holding that a defendant released on his own recognizance before beginning his sentence was “in custody” because he was “subject to restraints not shared by the public generally” in that he had an “obligation to appear at all times and places as ordered by any court or magistrate of competent jurisdiction” and his “freedom of movement rest[ed] in the hands of state judicial officers, who may demand his presence at any time and without a moment’s notice” (internal quotation marks and alterations omitted)
How later courts described this case
- holding that a defendant released on his own recognizance before beginning his sentence was “in custody” because he was “subject to restraints not shared by the public generally” in that he had an “obligation to appear at all times and places as ordered by any court or magistrate of competent jurisdiction” and his “freedom of movement rest[ed] in the hands of state judicial officers, who may demand his presence at any time and without a moment’s notice” (internal quotation marks and alterations omitted)
- finding petitioner was in custody because his incarceration was not “a speculative possibility that depends on a number of contingencies” or “a case where the unfolding of events may render the entire controversy academic,” and delaying “would do no more than postpone [the] action until petitioner had begun service of his sentence”
- recognizing that a defendant released on OR, but who has not been convicted and sentenced, is also considered to be “in custody”
- holding that a petitioner released on his own recognizance pending appeal of his sentence was “in custody” for purpose of habeas
Written by the judges who cited it.
The opinion
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.
*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.