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. e du/thir dc ir c uit_1997/247Filed October 22, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 5577

MICHAEL C. BARRY

v.

BERGEN COUNTY PROBATION

DEPARTMENT, Hackensack, N.J.;

ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

Bergen County Probatio n Department,

Peter Verniero, Attorney General

of New Jersey,

Appellants

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 94

- cv

- 03258)

Argued August 12, 1997

BEFORE: STAPLETON, GR EENBERG and COWEN,

Circuit Judges

(Filed October 22, 1997)

Peter Verniero

Attorney General of New Jersey

Arthur S. Safir, Esq. (argued)

Deputy Attorney General

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellants

David M. Quirk, Esq. (argued)

11 Seymour Street

Montclair, NJ 07042

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.This is an appeal from a j udgment of the district court,

dated August 7, 1996, granting petitioner

- appellee Michael

C. Barry's petition for a writ of habeas corpus. The district

court held that it had subject matter jurisdiction to

consider Barry's petition because his communit y service

obligation constituted custody for purposes of habeas

corpus review pursuant to 28 U.S.C. S 2254(a). The district

court further held that, because the media coverage at

issue had the potential to prejudice one or more jurors, the

trial judge 's failure to voir dire the jurors violated Barry's

Sixth Amendment right to a fair trial. In addition to

granting the petition, the district court ordered that Barry

be released from his community service obligation. The

district court made no provisi on for the State to retry Barry.

Respondents

- appellants, the Bergen County Probation

Department and Peter Verniero, the Attorney General of

New Jersey (collectively, "the State"), contend that the

district court erred in its determination that Barry was "in

custody" for habeas corpus purposes and that the media

coverage potentially prejudiced the jury. Moreover, the State

argues that the district court erred by releasing Barry from

his community service sentence without providing the State

with a n opportunity to retry him.

We hold that Barry was "in custody" for purposes of 28

U.S.C. S 2254(a) when he was resentenced in 1993 to 500

hours of community service. We further hold that the media

coverage at issue did not have the potential to prej udice the

jury. Accordingly, the judgment will be reversed, and we

need not consider whether the district court erred by failing

to provide the State with an opportunity for retrial.

2

I.

Dr. Michael Barry s erved as medical director of the Fort

Lee Stress Relief Clinic. During its brief period of operation,

845 patients generated 2,429 visits and 2,337 prescriptions

for the drug Quaalude. Nearly every prescription was for

forty

- five tablets, regardless of a patient's prior history.

Barry and a number of codefendants were indicted by the

State of New Jersey on: sixteen counts of dispensing the

drug Quaalude not in good faith in the course of

professional medical practice, in violation of N.J. STAT. AN N.

SS 24:21

- 9, :21

- 15 (West 1997), :21

- 19(a)(1), :21

- 19(b)(3)

(repealed by L.1987, c. 106, S 25, operative July 9, 1987)

(West 1997), and 2C:2

- 6 (West 1995); three counts of

dispensing Quaalude and Diazepam, in violation of thosesame statutes; one co unt of maintaining a drug resort, in

violation of N.J. STAT. ANN. SS 24:21

- 21(a)(6), :21

- 21(b) (West

1997), and 2C:2

- 6; and one count of conspiracy to dispense

the drug Quaalude not in good faith in the course of

professional medical practice and to ma intain a drug resort,

in violation of N.J. STAT. ANN. SS 24:21

- 24(a) (West 1997),

and 2C:5

- 2 (West 1995). The trial, which lasted almost five

months, commenced on January 4, 1982.

On February 18, 1982, the trial court became aware of

two newspaper a rticles that appeared in the Herald

Dispatch. The court admonished the jury:

There are just a few things I must call to your

attention, and one of them is that there have been

articles in the newspaper and they have been called t o

my attention, about this case.

It's also been called to my attention that the articles

are not accurate. I am not critical of the articles in any

sense, that's none of my business what's in the article,

but it i s our business to ask you not to read them.

Remember I said at the outset that you as the jury in

this case are the judges. You will be the judges in the

trial. You'll be the sole and final judges in this trial and

you'll ha ve to decide this case based solely on the

evidence that you see and you hear that takes place in

this courtroom. I will continue to ask you, and if I don't

forget, I will be telling you this every day, I will remind

3

you not to read the newspapers. If you see anything

anywhere close that has anything to do with this case,

don't read it, don't let anybody attempt to discuss the

case with you, don't discuss the case even among

yourselves. Keep an open mind until you heard [sic] all

sides, the entire case, not just the State's case, but the

defendants' side and the law as given by the Court at

the end of the trial, but as I said, th ere are articles,

some of it is on the front page here, and there may be

something on the TV.

App. at 138

- 39. At the conclusion of the proceedings that

day, the trial court reminded the jury of its earlier

admonition regarding the pres s.

As the trial continued, the court repeatedly cautioned the

jury to refrain from discussing the case with anyone or

reading anything in the newspapers even tangentially

related to the case. On March 17, 1982, the trial court

instructed the jury at the conclusion of the proceedingsthat day:

All right. I think it's a good time to recess.

But before we do, members of the jury, you will recall

from time to time I have been cautioning the jury not

to discuss the case, and not to read anything that

might in any way have any effect on you as, as it

pertains to this case. And I would just remind you once

again, would you please continue to follow those same

instructions.

And, I think more and more now you can realize the

importance of what I said, that ultimately you will have

to decide this case solely and you will have to solely on

the evidence that you see and you hear in this

courtroom. And, if you read something elsewhere or if

someone talks to you or even if you talk among

yourselves, it would be very, very hard for you to

remember whether you heard it in the courtroom or

you read it somewhere or whether it was evide nce in

this case.

So, it is

-- nor if you should see something, don't

read it. If someone wants to talk to you, don't let them

4

talk to you about the case. And, you will remember

that this has to do with this case and this was the

evidence in this case because some [sic] have to decide

it solely on the evidence that you see and hear in the

courtroom.

App. at 145

- 46.

