Zaorski v. Oppenheim et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LINNZI ZAORSKI 	CIVIL ACTION
VERSUS 	NO. 25-2079
PATRICIA OPPENHEIM, ET AL. 	SECTION: “I”(3)
REPORT AND RECOMMENDATION
Linnzi Zaorski filed this federal application seeking habeas corpus relief
pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the
application be DISMISSED for lack of subject matter jurisdiction.
This case arises from child custody proceedings in the Family Court division of
the 22nd Judicial District Court in the Parish of St. Tammany. On September 12,
2017, the state district court entered a stipulated consent judgment between Zaorski
and Nicholas Usner relating to the custody of their daughter.1 On January 2, 2020,
Usner filed a motion for contempt and sanctions alleging seventeen acts or omissions
by Zaorski that violated the consent judgment.2 After a trial,3 the state district court
found Zaorski in contempt for ten acts or omissions in violation of the custody
1 R. Doc. 14-2 at 106–10, Consent Judgment, 9/7/17.
2 R. Doc. 13-1 at 484–89, Expediated Rule for Contempt, Sanctions, and Incorporated
Memorandum, 1/2/20.
3 R. Doc. 16-19 at 19, Trial Minutes, 2/9/21; id. at 20, Trial Minutes, 3/24/21; id. at
21, Trial Minutes, 7/28/21; R. Doc. 16-12 at 12–174, Trial Transcript, 2/9/21; R. Doc.
16-13 at 2–20, Trial Transcript (con’t), 2/9/21; id. at 21–132, Trial Transcript, 3/24/21;
id. at 133–67, Trial Transcript, 7/28/21.
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judgment.4 On October 15, 2021, the court sentenced Zaorski to 15 days in jail and
fined her $250.5 The court suspended the fine and jail sentence on the conditions that
Zaorski pay attorney’s fees to Usner’s counsel in the amount of $4,625 before
February 1, 2022, and that she not be found in contempt of court in any future
proceeding.6
Zaorski filed a motion for new trial, which the state district court denied on
November 4, 2021.7 On December 2, 2021, the Louisiana First Circuit Court of Appeal
granted Zaorski’s related writ application, vacated the order denying the motion for
new trial, and remanded the matter to the district court with instructions to hold a
hearing on the motion.8
The state district court held a hearing on the motion for new trial on December
20, 2021.9 On February 1, 2022, the court denied Zaorski’s motion for new trial as it
4 R. Doc. 12-2 at 559–62, Judgment, 10/15/21; id. at 563–73, Written Reasons for
Judgment, 10/15/21. In the interim, the court found it was in the best interest of the
child to modify custody and designated Usner as the domiciliary parent. R. Doc. 16-5
at 124–30, Judgment, 10/19/20. The district court’s judgment was affirmed on appeal.
Zaorski v. Usner, 2021 CU 0530, 2021 WL 6070690 (La. App. 1st Cir. Dec. 22, 2021);
R. Doc. 16-11 at 136–42. Zaorski’s application for rehearing was denied. R. Doc. 16-
11 at 143, La. App. 1st Cir. Order, 2021-CU-0530, 2/10/22.
5 Id. at 561; id. at 571, Written Reasons for Judgment, 10/15/21.
6 Id.; id. at 571, Written Reasons for Judgment, 10/15/21.
7 R. Doc. 16-11 at 95–98, Plaintiff’s Motion for New Trial, 10/29/21; id. at 99–105,
Supplemental Memorandum in Support of Plaintiff’s Motion for New Trial, 10/29/21;
id. at 107–13, Amended Supplemental Memorandum in Support of Plaintiff’s Motion
for New Trial, 11/3/21; id. at 98, Order, 11/4/21.
8 Zaorski v. Usner, No. 2021 CW 1474, 2021 WL 5750956 (La. App. 1st Cir. Dec. 2,
2021); R. Doc. 16-11.
9 R. Doc. 16-13 at 168–84, Hearing Transcript, 12/20/21.
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related to the contempt judgment.10 Zaorski paid the attorney’s fees directly to
Usner’s counsel by cashier check in February 2022.11
On appeal, Zaorski asserted that the state district court erred as a matter of
law by applying the wrong standard of proof in a criminal contempt of court
proceeding and in finding her in criminal contempt of court, where no proof beyond a
reasonable doubt was established as to each element of criminal contempt regarding
the ten acts and/or omissions.12 On October 31, 2023, the Louisiana First Circuit
found that the proceedings were for civil contempt because the trial court did not
impose a conditional sentence; rather “Ms. Zaorski had the option to pay the attorney
fees and court costs and comply with the trial court’s judgment in order to avoid jail
time and a fine.”13 The court affirmed the state district court’s findings of contempt
in seven instances and reversed the finding of contempt in three instances.14 The
court denied Zaorski’s application for rehearing on December 20, 2023.15
10 R. Doc. 16-11 at 144, Judgment, 2/1/22; id. at 95–98, Plaintiff’s Motion for New
Trial, 10/29/21; id. at 99–105, Supplemental Memorandum in Support of Plaintiff’s
Motion for New Trial, 11/2/21; id. at 107–13, Amended Supplemental Memorandum
in Support of Plaintiff’s Motion for New Trial, 11/2/21.
