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June 6, 1975

Joseph A. FUREY, Petitioner,
William F. HYLAND, Attorney General of the State of New Jersey, Respondent

Brotman, District Judge.

The opinion of the court was delivered by: BROTMAN

BROTMAN, District Judge.

This case involves a habeas corpus petition brought by Joseph A. Furey pursuant to 28 U.S.C. § 2241 et seq. Furey was indicted, tried and ultimately convicted (by a jury) on September 28, 1972 in the Superior Court of New Jersey, Law Division, of the following crimes: (1) conspiring to purchase, obtain, and act upon the granting of amusement game licenses for personal gain (Indictment No. 432-71); (2) conspiring to misuse authority to alter an ordinance to increase the number of auction licenses in Wildwood and to offer a bribe to act favorably upon said alteration (Indictment No. 433-71); (3) misconduct in office in voting for and approving amusement games licenses for personal gain (First Count of Indictment No. 434-71).

 Furey was sentenced to three concurrent terms of not less than one nor more than two years and was fined $1,000 on each conviction. The prison terms were suspended. No term of probation was imposed. The fines were paid by the petitioner. *fn1"

 Furey appealed his conviction to the Appellate Division which affirmed the convictions on Indictment Nos. 432 and 434. State v. Furey, 128 N.J.Super. 12, 318 A.2d 783 (App.Div.1974). However, it reversed the conviction on Indictment No. 433, holding error was committed by the trial court in refusing to allow Furey to cross-examine one Wilbur Ostrander concerning Ostrander's expectations for favorable treatment from the State. 128 N.J.Super. at 23-24, 318 A.2d at 789. *fn2" At the time of trial Ostrander was under indictment on related charges. Having determined that Ostrander's testimony did not relate to or form the basis for the Petitioner's conviction on Nos. 432 and 434, the Appellate Division refused to reverse the other two convictions. 128 N.J.Super. at 24, 318 A.2d at 789.

 Petitioner sought certification with the New Jersey Supreme Court, which petition was denied. State v. Furey, 65 N.J. 578, 325 A.2d 711 (1974). Petitioner's motion for reconsideration of denial of certification was also denied. (M-300, order filed Nov. 27, 1974). Having exhausted his state remedies, *fn3" Furey's petition for a writ of habeas corpus is now before this court.

  His petition raises, respectively, questions of jurisdiction and substance, as follows:


1. Whether Furey is "in custody" within the meaning of the federal habeas corpus statute. *fn4"


2. Whether the trial court's refusal to permit full and complete cross-examination of Wilbur Ostrander resulted in a denial of Furey's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. *fn5"

 A conclusion by this court that Furey is not "in custody" will foreclose consideration of the substantive issue.

 The argument that Furey is "in custody" takes two forms. First, because Furey will suffer various disabilities as a result of his conviction, he is "in custody." These disabilities are alleged to include: the real and present danger that the petitioner, a licensed physician, may be deprived of his license to practice medicine; damage to petitioner's status and reputation both as a physician and as a member of the community in which he resides; the collateral consequence that the petitioner, a former public official, is effectively prevented from resuming his public life; aggravation of a pre-existing skin condition; the fine; and certain statutory disabilities imposed upon persons convicted of crimes. *fn6" Second, petitioner argues that the suspended sentence operates, by itself, as a restraint on his liberty, sufficient enough to invoke the habeas corpus jurisdiction of this court.

 Historically, habeas corpus was only available when a prisoner was subject to tangible physical restraints. Note, "Developments in the Law -- Habeas Corpus," 83 Harv.L.Rev. 1038, 1073 (1970). In recent years, however, the requirement of physical restraint has been relaxed considerably. Thus, the writ has been made available to persons released on parole, Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), placed on probation, United States ex rel. De Rosa v. Superior Court of New Jersey, 379 F. Supp. 957, 960 (D.N.J.1974); United States ex rel. Clark v. Mulligan, 347 F. Supp. 989, 990 (D.N.J.1972), released on their own recognizance, Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973) and even to persons unconditionally released from prison subsequent to the filing of their petition. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). Nevertheless, in its most recent pronouncement the Supreme Court explicitly recognized that "[the] custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty." Hensley, supra, 411 U.S. at 351, 93 S. Ct. at 1574. See also Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Following Hensley, supra, the Ninth Circuit held that a "fine only" sentence, as was imposed on the petitioner herein, is not a severe restraint on individual liberty. Edmunds v. Chang, 509 F.2d 39 (9th Cir. 1975); petition for cert. filed, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975) (No. 74-1284). *fn7"

