Joel Christopher Holmes v. Daniel Satterberg; King County Attorney Office

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL CHRISTOPHER HOLMES,
Petitioner - Appellant,
v.
DANIEL SATTERBERG; KING
COUNTY ATTORNEY OFFICE,
Respondents - Appellees.
No. 11-36069
D.C. No. 2:11-cv-00397-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 7, 2013
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Joel Holmes appeals the district court’s dismissal of his habeas petition. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
The district court properly dismissed Holmes’ habeas petition because
Holmes was not “in custody” for purposes of habeas jurisdiction at the time he
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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filed his petition. See 28 U.S.C. § 2254; Bailey v. Hill, 599 F.3d 976, 978-79 (9th
Cir. 2010). The “in custody” requirement is met when a petitioner “is subject to a
significant restraint upon his liberty ‘not shared by the public generally.’” Wilson
v. Belleque, 554 F.3d 816, 822 (9th Cir. 2009) (quoting Jones v. Cunningham, 371
U.S. 236, 240 (1963)). The state court’s order that Holmes “shall have no contact
with” the victims of his harassment did not place a “severe” and “immediate”
restraint on Holmes’ individual liberty, Hensley v. Municipal Court, 411 U.S. 345,
351 (1973), and thus does not render him “in custody” for habeas purposes. See
Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (collecting cases
holding that the imposition of a fine, suspension of one’s driver’s license,
revocation of one’s law license or disqualification as a real estate broker and
insurance agent are merely “collateral consequence[s] of conviction and do[] not
meet the ‘in custody’ requirement”). Although Washington state law is not
entirely clear on the elements of a no contact order violation, it is highly
speculative that accidental contact would violate the order – say, if Holmes
happened to make eye contact from “across a crowded room,” Some Enchanted
Evening, South Pacific (1949). See Dremann v. Francis, 828 F.2d 6, 7 (9th Cir.
1987) (concluding that where a significant restraint on liberty was merely
speculative, federal habeas protection was not warranted). Accordingly, the

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district court did not have subject matter jurisdiction and properly dismissed the
petition.
AFFIRMED.

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