Court which Judge Edward Avadenka denied with an opinion dated
February 28, 2001.

        On April 2, 2001, in the Oakland County Circuit Court, Lawrence sought leave
to appeal the denial of his motion to dismiss and to enjoin the state court prosecution.
Circuit Judge Rae Lee Chabot denied the leave to appeal in part on the merits and in part
on ripeness grounds in an opinion dated August 15, 2001. The Michigan Court of
Appeals and the Michigan Supreme Court both denied Lawrence leave to appeal the
decision as well on October 8, 2001, and April 5, 2002, respectively.

        Lawrence was found guilty following a jury trial in the 48th District Court on
April 8, 2002. On June 26, 2002, Judge Avadenka sentenced Lawrence to 12 months
non-reporting probation in addition to 500 hours of community service. In the same


        3
          The defendants eventually won on summary judgment on those claims in the district court and
we affirmed that decision. See Lawrence v. Bloomfield Twp., Nos. 05-2511/07-1071, 2008 WL 647163
(6th Cir. March 7, 2008).
No. 07-1094         Lawrence v. 48th District Court                                   Page 4


proceeding, Judge Avadenka recused himself. Judge Charles Bokos was assigned the
case. On January 17, 2003, Judge Bokos denied Lawrence’s motion for a new trial on
his criminal conviction. Judge Bokos released Lawrence on personal bond pending the
resolution of Lawrence’s appeal. Lawrence appealed the denial of a motion for a new
trial to the Oakland County Circuit Court, where Circuit Judge Colleen O’Brien affirmed
the denial of a motion for a new trial on February 25, 2004. The Michigan Court of
Appeals and Supreme Court both denied Lawrence leave to appeal Judge O’Brien’s
decision on July 26, 2004 and June 30, 2005, respectively.

        On July 8, 2005, Lawrence filed this petition for a writ of habeas corpus in
federal district court. At that time, Lawrence had not yet been sentenced by Judge Bokos
which did not occur until December 28, 2005. Judge Bokos gave Lawrence a monetary-
only penalty. Lawrence’s habeas petition was denied by the district court on December
19, 2006. The denial is the subject of this appeal.

                                        ANALYSIS

A.      Standard of Review

        We review the district court’s denial of the requested writ of habeas corpus de
novo. Mendoza v. Berghuis, 544 F.3d 650, 652 (6th Cir. 2008).

        We will grant a writ of habeas corpus if and only if “the judgment of [the] State
court . . . with respect to any claim that was adjudicated on the merits . . . (1) resulted in
a decision that was contrary to . . . clearly established Federal law as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented . . . .”
28 U.S.C. § 2254(d). Lawrence argues that this standard that normally governs habeas
petitions should not govern here because Judge O’Brien declined to opine on a
constitutional issue and instead relied upon Judge Chabot’s determination of that issue.
Br. at 19. Judge O’Brien concluded that Judge Chabot’s decision denying leave to
appeal held that exigent circumstances existed to legitimize warrantless entry into
Lawrence’s home, and that holding constituted the law of the case. Since Judge
No. 07-1094        Lawrence v. 48th District Court                                    Page 5


Chabot’s determination of the constitutional issue of exigency occurred in her denial of
Lawrence’s leave to appeal, Lawrence’s argument goes, Judge O’Brien’s decision does
not deserve deferential review because “denials of leave to appeal do not constitute
rulings on the merits of a case,” Br. at 19 (quoting People v. Hines, 88 Mich. App. 148,
152 (1979)), such that the claim had not been adjudicated in a State court on the merits
according to 28 U.S.C. § 2254(d). In other words, Lawrence argues that no Michigan
court adjudicated the issue of exigency on the merits because Judge O’Brien considered
the issue to be law of the case and did not to go the merits, and Judge Chabot’s
determination as part of a leave to appeal is not a ruling on the merits of a case.