On April 20, 1982, approxima tely two weeks before the

jury received the case, the trial court issued the following

admonition to the jury regarding an upcoming television

program:

There is another thing that I must call to your

attention, also. It's come to my a ttention that a

television program is to be televised on Channel 4,

NBC, on Tuesday evening, that's today, which may

address topics which have been either examined or

referred to here incourt [sic] . . . . I'm not going to t ell

you about a program and then tell you not to look at

it, but I have to do it that way, because you might

come on it by chance. So, the best way to do it is to tell

you about it and then tell you not to look at it, whethe r

someone reminds you and says you know, I sawsomething, tell them not to talk about it. So, I'm going

to ask you not to view the program, and further, I

would ask, if possible, that the program not be

watched by ot her members of your family, if possible,

or if that's not done, that you not discuss or be present

during any discussion with either your family or

friends . . . .

App. at 156

- 57. The following day, the court asked the

jurors if anyone had viewed the television program in

question, and no one answered in the affirmative.

On May 13, 1982, the trial judge, at the conclusion of the

entire case, charged the jury as follows:

Each defendant is entitled to have his case

determined from his or her own acts and statements

and the other evidence in the case which may be

applicable to him or to her. And you're here to

determine the guilt or innocence of the accused from

the evidence bef ore you and you are not called upon to

5

return a verdict as to the guilt or innocence of any

other person or persons.

App. at 172. The jury received the case and commenced

deliberations that aft ernoon.

In the morning of May 14, 1982, during jury

deliberations, counsel for one of Barry's codefendants

brought to the court's attention that a newscast that had

been broadcast on WINS radio the previous evening

concerned hearings in Washington o n methaqualone usage.

A recording of the story was transcribed for the record:

"At a Senate Labor and Human Resources

Subcommittee hearing, Republican Senator Paula

Hawkins says 90% of the sleeping pills also called the

love drug is [sic] supplied illegally to young people in a

two billion dollar a year business."

Now the recording has the following statement from

Senator Hawkins'[s] testimony, "Under the guise of

affording legitimate me dical services these clinics

provide a ready and accessible source of

pharmaceutical Quaaludes, primarily for white collar

young adults. The procedure is apparently quite

simple. Bring between seventy five [sic] and two

hundred dollars in cash, fill out a brief personal history

form, claim personal or job problems and trade thecash for a prescription of thirty to forty

- five

Quaaludes."

The broadcast thencontinues [sic], "Now Senator

Hawkins has introduced a bill to ban Quaaludes as a

so

- called controlled substance. Hawkins says at least

130 people died from the drug last year. The Drug

Enforcement Administration says Quaaludes [are]

second in p opularity among young people only to

marijuana."

App. at 201.

Counsel also brought to the court's attention an article in

that day's Bergen Record entitled "Federal Drug Agency

Targets Stress Relief Clinics." According to counsel, the

arti cles concerned

6

stress clinics and how they operate in a manner so

that a drug can be given out to young people who are

then abusers. They refer to people coming in paying

$125 for a fifteen to twenty minute visit to a stress

clinic in order to receive Quaalude prescriptions.

App. at 178. The Record has the largest circulation in

Bergen County. Counsel then requested that the court voir

dire and sequester the jurors and t he court instruct them

not to read that day's issue of the Bergen Record. The

request was denied. However, the court instructed:

You shouldn't read about the case . . . . You shouldn't

listen to the radio about anything that might perta in,

not only about this case but anything that might

pertain to anything relating to something that might

pertain to a related matter. And you shouldn't read

anything that might pertain to a related matter that

might affect you in this case.

So if you see or even think it might pertain to

something, put it aside. Don't read about it. Because

you have to decide this case solely on the evidence

that's been presented in this case . . . and not on

something that you heard on the radio or that you've

seen or that you will see, and there may be something

in the newspaper and I have to continuously guard

against that. And it never fails but that just at the ti me

when jurors are deliberating that some always thinks

[sic] something will be in the newspaper, something is

in the newspaper that they think might affect you in

your deliberations.. . . So would you keep that in mind, not to read

anything. If you read a newspaper

-- I can't keep you

from reading newspapers, but if something appears in

the newspaper that might affect you in this case, you

see the problems it creates.

App. at 20 3

- 04.

After lunch that same day, counsel for one of Barry's

codefendants advised the court that an alternate juror was

seen reading the Bergen Record. Counsel moved for a

mistrial or dismissal of the alternates; both motions were

7

denied. The court stated: "The record will show there are no

newspapers in the deliberating room." App. at 217. At the

end of the day, the court again instructed the jury:

I would ask that you not read or listen to what' s on the

radio or on the TV, and I don't know if there'll be

anything on, but it just so happens that usually

something does happen at atime [sic] like this, that

something appears on the TV or on the radio which

dea ls with perhaps substances that might be related or

connected in some way with things that might remind

you of this case. . . .

And it's so important that you bear in mind that in

deciding this case you should not in any way be

influenced by anything other than . . . what you've

seen in the case . . . particularly something as I say,

that appears in a newspaper article or on the radio.

I would, therefore, urge you very, very strongly, if you

could stay away from reading even a headline that

might indicate anything like that. Don't even get

anywhere near anything like that.

App. at 221

- 22.

On May 17, 1982, counsel for one of Barry's

codefendants brought to the court's attention two

newspaper articles: one about the case itself from the May

15 issue of the Hudson Dispatch, with a six

- column banner

headline reading "Mistrial Denied in Fort Lee Pill Pushing

Case," which reported sidebar conversations that some one

had leaked to the press, and one from the May 16 issue of

the Bergen Record entitled "New Jersey Weighs Ban Against

Quaaludes," which mentioned Barry and other defendants

and erroneously reported that they were linked to a stressrelief center in Atlantic City that was under investigation.

Counsel moved for the court to instruct the jurors not to

read the newspapers at all and to voir dire them to

determine whether any had seen the article. The motion

was denied. At the end of the day, the cour t again

instructed the jury:

[A]gain, I would ask you please, please don't read

anything

-- and it's difficult for me to say don't read

8

any newspaper because I'd like to ask you not to d o

that, not to read and not to listen to TV and not to

listen to any radio, but I guess that's asking too much

for me to ask you to do that. I'd like to ask you to do

that but, again, I will caution you, please don't read

anything that might have the slightest

-- if you see any

kind of a headline that might have anything to do with

any type of controlled dangerous substance or anything

that might have anything to do with any kind of a case,

even remotely, obviously you shouldn't be looking at it

or reading it. . . . And similarly, don't listen to anything

on the radio or TV.