11 See R. Doc. 17 at 2. Payment information is not included in the state court record.
The parties, however, do not dispute that the payment was made.
12 R. Doc. 16-14 at 21–42, Appeal Brief, 2022-CA-1326, 1/17/23.
13 Zaorski v. Usner, 382 So.3d 959, 965 (La. App. 1st Cir. 2023); R. Doc. 16-15 at 43.
14 Id. at 965–70; R. Doc. 16-15 at 43–50.
15 R. Doc. 16-15 at 55, La. App. 1st Cir. Order, 2022-CA-1326, 12/20/23; R. Doc. 16-
14, at 90–98, Application for Rehearing, 11/14/23.
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The 	Louisiana 	Supreme 	Court 	denied 	Zaorski’s 	related 	writ 	application
without assigning reasons.16 On October 7, 2024, the United States Supreme Court
denied Zaorski’s petition for writ of certiorari.17
I. 	Federal Petition
On October 3, 2025, Zaorski filed her counseled petition for habeas corpus.18
Zaorski claims that the state district court erred in applying a preponderance of the
evidence standard to find her in criminal contempt when the due process clause
requires the application of proof beyond a reasonable doubt.
The State asserts that Zaorski is not “in custody” and, therefore, the Court
lacks subject matter jurisdiction to adjudicate her petition.19 The State did not
address the issues of exhaustion, procedural default, or the merits of Zaorski’s claims,
but reserved its right to submit argument addressing those issues should the Court
order further briefing.20
Zaorski replies that, because the contempt judgment, “hang[s] over her head
and imperil[s] her future freedom to the end of her days,” she is “in custody” for
habeas corpus purposes.21 Seemingly ignoring the State’s reservation of rights
Zaorski argues that the State “do[es] not contest” that: (1) she was held to be in
criminal contempt; (2) in order to convict her of criminal contempt, due process
16 Zaorski v. Usner, 381 So. 3d 50 (La. 2024); R. Doc. 16-15 at 1; id. at 2–55, La. S. Ct.
Writ Application, undated.
17 Zaorski v. Usner, 145 S.Ct. 164 (2024).
18 R. Doc. 1.
19 R. Doc. 17.
20 Id. at 7.
21 R. Doc. 18 at 5.
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required proof beyond a reasonable doubt rather than a preponderance of the
evidence; and (3) she was wrongfully found by the Louisiana courts to be in civil
contempt rather than criminal contempt.22
The State filed a sur reply expressing that it does in fact contest the claims set
forth by Zaorski in her reply memorandum, but asserts that the claims are irrelevant
to the jurisdictional inquiry.23 The State continues that the restriction that Zaorski
not be held in contempt in a future proceeding imposes no restraint on her liberty
beyond that shared by the public generally, and, given that and the speculative
possibility of future incarceration, she is not in custody for purposes of federal habeas
relief.24
II. 	General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214,25 applies to Zaorski’s petition filed in this Court on
October 3, 2025. The threshold questions on habeas review under the amended
statute are whether the petition is timely and whether the claim raised by the
petitioner was adjudicated on the merits in state court; i.e., the petitioner must have
22 Id. at 2–4.
23 R. Doc. 19.
24 Id. at 2, 5.
25 The AEDPA comprehensively revised federal habeas corpus legislation, including
28 U.S.C. § 2254, and applied to habeas petitions filed after its effective date, April
24, 1996. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v.
Murphy, 521 U.S. 320 (1997)). The AEDPA, signed into law on that date, does not
specify an effective date for its non-capital habeas corpus amendments. Absent
legislative intent to the contrary, statutes become effective at the moment they are
signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 n.11 (5th Cir. 1992).
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exhausted state court remedies and must not be in “procedural default” on a claim.
Nobles v. Johnson, 127 F.3d 409, 419–20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b),
(c)).
Here, the State does not address the issues of timeliness, exhaustion, or
procedural default.26 Rather, as indicated, the State claims that this Court is without
subject matter jurisdiction to consider Zaorski’s habeas petition because she is not in
custody. For the following reasons, the Court lacks jurisdiction over Zaorski’s habeas
petition.
III. 	Lack of Subject Matter Jurisdiction
To be entitled to federal habeas corpus relief, a petitioner must be “in custody.”
28 U.S.C. § 2254(a), (b)(1); Lackawanna Cnty. Dist. Atty. v. Coss, 532 U.S. 394, 401
(2001) (internal citation omitted) (“The first showing a § 2254 petitioner must make
is that he is in custody pursuant to the judgment of a State court.”) The Supreme
Court has clarified that this requires “that the habeas petitioner be ‘in custody’ under
the conviction or sentence under attack at the time his petition is filed.” Maleng v.
Cook, 490 U.S. 488, 490–91 (1989).
“The custody requirement of the habeas corpus statute is designed to preserve
the writ of habeas corpus as a remedy for severe restraints on individual liberty.”
