On Appeal from the United States District Court for the District of New Jersey, D.C. Civil Action No. 85-2850.
Seitz, Sloviter and Hutchinson, Circuit Judge.
HUTCHINSON, Circuit Judge .
The State of New Jersey appeals an order of the United States District Court for the District of New Jersey granting appellee Dr. Michael C. Barry's (Barry's) petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 (West 1977). The order directs the Appellate Division of the New Jersey Superior Court to reinstate Barry's appeal and the office of the state's public defender to represent him on that appeal.*fn1 The issues before us are (a) whether Barry established that he was an indigent within the express provision of 28 U.S. C.A. § 2254(d)(5), (b) whether the written finding of the state court's Appellate Division to the contrary is entitled to deference and (c) whether the district court had jurisdiction on habeas corpus to directly order the state court to reinstate Barry's appeal. We hold that Barry's uncontradicted financial inability to secure counsel for his appeal, after contacting all the lawyers suggested by the public defender, makes him indigent as a matter of law, despite his joint interest in the equity in his family residence. However, we also hold that a district court's power to grant a writ of habeas corpus under 28 U.S.C.A. § 2254 is limited on this record to directing Barry's release from custody if the state fails to correct the constitutional violation of his Sixth Amendment right to counsel on direct appeal. We will therefore modify the district court's order to so provide and as modified, affirm.
Although Barry completed his custodial sentence after he filed the petition for the writ on June 14, 1985, the district court had continuing jurisdiction over Barry's petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 because a portion of Barry's three year probationary sentence remained open.*fn2 Persons whose liberty is restricted are "in custody" as that term is used in 28 U.S.C. § 2254. See Mabry v. Johnson, 467 U.S. 504, 507 n.3, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984) (prisoner on parole remains "in custody" for purposes of 28 U.S.C.A. § 2254); Jones v. Cunningham, 371 U.S. 236, 243, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963) (prisoner on parole is "in custody" for purposes of § 2241); see also Evitts v. Lucey, 469 U.S. 387, 391 n.4, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985) (collateral consequences of conviction prevent case from becoming moot after prisoner released from custody); Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984) ("custody" includes persons released on parole and bail). We can see no material difference between probation and parole in applying the "in custody" requirement of § 2254. Moreover, the district court had jurisdiction under § 2254 when Barry filed his petition on the day he began his custodial term. Id.; United States v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975). That jurisdiction continues at least until the expiration of Barry's probationary term.*fn3
We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp. 1988) over the district court's order granting Barry's petition for a writ of habeas corpus. Our review on the question of whether Barry was denied his constitutional right to counsel on appeal is plenary. We also exercise plenary review over the meaning of the statutory terms in 28 U.S.C. § 2254(d).
On May 24, 1982, after a twelve week trial, a New Jersey jury found Barry and several co-defendants guilty of multiple charges involving the distribution and dispensation of dangerous controlled substances. Barry's counsel quit about halfway through the trial and Barry continued as the only defendant without an attorney. On August 26, 1982, the New Jersey Superior Court sentenced Barry to concurrent three year probation terms, conditioned on his serving a 180 day custodial sentence, and also imposed an $85,000 fine.
On October 4, 1982, Barry asked the state public defender's office to represent him on appeal. That office began investigating his indigency and filed a late notice of appeal, nunc pro tunc, on October 25, 1982. However, on November 18, 1982, the public defender completed its investigation and found that Barry was not indigent. James K. Smith, Jr., the attorney who first concluded that Barry was not indigent and therefore ineligible for the public defender's services, stated that he did so because the investigative report showed that Barry and his wife had an $80,000 equity in their house and a money market account of about $7,500. Smith concluded that, with these assets, Barry could afford a private attorney despite the $85,000 fine. Jt. App. at 75.
On February 10, 1983, the public defender's office filed a motion for leave to withdraw as appellate counsel. Barry opposed it, claiming in his affidavit that his debts exceeded his assets, his wife opposed selling or encumbering their jointly owned residence, and that he had consulted six private attorneys recommended by the public defender and they all had refused to represent him without a substantial initial cash outlay. Id. at 27-30. These facts are uncontradicted. On March 3, 1983, the Appellate Division of the New Jersey Superior Court, without discussion, granted the public defender leave to withdraw. Id. at 31.
Thereafter, Barry's efforts to perfect his now pro se appeal from the adverse verdict he received in his pro se trial followed what we advisedly called a three year "hapless course" in the New Jersey courts. Barry I, slip op. at 2-3. In the rain of motions and orders involved, the New Jersey Supreme Court shed a temporary ray of hope for Barry on December 4, 1984 when it stayed his sentence for seven days pending reconsideration by the public defender's office of his application for representation. On that reapplication, the public defender found Barry unable to obtain private counsel using the equity in his home and concluded that he qualified for representation.*fn4 The public defender then entered an appearance for Barry on his motion for reinstatement of his appeal. On March 8, 1985, the Appellate ...