App. at 247

- 48.

On May 18, 1982, the court again instructed:

Don't read anything i n the newspapers that in any

way, shape or form might affect you in any possible

way because it is important that you decide this case

based on the evidence you've seen and heard or the

lack of evidence in the case. . . . [D ]on't permit anyone

to discuss this case with you either on the telephone,

newspaper, radio, TV, et cetera.

App. at 255.

On May 19, 1982, the court instructed the jury "not to

read, listen, not to let anyone discuss the case with you ."

App. at 262.

On May 20, 1982, shortly after the jury resumed

deliberations at 9:15 a.m., counsel brought to the court's

attention an article in that day's issue of the Bergen Record

with a six

- column headline reading "Stress Center Jury

Replays Drug User's Testimony." Although the State

disputes that the jurors could have seen the paper because

it usually comes out after 9:30 a.m., defense counsel

represented to the court that he bought the paper

"downstairs" in the courthouse before the jury begandeliberating that day. Counsel again requested a voir dire of

the jury, which request was denied. Later, the court

instructed:

[O]nce again, I would caution you that you are not to

read anything in the newspapers. If any article s appear

9

in the newspapers

-- and the fact that articles appear

in the newspapers, even though they may be allegedly

a rehash of what occurs in court, you shouldn't read

anything be cause the fact that something appears, it is

not for the jury to read at all. You should rely only on

the testimony, the evidence that was heard in court

and not what you read in the newspaper and not what

you hear outside o f court as I've indicated earlier.. . .

[D]o not read anything about the case. . . . I have to

explain the importance of it to you and not to permit

anyone to discuss the case with you, not to read

anything, not to listen to anything that in any way

might have some bearing on this case, that might

influence you in the case.

App. at 272

- 73. Throughout most of the deliberations, the

jury was sequestered during lunch breaks and supervised

by a court officer during recess.

On May 24, 1982, Barry was found guilty on seventeen

of the twenty

- one counts. He was sentenced to concurrent

three

- year probationary terms on each of the seventeen

counts, contingent upon his completion of a 180

- day jail

term, and fi ned, in the aggregate, $85,425. He appealed his

conviction, requesting that he be represented on appeal by

a court

- appointed attorney. The state court rejected this

request and subsequently dismissed his appeal for lack of

prosecution. His petition for certification to the New Jersey

Supreme Court was denied.

Barry filed a petition in the district court pursuant to 28

U.S.C. S 2254 for a writ of habeas corpus. He asserted that

he was indigent and entitled to court

- appointed counsel to

prosecute h is state appeal. The district court dismissed the

petition for failure to exhaust state remedies. We vacated

and remanded. Barry v. Brower, 774 F.2d 1150 (3d Cir.

1985) (table). The district court thereafter granted Barry's

petition, and we affirmed wi th instructions to the district

court to order that Barry be released from state custody

unless the state court entered an order within thirty days

reinstating his state appeal and appointing counsel. See

Barry v. Brower, 864 F.2d 294 (3d Cir. 1988).Subsequently, the Superior Court of New Jersey,

Appellate Division, affirmed Barry's conviction. In the

10

portion of the opinion that addressed the issue we face in

this appeal, the court wrote:

When a trial court is presented with a post

- impanelment voir dire motion based upon the potential

jury exposure to trial publicity, the court must employ

a two

- part inquiry. First, the court should determine if

the disseminated information has the capacity to

prejudice the defendant. If so, the court should then

determine whether there is a realistic possibility that

such information may have reached one or more of the

jurors. "Relevant considerat ions include the extent,

notoriety, and prominence of the media coverage, with

particular reference to the aspects found particularly

prejudicial by the Court."

"The procedure of questioning an impaneled jury

when prejudicial publicity threatens the fairness and

integrity of a defendant's trial should not be invoked

begrudgingly." Similarly, however, the existence of

some publicity relating to the defendant or the

proceedings will no t automatically require that the

judge hold a voir dire.

In an appropriate case, an alternative to

sequestration exists in the judge's issuance of "clear

and definitive" instructions to the jury not to read or

lis ten to media reports of the trial, and to decide issues

only on the evidence presented in court. Where

cautionary instructions are appropriate and properly

given, there is a presumption that jurors acted in good

faith in fol lowing those instructions. Even where

several jurors have been exposed to a media report

about the case, a mistrial need not be directed if the

report does not mention any defendants by name and

the judge instructs the jury that the report had nothing

to do with the defendants.

Where juror prejudice is alleged, it is within the

discretion of the trial judge to determine whether relief

should be granted. On appeal, we will not reverse a

discretionary decision of the trial judge unless we are

satisfied that a manifest denial of justice resulted

below. Here, we have carefully reviewed all allegations

11of juror prejudice a nd find them clearly to be without

merit. We are satisfied that no manifest denial of

justice has occurred.

Regarding the articles concerning the case which

appeared in the Bergen Record and the Hudson

Dispatch, w e note that nothing in the record indicates

the jurors actually or probably read them or heard

prejudicial media reports. Under these circumstances,

we find no prejudice resulting in a manifest denial of

justice occurred.

State v. Barry, No. A

- 720

- 82T4, slip op. at 84

- 86 (N.J.

Super. Ct. App. Div. Nov. 22, 1991) (per curiam) ("App. Div.

Op.") (quoting State v. Bey, 112 N.J. 45, 86, 89, 548 A.2d

846, 867, 869 (1988)) (citations omitted). The New Jersey

Supreme Court den ied a petition for certification.

Following the state court affirmance of his conviction,

Barry was ordered to pay the fine. When he failed to do so,

a motion seeking to hold him in contempt was filed by the

Bergen County Probation Department. Conclu ding that

Barry was unable to pay the fine, the state court entered an

amended Judgment of Conviction, which ordered Barry, in

lieu of paying the fine, to perform 500 hours of community

service. Barry's probation supervision ended on or about

February 1, 1993.

