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  • Gerald Weaver v. Dareld Kerby, Warden, 955 F.2d 49, 10th Cir. (1992)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit in the case of Gerald Weaver v. Dareld Kerby regarding Weaver's petition for habeas corpus. The court unanimously determined that oral arguments were not necessary. The court affirmed the district court's dismissal of Weaver's habeas petition for lack of jurisdiction. Specifically, the court found that Weaver was challenging a deduction from his inmate account, which is a civil fine, rather than his underlying conviction. A civil fine does not render a person "in custody" for purposes of habeas corpus relief under 28 U.S.C. § 2254. Therefore, the court granted the certificate of probable cause but affirmed the dismissal of Weaver's petition.

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    Filed: 1992-02-07 Precedential Status: Precedential Citations: 955 F.2d 49 Docket: 91-2163

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit in the case of Gerald Weaver v. Dareld Kerby regarding Weaver's petition for habeas corpus. The court unanimously determined that oral arguments were not necessary. The court affirmed the district court's dismissal of Weaver's habeas petition for lack of jurisdiction. Specifically, the court found that Weaver was challenging a deduction from his inmate account, which is a civil fine, rather than his underlying conviction. A civil fine does not render a person "in custody" for purposes of habeas corpus relief under 28 U.S.C. § 2254. Therefore, the court granted the certificate of probable cause but affirmed the dismissal of Weaver's petition.

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    4 views2 pages

    Gerald Weaver v. Dareld Kerby, Warden, 955 F.2d 49, 10th Cir. (1992)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Tenth Circuit in the case of Gerald Weaver v. Dareld Kerby regarding Weaver's petition for habeas corpus. The court unanimously determined that oral arguments were not necessary. The court affirmed the district court's dismissal of Weaver's habeas petition for lack of jurisdiction. Specifically, the court found that Weaver was challenging a deduction from his inmate account, which is a civil fine, rather than his underlying conviction. A civil fine does not render a person "in custody" for purposes of habeas corpus relief under 28 U.S.C. § 2254. Therefore, the court granted the certificate of probable cause but affirmed the dismissal of Weaver's petition.

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    of 2

    955 F.

    2d 49
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Gerald WEAVER, Petitioner-Appellant,


    v.
    Dareld KERBY, Warden, Respondent-Appellee.
    No. 91-2163.

    United States Court of Appeals, Tenth Circuit.


    Feb. 7, 1992.

    Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.


    ORDER AND JUDGMENT*
    TACHA, Circuit Judge.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
    ordered submitted without oral argument.

    Appellant Gerald Weaver appeals an order of the district court dismissing his
    petition for habeas corpus brought pursuant to 28 U.S.C. 2254. On appeal,
    Weaver contends that the deduction of money from his inmate account renders
    him "in custody" for purposes of 28 U.S.C. 2254. We exercise jurisdiction
    under 28 U.S.C. 1291 and affirm.

    Because habeas corpus relief is designed to obtain release from illegal custody,
    it can only be invoked where a petitioner challenges the conviction that causes
    him to be in custody at the time the petition is filed. See Maleng v. Cook, 109
    S.Ct. 1923, 1925 (1989). In this case, Weaver is not challenging his underlying

    conviction, but rather a deduction from his inmate account, which is in the
    nature of a civil fine. A fine does not deprive an individual of liberty, and,
    therefore, does not render a person "in custody" for purposes of 28 U.S.C.
    2254. See Tinder v. Paula, 725 F.2d 801, 804 (1st Cir.1984); Spring v.
    Caldwell, 692 F.2d 994, 996-98 (5th Cir.1982).
    4

    Accordingly, we GRANT the certificate of probable cause and AFFIRM the


    district court's order dismissing Weaver's habeas corpus petition for lack of
    jurisdiction. The mandate shall issue forthwith.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

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