holding that a petitioner was not “in custody” for purposes of Rule 37 where the petitioner was on parole
How later courts described this case
- holding that a petitioner was not “in custody” for purposes of Rule 37 where the petitioner was on parole
- rejecting argument that a person on parole was “in custody” of the Department of Correction and holding that a petitioner must be incarcerated to be entitled to Rule 37 relief
- holding that paroled inmate did not meet the “in custody” requirement for post-conviction relief
- regarding Rule 37 relief, petitioner who is out on bond is not “in custody”
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice. L. Brown, Justice. I cannot disagree that our recent gree that our recent cases that touch and concern Ark. R. Crim. P. 37.1 indicate that physical custody is a prerequisite to petitioning for relief. This is so even though Rule 37.1 merely uses the term “custody” and does not distinguish between legal custody or physical custody.
I am mindful, however, that in this case where parole is the issue, the order of conditional release makes reference to the fact that the respondent, Bohanan, is still in legal custody. This would be sufficient custody for postconviction relief in the federal system. The federal courts have universally interpreted the term “custody” as used in 28 U.S.C. § 2254 broadly and as synonymous with restraint of liberty as opposed to actual physical custody. See, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968) (release of the prisoner does not deprive the court of jurisdiction under federal statute); Jones v. Cunningham, 371 U.S. 236 (1963) (custody includes a person on parole); Jones v.Jerrison, 20 F.3d 849 (8th Cir. 1994) (a parolee is still in custody); Richmond v. Duke, 909 F. Supp. 626 (E.D. Ark. 1995) (parolee in Arkansas remained under State supervision and, thus, in custody).
What concerns me is the hypothetical case of a petitioner who is on parole when the mandate affirming his conviction is issued. In light of today’s opinion, he cannot file a petition for Rule 37 relief. And if his parole is revoked more than sixty days after the mandate is issued, and he is incarcerated, his time for filing a petition will have elapsed. See Ark. R. Crim. P. 37.2(c). Thus, he is deprived of a postconviction remedy. This appears to be fundamentally unfair.
This problem, of course, does not affect Bohanan. But it suggests that it may well be time for this court to revisit Rule 37, bearing this problem in mind.