This petition for a writ of habeas corpus pursuant to

S 2254 was filed in the district court on July 12, 1994,

when Barry was still obligated to complete his community

service under the direction of the Morris County Probation

Department. The petition named as respondents the Bergen

County Probation Department and Peter Verniero, the

Attorney General of New Jersey. His petition raises several

issues, including whether the trial judge violated his Sixth

Amendment rights by refusing to vo ir dire the jury during

its deliberations concerning possible prejudice arising from

media coverage of the case.

The district court granted the petition, ordering that he

be released from community service. It also held that his

community service ob ligation constituted custody for

habeas corpus purposes. In addition, the district court held

that the media coverage during jury deliberations could

12

have potentially prejudiced one or more jurors and,

theref ore, the trial court's failure to voir dire the jury wasan error of constitutional magnitude. The district court

determined that the remaining claims had no merit. This

appeal followed.

The State raises three issues in this appeal. First, was

Barry "in custody" pursuant to 28 U.S.C. S 2254(a)?

Second, did the trial court's failure to voir dire or sequester

the jury after becoming aware of the media attention the

case received violate Barry's Sixth Amendment right to have

his case tried by an imp artial jury? Finally, did the district

court err by failing to give the State the opportunity to retry

Barry? We raise sua sponte the issue of whether, assuming

Barry is "in custody," either of the respondents is his

"custodian" for purposes of S 2254( a).

II.

Our appellate jurisdiction is pursuant to 28 U.S.C.

SS 1291 and 2253. The district court determined it

unnecessary to engage in any fact finding. Accordingly, we

exercise plenary review over the district court's grant of

habeas corpus. Un ited States v. Cleary, 46 F.3d 307, 3019

-

10 (3d Cir. 1995); Lesko v. Owens, 881 F.2d 44, 50 (3d Cir.

1989). This standard is derived from the purpose of a

reviewing court in a habeas proceeding, which is to review

state cases " `for violations of fede ral constitutional

standards.' " Lesko, 881 F.2d at 50 (quoting Milton v.

Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178

(1972)).

III.

A. Custody

The first issue in this appeal is whether Barry was "in

custody" for purposes of S 2254(a) when he was

resentenced in 1993 to 500 hours of community service.

Section 2254(a) provides that federal courts have

jurisdiction to entertain an application for habeas relief

only if a petitioner is "in custody" in violation of the laws,

treaties, or Constitution of the United States. This

13

requirement "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, 93

S. Ct. 1571, 1574 (1973). In making a custody

determination, a court looks to the date that the habeas

petition was filed. See Carafas v. LaVallee, 391 U.S. 234,

238

- 40, 88 S. Ct. 1556, 1559

- 61 (1968).Barry argued, and the district court agreed, that

S 2254(a)'s custody requirement was satisfied because

Barry was subject both to " `significant restraints on [his]

liberty' . . . which were `not shared by the public

generally,' " Dist. Ct. Op. at 6 (quoting Jones v.

Cunningham, 371 U.S. 236, 2 40, 242, 83 S. Ct. 373, 376,

377 (1963)), and " `some type of continuing governmental

supervision.' " Id. (quoting Tinder v. Paula, 725 F.2d 801,

803 (1st Cir. 1984) (citing Spring v. Caldwell, 692 F.2d 994,

997

- 98 (5th Cir. 1982))). The State contends that the

district court's conclusion is erroneous for two reasons.

First, Barry's community service was imposed in lieu of his

$85,000 fine, and his failure to complete community service

would have resulted, at most, in the reimposition of the fine

( or the proportional remainder thereof), rather than

incarceration. Therefore, the State argues, Barry's case is

indistinguishable from cases holding that the mere

imposition of a fine is insufficient to constitute custody.

Second, the State maintains t hat Barry was not subjected

to the type of continuing governmental supervision usually

associated with custody. In particular, the State points out

that Barry took almost three years to complete his service,

and that he had the ability to choose both t he type of

assignments as well as a specific schedule for completing

these assignments. We conclude that the state has read

S 2254(a)'s custody requirement too narrowly.

While early Supreme Court decisions held that

incarceration was required before a defendant was "in

custody" for habeas corpus purposes, see Hensley, 411

U.S. at 350 n.8, 93 S. Ct. at 1574 n.8, the Hensley Court

noted that these decisions have not been cited by more

recent Supreme Court decisions and "may no longer be

deemed con trolling." Id. Instead, the meaning of "custody"

has been broadened so that, in the S 2254(a) context, it is

14

no longer limited to physical custody. See Justices of the

Boston Mun. Ct. v. Lydon, 466 U.S. 294, 3 01, 104 S. Ct.

1805, 1810 (1984) (pretrial release on personal

recognizance constitutes custody); Hensley, 411 U.S. at

349

- 51, 93 S. Ct. at 1573

- 75 (release on personal

recognizance pending execution of sentence constitutes

custody); Jones, 371 U.S. a t 240

- 43, 83 S. Ct. at 375

- 77

(parole tantamount to custody); see also Barry, 864 F.2d at

296 (probation constitutes custody for habeas corpus

purposes).

Despite this "subtle shift[ ]" in the custody requirement,

see Lefkowitz v. Fair, 816 F.2d 17, 19 (1st Cir. 1987),

courts continue to recognize that this custody requirementis designed "to limit the availability of habeas review `to

cases of special urgency, leaving more conventional

remedies for cases in which the restraints on liberty are

ne ither severe nor immediate.' " Poodry v. Tonawanda Band

of Seneca Indians, 85 F.3d 874, 894 (2d Cir.) (quoting

Hensley, 411 U.S. at 351, 93 S. Ct. at 1575), cert. denied,

___ U.S. ___, 117 S. Ct. 610 (1996). Accordingly, several

courts have held that t he imposition of a fine or restitution

does not constitute "custody." See, e.g. , Barnickel v. United

States, 113 F.3d 704, 706 (7th Cir. 1997); United States v.

Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (per curiam);

Dremann v. Francis, 828 F.2d 6, 7 (9t h Cir. 1987) (per

curiam). Likewise, several courts have held that the

imposition of certain civil disabilities does not constitute

"custody." See, e.g., Lefkowitz, , 816 F.2d at 20 (revocation

of medical license is not custody); Lillios v. New Hampshi re,

788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (fine and

suspension of driver's license is not custody); Ginsberg v.

Abrams, 702 F.2d 48, 49 (2d Cir. 1983) (per curiam)

(petitioner's removal from the bench, revocation of his

license to practice law, and disqualification as a real estate

broker and insurance agent is not custody).

No court has so far determined whether community

service constitutes custody for purposes of S 2254(a).

However, the Court of Appeals for the Ninth Circuit recently

f ound custody where a petitioner was sentenced to fourteen

hours of attendance at an alcohol rehabilitation program

after being convicted of driving while intoxicated. See Dow

15

v. Circuit Court of the First Circ uit, 995 F.2d 922 (9th Cir.

1993) (per curiam). The court made this determination even

though the petitioner could schedule his service over a

three

- day or five

- day period. Concluding that this was

sufficient to constitute custody, the Ninth Circuit wr ote:

The sentence in this case, requiring appellant's

physical presence at a particular place, significantly

restrains appellant's liberty to do those things which

free persons in the United States are entitled to do and

therefore must be characterized, for jurisdictional

purposes, as "custody." Appellant "cannot come and go

as he pleases." Hensley, 411 U.S. at 351, 93 S. Ct. at

1575. Moreover, appellant suffers a greater restraint

u pon his liberty

-- mandatory class attendance

-- than

the restraint suffered by a person who is released upon

his own recognizance. See id. at 351

- 53, 93 S. Ct. at

1574

- 76.

Id. at 923 (emphasis added).We find the Dow decision qui te compelling and analogous

to this matter. Like the petitioner in Dow, the State did not

monitor or restrict Barry's every act. Moreover, both

petitioners were afforded a certain amount of flexibility to

schedule when they would complete their respect ive

obligations. Nevertheless, as the Ninth Circuit recognized,

an individual who is required to be in a certain place

-- or in

one of several places

-- to attend meetings or to perform

services, is clearly subject to restraints on his liberty not

shared by the public generally.

Moreover, the State's reliance on the so

- called "fine

- only"

cases does not alter this analysis. The instant case is

readily distinguishable from cases in which courts have

held that a fine

- only sentence does not constitute cu stody,

because such sentences implicate only property, not liberty.

See Hanson v. Circuit Court of the First Judicial Circuit of

Ill., 591 F.2d 404, 407 n.6 (7th Cir. 1979); see also

Lefkowitz, 816 F.2d at 20 ("Habeas jurisprudence has

traditionally b een concerned with liberty rather than

property, with freedom more than economics."); Ginsberg,

702 F.2d at 49 (limitations on economic mobility do not

constitute custody). It is also distinguishable from those

16

cases where the petitioner was barred only from pursuing

certain means of livelihood, see Lefkowitz, 816 F.2d at 20;

Ginsberg, 702 F.2d at 49; Harvey v. South Dakota, 526 F.2d

840, 841 (8th Cir. 1975) (per curiam), rather than, as here,

required to perform a certain type of work.

Equally unavailing is the State's contention that Barry

was not "in custody" because he was not supervised on a

continuous basis. As the Second Circuit recently noted in

Poodry, 85 F.3d at 895, an analogous case involv ing

banishment from an Indian tribe and reservation,

" `[r]estraint' does not require `on

- going supervision' or `prior

approval.' " Id. ("While `supervision' (or harassment) by

tribal officials or others acting on their behalf may be

sporadic, that on ly makes it all the more pernicious. . .

[because] the petitioners have no ability to predict if, when,

or how their sentences will be executed."). But see

Lefkowitz, 816 F.2d at 19 ("[H]e who seeks the succor of

habeas corpus must be subject . . . `at the least, to some

type of continuing governmental supervision.' "(quoting

Tinder, 725 F.2d at 803)). While there is no suggestion that

the Morris County Probation Community Service Program

officials monitored Barry's every move, they nevertheless

pe rformed an oversight function and actually reported back

to Bergen County Probation officials. See Letter from PeterN. Brill, Bergen County Probation Officer, to Arthur Safir,

Deputy Attorney General, Appellate Division 2 (August 12,

1994), App. at 12 6 ("Regrettably I have been informed that

Mr. Barry has been less than cooperative with the Morris

County Probation Community Service Program officials, and

if he fails to cooperate, it is our intention to return the

matter to Judge Moses for further d isposition."). This level

of supervision was clearly adequate.

Finally, we are unpersuaded by the State's argument that

Barry was not "in custody" because he did not face

imminent incarceration. Custody is established whenever a

restraint on liberty is either actual or imminent. See

Hensley, 411 U.S. at 351, 93 S. Ct. at 1575; see also

Poodry, 85 F.3d at 894 ("[A] court [must] judge the `severity'

of an actual or potential restraint on liberty." (emphasis

added)). Courts have inquired into the im minence and

inevitability of incarceration in the fine

- only cases only

17

because the fine itself represented no severe restraint on

liberty. For example, the courts in Poodry and Dow, where

the restraints were found to be sufficiently severe, did not

even discuss this factor. But see Lefkowitz, 816 F.2d at 20

("He who seeks the writ must be incarcerated, or under

immediate threat of incarceration, in order to meet the

custody requirement of the habeas statut e."). Because we

conclude that Barry's community service obligation

imposed an actual, severe restraint on his liberty, we need

not consider an alternative method for establishing custody,

namely, the threat of imminent or inevitable incarceration.

In sum, we hold that Barry's community service

obligation constitutes custody for habeas corpus

jurisdictional purposes. As part of his 1993 resentencing,

Barry was ordered to perform 500 hours of community

service under the direction of the Morris Cou nty

Community Service Program. Although Barry was given

approximately three years to complete this service, as well

as options regarding the type and hours of service, there

can be no doubt that these conditions significantly

restrained his liberty "t o do those things which in this

country free [people] are entitled to do." Jones, 371 U.S. at

243, 83 S. Ct. at 377. The district court correctly held that

the community service obligation which Barry was required

to complete constituted custody within the meaning of

S 2254(a).