       Lawrence’s argument fails because Judge Chabot denied leave for appeal for lack
of merit in Lawrence’s claims which included the issue of exigency. Under Michigan
law, a court can consider itself bound by a decision rendered in the denial of a leave to
appeal as law of the case where the denial of the leave to appeal came on the merits of
the case. People v. Collier, No. 253151, 2005 WL 1106501, at *1 (Mich. Ct. App. May
10, 2005) (citing People v. Hayden, 132 Mich. App. 273, 297 (1984)) (“Although denial
of an application for leave to appeal where the court expresses no opinion on the merits
does not implicate the law of the case doctrine, this Court has consistently held that
denial of an application ‘for lack of merit in the grounds presented’ is a decision on the
merits of the issues raised, which precludes subsequent review of those issues pursuant
to the law of the case doctrine.”) (internal citations omitted); cf. People v. Shook, No.
233346, 2002 WL 31379664, at *2 (Mich. Ct. App. Oct. 22, 2002) (citing People v.
Phillips, 227 Mich. App. 28, 35 (1997)) (“a denial of leave to appeal by the Supreme
Court, without explanation, is generally not considered a decision on the merits and is
not precedentially binding”). Lawrence cites Hines for the general proposition that
“denials of leave to appeal do not constitute rulings on the merits of a case,” 88 Mich.
App. at 152, which is indeed true, but with the caveat that denials of leaves to appeal
based on lack of merit may constitute rulings on the merits of a case.

       Judge Chabot, in her denial of Lawrence’s leave to appeal, held that the
likelihood that a piece of evidence, namely a board Lawrence’s father purportedly used
No. 07-1094         Lawrence v. 48th District Court                                 Page 6


to hit Christian, was inside the home provided the exigent circumstances necessary to
permit the police officers into the home. The court concluded with: “the Court finds
[Lawrence’s arguments regarding exigency] without merit.” Judge O’Brien considered
Judge Chabot’s decision a ruling on the merits which became the law of the case;
similarly then, we must give Judge Chabot’s decision due deference in accordance with
the comity that habeas’s deferential standard was meant to foster. See, e.g., Williams v.
Taylor, 529 U.S. 362, 368 (2000). Therefore, the standard of review with respect to all
of Lawrence’s claims is that prescribed by 28 U.S.C. § 2254(d). Justiciability issues are
reviewed de novo.

B.     In Custody

       28 U.S.C. § 2254 provides that a court “shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a state
court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States” (emphasis added). Whether a habeas petitioner is “in
custody” is determined at the time of the filing of the petition. Northrop v. Trippett, 265
F.3d 372, 375 n.1 (6th Cir. 2001) (citing Carafas v. LaVallee, 391 U.S. 234, 239-40
(1968)). Actual physical custody is sufficient but not necessary to satisfy the custody
requirement. Jones v. Cunningham, 371 U.S. 236, 240 (1963). The writ of habeas
corpus exists to allow a petitioner to attack and secure release from illegal custody.
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

       On June 26, 2002, Judge Avadenka sentenced Lawrence to one year non-
reporting probation in addition to 500 hours of community service and recused himself
in the same proceeding. On September 16, 2002, Judge Charles Bokos was assigned the
case. Judge Bokos released Lawrence on personal bond pending the resolution of
Lawrence’s appeal of the court’s denial of his motion for a new trial. By the end of June
2005, all of Lawrence’s appeals had been resolved against him. On July 8, 2005,
No. 07-1094            Lawrence v. 48th District Court                                          Page 7


Lawrence filed this petition for a writ of habeas corpus in federal district court. On
December 28, 2005, Judge Bokos sentenced Lawrence to a monetary-only penalty.4

       At that time he filed his petition, Lawrence had been sentenced and then released
on personal bond pending the resolution of his appeals. A habeas petitioner on a
recognizance bond at the time of the filing of the habeas petition meets the custody
requirement. McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1989) (citing Hensley v.
Mun. Court, 411 U.S. 345, 348-49 (1973)). In McVeigh, we held that a petitioner with
a one-year probation sentence that had been stayed met the “in custody” requirement.
Id. That case is on point here. However, we take this opportunity to further explain our
reasoning in McVeigh where we relied on Hensley but without much explanation.

       The Supreme Court in Hensley emphasized three points in holding that a habeas
petitioner released of his own recognizance following the receipt of a prison sentence
met the “in custody” requirement: (1) the personal recognizance bond subjected the
prisoner to restraints not shared by the public generally, Hensley, 411 U.S. at 351; (2)
the sentence that had been stayed involved incarceration, id. at 351-52; and (3) a
petitioner still must exhaust his state remedies, id. at 353.