Hensley v. Municipal Court, 411 U.S. 345, 351 (1973). Habeas corpus relief is not
available 	in 	“cases 	in 	which 	the 	restraints 	on 	liberty 	are 	neither 	severe 	nor
immediate.” Id. In addressing who may seek habeas relief, however, the United
26 R. Doc. 17 at 7.
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States Supreme Court has indicated that “[n]othing in the language of [28 U.S.C. §
2244] requires that the state court judgment pursuant to which a person is in custody
be a criminal conviction. Nor does 28 U.S.C. § 2254 … by its terms apply only to those
in custody pursuant to a state criminal conviction.” Duncan v. Walker, 533 U.S. 167,
176 (2001) (noting that “federal habeas corpus review may be available to challenge
the legality of ... a state court order of civil contempt”). Further, the Supreme Court
has for decades made very clear that “in custody” requirement is not limited to
physical custody on the challenged state proceeding. Justices of Boston Mun. Ct. v.
Lydon, 466 U.S. 294, 300–01 (1984) (citing Jones v. Cunningham, 371 U.S. 236, 239
(1963), and Hensley, 411 U.S. 345).
In determining whether a habeas petitioner can satisfy the “in custody”
requirement, the Court considers: (1) whether the petitioner is subject to restraints
on her liberty not shared by the public generally; (2) whether incarceration is “a
speculative possibility that depends on a number of contingencies over which [the
petitioner] has no control;” and (3) whether holding that there is no custody simply
postpones the habeas case until the petitioner is in jail. Hensley, 411 U.S. at 351–53.
Here, Zaorski fails to demonstrate that she is “in custody” to invoke subject
matter jurisdiction over her habeas petition. First, she has not shown that the
contempt judgment subjects her to restraints on her liberty not shared by the general
public. The contempt judgment does not “significantly restrain petitioner’s liberty to
do those things which in this country free [persons] are entitled to do.” Jones v.
Cunningham, 371 U.S. 236, 243 (1963); see Casique v. Cowan, 1:18-CV-00188, 2019
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WL 13218808, at 3 (S.D. Tex. Aug. 22, 2019) (finding “custody” requires “a significant
restriction of liberty that is typically characterized either by ongoing government
supervision or by the probability of imminent incarceration.”) (citing Spring v.
Caldwell, 692 F.2d 994, 998 (5th Cir. 1982). As the State correctly asserts,27 while
Zaorski, is obligated to comply with court orders and may be sanctioned if she fails to
comply, the same is true of any civil litigant.
Second, any future incarceration is entirely speculative and dependent on
issues within Zaorski’s control. To avoid future incarceration, Zaorski need only not
be found in contempt at any future proceeding. Nixon v. Brown, No. 3:17-CV-1257-G-
BK, 2017 WL 4053724, at *3 (N.D. Tex. Sep. 5, 2017) (finding “Petitioner controls
whether he will be incarcerated in the future,” as “he need only pay his child support
arrerage to avoid incarceration.”), adopted, 2017 WL 4005458 (N.D. Tex. Sept. 12,
2017), certificate of appealability denied, 2018 WL 11445889 (5th Cir. May 7, 2018);
Gore v. Callahan, No. 3:15-CV-0272-K(BH), 2015 WL 4162760, at *3 (N.D. Tex. July
7, 2015) (petitioner had no restrictions on movement as long as he paid child support,
fine, and attended battering intervention and prevent program classes), adopted,
2015 WL 4190784 (N.D. Tex. July 9, 2015), certificate of appealability denied, 2018
WL 11429836 (5th Cir. 2018). Additionally, should Zaorski fail to comply with the
court’s orders in the future, new contempt proceeding would first have to be
instituted, and, only if she were found in contempt a second time, would she actually
be faced with having to serve the suspended 15-day jail sentence. Finally, a future
27 R. Doc. 19 at 2.
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habeas proceeding is not inevitable. Zaorski will not have to serve a sentence as long
as she avoids a future finding of contempt. Nixon, 2017 WL 4053724, at *3; Gore,
2015 WL 4162760, at *3 (finding incarceration entirely speculative where petitioner
need only to pay the child support he owed to avoid incarceration); Michaels v. Hackel,
Nos. 1:08-CV-14661, 1:08-CV-14662, 2011 WL 5184220, at *5–7 (E.D. Mich. Nov. 1,
2011) (future incarceration was not “imminent and inevitable” and thus, petitioners
were not in custody, where they could continue to avoid incarceration by continuing
to comply with the consent judgment and court order), aff’d, 491 F. App’x 670 (6th
Cir. 2012).
For these reasons, Zaorski fails to show that she is “in custody” for purposes of
§ 2254, and the Court lacks jurisdiction over this action.
RECOMMENDATION
It 	is 	therefore 	RECOMMENDED 	that 	Linnzi 	Zaorski’s 	application 	be
DISMISSED for lack of jurisdiction.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
fourteen (14) days after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court, provided that the party
has been served with notice that such consequences will result from a failure to
object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc).
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New Orleans, Louisiana, this 13 th day of February, 2026.
__________________________________________
EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE
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