530 F2d 791 Russell v. City of Pierre State of South Dakota

530 F.2d 791

Neil Cody RUSSELL, Appellant,

No. 76--1065.

United States Court of Appeals,
Eighth Circuit.

Submitted Feb. 13, 1976.
Decided Feb. 26, 1976.
Rehearing and Rehearing En Banc
Denied March 30, 1976.

Gary R. Thomas and Terry L. Pechota, South Dakota Legal Services, Fort Thompson, S.D., for appellant.

Robert C. Riter, Jr., Pierre, S.D., for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.


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Petitioner, Neil Cody Russell, seeks a certificate of probable cause to appeal the denial of a writ of habeas corpus. Petitioner was convicted of disorderly conduct in violation of an ordinance of the City of Pierre, South Dakota. The sole punishment imposed by the state trial court was a $25 fine. Petitioner alleges that the disorderly conduct ordinance is impermissibly vague and overbroad and thus constitutionally defective. The federal district court denied the petition and the subsequent application for a certificate of probable cause.


We grant the certificate of probable cause due to the important jurisdictional question involved.


We find that petitioner is not entitled to invoke the habeas corpus jurisdiction of the federal courts. The writ of habeas corpus is available only to one who is 'in custody.' 28 U.S.C. § 2241(c). In order for this requirement to be met, there must be a significant restraint imposed on one's liberty. Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Harvey v. State of South Dakota, 526 F.2d 840 (8th Cir., filed Dec. 11, 1975). A fine of $25 is not a significant restraint. Edmunds v. Won Bae Chang, 509 F.2d 39 (9th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970); Pueschel v. Leuba, 383 F.Supp. 576 (D.Conn.1974); Wright v. Bailey, 381 F.Supp. 924 (W.D.Va.1974).


The denial of the writ is affirmed for want of subject matter jurisdiction.