       Restraint on Liberty. The Court in Hensley held that a person released on a
personal recognizance bond “is subject to restraints not shared by the public generally.”
Id. at 351 (quoting Jones, 371 U.S. at 240) (internal quotation marks omitted). Such a
person “cannot come and go as he pleases[–][h]is freedom of movement rests in the
hands of state judicial officers[] who may demand his presence at any time and without
a moment’s notice” and punish “[d]isobedience [as] a criminal offense.” Id. That is the
case here. Generally, we have interpreted the Supreme Court’s decisions in Hensley and
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), to mean that personal
recognizance bonds categorically suffice as restraints on liberty. See Malinovsky v.
Court of Common Pleas, 7 F.3d 1263, 1265 (6th Cir. 1993) (citing Lydon, 466 U.S. at




       4
           The crime for which Lawrence was convicted provided for the possibility of a prison sentence.
No. 07-1094            Lawrence v. 48th District Court                                              Page 8


294); McMaster v. City of Troy, 911 F.2d 733, 1990 WL 116540, at *3 (6th Cir. Aug.
13, 1990) (unpublished); McVeigh, 872 F.2d at 727 (citing Hensley, 411 U.S. at 348-49).

         Stayed Sentence. In Hensley, the Court looked to the severity of the stayed
sentence’s restraints on liberty. There, the petitioner received a stay of the execution of
his prison sentence. 411 U.S. at 346. Therefore, his incarceration was not “a speculative
possibility” because, but for the stay, authorities could “seize him.” Id. at 352. Here,
the stayed sentence involved probation and 500 hours of community service.5
Probation’s restraints on liberty suffice to satisfy the “in custody” requirement. See
Lewis v. Randle, 36 F. App’x 779, 2002 WL 343397, at *1 (6th Cir. Mar. 4, 2002)
(unpublished); McVeigh, 872 F.2d at 727 (stayed one-year probation sentence sufficed
for “in custody” requirement); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir.
2005); Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (citing Mabry v. Johnson, 467
U.S. 504, 507 n.3 (1984)); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir. 1992); Tinder
v. Paula, 725 F.2d 801, 803 (1st Cir. 1984); Duvallon v. Florida, 691 F.2d 483, 485
(11th Cir. 1982). The same is true for community service. See Williamson v. Gregoire,
151 F.3d 1180, 1183 (9th Cir. 1998); Barry v. Bergen County Prob. Dep’t, 128 F.3d 152,
159-62 (3d Cir. 1997) (“an individual who is required to be in a certain place–or in one
of several places–to attend meetings or to perform services, is clearly subject to restraints
on his liberty not shared by the public generally”). Together, probation and an onerous
community service requirement imposes significant restraints on liberty. In addition,
should Lawrence have violated the terms of his probation or community service, the
court could revoke his probation and incarcerate him.

         The parties have had some dispute over whether Judge Bokos vacated Judge
Avadenka’s sentence and re-sentenced him at the later time, or whether Judge Bokos
merely amended Judge Avadenka’s sentence. First, even if Judge Bokos had vacated
Judge Avadenka’s sentence, we are unable to find any evidence in the record to support
the proposition that Judge Bokos vacated the sentence before Lawrence filed his habeas

         5
           That the court imposed non-reporting probation is a distinction without a difference, as both give
a court supervisory authority over a petitioner which allows it to revoke probation and incarcerate the
petitioner should he violate the probation’s terms.
No. 07-1094        Lawrence v. 48th District Court                                  Page 9


petition. Second, the court in Hensley focused on “the conditions imposed on petitioner
as the price of his release,” not the sentence that had been stayed. 411 U.S. at 348. As
in Hensley, the “petitioner remains at large only by the grace of a stay.” Id. at 351. The
state court here could order Lawrence to appear for sentencing at any time, which it did
on December 28, 2005. For both the petitioner in Hensley and the petitioner here, the
failure to obey the terms of the personal recognizance bond subjects the petitioner to
arrest and incarceration. See id. at 348.