B. The Proper Respondent(s)

At the time he filed his petition, Barry was under thesupervision of the Morris County Community Services

Program. However, he named as respondents only the

Attorney General and the Bergen C ounty Probation

Department. Because of this discrepancy, we raised sua

sponte whether Barry named the correct respondent(s) and

requested the parties to submit letter briefs on the issue.

See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S.

484, 494

- 95, 93 S. Ct. 1123, 1129 (1973) ("The writ of

habeas corpus does not act upon the prisoner who seeks

relief, but upon the person who holds him in what is

alleged to be unlawful custody.").

In response to our request, both parties agree that the

state court order of January 13, 1993 transferred Barry's

18

community service obligation to the Morris County

Probation Community Service Program, and that Barry did

not file his habeas petition until June 12, 1994. However,

they disagree as to the implication of these dates.

Barry contends that the Bergen County Probation

Department, one of the named respondents, did not

relinquish custody of either the case or of Barry himself as

a result of the January 13 order. The order clearly states,

"If this Sentence is not completed, the Fine shall be

reinstated." App. at 123. Accordingly, Barry argues, they

retained oversight and custody. He also points to the letter

dated August 12, 1994 from the Chief Proba tion Officer of

Bergen County to the Deputy Attorney General, which

states that Bergen County Probation will "return the matter

to Judge Moses for further disposition" if Barry fails to

cooperate with the Morris County Community Service

Program. App. at 125

- 26. Finally, Barry argues that as the

Attorney General of New Jersey was listed as a respondent,

and as he is the highest ranking law enforcement officer in

New Jersey with overall supervisory authority and

responsibility, he is clearly the cust odian of Barry.

The Attorney General's office asserts, by contrast, that

Barry failed to name as a proper party

- respondent either

the particular probation officer responsible for his

supervision or the official in charge of the probation agency.

The y also point to a letter attached to their response to this

court's questions which explains that Barry was supposed

to meet with a probation officer in Morris County, and once

he had completed his community service obligation, the

case would be closed . The Attorney General's office also

argues that the Attorney General is not the proper

respondent.We are not persuaded by the State's arguments. The

Advisory Committee Note to Rule 2 of the Rules Governing

Section 2254 Cases in the United States D istrict Courts

("Rules Governing Section 2254 Cases") provides that where

[t]he applicant is in custody in any other manner

differing from [jail, prison, or other actual physical

restraint, or probation or parole] due to the effe cts of

the state action he seeks relief from[, t]he named

19

respondent should be the attorney general of the state

wherein such action was taken.

Advisory Committee Note to Rule 2(b), Rul es Governing

Section 2254 Cases, 28 U.S.C. foll. S 2254 (1994). This text

appears in the advisory committee note to Rule 2(b),

governing cases where "the applicant is not presently in

custody . . . but may be subject to such custody in the

future[.]" Rule 2(b), Rules Governing Section 2254 Cases,

28 U.S.C. foll. S 2254 (1994). Nevertheless, the text of the

Advisory Committee Note is written in broad language and

is preceded by the explanation that it is "worthwhile to spell

out the various situatio ns which might arise and who

should be named as respondent(s) for each situation."

Advisory Committee Note to Rule 2(b), Rules Governing

Section 2254 Cases; cf. Reimnitz v. State's Attorney of Cook

County, 761 F.2d 405, 409 (7th Cir. 1985) ("The import ant

thing is not the quest for a mythical custodian, but that the

petitioner name as respondent someone (or some

institution) who has both an interest in opposing the

petition if it lacks merit, and the power to give the

petitioner what he seeks if th e petition has merit

-- namely,

his unconditional freedom.").

The State cites this note but, without explanation,

asserts that the Attorney General was not Barry's

custodian. Based on the plain language of the advisory

committee note, the argument of the State must fail. We

conclude that the Attorney General is properly named as a

respondent in this matter. Moreover, because Bergen

County authorities retained jurisdiction over Barry, they too

were properly named as a respondent here.

IV.

Havi ng determined that the district court did, in fact,

have subject matter jurisdiction to consider Barry's

petition, and that the proper respondents have been

named, we now consider whether Barry's constitutional

right to an impartial jury was violated. The district courtfound that Barry's Sixth Amendment right to a fair trial was

violated when the trial judge refused to voir dire the jury,

which may have been exposed to prejudicial media

20

coverage. The Stat e contends this conclusion is erroneous

for several reasons: (1) the district court's determination

that the media coverage had the potential to prejudice the

jury was ill

- founded; (2) even assuming the media coverage

could potentially prejudice the ju ry, the district court erred

by failing to accord appropriate deference to the state court

finding that "nothing in the record indicates the jurors

actually or probably read them or heard prejudicial media

reports[,]" App. Div. Op. at 85; and (3) even assuming the

jurors were exposed to potentially prejudicial media

coverage, the district court erred by not requiring the

habeas petitioner to demonstrate a higher level of prejudice

than a defendant must show on direct review. Because we

conclude tha t the media coverage did not have the potential

to prejudice the jury, we need not reach the State's

alternative arguments.

The Due Process Clause of the Fourteenth Amendment

guarantees state criminal defendants the right to a trial by

an impartial finder of fact. See Morgan v. Illinois, 504 U.S.

719, 726, 112 S. Ct. 2222, 2228 (1992); Irvin v. Dowd, 366

U.S. 717, 721

- 22, 81 S. Ct. 1639, 1641

- 42 (1961). 1 In both

civil and criminal cases on direct appeal, we

utilize a three step procedur e to determine whether

publicity during the course of the trial has prejudiced

the jury. "First, a court determines whether the news

coverage is prejudicial. Second, if it is, the court

determines whether any jurors were exp osed to the

coverage. Third, if exposure did occur, the court

examines the exposed jurors to determine if this

exposure compromised their impartiality."

