NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0866n.06 Nos. 11-2446/2447 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT DOL ORES MI CHAEL S; R ONAL D MI CHAEL S, Petitioners-Appellants,

v. MARK HACKEL , Macomb County Sheriff, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BOG GS, GI L MAN, and D ONAL D, Circuit J udg es.

PER CURI AM. Dolores and Ronald Michae ls, wife and h u s b an d , appea l a district court judgme nt dismiss ing their petitions for writs of habea s corpus, filed pursuant to 28 U.S.C. § 2254. Petitioners enter ed into a consent ag ree ment in 2004 to remove a composting operation from their far m. I n 2008, a state court judge visited the far m and deter

mined that peti t i o ners had not complied with the consent judgme nt. Petitioners wer e found g uilty of contempt and assessed a fine,

as well as imprisonment for thirty day s or until they complied with the consent judgme nt. Petitioners

wer e incar cer ated from J uly 22, 2008, until J uly 31, 2008, when the state trial court deter mined that substantial eff

orts wer e being made to remove the composting materia l from the far m, and the court rele ased the petitioners. Afte r exhausting state court reme dies, petitioners filed f or fe dera l habea s corpus relief

, arg uing that they had been denied due p ro ce s s i n t h e state court proce eding

. The district court dismiss ed the petitions on the g round that petitioners wer e not in custody for purposes of fe dera l habea s corpus jurisdiction.Nos. 11-2446/2447

Michae ls v. Hack

el On appea l, petitioners argu e t h at the district court err ed in concluding that they are not in custody , g iven that the thirty -day sentenc e was not fully serve d, they had rec eived supervisory visits from the court following their rele ase from jail, and that they are also challeng ing the fine imposed by the state c ourt. We revie w de novo questions reg arding the jurisdiction of the district court; in habea s corpus proce eding s, a dis trict court has jurisdiction only if the petitioner is in custody at t he ti me t hat t he petition is filed. See Ste verson v . Summers , 258 F.3d 520, 522 ( 6th Cir. 2001). Petitioners cite Lawren ce v. 4 8th District Court , 560 F.3d 475, 481 (6th Cir. 2009), as authority for the proposition that a person who is rele ased on bond while the sentenc e is stay ed is in custody for purposes of habea s corpus. Howeve r, the possibili ty of future incar cer ation satisfies the “in custody ” require ment o n ly wh e r e it is imminent and inevitable. Gonzales-Fue ntes v. Molina , 607 F.3d 864, 874 n.8 (1st Cir. 2010), cert. denied, 131 S. Ct. 1568 (2011). Her e, petitioners’ sentenc es

wer e not mere ly stay ed; the petitioners wer e rele ased and the supervisory visits to their proper ty have

cea sed. Althoug h they

argue that they

could be r einca

rce rate d if they

fail to comply

with the state court order , courts have found that potential future incar cer ation for failure to c omply with a court order is insufficient to satisfy the “in custody ” require ment. Thrower v. City of Akron , 43 F. App’x 767, 768 (6th Cir. 2002) (per curiam) (finding potential future incar cer ation for f ailure to pa

y fine insufficient); Hansen v. Marr , 594 F. Supp. 2d 1097, 1100-01 (D. Neb. 2009) (f i n d i n g p otential incar cer ation for failure to reg ister as a sex offe nder insufficient) (citing W illiamson v. Gregoire , 151 F.3d 1180, 1184 ( 9th Cir. 1998) (same) ). Petitioners also argue that their challeng e to the fine imposed by the state court is sufficie nt to r ender them “in custody ” for purposes of district court jurisdiction. Howe ver, w e have reje cted

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Michae ls v. Hack

el this a rg ument in pr evious case s. 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. W atroba , 56 F.3d 28, 29 ( 6th Cir. 1995). Acc ording ly , we a ffirm the dismissal of these pe titions

.

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