NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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 thirtydays 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.
Nos. 11-2446/2447

Michaels v. Hackel

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 onlywhere 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 supervisoryvisits 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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