_________________________________________________________________

1. The di strict court and both parties identify this right as stemming

from the Sixth Amendment. This is not strictly correct. The Sixth

Amendment, made applicable to the states via the Fourteenth

Amendment, requires that serious criminal offenses be tried by a jury.

See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447

(1968). The Due Process Clause requires that a factfinder at a criminal

trial, be it a judge or a jury, be impartial. See Morgan, 504 U.S. at 727,

112 S. Ct. at 2229 ("[D]ue process alone has long demanded that, if a

jury is to be provided the defendant, regardless of whether the Sixth

Amendment requires it, the jury must stand impartial and indifferent to

the extent commanded by the Sixth Amendment.").21

United States v. DiSalvo, 34 F.3d 1204, 1221

- 22 (3d Cir.

1994) (quoting Waldorf v. Shuta, 3 F.3d 705, 709

- 10 (3d

Cir. 1993)); see also Government of the Virgin Islands v.

Weatherwax, 20 F.3d 572, 574

- 78 (3d Cir. 1994) (utilizing

this framework).

To determine whether publicity during the course of a

trial has prejudiced a jury, we must first consider whether

the news coverage is prejudicial. See DiSalvo, 34 F.3d at

1221 (quoting Waldorf, 3 F.3d at 709

- 10). We make the

prejudice " `determination on the basis of an objective

analysis by considering the probable effect of the allegedly

prejudicial information on a hypothetical average juror.' "

Waldorf, 3 F.3d at 710 (quoting United States v. Gilsenan,

949 F.2d 90, 95 (3d Cir. 19 91)). "The likelihood of

substantial prejudice turns on all of the surrounding

circumstances, the most important being the nature of the

information learned by the jurors and the manner in which

it was conveyed." Government of the Virgin Islands v.

Do wling, 814 F.2d 134, 138 (3d Cir. 1987). The party

claiming prejudice has "the burden of demonstrating the

likelihood of actual prejudice." Waldorf, 3 F.3d at 710.

In two recent cases, we have held certain news

broadcasts and publications to be non

- p rejudicial. In

DiSalvo, 34 F.3d at 1222, the defendant claimed he had

been prejudiced by news articles that "mentioned that he

had twice been acquitted by federal juries, characterized

him as a `mob lawyer,' [and] made reference to a prior

charge of t ax evasion levied against him." We concluded

that the district court was correct in finding that "none of

the publications" at issue "ma[de] reference to the fact that

[the defendant] had committed a crime, had been convicted

of a crime or had acknowle dged that he was guilty of any

conduct charged in the indictment." Id. We also noted that

"while the `mob lawyer' characterization was not necessarily

flattering to [the defendant], use of this term is not

sufficiently prejudicial to constitute a viola tion of [his] Sixth

Amendment rights." Id.

In Gilsenan, 949 F.2d at 92, the appellants contended

that they had been prejudiced by a news article and a

television broadcast concerning a plea agreement ultimately

rejected by the district court. The ne ws reports stated that

22

the government conceded it had a weak case and that theappellants maintained their innocence. The reports

criticized the government for attempting to dispose quietly

of a controversial case in which it had little confidence and

noted that the district court rejected the agreement because

it did not provide for incarceration of the appellants. We

held that these reports were not prejudicial from an

objective viewpoint because they ca st the government but

not the appellants in a bad light. See also United States v.

DeLarosa, 450 F.2d 1057, 1062 (3d Cir. 1971) (no potential

for prejudice from news story concerning shots fired into

home of government's chief witness where perpetrator was

unknown).

Some of our decisions would appear to be in tension with

the above holdings. In Weatherwax, 20 F.3d at 574, we

found prejudice. The article at issue seriously misquoted

the defendant's testimony to make it appear as if he had

cocked the gun and taken aim before he shot the victim.

The inaccuracies severely undercut the defendant's self

defense theory. See also DiSalvo, 34 F.3d at 1222 n.16

(distinguishing Weatherwax).

In Waldorf, 3 F.3d at 711, which concerned a trial over

dam ages resulting from an automobile accident that

rendered the plaintiff a quadriplegic, we found prejudicial a

news story concerning a $30 million verdict rendered for a

plaintiff in another case who was rendered a quadriplegic

after a shooting. We deem ed it highly relevant that the

media reports "placed before the jury the very same type of

information the district court had excluded as

inadmissible." Id. at 707. See also United States v. Bertoli,

40 F.3d 1384, 1395 (3d Cir. 1994) (in Waldorf, "the

circumstances posed a serious risk that an extraneous and

inadmissible newspaper article may have vitiated

procedural rulings based on fairness to both sides"). We

also noted that the article involved a "factually similar . . .

case," even though it w as "completely unrelated," Waldorf,

3 F.3d at 712 n.7, and that the jury was exposed to it the

night before and the day of its verdict.

In Dowling, 814 F.2d at 135

- 36, a newspaper article

published during trial revealed that the defendant had

previo usly been convicted of bank robbery, the same crime

23

with which he was charged in that case. We concluded that

information concerning the defendant's prior criminal

conduct had the potential for prejudice.

F inally, in United States ex rel. Greene v. New Jersey,

519 F.2d 1356, 1357 (3d Cir. 1975) (per curiam), we heldthat information concerning the defendant's attempt to

enter a plea of non vult was prejudicial. The Gilsenan court

distinguished Greene bas ed on the fact that the defendant

in Greene, rather than the state, had initiated plea

negotiations, and that he had been willing to expose himself

to a life sentence by pleading guilty. See Gilsenan, 949 F.2d

at 96

- 97 n.11.

Based on the foregoing, we conclude that all of the

publications and broadcasts at issue are non

- prejudicial.

We observe that the headline of the May 15 article in the

Hudson Dispatch, using the derogatory term "pill pushing,"

and the headline of the May 20 article in the Ber gen Record

calling a witness a "drug user," are certainly no more

prejudicial than the use of the term "mob lawyer" in

DiSalvo, 34 F.3d at 1222. Indeed, the terms "pill pushing"

and "drug user" do not directly refer to Barry and are less

prejudicial t han "mob lawyer," which we held to be "not

sufficiently prejudicial to constitute a violation of [the

defendant's] Sixth Amendment rights." Id. Likewise, we are

unable to find that Barry was prejudiced by the May 20

article simply because it reported t hat the trial court denied

a motion for a mistrial. Cf. Gilsenan, 949 F.2d at 95 (no

prejudice by reports that district court rejected proposed

plea agreement).

