Local 28, Sheet Metal Workers v. Equal Employment Opportunity Commission Brief of Respondent

    Jn tS|? (Eourt
OF T H E

O ctober T e r m , 1971

No. 7 t'-H 2 > /

K irby J . H ensley. Petitioner, 
vs.

M unicipal Court, Ran J ose-Milpitas J udicial 
D istrict, S anta Clara County,

State of California,
Respondent.

RESPONSE IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI

L otus P .  B e r g n a ,
D istrict A ttorney, Santa Clam County,

D e n n is  A l a n  L e m p e r t ,
Deputy D istrict A ttorney, Santa Clara County, 

23I K  Risk Road,
San. .Jose, California 95.112,
Telephone: (108) 275-9651,

Attorneys for Respondent.

P E R N A U  - W A L S H  P R I N T I N G  C O .  - 5 5 2  M I S S I O N  S T R E E T  ■ S A N  F R A N C I S C O  -  C A  9 f O S



Subject Index

Page
Opinions below ............................................................................... 1
Jurisdiction ..................................................................................... 2
Question presented .......................................................................  2
Constitutional and statutory provisions involved ...................... 2
Statement of the case ...................................................................  3
Argument ....................................................................................... 4

The decision below was in accord with existing law re­
quiring state prisoners to be “in custody” to qualify
for federal habeas corpus .................................................  4

Conclusion ....................................................................................... 5

Table of A uthorities Cited

C ases Pages
Carafas v. La Vallee, 391 U.S. 234 (1968) ............................ 4
Pay v. Noya, 372 U.S. 391 (1963) .........................................  5
Jones v. Cunningham, 371 U.S. 236 (1963) .......................... 4
Matysek v. United States, 339 F.2d 389 (Ninth Circuit 

1964)   3
McNally v. Hill, 293 U.S. 131 (1934) .......    1

C odes
California Education Code, Section 29007 ...........................  3

C o n stitu tio n s
United States Constitution, Art. I, Sec. 9 .............................  2

S ta tu te s
28 U.S.C.:

Section 1254(1) ...................................................................  2
Section 2241(c)(3) ..............................................................2,3,4
Section 2254 ......................................................................... 3



Jtt tip? I^Mpran? ©curt
OF T H E

InitCD

October T e r m , 1971

No. 7 1 - 1 4 2 8

K irby  J .  H e n s l e y , Petitioner, 
vs.

M u n ic ip a l  C ourt , S a n  J ose-M il p it a s  J u d ic ia l  

D istrict ,, S a n t a  Clara  C o u n t y ,
S tate  op Ca lifo r n ia ,

Respondent.

RESPONSE SN OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

OPINIONS BELOW

The decision, of the United States District Court 
for the Northern District of California denying peti­
tion for writ of habeas corpus is unreported and is 
reproduced at Appendix A of Petition for writ of 
certiorari at la. The District Court’s order denying 
reconsideration but granting certificate of probable 
cause is also unreported. Ibid., Pet. B at 2a,

The decision of the United States Court of Appeals 
for the Ninth Circuit is officially reported at 453 F.2d 
1252, Ibid., Pet. C at 3a. On February 18, 1972, the



2

Court of Appeals denied a petition for rehearing and 
rejected the suggestion for rehearing en banc, Ibid., 
Pet. D at 5a.

JURISDICTION

The jurisdiction of this court is invoked under 
Title 28, United States Code Section 1254(1).

QUESTION PRESENTED
Whether or not a person released on his own recog­

nizance following trial, conviction, and imposition of 
sentence, but before execution of said sentence on a 
state criminal charge, is within the purview of 28 
U.S.C. Section 2241(c)(3), which extends the remedy 
of habeas corpus to- persons “ in custody” in violation 
of the Constitution of the United States,

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Article I, Section 9, of the Constitution of the 
United States provides, in pertinent part:

“ The Privilege of the W rit of Habeas Corpus 
shall not be suspended, unless when in Cases of 
Rebellion or Invasion the public Safety may re­
quire it,”

28 U.S.C. Sec, 2241:
“ Power to grant writ:
(c) The writ of habeas corpus shall not extend
to a prisoner unless—

* * *



3

(3) He is in custody in violation of the Consti­
tution . . .  of the United States;”

28 U.S.C. Sec. 2254:
“ State custody; remedies in Federal Courts 
(a) The Supreme Court, a Justice thereof, a 
circuit judge, or a district court shall entertain 
an application for a writ of habeas corpus in 
behalf of a person in custody pursuant to the 
judgment of a State court only on the ground 
that he is in custody in violation of the Consti­
tution . . .  of the United States.”