  Petitioner points to Carafas, supra, as supportive of his position. It is true that there is a surface similarity between Carafas, supra, and the case at bar. However, upon closer examination the two cases are clearly distinguishable. In Carafas, supra, the petitioner was actually in prison at the time he filed his habeas corpus petition in the federal district court. Consequently, it was undisputed that jurisdiction had attached. The only question for the Court was whether the petition had been mooted, as petitioner had been unconditionally released while the case was on appeal. The Court found that the petition was not moot since the petitioner would suffer collateral disabilities which would survive the expiration of his sentence. These disabilities related to his capacity to engage in business, to serve as a union official, and to serve as a juror. Carafas, supra 391 U.S. at 237, 88 S. Ct. 1556. As has been noted, Dr. Furey alleges disabilities of a similar nature, the most serious of which is, no doubt, the possibility that his license to practice medicine may be revoked.

 Petitioner's argument that the disabilities, standing alone, are sufficient to place him "in custody" is misplaced. In Carafas, supra, unlike the case at bar, the petitioner was restrained when he filed his petition. The discussion of the disabilities in Carafas, supra, was necessary only to decide the mootness issue. See Pueschel v. Leuba, 383 F. Supp. 576, 580 (D.Conn.1974). If the Court had intended to hold that the disabilities were enough, by themselves, to invoke habeas corpus jurisdiction, it need not have placed any emphasis, as it so clearly did, on the petitioner's confinement at the time he filed his petition. Carafas, supra 391 U.S. at 238, 88 S. Ct. 1556.

 The disabilities which petitioner alleges he will suffer cannot, by themselves, invoke this court's habeas corpus jurisdiction. Absent a custodial sentence, or other recognized restraints, *fn8" one is not in custody within the meaning of the federal habeas corpus statute. United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3rd Cir. 1971), cert. denied, 409 U.S. 853, 93 S. Ct. 184, 34 L. Ed. 2d 96 (1972). See 83 Harv.L.Rev., supra at 1077-1078. As stated by Justice Brennan in Fay v. Noia, 372 U.S. 391, 430, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) it is "detention simpliciter " which furnishes the jurisdictional pre-requisite for the exercise of the Great Writ.

 To hold otherwise would render the "in custody" requirement of sections 2241 and 2254 a nullity, and extend the habeas corpus remedy to all persons convicted of crimes. It would ignore the teaching of Hensley, supra, that the writ of habeas corpus is available only to remedy "severe restraints on individual liberty." Because the writ is an extraordinary remedy, its use is properly circumscribed to those cases where "the extraordinary restraints of custodial situations" are present. Note, 83 Harv.L.Rev., supra at 1073. *fn9"

  Alternatively, petitioner asserts that the suspended sentence which he received is sufficient to place him "in custody." This argument is broken down into two parts.

 First, petitioner asserts that the suspended sentence which he received implicitly imposed upon him a term of probation. *fn10" N.J.S.A. 2A:168-1 vests the courts with the power


. . . to suspend the imposition or execution of sentence, and also to place the defendant on probation. . . .

 While the court may impose a term of probation with a suspended sentence, In re Buehrer, 50 N.J. 501, 509, 236 A.2d 592, 596 (1967), it is equally clear that the execution of sentence may be suspended without placing a defendant on probation. As stated in State v. Braeunig, 122 N.J.Super. 319, 334, 300 A.2d 346, 354 (App.Div.1973):


The sentencing judge is accorded wide latitude in determining whether custodial sentences are to be executed or suspended, or to be served either consecutively or concurrently or whether a defendant is to be placed on probation. N.J.S.A. 2A:164-15; N.J.S.A. 2A:164-16; N.J.S.A. 2A:168-1.

