Restraints imposed on petitioner who was released on his own
recognizance constitute "custody" within the meaning of the federal
habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a). Pp.
411 U. S.
348-353.
453 F.2d 1252, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J.,
filed an opinion concurring in the result,
post, p.
411 U. S. 353.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and POWELL, J., joined,
post, p.
411 U. S.
354.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case requires us to determine whether a person released on
his own recognizance is "in custody" within the meaning of the
federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a).
See Peyton v. Rowe, 391 U. S. 54
(1968);
Carafas v. LaVallee, 391 U.
S. 234 (1968);
Jones v. Cunningham,
371 U. S. 236
(1963). Petitioner initiated this action in the United States
District Court for the Northern District of California, challenging
a state court conviction on First and Fourteenth
Page 411 U. S. 346
Amendment grounds. The court denied relief, holding that, since
the petitioner was enlarged on his own recognizance pending
execution of sentence, he was not yet "in custody" for purposes of
the habeas corpus statute. The Court of Appeals for the Ninth
Circuit agreed that release on one's own recognizance is not
sufficient custody to confer jurisdiction on the District Court,
and affirmed the judgment. 453 F.2d 1252 (1972). [
Footnote 1] We granted certiorari, 409 U.S.
840 (1972), and we reverse.
Convicted of a misdemeanor in California Municipal Court for
violation of § 29007 of the California Education Code, [
Footnote 2] petitioner was sentenced to
serve one year in jail and pay a fine of $625. He appealed his
conviction unsuccessfully to the Appellate Department of the
Superior Court, and his efforts to have the conviction set aside on
state court collateral attack have proved equally unavailing. It
appears that petitioner exhausted all available state court
remedies prior to filing this petition for federal habeas corpus.
See 28 U.S.C. § 2254(b). [
Footnote 3]
Page 411 U. S. 347
At all times since his conviction, petitioner has been enlarged
on his own recognizance. While pursuing his state court remedies,
he remained at large under an order of the state trial court
staying execution of his sentence. And the state trial court
extended its stay, even after the Supreme Court of California
declined to hear his application for post-conviction relief,
apparently to permit petitioner to remain at large while seeking
habeas corpus in the United States District Court. Pending appeal
from the District Court's denial of relief, an application for
extension of the state court stay was granted by Mr. Justice Black,
as Acting Circuit Justice, on August 12, 1970, and extended by MR.
JUSTICE DOUGLAS, as Circuit Justice, on August 20, 1970, and again
on September 9, 1970. [
Footnote
4] The Court of Appeals affirmed the denial of habeas corpus,
but granted a 30-day stay of its mandate pending application for
certiorari. That stay was extended by MR. JUSTICE DOUGLAS, as
Circuit Justice, on March 20, 1972, and it is pursuant to his order
that petitioner remains at large at the present time.
Page 411 U. S. 348
The California Penal Code provides that any court that may
release a defendant upon his giving bail may release him on his own
recognizance, provided he agrees in writing that:
"(a) He will appear at all times and places as ordered by the
court or magistrate releasing him and as ordered by any court in
which, or any magistrate before whom, the charge is subsequently
pending."
"(b) If he fails to so appear and is apprehended outside of the
State of California, he waives extradition."
"(c) Any court or magistrate of competent jurisdiction may
revoke the order of release and either return him to custody or
require that he give bail or other assurance of his appearance. . .
."
Cal.Penal Code § 1318.4. A defendant is subject to re-arrest if
he fails to appear as agreed,
id. § 1318.8(a), and a
willful failure to appear is itself a criminal offense.
Id. § 1319.6. We assume that these statutory conditions
have been imposed on petitioner at all times since the state trial
court stayed execution of his sentence.
The question presented for our decision is a narrow one, namely,
whether the conditions imposed on petitioner as the price of his
release constitute "custody" as that term is used in the habeas
corpus statute. Respondent contends that the conditions imposed on
petitioner are significantly less restrictive than those imposed on
the petitioner in
Jones v. Cunningham, 371 U.
S. 236 (1963), where we held that a person released on
parole is "in custody" for purposes of the district courts' habeas
corpus jurisdiction. It is true, of course, that the parolee is
generally subject to greater restrictions on his liberty of
movement than a person released on bail or his own recognizance.
