Mercedes Duvallon v. The State of Florida, 691 F.2d 483 (11th Cir. 1982). · Go Syfert
Mercedes Duvallon v. The State of Florida, 691 F.2d 483 (11th Cir. 1982). Cases Citing This Book View Copy Cite
51 citation events (42 in the last 25 years) across 16 distinct courts.
Strongest positive: De'Carlos Bobby Butler v. State of Georgia (ca11, 2022-12-07)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) De'Carlos Bobby Butler v. State of Georgia
11th Cir. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
in the context of habeas proceedings, the 'in custody' requirement may also be met where a petitioner is on probation, parole or bail.
discussed Cited as authority (verbatim quote) Herbert N. Price, Jr. v. Secretary, Florida Department of Corrections
11th Cir. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
in the context of habeas proceedings, the 'in custody' requirement may also be met where a petitioner is on probation, parole or bail.
discussed Cited as authority (rule) Edward Lee Ham, Jr. v. Attorney General, State of Georgia
M.D. Ga. · 2026 · confidence medium
A petitioner does not necessarily need to be incarcerated to meet the “in custody” requirement, however; “[i]n the context of habeas proceedings, the ‘in custody’ requirement may also be met where a petitioner is on probation, parole or bail.” Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) (per curiam) (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
discussed Cited as authority (rule) Olan Girard Turner, Jr. v. Captain Jerome Burgess
M.D. Ga. · 2026 · confidence medium
A petitioner does not necessarily need to be incarcerated to meet the “in custody” requirement, however; “[i]n the context of habeas proceedings, the ‘in custody’ requirement may also be met where a petitioner is on probation, parole or bail.” Duvallon v. Fla., 691 F.2d 483, 485 (11th Cir. 1982).
discussed Cited as authority (rule) HARVEY v. DIXON
N.D. Fla. · 2025 · confidence medium
See Jones v. Cunningham, 371 U.S. 236 (1963) (holding a parolee was “in custody” for habeas purposes and thus could bring a 28 U.S.C. § 2241 habeas petition); Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015) (citing Jones); Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) (holding that owing a fine does not render a person “in custody” under § 2254 but citing Jones and recognizing that probation or parole does render a person “in custody”).
cited Cited as authority (rule) Kendrick v. Secretary, Department of Corrections (Hillsborough County)
M.D. Fla. · 2025 · confidence medium
“A petitioner need not be under actual physical restraint in order to be ‘in custody’ for purposes of [Section 2254].” Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir. 1982).
cited Cited as authority (rule) Kelly v. Secretary, Florida Department of Corrections
M.D. Fla. · 2022 · confidence medium
Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982).
discussed Cited as authority (rule) James Whitfield v. United States Secretary of State
11th Cir. · 2021 · confidence medium
We have held, therefore, that while the custody requirement is ordinarily satisfied by § 2254 petitioners on probation, parole, or bail, Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982), petitioners may also satisfy the custody requirement by identifying a “significant restraint” on individual liberty that is not shared by the general public.
discussed Cited as authority (rule) Russell v. Cullman County
N.D. Ala. · 2021 · confidence medium
However, “[i]n the context of habeas proceedings, the ‘in custody’ requirement may also be met where a petitioner is on probation, parole or bail.” Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982); Price v. Sec’y, Fla. Dep’t of Corr., 548 F. App’x 573, 575 (11th Cir. 2013) (petitioner’s term of probation and designation as a sexual predator meant he was still “in custody” for purposes of 28 U.S.C. § 2254 ).1 Thus, the plaintiff’s probation status does not preclude the application of Heck.
cited Cited as authority (rule) Vasquez v. Florida Department of Corrections
S.D. Fla. · 2020 · confidence medium
In other words, “[t]he custody requirement may be met where a . . . petitioner is on probation, parole, or bail.” Id. (citing Duvallon v. Fla., 691 F.2d 483, 485 (11th Cir. 1982)).
cited Cited as authority (rule) Bell 248097 v. Morrison
W.D. Mich. · 2020 · confidence medium