We also conclude that the Bergen Record article of May

16, which mentioned Barry by name and incorrectly

reported that he had ties to a second stress relief center

that was under investigation, is not prejudicial under the

reasoning of DiSalvo. In DiSalvo, the court held that the

media reports at issue were not prejudicial because they

d id not state that the defendant committed a crime, was

convicted of a crime, or acknowledged guilt of any conduct

charged in the indictment. Here, there were allegations only

that Barry had ties to another clinic that was under

investigation, a far cry from stating that he was actually

guilty of or had been convicted of another crime. Further,

24

the fact that the report was inaccurate adds little. Even

assuming the reports had been accurate, they were not

pr ejudicial under DiSalvo.

Finally, we conclude that the May 14 WINS radio

broadcast of Senator Hawkins's testimony, and the Bergen

Record article of the same date recounting Senator

Hawkins's testimony, were not prejudicial so as to deny

Barry his Fo urteenth Amendment right to an impartial jury.

While the Senator's testimony concerned a factually similar

yet completely unrelated case, the similarity with ourdecision in Waldorf ends there. As we observed in Bertoli,

the Waldorf court accorded sign ificant weight to the fact

that the jury was exposed to " `the very same type of

information the district court had excluded as

inadmissible.' " Bertoli, 40 F.3d at 1395 (quoting Waldorf, 3

F.3d at 707). This exposure "may have vitiated procedural

rul ings based on fairness to both sides." Id. It is also

important to note that the Waldorf court found it

"significant" . . . that "the jury was exposed to the Queens

verdict both the night before and the very same day that it

reached a verdict on Waldor f 's damage claim." Waldorf, 3

F.3d at 713. Here, no such concerns are present. There is

no suggestion that media coverage of the Senator's

testimony vitiated any of the trial court's procedural

rulings. Moreover, the verdict was rendered ten days afte r

the reports were broadcast. Waldorf does not assist the

petitioner.

We hold that the district court erred as a matter of law

by concluding that the media coverage at issue had the

potential to prejudice one or more jurors. Because the

media cover age was not prejudicial, we need not consider

the second and third parts of the three

- part procedure set

forth in DiSalvo. Nor do we consider whether the district

court erred by failing to provide the State with an

opportunity to retry the petitioner.

V.

The judgment of the district court will be reversed. The

matter will be remanded to the district court with a

direction to dismiss the petition.

25

STAPLETON, J., Circuit Judge, Dissenting:

On January 13, 1993, Barry pled guilty to violating his

probation by failing to pay an $85,000 fine. The court then

entered an order providing as follows:

The defendant shall serve five hundred (500) hours of

Community Service: upon completion of this sentence

the $85,000.00 Fine previously imposed shall be

forgiven. If this Sentence is not completed, the Fine

shall be reinstated.

App. at 123. Barry's term of probation ended one month

later on February 1, 1993.

Barry filed his petition initiating this proceeding on July

12, 1994. As of that date, he had not completed his 500hours of community service. On August 24, 1994, the

Vicinage Chief Probation Officer responded to an inquiry

from the New Jersey Attorney Gen eral's Office as follows:

If I understand your inquiry correctly, you are

interested in being advised as to whether or not Mr.

Barry is currently under Probation supervision. He is

not, but he is still obligated to perform the fullfive

hundred hours of community service.

App. at 126.

The foregoing is the sum total of the record information

concerning Barry's status at the time he filed his petition.

On this record, I would hold that he has not carried his

b urden of establishing the jurisdiction of the district court

to entertain his petition. See Charles Allen Wright, et al.,

Federal Practice and Procedure, S 3522 at 63

- 65 (2d ed.

1984).

Section 2254(a) of Title 28 of the United States Code

provides:

The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

26

(emphasis added).

It is well settled that a person whose only obligation is to

pay a cr iminal fine is not "in custody" for purposes of

S 2254. See, e.g., United States v. Watroba, 56 F.3d 28, 29

(6th Cir. 1995); United States v. Segler, 37 F.3d 1131, 1137

(5th Cir. 1994); United States v. Michand, 901 F.2d 5 (1st

Cir. 1990). This is true because such a person's liberty is

not currently restrained, even though there is the potential

that he may be incarcerated in the future if thefine is not

paid. The potential for future incarceration is insufficient

to confer jurisdiction because the person can avoid

incarceration by meeting his obligation and thus holds the

"keys to the prison" in his pocket. See Dremann v. Francis,

828 F.2d 6, 7 (9th Cir. 1987); Tinder v. Paula, 725 F.2d

801, 804 (1st Cir. 1984).

This record does not suggest that Barry's liberty was

restrained when he filed his petition. Unlike a person on

probation, he was apparently free to come and go as hewished. He was not obligated to secure the consent of a

probation officer when he decided where or how he would

l ive or what his activities would be on any given day. He

had no unfulfilled sentence hanging over his head that he

might be required to serve at any point. He was simply

required to donate 500 hours of community service of an

unspecified nature on an u nspecified schedule.1 If he

should fail to meet this obligation within a reasonable

period of time, his fine would be reinstated pursuant to the

court's order. In the meantime, he held the keys to the

prison in his pocket.

I realize that the Supreme Court of the United States in

recent decades has expanded the concept of "custody" for

purposes of S 2254 beyond physical incarceration. It has

never, however, held anyone to be in "custody" who enjoyed

the freedom that Barry enjoyed at the time he fi led his

petition. In my view, he was in a position not materially

different from a person whose only obligation to the state is

the payment of a fine, and I would follow the well

-

_________________________________________________________________

1. The government represents that Barry was free to choose the service

he would undertake and the hours of his performance. Appellant's Brief

at 24. Barry does not contest this representation.

27

established precede nt holding that such a person is not "in

custody."

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28