And some lower courts have reasoned
Page 411 U. S. 349
that this difference precludes an extension of the writ in cases
such as the one before us. [
Footnote 5] On the other hand, a substantial number of
courts, perhaps a majority, have concluded that a person released
on bail or on his own recognizance may be "in custody" within the
meaning of the statute. [
Footnote
6] In view of the analysis which led to a finding of custody in
Jones v. Cunningham, supra, we conclude that this latter
line of cases reflects the sounder view.
While the "rhetoric celebrating habeas corpus has changed little
over the centuries," [
Footnote
7] it is nevertheless true that the functions of the writ have
undergone dramatic change. Our recent decisions have reasoned from
the premise that habeas corpus is not "a static, narrow,
formalistic remedy,"
Jones v. Cunningham, supra, at
371 U. S.
243,
Page 411 U. S. 350
but one which must retain the "ability to cut through barriers
of form and procedural mazes."
Harris v. Nelson,
394 U. S. 286,
394 U. S. 291
(1969).
See Frank v. Mangum, 237 U.
S. 309,
237 U. S. 346
(1915) (Holmes, J., dissenting).
"The very nature of the writ demands that it be administered
with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and
corrected."
Harris v. Nelson, supra, at
394 U. S.
291.
Thus, we have consistently rejected interpretations of the
habeas corpus statute that would suffocate the writ in stifling
formalisms or hobble its effectiveness with the manacles of arcane
and scholastic procedural requirements. The demand for speed,
flexibility, and simplicity is clearly evident in our decisions
concerning the exhaustion doctrine,
Fay v. Noia,
372 U. S. 391
(1963);
Brown v. Allen, 344 U. S. 443
(1953); the criteria for relitigation of factual questions,
Townsend v. Sain, 372 U. S. 293
(1963); the prematurity doctrine,
Peyton v. Rowe,
391 U. S. 54
(1968); the choice of forum,
Braden v. 30th Judicial Circuit
Court of Ky., 410 U. S. 484
(1973);
Strait v. Laird, 406 U. S. 341
(1972); and the procedural requirements of a habeas corpus hearing,
Harris v. Nelson, supra. That same theme has indelibly
marked our construction of the statute's custody requirement.
See Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v.
LaVallee, 391 U. S. 234
(1968);
Walker v. Wainwright, 390 U.
S. 335 (1968);
Jones v. Cunningham, supra.
[
Footnote 8]
Page 411 U. S. 351
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. Since habeas corpus is an
extraordinary remedy whose operation is, to a large extent,
uninhibited by traditional rules of finality and federalism, its
use has been limited to cases of special urgency, leaving more
conventional remedies for cases in which the restraints on liberty
are neither severe nor immediate. Applying that principle, we can
only conclude that petitioner is in custody for purposes of the
habeas corpus statute. First, he is subject to restraints "not
shared by the public generally,"
Jones v. Cunningham,
supra, at
371 U. S. 240:
that is, the obligation to appear "at all times and places as
ordered" by "[a]ny court or magistrate of competent jurisdiction."
Cal.Penal Code §§ 1318.4(a), 1318.4(c). He cannot come and go as he
pleases. His freedom of movement rests in the hands of state
judicial officers, who may demand his presence at any time and
without a moment's notice. Disobedience is itself a criminal
offense. The restraint on his liberty is surely no less severe than
the conditions imposed on the unattached reserve officer whom we
held to be "in custody" in
Strait v. Laird, supra.
[
Footnote 9]
Second, petitioner remains at large only by the grace of a stay
entered first by the state trial court and then extended by two
Justices of this Court. The State has emphatically indicated its
determination to put him behind bars, and the State has taken every
possible step to secure that result. His incarceration is not, in
other
Page 411 U. S. 352
words, a speculative possibility that depends on a number of
contingencies over which he has no control. This is not a case
where the unfolding of events may render the entire controversy
academic. The petitioner has been forced to fend off the state
authorities by means of a stay, and those authorities retain the
determination and the power to seize him as soon as the obstacle of
the stay is removed. The need to keep the stay in force is itself
an unusual and substantial impairment of his liberty.
Moreover, our conclusion that the petitioner is presently in
custody does not interfere with any significant interest of the
State. Indeed, even if we were to accept respondent's argument that
petitioner is not in custody, that result would do no more than
postpone this habeas corpus action until petitioner had begun
service of his sentence. [
Footnote 10] It would still remain open to the District
Court to order petitioner's release pending consideration of his
habeas corpus claim.
In re Shuttlesworth, 369 U. S.
35 (1962). Even if petitioner remained in jail only long
enough to have his petition filed in the District Court, his
release by order of the District Court would not jeopardize his
"custody" for purposes of a habeas corpus action.
