Hensley v. Municipal Court Brief for Respondent

    Jtt tip? I&tpron? fflourt
OF T H E

Ittitpft Btnim
October. T erm , 1972

No. 71-1428

K irby J . H ensley , Petitioner, 
vs.

M t \ k ipai. Court, S an  J ose-M ilpitas J udicial 
D istrict, S anta  Clara Co u n ty ,

S tate of California ,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENT

Louis P . B ergna,
D istrict A ttorney, Santa Clara County,

D e n n is  A la n  L eu  r a n .
Deputy D istrict A ttorney, Santa Clara County, 

234 E. G ist Road,
San Jose, C alifornia 95112,
Telephone: (408) 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 6 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 4 1 0 5



Subject Index

Page
Opinions below .............................................     1
Jurisdiction .................................................................................  2
Question presented for review .................................................  2
Constitutional and statutory provisions involved..................... 2
Statement of case ......................................................................  5
Argument .........      6

A defendant convicted of a state offense who is at 
liberty on his own recognizance when his federal 
habeas petition is filed is not “in custody” for purposes 
of the federal habeas corpus statute ............................. 6

Conclusion ......................................................     11

Table of Authorities Cited

Cases Pages
Allen v. United States, 349 F. 2d 362 (1st C'ir. 1969) ........ 9

Carafes v. La Vallee, 391 U.S. 234 (1967) ..........................  6

Fay v. Noia, 372 U.S. 391 (1963) ....................................... 6, 7

In re Esselbom, 8 F. 904 .......................................................  8

Johnson v. Hoy, 227 U.S. 245 (1913) ....................................  8

Jones v. Cunningham, 371 U.S. 236 (1963) ......................... 7, 9

Matysek v. United States, 339 F. 2d 389 (9th Cir. 1964)... 5

McNally v. Hill, 293 U.S. 131 (1934) .................................... 8

Payton v. Roe, 391 U.S. 54 (1968) .......................................  8



T able of A tjth o k ities  C ited

Pages
Stalling v. Splain, 253 U.S. 339 (1920) ..............................  8

Strait v. Laird, 406 U.S. 141 (1972) ....................................  8

Wales v. Whitney, 114 U.S. 564 .............................................. 8

Codes
Education Code, Section 29007 ...............................................  5

Penal Code (West, 1968):
Section 1318 ................................................................... 3, 9,10
Section 1318-1318.8 .......................................................... 3
Section 1318.4 ..................................................................  3
Section 1318.6 .................................................................  4
Section 1318.8 ....................................    4

Constitutions
United States Constitution, Art. I. Sec. 9 ............................  2,7

Statutes
Act of 1867, 14 Stat. 385 .........................................................  6

Act of 1874, 1874 rev. Stats., Sec. 751-753 ........................... 6

Act of 1883, 4 Stat. 634-635 ...................................................  6

Act of 1925, 43 Stat. 940 .......................................................... 6

Federal Judiciary Act of September 24, 1789, Section 14 (1 
Stat. 73, 81-82) ....................................................................  6

28 U.S.C.:
Section 1254(1) .............................................................  2
Section 2241 ....................................................................3, 6,10
Section 2241(c)(3) ........................................................... 2,3,5

i i



Jn %  Supreme (Emtrt
OF T H E

Etutefc States

October T erm , 1972

No. 71-1428

K irby J". H ensley , Petitioner, 
vs.

M u nic ipal  Court, S a n  J ose-M ilpitas J udicial 
D istrict, S anta  Clara County ,

S tate of California ,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENT

OPINIONS BELOW

The decision of the United States District Court for 
the Northern District of California denying petition 
for writ of habeas corpus is unreported, and is set out 
at App. 29a, The District Court’s order denying re­
consideration, but granting a certificate of probable 
cause, is unreported and is set forth at App. 30a.

The decision of the United States Court of Appeals 
for the Ninth Circuit is officially reported at 453 F. 2d



2

1252 (9th Cir. 1972) and is set out at App. 32a-34a. 
The order of the Court; of Appeals denying' petition 
for rehearing and rejecting suggestion for rehearing 
in banc is set forth at App. 35a.

JURISDICTION

The judgment of affirmance of the Court of Appeals 
was entered on January 19, 1972. A timely filed peti­
tion for rehearing in banc was denied on February 
18, 1972. The petition for writ of certiorari was filed 
on May 2, 1972, and was granted on October 10, 1972. 
The jurisdiction of this Court was invoked under 28 
U.S.C. §1254(1).

QUESTION PRESENTED FOR REVIEW

Whether or not a person released on his own recog­
nizance following trial, conviction and sentence on a 
state criminal charge is within the purview of 28 
U.S.C. §2241 (e) (3), which extends the remedy of ha­
beas corpus to persons “ in custody” in violation of the 
Constitution of the United States.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

United States Constitution, Article I, Section 9:
U

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



3

28 U.S.C. §2241:
“ Power to grant writ:

* * *
(c) 'The writ of habeas corpus shall not extend 

to a prisoner unless——
(3) He is in custody in violation of the Con­

stitution . . .  of the United States;”

Cal. Penal Code §§1318-1318.8 (West, 1968), pro­
vide as follows:

§1318
“ Upon good cause being shown, any court or 

magistrate who could release a defendant from 
custody upon his giving1 bail, may release such 
defendant on his own recognizance if it appears 
to such court, or magistrate that such defendant 
will surrender himself to custody as agreed by 
following the provisions of this article.”