       Exhaustion. The Hensley court emphasized that it did not intend to “open the
doors of the district courts to . . . all persons released on bail or on their own
recognizance”; only in those cases where a petitioner released on his own recognizance
has “exhausted all available state court opportunities” does a federal court have
jurisdiction to decide. Id. at 353. That is the case here. Altogether, a petitioner who has
had a sentence of probation and community service stayed and exhausts his state court
opportunities meets habeas’s “in custody” requirement.

C.     Mootness

       Since the filing of the petition Judge Bokos has imposed a sentence on Lawrence,
giving him a monetary-only penalty.         The penalty, as a direct consequence of
Lawrence’s conviction, preserves Lawrence’s stake in this case; therefore, the penalty
keeps Lawrence’s habeas petition from becoming moot. Port v. Heard, 764 F.2d 423,
427 (5th Cir. 1985). Because the penalty, as a direct consequence of the conviction,
keeps the controversy live, we need not address Lawrence’s arguments that a collateral
consequence of his conviction, namely his rejection from the Michigan state bar, helps
him avoid mootness.

D.     Overbreadth and Vagueness Challenges

       Lawrence’s arguments with regard to overbreadth and vagueness fail because he
cannot demonstrate that the state courts in his case rendered decisions contrary to
“clearly established Federal law as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d). The “as determined by the Supreme Court of the United
No. 07-1094         Lawrence v. 48th District Court                                 Page 10


States”-clause limits our analysis to those cases decided by the United States Supreme
Court. Williams, 529 U.S. at 381-82. Lawrence lacks sufficient support for his
arguments in United States Supreme Court decisions.

        For overbreadth, City of Houston v. Hill, 482 U.S. 451 (1987), does not provide
the clearly established federal law necessary to grant Lawrence’s habeas petition. While
Hill did invalidate a statute prohibiting a person from “. . . in any manner oppos[ing],
molest[ing], abus[ing] or interrupt[ing] any policeman in the execution of his duty, . . .,”
482 U.S. at 455, the court focused on the “interrupt” element of the crime, not the “in
any manner” portion which shares similarity with the “in any way” part of the statute
here. Id. at 461. That the law prohibited interruption meant that the law prohibited
speech, as interruption suggested verbal interruption. Id. at 460-61. The ordinance here
prohibits “resist[ing],” “interfer[ing],” and “hinder[ing],” none of which suggest speech,
and on the contrary, suggest some kind of physical interference. Without any other
United States Supreme Court decisions to support his claim, Lawrence’s overbreadth
argument fails.

        As for vagueness, Lawrence does not cite established Supreme Court precedent
that supports his argument. He relies on Landry v. Daley, 280 F. Supp. 968 (N.D. Ill.
1968), a federal district court case which does support his argument. Id. at 972-73. The
court there held that the words and phrases “resist,” “obstruct,” “interfere,” and “in the
discharge of his duties” rendered the statute void for vagueness. Id. However, the case
does not amount to “clearly established Federal law as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d). The decision was not from the Supreme
Court. On the contrary, there is Supreme Court precedent that suggests that the statute
is not vague. The Court in Cameron v. Johnson, 390 U.S. 611 (1968), held that the
words “obstruct” and “interfere” were not vague. Id. at 616. While the Court has not
opined directly on the phrase “in the discharge of his duties” with respect to vagueness,
in Cox v. Louisiana, 379 U.S. 559 (1965), the Court considered a picketing statute
prohibiting the influencing of a court-related person “in the discharge of his duty,” id.
at 560, but did not include that phrase as part of its vagueness analysis, id. at 568-69, and
No. 07-1094               Lawrence v. 48th District Court                                         Page 11


did not invalidate the law on vagueness or other grounds, id. at 568. Even assuming that
the statute lacks a scienter requirement, that does not render a statute per se vague.
Staley v. Jones, 239 F.3d 769, 791 (6th Cir. 2001) (citing Vill. of Hoffman Estates v.
Flipside, 455 U.S. 489, 497 (1982)). “[T]he complainant must demonstrate that the law
is impermissibly vague in all of its applications,” which he has failed to do. Vill. of
Hoffman Estates, 455 U.S. at 497. “[C]learly established Federal law” requires holdings
of the Supreme Court to support the habeas petitioner’s arguments. Carey v. Musladin,
549 U.S. 70, 74 (2006). Where such holdings are lacking and even militate against
Lawrence’s positions, we must decline to hold the ordinance void for vagueness.