Carafas v.
LaVallee, supra. [
Footnote
11] Plainly,
Page 411 U. S. 353
we would badly serve the purposes and the history of the writ to
hold that, under these circumstances, the petitioner's failure to
spend even 10 minutes in jail is enough to deprive the District
Court of power to hear his constitutional claim.
Finally, we emphasize that our decision does not open the doors
of the district courts to the habeas corpus petitions of all
persons released on bail or on their own recognizance. We are
concerned here with a petitioner who has been convicted in state
court and who has apparently exhausted all available state court
opportunities to have that conviction set aside. Where a state
defendant is released on bail or on his own recognizance pending
trial or pending appeal, he must still contend with the
requirements of the exhaustion doctrine if he seeks habeas corpus
relief in the federal courts. Nothing in today's opinion alters the
application of that doctrine to such a defendant.
Since the Court of Appeals erroneously concluded that petitioner
was not "in custody" at the time his petition was filed, its
judgment is reversed and the case is remanded to the District Court
to consider his petition for a writ of habeas corpus.
Reversed and remanded.
[
Footnote 1]
The Court of Appeals concluded that the question was controlled
by a prior decision of the same court,
Matysek v. United
States, 339 F.2d 389 (1964).
[
Footnote 2]
Petitioner was convicted of awarding Doctor of Divinity degrees
without obtaining the necessary accreditation. He defended the
charge on the grounds that he is the chief presiding officer of a
bona fide church, that his church has awarded honorary
Doctor of Divinity certificates to persons who have completed a
course of instruction in the church's principles, and that state
interference with this practice is an unconstitutional restraint on
the free exercise of his religious beliefs.
[
Footnote 3]
There is a substantial question whether petitioner has forfeited
the right to raise his First and Fourteenth Amendment challenge to
the state court conviction by deliberately bypassing an opportunity
to raise the claim in the state courts.
See Fay v. Noia,
372 U. S. 391
(1963). Respondent maintains that petitioner deliberately absented
himself from trial following the close of the prosecution's case,
with full knowledge that the trial would continue in his absence.
He thereby relinquished, respondent contends, the right to defend
himself and present evidence on his behalf. Petitioner argues in
response that trial counsel failed to advise him of the reopening
of trial and failed to warn him that absence from trial would lead
to conviction. Accordingly, he asserts that he should not be held
to have knowingly and intelligently bypassed an available state
procedure. The record on this point is more than a little obscure,
and we express no opinion on the question beyond noting that the
issue was not considered, much less resolved, by either of the
courts below, and it is not in any sense presented for our
decision.
[
Footnote 4]
In his Motion for Stay, filed in this Court on August 11, 1970,
and addressed to the Circuit Justice of the Ninth Circuit,
petitioner explained that the
"Stay of Execution granted by the Trial Court is scheduled to
expire on August 12, 1970, at which time petitioner has been
ordered to surrender himself to the Sheriff of Santa Clara County
for immediate incarceration."
Motion for Stay 2.
[
Footnote 5]
See, e.g., United States ex rel. Meyer v. Weil, 458
F.2d 1068 (CA7 1972);
Allen v. United States, 349 F.2d 362
(CA1 1965);
Application of Jackson, 338 F.
Supp. 1225 (WD Tenn.1971);
United States ex rel. Granello
v. Krueger, 306 F. Supp. 1046 (EDNY 1969);
Moss v.
Maryland, 272 F. Supp. 371 (Md.1967).
[
Footnote 6]
See, e.g., Capler v. City of Greenville, 422 F.2d 299,
301 (CA5 1970);
Marden v. Purdy, 409 F.2d 784, 785 (CA5
1969);
Beck v. Winters, 407 F.2d 125, 126-127 (CA8 1969);
Burris v. Ryan, 397 F.2d 553, 555 (CA7 1968);
United
States ex rel. Smith v. DiBella, 314 F.
Supp. 446 (Conn.1970);
Ouletta v. Sarver, 307 F. Supp.
1099, 1101 n. 1 (ED Ark.1970),
aff'd, 428 F.2d 804 (CA8
1970);
Cantillon v. Superior Court, 305 F.
Supp. 304, 306-307 (CD Cal.1969);
Matzner v.
Davenport, 288 F.
Supp. 636, 638 n. 1 (N.J 1968),
aff'd, 410 F.2d 1376
(CA3 1969);
Nash v. Purdy, 283 F.