STATEMENT OF THE CASE

Petitioner, Kirby J. Hensley, was convicted of a 
misdemeanor on June 25, 1969. Thereafter on July 
1, 1969, Hensley was sentenced to one year in jail 
plus $625 fine for his violation of Section 29007 of 
the California Education Code. Since that time, he 
has been at liberty on his own recognizance.

The District Court did not reach the substantive 
issues raised in the petition for writ of habeas corpus 
filed with it, but denied the petition on the basis that 
the court lacked jurisdiction over the matter citing 
the controlling decision of Mat.ysek v. United States, 
339 F.2d 389 (Ninth Circuit 1964) ; holding that the 
custody requirement of 28 U.S.C. Sec. 2241(c)(3) is 
not met by one at liberty on his own recognizance.

The Court, of Appeals affirmed, relying on its pre­
vious holding in Matysek v. United States, supra.



4

ARGUMENT
THE DECISION BELOW WAS IN ACCORD WITH EXISTING 

LAW REQUIRING STATE PRISONERS TO BE “ IN CUS­
TODY” TO QUALIFY FOR FEDERAL HABEAS CORPUS.

The statutory prerequisites of a state prisoner being 
“ in custody” to qualify for federal habeas corpus 
pursuant to 28 U.S.C. 2241(c)(3) have been broad­
ened by decisions of various federal courts,

The term “ in custody” has been pulled and stretched 
to cover more and more applicants not previously 
under the protective umbrella of federal habeas 
corpus. In that pulling and stretching of “ in cus­
tody” a single fiber has remained unaltered; namely, 
that the applicant must be under some form of re­
straint. The gamut of the forms of restraint that 
have been considered range from actual detention1 2 to 
parole? to the disability of a prior felony conviction.3

The breadth of restraints has not been so broad as 
to include the minor intrusion resulting from a re­
lease on one’s own recognizance.

The cases cited by the petitioner deal with situa­
tions where the applicant was suffering from re­
straint or disability not suffered by the public at 
large that, would make him eligible for habeas corpus,

iAs this court said in McNally v. Hill, 293 U.S. 131, 136 (1934), 
“This court has consistently refused to review upon habeas corpus 
questions which do not concern the lawfulness of the detention”.

2Jones v. Cunningham, 371 U.S, 236, 243, 1963 [Parole) imposes 
conditions which significantly confine and restrain his [ petitioner s] 
freedom; this is enough to keep him in the “custody” of the Vir­
ginia Parole Board within the meaning of the habeas corpus 
statute.

sCarafas v. La Vallee, 391 U.S. 234, 238 (1968).



5

CONCLUSION

The purpose of the writ of habeas corpus, is to pro­
vide a prompt and effective remedy for whatever so- 
city deems to be intolerable restraints. Fay v. Noya, 
372 U.S. 391, 401 (1963).

In the three years since his conviction, the peti­
tioner has moved freely and unrestrained. The ex­
traordinary, circumstances requiring- the invocation 
of the writ of habeas corpus do not exist as to this 
petitioner. Were this court to grant such relief, it 
would vitiate the statutory requirements provided for 
federal habeas corpus, and convert the writ of habeas 
corpus into a writ of error.

The decision of the Court of Appeals should be 
affirmed by the denial of certiorari.

Dated, San Jose, California,
July 10, 1972.

Respectfully submitted,
Louis P .  B er g n a ,

D istric t A ttorney, S an ta  Clara County,

D e n n is  A l a n  L e m p e r t ,
Deputy D istrict A ttorney, Santa Clara County,

Attorneys for Respondent.