E.        Ordinance Constitutionality As-Applied

          Lawrence argues that the ordinance is unconstitutional as applied to him, because
he was “within his constitutional right to protect the sanctity of his home” in not
allowing the police officers to enter.6 Br. at 32. He cites Supreme Court precedent to
support his argument that a conviction for exercising a constitutional right would be
unconstitutional. Br. at 33. However, the Michigan courts in this case determined that
the police had exigent circumstances such that they had the right to enter Lawrence’s
home without a warrant. Lawrence’s argument, then, boils down to whether the state
courts, in determining that exigent circumstances existed, based their finding “on an
unreasonable determination of the facts in light of the evidence presented,” 28 U.S.C.
§ 2254(d).7

          The police officers responded to Christian’s 911 call which reported that he had
been assaulted by his father with a board and that there were three people in the house.


          6
              The record shows that Lawrence was “using his body to block the entrance to the door.” J.A.
at 357.
          7
           Ordinarily, we do not recognize Fourth Amendment claims in Section 2254 actions if the state
proceedings provided the petitioner a full and fair opportunity to litigate that claim. See Stone v. Powell,
428 U.S. 465, 489-90 (1976). Here, however, Lawrence does not argue that his conviction rests on
evidence that should have been suppressed because it was obtained in violation of the Fourth Amendment.
Instead, he argues that the judgment itself is unconstitutional because he was convicted for exercising his
Fourth Amendment right to prevent the warrantless search of his home. A Fourth Amendment claim of
this sort does not invoke the concerns raised in Stone about the application of the exclusionary rule on
collateral review. Accordingly, in this limited context we may examine the state court’s determination of
whether exigent circumstances existed.
No. 07-1094              Lawrence v. 48th District Court                                            Page 12


When the police arrived, Christian met the officers at the door of the home and then the
officers ordered Lawrence’s father out of the house.8 The Michigan courts determined
that exigent circumstances existed from the fact that the 911 call indicated that a crime
of violence was perpetrated in the home, and therefore, the police could, without a
warrant, enter the home to check for additional suspects, victims, and evidence. In
particular, the record indicated that all three persons–Lawrence, Lawrence’s father, and
Christian, were inside of the house when the police arrived. The 911 call indicated
domestic violence had taken place, and although Christian had indicated that three
people were in the house, the officers could not be sure of that fact, nor could they be
sure of whether any weapons were in the house. In domestic violence cases, the police
want to be sure there are no other victims. Finally, the 911 call indicated that
Lawrence’s father had used a board to strike Christian, which the police intended to
preserve as evidence.

         The Michigan courts’ determinations that exigent circumstances existed, then,
are not unreasonable based on the facts in the record. In addition, no clearly established
Supreme Court precedent indicates that the circumstances presented to the police did not
permit them to enter into Lawrence’s home without a warrant. Cf. Thacker v. City of
Columbus, 328 F.3d 244, 254-55 (6th Cir. 2003) (holding exigent circumstances existed
under similar circumstances).9

F.       Due Process

         Lawrence argues that his due process rights were violated because: (1) “jurors
were allowed to believe that demanding a warrant from police officers could constitute
an interference”; and (2) “the jury instructions were in the nature of strict liability.” For
his part, the judge in this case gave the jury the following instructions:




         8
             Lawrence does not contest these facts.
         9
          Whether the police entered the home pursuant to a general order of the department in responding
to domestic violence calls is irrelevant to the determination of whether exigent circumstances justified their
entry.
No. 07-1094         Lawrence v. 48th District Court                                 Page 13