Supp. 837, 838-839 (SD Fla.1968);
Duncombe v. New
York, 267 F.
Supp. 103, 109 n. 9 (SDNY 1967);
Foster v.
Gilbert, 264 F.
Supp. 209, 211-212 (SD Fla.1967). In addition, the Supreme
Court of California has concluded that release on one's own
recognizance under the laws of that State imposes "sufficient
constructive custody" to permit an application for writ of habeas
corpus.
In re Smiley, 66 Cal. 2d
606, 613, 427 P.2d 179, 183 (1967).
[
Footnote 7]
Note, Developments in the Law -- Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1040 (1970).
[
Footnote 8]
Insofar as former decisions,
Stallings v. Splain,
253 U. S. 339
(1920);
Johnson v. Hoy, 227 U. S. 245
(1913);
Baker v. Grice, 169 U. S. 284
(1898);
Wales v. Whitney, 114 U.
S. 564 (1885), may indicate a narrower reading of the
custody requirement, they may no longer be deemed controlling. In
none of the decisions on which we today rely,
Strait v. Laird,
supra; Peyton v. Rowe, supra; Carafas v. LaVallee, supra; Jones v.
Cunningham, supra, are these earlier cases even cited in the
opinions of the Court.
[
Footnote 9]
Similarly, in
Braden v. 30th Judicial Circuit Court of
Ky., 410 U. S. 484
(1973), where the Commonwealth of Kentucky had lodged a detainer
against a prisoner in an Alabama jail, we held that the petitioner
was in the custody of Kentucky officials for purposes of his habeas
corpus action.
[
Footnote 10]
By contrast, a finding of no "custody" in
Carafas v.
LaVallee, supra, would not merely have postponed the exercise
of habeas corpus jurisdiction, but would have barred it altogether.
Similarly, if we had held in
Jones v. Cunningham, supra,
that a parolee is not in custody, then habeas corpus jurisdiction
could not have been exercised until such time as release on parole
was revoked.
Cf. Peyton v. Rowe, supra.
[
Footnote 11]
See United States ex rel. Pon v. Esperdy, 296 F. Supp.
726 (SDNY 1969);
Goldberg v. Hendrick, 254 F. Supp. 286,
288-289 (ED Pa.1966).
MR. JUSTICE BLACKMUN, concurring in the result.
I emphasize again, as I did in my separate concurrence in
Braden v. 30th Judicial Circuit Court of Ky., 410 U.
S. 484,
410 U. S. 501
(1973), that the Court has wandered a long way down the road in
expanding traditional notions of habeas corpus. Indeed, the Court
now concedes this.
Ante at
411 U. S. 349.
The present case is yet another step. Although recognizing that the
custody requirement is designed to preserve the writ as a remedy
for severe restraints on
Page 411 U. S. 354
individual liberty,
ante at
411 U. S. 351,
the Court seems now to equate custody with almost any restraint,
however tenuous. One wonders where the end is. Nevertheless, in the
light of cases already decided by the Court, I feel compelled to go
along, and therefore concur in the result.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE POWELL join, dissenting.
The issue in this case is whether petitioner was in "custody,"
within the meaning of 28 U.S.C. § 2241, entitling him to the
benefit of the extraordinary writ of habeas corpus. The Court of
Appeals for the Ninth Circuit unanimously held that he was neither
in actual nor constructive custody. If there is any vestige left of
the obvious and the original meaning of "custody" the court below
was right and the majority opinion of this Court today has further
stretched both the letter and the rationale of the statute.
Petitioner has been free on his own recognizance since his
conviction and the imposition of sentence in the summer of 1969.
The California statute authorizing his release imposes no
territorial or supervisory limitations, and he has been subject to
none. He has not been required to post any security for his
appearance. At the time of the filing of his federal habeas
petition, the only conceivable restraint on him was that, at the
time of the expiration of the stay granted by the state court,
petitioner would have had to surrender himself to the custody of
the sheriff. The record shows that, for the three and one-half
years since his conviction, petitioner has utilized his freedom to
travel both within and without the State of California for business
purposes.
Petitioner was under no greater restriction than one who had
been subpoenaed to testify in court as a witness.
Page 411 U. S. 355
This is simply not "custody" in any known sense of the word, and
it surely is not what was meant by Congress when it enacted 28
U.S.C. § 2241. The Court apparently feels, like Faust, that it has
in its previous decisions already made its bargain with the devil,
and it does not shy from this final step in the rewriting of the
statute. I cannot agree, and I therefore dissent.