See Sevier v. Turner, 742 F.2d 262, 269 (6th Cir. 1984) (citing Spring v. Caldwell, 692 F.2d 994, 996 (5th Cir. 1982); Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir. 1982); United States ex rel.
discussed Cited as authority (rule) Joaquin De Jesus Blanco v. State of Florida (2×)
11th Cir. · 2020 · confidence medium
Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982).
discussed Cited as authority (rule) Cameron Cox v. Secretary Florida Department of Corrections
11th Cir. · 2016 · confidence medium
Just as the fact, of conviction is not sufficient to constitute “custody” under § 2254 when the state imposes only a fine with no provision for incarceration, see Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982), the fact of conviction cannot constitute “custody” when the state imposes no punishment at all.
discussed Cited as authority (rule) Cameron Cox v. Secretary Florida Department of Corrections
11th Cir. · 2016 · confidence medium
Just as the fact of conviction is not sufficient to constitute “custody” under § 2254 when the state imposes only a fine with no provision for incarceration, see Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982), the fact of conviction cannot constitute “custody” when the state imposes no punishment at all.
cited Cited as authority (rule) Anesh Gupta v. U.S. Attorney General
11th Cir. · 2012 · confidence medium
See Arnaiz, 594 F.3d at 1330 ; Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982); Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970).
cited Cited as authority (rule) Domotor v. Wennet
S.D. Fla. · 2009 · confidence medium
Id. (citing Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982)). 4 .
discussed Cited as authority (rule) Lawrence v. 48th Dist Ct
6th Cir. · 2009 · confidence medium
See Lewis v. Randle, 36 F. App’x 779 , 2002 WL 343397 , at *1 (6th Cir. Mar. 4, 2002) (unpublished); McVeigh, 872 F.2d at 727 (stayed one-year probation sentence sufficed for “in custody” requirement); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (citing Mabry v. Johnson, 467 U.S. 504 , 507 n.3 (1984)); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir. 1992); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir. 1984); Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982).
discussed Cited as authority (rule) Lawrence v. 48th District Court (2×)
6th Cir. · 2009 · confidence medium
See Lewis v. Randle, 36 F. App’x 779 , 2002 WL 343397 , at *1 (6th Cir. Mar.4, 2002) (unpublished); McVeigh, 872 F.2d at 727 (stayed one-year probation sentence sufficed for “in custody” requirement); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir.2005); Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.2004) (citing Mabry v. Johnson, 467 U.S. 504 , 507 n. 3, 104 S.Ct. 2543 , 81 L.Ed.2d 437 (1984)); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir.1992); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984); Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982).
discussed Cited as authority (rule) Erlandson v. Northglenn Municipal Court
10th Cir. · 2008 · confidence medium
We agree with the district court that “[t]he payment of restitution or a fine, absent more, is not the sort of ‘significant restraint on liberty’ contemplated in the ‘custody’ requirement of the federal habeas statutes.” Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir.2003); accord Fields v. Oklahoma, 243 Fed.Appx. 395, 397 (10th Cir.2007) (unpublished); Dremann v. Francis, 828 F.2d 6, 7 (9th Cir.1987); Tinder v. Paula, 725 F.2d 801, 804-05 (1st Cir.1984); Spring v. Caldwell, 692 F.2d 994, 996-97, 999 (5th Cir.1982); Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982); Hanson v. …
discussed Cited as authority (rule) Fields v. State of Oklahoma
10th Cir. · 2007 · confidence medium
But courts have generally held that a person sentenced to only a fine or restitution is not “in custody.” Barry v. Bergen County Probation Dep’t, 128 F.3d 152, 160 (3d Cir.1997), cert. denied, 522 U.S. 1136 , 118 S.Ct. 1097 , 140 L.Ed.2d 152 (1998), United States v. Keane, 852 F.2d 199, 202 (7th Cir.1988), cert. denied, 490 U.S. 1084 , 109 S.Ct. 2109 , 104 L.Ed.2d 670 (1989); Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982), see also Phelps v. Barbara, No. 97-3385, 1998 WL 703433 (10th Cir. Oct.7, 1998), cert. denied, 525 U.S. 1146 , 119 S.Ct. 1042 , 143 L.Ed.2d 49 (1999).