                The defendant has been charged with a violation of Section
        16.01(A), a Bloomfield Township ordinance, entitled “Interference with
        the Police Department.” The ordinance states: “No person shall resist
        any police officer, any member of the police department, or any person
        duly empowered with police authority, while in the discharge or apparent
        discharge of his or her duty or in any way interfere with or hinder him or
        her with the discharge of their duty.”
                 To prove the elements of this crime, the prosecutor must show
        beyond a reasonable doubt that the defendant did resist a police officer
        in the course of his duty or interfere with or hinder that police officer
        while in the discharge or apparent discharge of his duty as a police
        officer.
        “To warrant habeas relief, jury instructions must not only have been erroneous,
but also, taken as a whole, so infirm that they rendered the entire trial fundamentally
unfair.” Austin v. Bell, 126 F.3d 843, 846 (6th Cir. 1997) (citing Estelle v. McGuire, 502
U.S. 62, 72 (1991)). An ambiguous instruction, such as above where the court did not
give a direct instruction on intent that was erroneous, “violates the Constitution only if
there is a reasonable likelihood that the jury has applied the instruction improperly.”
Austin, 126 F.3d at 846 (citing Estelle, 502 U.S. at 72-73 n.4). In other words, the state
court’s lack of giving the jury a direct instruction explicating intent is “subject to
harmless-error analysis.” See Johnson v. United States, 520 U.S. 461, 469 (1997).

        The error was harmless here. The record shows plenty of evidence that
Lawrence presented a physical hindrance in addition to his demands for a warrant and
his recitation of case law upon which the jury could have convicted him for the crime
at issue. While the jury instructions did not explicate in greater detail the intent element
of the ordinance, there was no evidence in the record indicating that Lawrence did not
possess knowledge with respect to the actus reus of the crime, that is, standing in front
of the door to the home when the officers expressed their need to enter the home. The
trial was sufficiently fair so as not to violate Lawrence’s right to due process.

        Finally, while due process may be violated by a jury instruction omitting an
element of a crime, Ho v. Carey, 332 F.3d 587, 595 (9th Cir. 2003), it “does not
necessarily render a criminal trial fundamentally unfair.” Neder v. United States, 527
No. 07-1094         Lawrence v. 48th District Court                                 Page 14


U.S. 1, 9 (1999). The alleged error here is not of the structural sort that “vitiates all the
jury’s findings.” Id. at 11 (quoting Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)).
As required on a habeas petition by 28 U.S.C. § 2254, the petitioner still needs to proffer
clearly established Supreme Court precedent holding that the error here rises to a
constitutional violation of due process. That is where he fails.

        For the foregoing reasons, we affirm the judgment of the district court denying
Lawrence’s request for a writ of habeas corpus.
No. 07-1094         Lawrence v. 48th District Court                                Page 15


                               _____________________

                                  CONCURRENCE
                               _____________________

        THAPAR, District Judge, concurring. I concur in full with Judge Kennedy’s
excellent opinion. I write separately, however, to point out the need to rein in the
definition of “in custody.”

        28 U.S.C. § 2254 allows an individual to apply for a writ of habeas corpus if that
individual is “in custody pursuant to the judgment of a State court . . . .” If Congress had
wanted to create a mechanism whereby criminal defendants could challenge a conviction
if they faced any restriction on their liberty, including a possible summons, it was fully
capable of doing so.           Instead, Congress—in an exercise of legislative
prerogative—decided that habeas petitions could only be pursued by those defendants
who are “in custody.” As these words have a plain meaning that clearly does not stretch
so far as to cover individuals who are not in custody, but are merely subject to personal
recognizance bonds, it would seem that the petitioner does not fit within the class of
people who are capable of bringing a habeas petition. Nevertheless, it appears that this
Circuit’s decision in Malinovsky v. Court of Common Pleas of Lorain County, 7 F.3d
1263 (6th Cir. 2003), compels the conclusion that petitioner was in custody for the
purposes of filing a habeas petition. Id. at 1265 (noting that Malinovsky was in custody
“although he has been released on personal recognizance bond”). While there is nothing
that this panel can do to bring the meaning of the term “in custody” back to its plain
meaning, perhaps Congress or the Supreme Court should restore the proper definition
by clarifying what exactly is meant by “in custody.” Such clarification is advisable
because, in the words of Justice Blackmun, “the Court seems now to equate custody with
almost any restraint, however tenuous. One wonders where the end is.” Hensley v. Mun.
Court, 411 U.S. 345, 354 (1973) (Blackmun, J., concurring).
