Dolores Michaels; Ronald Michaels v. MARK HACKEL, Macomb County Sheriff

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0866n.06
Nos. 11-2446/2447
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DOLORES MICHAELS; RONALD
MICHAELS,
Petitioners-Appellants,
v.
MARK HACKEL, Macomb County Sheriff,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: BOGGS, GILMAN, and DONALD, Circuit Judges.
PER CURIAM. Dolores and Ronald Michaels, wife and husband, appeal a district court
judgment dismissing their petitions for writs of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
Petitioners entered into a consent agreement in 2004 to remove a composting operation from
their farm. In 2008, a state court judge visited the farm and determined that petitioners had not
complied with the consent judgment. Petitioners were found guilty of contempt and assessed a fine,
as well as imprisonment for thirty days or until they complied with the consent judgment. Petitioners
were incarcerated from July 22, 2008, until July 31, 2008, when the state trial court determined that
substantial efforts were being made to remove the composting material from the farm, and the court
released the petitioners. After exhausting state court remedies, petitioners filed for federal habeas
corpus relief, arguing that they had been denied due process in the state court proceeding. The
district court dismissed the petitions on the ground that petitioners were not in custody for purposes
of federal habeas corpus jurisdiction.

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Nos. 11-2446/2447
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On appeal, petitioners argue that the district court erred in concluding that they are not in
custody, given that the thirty-day sentence was not fully served, they had received supervisory visits
from the court following their release from jail, and that they are also challenging the fine imposed
by the state court.
We review de novo questions regarding the jurisdiction of the district court; in habeas corpus
proceedings, a district court has jurisdiction only if the petitioner is in custody at the time that the
petition is filed. See Steverson v. Summers, 258 F.3d 520, 522 (6th Cir. 2001).
Petitioners cite Lawrence v. 48th District Court, 560 F.3d 475, 481 (6th Cir. 2009), as
authority for the proposition that a person who is released on bond while the sentence is stayed is in
custody for purposes of habeas corpus. However, the possibility of future incarceration satisfies the
“in custody” requirement only where it is imminent and inevitable. Gonzales-Fuentes v. Molina, 607
F.3d 864, 874 n.8 (1st Cir. 2010), cert. denied, 131 S. Ct. 1568 (2011). Here, petitioners’ sentences
were not merely stayed; the petitioners were released and the supervisory visits to their property have
ceased. Although they argue that they could be reincarcerated if they fail to comply with the state
court order, courts have found that potential future incarceration for failure to comply with a court
order is insufficient to satisfy the “in custody” requirement. Thrower v. City of Akron, 43 F. App’x
767, 768 (6th Cir. 2002) (per curiam) (finding potential future incarceration for failure to pay fine
insufficient); Hansen v. Marr, 594 F. Supp. 2d 1097, 1100-01 (D. Neb. 2009) (finding potential
incarceration for failure to register as a sex offender insufficient) (citing Williamson v. Gregoire, 151
F.3d 1180, 1184 (9th Cir. 1998) (same)).
Petitioners also argue that their challenge to the fine imposed by the state court is sufficient
to render them “in custody” for purposes of district court jurisdiction. However, we have rejected
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Nos. 11-2446/2447
Michaels v. Hackel
this argument in previous cases. United States v. Mays, 67 F. App’x 868, 869 (6th Cir. 2003) (per
curiam); Thrower, 43 F. App’x at 768; United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995).
Accordingly, we affirm the dismissal of these petitions.
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