 Petitioner's assertion that a suspended sentence necessarily implies a term of probation is without support either in law or logic. *fn11"

 Second, apart from any implied term of probation, petitioner contends that the suspended sentence he received, *fn12" by itself, places him "in custody", since he remains subject to the possibility of resentencing at some future date. Such resentencing could, it is asserted, result in a harsher penalty (possibly a jail sentence).

 But, N.J.Ct.R. 3:21-10 contradicts petitioner's position. R. 3:21-10(a) provides in pertinent part:


A motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction, or, if an appeal is taken within the 60 days, not later than 20 days after the date of judgment of the appellate court . . . . [emphasis added]

 The omission of the word "increase" (or words of like meaning) from the Rule is most significant, as the Supreme Court of New Jersey clearly stated in State v. Matlack, 49 N.J. 491, 500-501, 231 A.2d 369, 374-375 (1967), cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967);


The rule authorizes a trial judge subject to time limitations to "reduce or change" a sentence. We read this language to sanction reconsidered leniency and not severity. The word "reduce" obviously points to this interpretation; the word "change" seems directed only to differences in kind and not degree (e. g. fine in lieu of imprisonment): the omission of express authority to increase sentences in the context of the rule is highly significant. We conclude that this language does not authorize a trial judge to increase a sentence previously imposed by him.


Under the common law a judge could not increase or decrease a sentence once it had gone into operation. State v. Addy, 43 N.J.L. 113, 116 (Sup.Ct.1880). Our R.R. 3:7-13(a) modifies the common law by allowing a trial judge to reduce or change a sentence within time limitations, but does not empower him to increase sentences. Cf. State v. Laird, 25 N.J. 298, 307, 135 A.2d 859 (1957). A rule which purported to allow a trial judge to increase a sentence previously imposed would raise serious problems under the constitutional right to be free from double jeopardy. See United States v. Benz, 282 U.S. 304, 307-310, 51 S. Ct. 113, 75 L. Ed. 354, 356-358 (1931); Ex parte Lange [85 U.S. 163] 18 Wall. 163, 173, 21 L. Ed. 872, 878 (1874); United States v. Rosenstreich, 204 F.2d 321 (2nd Cir. 1953); State v. Laird, supra, 25 N.J. at p. 312; State v. Tyler, 88 N.J.Super. 396, 405-406, 212 A.2d 573 (App.Div.1965), cert. den. 384 U.S. 992, 86 S. Ct. 1898, 16 L. Ed. 2d 1008 (1966). *fn13" [emphasis added]

 Thus R. 3:21-10(a) precludes the petitioner from being resentenced. *fn14"

 As stated in State v. Matlack, supra, the rule against harsher resentencing is one of constitutional dimensions. Such sentences are forbidden by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. *fn15" It has long been settled that the protection against being put in double jeopardy applies to sentencing, as well as trial. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L. Ed. 872 (1873); United States v. Benz, 282 U.S. 304, 307, 51 S. Ct. 113, 75 L. Ed. 354 (1931) (dictum); United States v. Welty, 426 F.2d 615, 618-19 (3rd Cir. 1970); United States v. Corson, 449 F.2d 544, 550 (3rd Cir. 1971); United States v. Rosenstreich, 204 F.2d 321 (2nd Cir. 1953); *fn16" Borum v. United States, 133 U.S.App.D.C. 147, 409 F.2d 433, 440 (D.C.Cir.1967), cert. denied 395 U.S. 916, 89 S. Ct. 1765, 23 L. Ed. 2d 230 (1969)

 The classic articulation of this principle is found in Ex parte Lange, supra, 85 U.S. (18 Wall.) 163 at 168:


If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And . . . there has never been any doubt of [this rule's] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.

 More recently the Double Jeopardy Clause has been held applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Clearly, the protection against being placed in double jeopardy would preclude any attempt to impose upon the petitioner a harsher penalty. *fn17"

 Thus, the suspended sentence, by itself, is inadequate to invoke this court's habeas corpus jurisdiction. United States ex rel. Wojtycha v. Hopkins (3rd Cir., filed May 29, 1975). See Dessus v. Pennsylvania, supra.

 Petitioner not being "in custody", as required by 28 U.S.C. §§ 2241, 2254, this court is without jurisdiction to entertain his writ of habeas corpus. Accordingly, the petition is dismissed.

 Counsel for the respondent shall submit an appropriate order.

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