discussed Cited as authority (rule) Abusaid v. Hillsborough County Board of County Commissioners
11th Cir. · 2005 · confidence medium
However, Abusaid argues that "based on this record, this Court cannot determine if habeas relief is available to Plaintiff,” since "it is unclear whether Plaintiff was on probation at the time of filing his § 1983 action.” Appellant’s Letter Br. at 4 (citing Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982), which held that a petitioner on probation met the "in custody” requirement for habeas relief).
examined Cited as authority (rule) Freddie Sevier v. Kenneth Turner (4×) also: Cited "see, e.g."
6th Cir. · 1984 · confidence medium
See, e.g., Spring v. Caldwell, 692 F.2d 994, 996 (5th Cir.1982); Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir.1982); cert. denied, 460 U.S. 1073 , 103 S.Ct. 1533 , 75 L.Ed.2d 953 (1983); United States ex rel.
discussed Cited as authority (rule) Robert L. Tinder v. Sister Rose Paula, Snd
1st Cir. · 1984 · confidence medium
See Spring v. Caldwell, supra, 692 F.2d at 996-97 ; Duvallon v. Florida, 691 F.2d 483, 484-85 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1533 , 75 L.Ed.2d 953 (1983); Hanson v. Circuit Court of the First Judicial Circuit, 591 F.2d 404, 407 (7th Cir.), cert. denied, 444 U.S. 907 , 100 S.Ct. 220 , 62 L.Ed.2d 143 (1979); Wright v. Bailey, 544 F.2d 737, 739 (4th Cir.1976), cert. denied, 434 U.S. 825 , 98 S.Ct. 72 , 54 L.Ed.2d 82 (1977); Russell v. City of Pierre, 530 F.2d 791, 792 (8th Cir.), cert. denied, 429 U.S. 855 , 97 S.Ct. 150 , 50 L.Ed.2d 131 (1976); Edmunds v. Won Bae Chang, 5…
discussed Cited "see" Barber v. Patton
N.D. Ala. · 2024 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) (“Where, as here, the judgment of the state court imposes only a fine with no provision for incarceration, appellant's liberty is not restrained, she is not ‘in custody’ and her bare assertion of constitutional deprivation will not support federal court jurisdiction for § 2254 relief.”).
cited Cited "see" DuBuc v. Shores
W.D. Ark. · 2023 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982); Spring, 692 F.2d at 998 (“… by paying the fine, Spring will be able to avoid his incarceration altogether.
discussed Cited "see" Presley v. Peters
S.D. Ala. · 2017 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) (per curiam); Mattern v. Sec'y for Dep't of Corr., 494 F.3d 1282, 1285 (11th Cir. 2007) (per curiam). with Rule 4 of the Rules Governing Section 2254 Cases, it appears that the petition is due to be dismissed, as it plainly appears from the face of the petition and attached exhibits that the petition is time-barred, and Presley is therefore not entitled to relief.
discussed Cited "see" Ray v. Judicial Correction Services, Inc.
N.D. Ala. · 2017 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483 (11th Cir. 1982) (holding that the imposition of a fine was insufficient to place a petitioner in custody for purposes of § 2254). .
discussed Cited "see" Green v. Georgia
N.D. Ga. · 2014 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir.1982) ("In the context of habeas proceedings, the ‘in custody' requirement may also be met where a petitioner is on probation, parole or bail.”). .
discussed Cited "see" Green v. Georgia
N.D. Ga. · 2013 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir.1982) ("In the context of habeas proceedings, the ‘in custody' requirement may also be met where a petitioner is on probation, parole or bail.”). .
discussed Cited "see" Louis Napier v. Karen J. Preslicka (2×)
11th Cir. · 2002 · signal: see · confidence high
See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.1982) ("In the context of habeas proceedings, the `in custody' requirement may also be met where a petitioner is on probation, parole, or bail.") (citing Hensley v. Municipal Court, 411 U.S. 345, 349 , 93 S.Ct. 1571 , 36 L.Ed.2d 294 (1973)). 30 Harris v. Garner, 216 F.3d 970 (11th Cir.2000) ( en banc ), is distinguishable.
Retrieving the full opinion text from the archive…
Mercedes DUVALLON, Petitioner-Appellant,
v.
the State of FLORIDA, Respondent-Appellee
82-5507.
Court of Appeals for the Eleventh Circuit.
Nov 8, 1982.
691 F.2d 483
Mercedes Duvallon, pro se., William Thomas, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
Hill, Kravitch, Henderson.
Cited by 39 opinions  |  Published
PER CURIAM:

This appeal presents the question of whether a petitioner who has been convicted of a state offense, the penalty for which is a fine with no provision for incarceration, is “in custody” for the purpose of federal habeas corpus jurisdiction. The district court decided the question negatively and dismissed for lack of jurisdiction. We affirm.

Clad only in a sign which hung across the front portion of her body, appellant, Mercedes Duvallon, picketed in front of the City of Miami Police Department. As a result, she was arrested and convicted of violating the Florida breach of the peace and disorderly conduct statute. Fla.Stat. Ann. § 877.03. [1] At trial, on December 6, 1979, appellant was fined $500.00 plus court costs. The conviction was affirmed by the Eleventh Judicial Circuit of Florida.

For a period of two years after sentencing, appellant failed to pay the imposed fine. On December 15, 1981, at a hearing held in Dade County Court to ascertain why payment had not been made, appellant testified that she had no money. The county court stayed execution of the sentence for sixty days to afford appellant additional time in which to commence at least partial payment. The court indicated that a payment of even five or ten dollars might suffice to cover her exposure to a contempt citation; if no payment was made within sixty days, a hearing would be held to determine if appellant is willfully refusing to pay. If so, appellant may be jailed for contempt.

Appellant filed a petition for federal habeas relief, 28 U.S.C. § 2254, alleging that her conviction was in violation of the First and Fourteenth amendments. Upon the recommendation of the U.S. Magistrate, the district court found petitioner was not “in custody” as required by § 2254 and dismissed the petition for lack of jurisdiction.

We find appellant’s argument that she is now “in custody” as scanty as her attire at the time of her arrest. 28 U.S.C. § 2254 requires an applicant for habeas relief to be “in custody pursuant to the judgment of a State court .... ” A petitioner need not be under actual physical restraint in order to be “in custody” for purposes of the statute. Westberry v. Keith, 434 F.2d[*485] 623, 624 (5th Cir. 1970). [2] In the context of habeas proceedings, the “in custody” requirement may also be met where a petitioner is on probation, parole or bail. Id.; Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). The Supreme Court, however, has found that the custody requirement must be interpreted so as to “preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. at 351, 93 S.Ct. at 1574. Where, as here, the judgment of the state court imposes only a fine with no provision for incarceration, appellant’s liberty is not restrained, she is not “in custody” and her bare assertion of constitutional deprivation will not support federal court jurisdiction for § 2254 relief. Westberry v. Keith, 434 F.2d at 624-25. See also Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976) (petitioner not “in custody” where conviction for disorderly conduct resulted in a fine with no provision for incarceration), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Pueschel v. Leuba, 383 F.Supp. 576 (D.Conn.1974) (imposition of $100 fine is not a sufficient restraint of liberty to satisfy the “in custody” requirement).

Peeling away the confusion engendered by appellant’s assertion that her incarceration for contempt is a virtual certainty, the existence of the possibility that appellant will be found in contempt and incarcerated for willful failure to pay the fine does not change the result. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Supreme Court invalidated the imprisonment of an indigent incarcerated solely because of his actual inability to pay a fine. The defendant was convicted of a traffic offense for which the penalty was only a fine but was jailed, despite indigency, under a separate statute which authorized incarceration for failure to pay a fine. In reaching its result the Court carefully explained: “[w]e emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.” Id. at 400, 91 S.Ct. at 672.

The Florida court has indicated that appellant would not be imprisoned and stripped of her liberty until after a hearing in which it is revealed that she is financially able to pay the fine but willfully refuses to do so. Any incarceration at that point would be in the nature of a penalty for contempt and would be separate from the conviction appellant now seeks to ..challenge. Cf. Hanson v. Circuit Court of First Judicial District, 591 F.2d 404 (7th Cir.) (incarceration in California for offense unrelated to conviction in N.D.I11. for which petitioner received a fine only does not provide habeas jurisdiction in N.D.Ill. for the fine only conviction), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). If after a hearing appellant is sentenced to imprisonment for willful failure to pay the fine, then and only then will she be “in custody pursuant to the judgment of a State court .... ” If appellant would challenge that incarceration on the basis of the First Amendment, she could then return to the federal forum, provided state remedies have been exhausted. 28 U.S.C. § 2254. Appellant’s attempt to cloak her current condition in “custody” garb because of the potential for incarceration for contempt does not adequately cover the requirements of § 2254.

The dismissal of the petition for habeas relief for lack of jurisdiction is AFFIRMED.

1

. There is some confusion over whether this conviction was under § 877.03 or the Florida public nudity statute, Fla.Stat.Ann. § 800.03. The order of the district court refers to a conviction under § 800.03, but the appellant and the appellee both state that the conviction was under § 877.03. Resolution of the inconsistency is not necessary at this time, given our disposition of the appeal.

2

. The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).