petitioner was in custody where court could revoke probation and incarcerate petitioner if he violated terms of his probation or community service
How later courts described this case
- petitioner was in custody where court could revoke probation and incarcerate petitioner if he violated terms of his probation or community service
- ordinance that prohibited resisting, interfering, and hindering police officers suggested “some kind of physical interference” and was not overbroad
- non-reporting probation and community service
- where ordinance could be understood as physical interference or resistance of a law enforcement officer it was not substantially overbroad
Written by the judges who cited it.
The opinion
*485 THAPAR, District Judge,
concurring.
I concur in full with Judge Kennedy’s excellent opinion. I write separately, however, to point out the need to rein in the definition of “in custody.”
28 U.S.C. § 2254 allows an individual to apply for a writ of habeas corpus if that individual is “in custody pursuant to the judgment of a State court-” If Congress had wanted to create a mechanism whereby criminal defendants could challenge a conviction if they faced any restriction on their liberty, including a possible summons, it was fully capable of doing so. Instead, Congress — in an exercise of legislative prerogative — decided that habeas petitions could only be pursued by those defendants who are “in custody.” As these words have a plain meaning that clearly does not stretch so far as to cover individuals who are not in custody, but are merely subject to personal recognizance bonds, it would seem that the petitioner does not fit within the class of people who are capable of bringing a habeas petition. Nevertheless, it appears that this Circuit’s decision in Malinovsky v. Court of Common Pleas of Lorain County, 7 F.3d 1263 (6th Cir.1993), compels the conclusion that petitioner was in custody for the purposes of filing a habeas petition. Id. at 1265 (noting that Malinovsky was in custody “although he has been released on personal recognizance bond”). While there is nothing that this panel can do to bring the meaning of the term “in custody” back to its plain meaning, perhaps Congress or the Supreme Court should restore the proper definition by clarifying what exactly is meant by “in custody.” Such clarification is advisable because, in the words of Justice Blackmun, “the Court seems now to equate custody with almost any restraint, however tenuous. One wonders where the end is.” Hensley v. Mun. Court, 411 U.S. 345, 354 , 93 S.Ct. 1571 , 36 L.Ed.2d 294 (1973) (Blackmun, J., concurring).