§1318.4
To be released on his own recognizance the de­

fendant shall file with the clerk of the court in 
which the magistrate or judge is presiding an 
agreement in writing duly executed by him, in 
which he agrees tha t:

(a) He will appear at all times and places as 
ordered by the court or magistrate releas­
ing him and as ordered by any court in 
which, or any magistrate before whom, the 
charge is subsequently pending.

(b) I f  he fails to appear and is apprehended 
outside of the State of California, he 
waives extradition.



4

(c) Any court or magistrate of competent ju­
risdiction may revoke the order of release 
and either return him to custody or require 
that he give bail or other assurance of his 
appearance as elsewhere provided in this 
chapter.

§1318.6
After a defendant has been released pursuant 

to this article, the court in which the charge is 
pending may, in its discretion, require that the 
defendant either give bail in an amount specified 
by it or other security as elsewhere provided in 
this chapter. The court may order that the de­
fendant be committed to actual custody unless he 
gives such bail or gives such other: security.

§1318.8
The court to which the committing magistrate 

returns the depositions, or in which an indict­
ment, information or appeal is pending, or to 
which a judgment on appeal is remitted to be 
carried into effect, may, by an order entered upon 
its minutes, direct the arrest of any defendant 
who has been released upon his own recognizance 
and his commitment to the officer to whose cus­
tody he was committed at the time of such re­
lease, and his detention until legally discharged, 
in the following cases:

(a) When he failed to appear as agreed.
(b) When he was required to give bail or other 

security as provided in Section 1318.6 and 
has failed to do so.

(c) Upon an indictment being found or infor­
mation filed in cases provided in Section 
985.



5

STATEMENT OF 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 violation of Section 29007 of the 
California Education Code. Since that time, Peti­
tioner has been out of custody on his own recogni­
zance.1

The District Court did not reach the substantive is­
sues raised in the petition for writ of habeas corpus, 
but denied the petition on the basis that the court 
lacked jurisdiction over the matter citing the control­
ling decision of Matysek v. United States, 339 'F.2d 
389 (9th Cir. 1964), holding that the custody require­
ment of 28 U.S.C. §2241 (c) (3) is not met by one at 
liberty on his own recognizance.

On October 10, 1972, this court granted Hensley’s 
petition for writ of certiorari.

1 Hensley has been at large on his own recognizance at all times 
since his conviction. Initially, the state court stayed execution of 
sentence. At the exhaustion of Hensley's state remedies, the dis­
trict court issued a stay of execution pending habeas proceedings 
therein. After the petition was denied, the Circuit Justice granted 
a stay pending appeal to the Court, of Appeals. Following the 
affirmance of the denial of habeas corpus, the Court of Appeals 
granted a 30-day stay of its mandate pending application for 
certiorari. This stay was subsequently extended by the Circuit 
Justice pending the Court’s action on a timely filed petition for a 
writ of certiorari, to remain in effect pending the judgment of 
this Court.



6

ARGUMENT
A Defendant Convicted Of A State Offense Who Is At Liberty- 

On His Own Recognizance When His Federal Habeas Peti­
tion Is Filed Is Not “In, Custody” For Purposes Of The 
Federal Habeas Corpus Statute.

Since our country’s birth, Congress has provided 
legislation to permit individuals in custody to petition 
for habeas corpus.2 The extent of the habeas juris­
diction has changed throughout the years.3 In  1948, 
the present 28 U.S.C. §2241 came into being. A con­
sistent and necessary requirement of all the federal 
habeas corpus (ad subjiciendum) statutes was that 
jurisdiction could not extend to a person unless he 
was in actual, physical custody.

This court has recognized that some form of custody 
is necessary:

“ The federal habeas corpus statute requires 
that the applicant must be ‘in custody’ when the 
application for habeas corpus is filed.” Carafas 
v. La Vallee, 391 U.S. 234, 238 (1967).
“ Of course, custody in the sense of restraint of 
liberty is a pre-requisite to habeas, for the only 
remedy that can be granted in habeas is some 
form of discharge from custody.” Fay v. Noia, 
372 U.S. 391, 427 fn. 38 (1963).

2“ [E]ither of the justices of the Supreme Court as well as 
judges of the district court which have power to grant writs of 
habeas corpus for the purpose of an inquiry into the cause of 
commitment—provided that writs of habeas corpus shall in no 
ease extend to prisoners in gaol, unless where they are in custody 
under or by color of the authority of the United States. . . 
Section 14 of the Federal Judiciary Act of September 24, 1789 
(1 Stat. 73, 81-82)

3Act of 1883, 4 Stat. 634-635; Act of 1867, 14 Stat. 385; Act of 
1874, 1874 revised Stats., Section 751-753 ; Act of 1925, 43 Stat. 
940,



7

Custody was not defined in specific terms by Con­
gress, nor has this court specifically defined custody. 
In Jones v. Cunningham, 371 U.S. 236, 238 (1963) 
this court stated:

“ The habeas corpus jurisdictional statute imple­
ments the constitutional command that the writ 
of habeas corpus be made available. While limit­
ing its availability to those fin custody’, the stat­
ute does not attempt to mark the boundaries of 
‘custody’ nor in any way other than by the use 
of that word attempt to limit the situations in 
which the writ can be used. To determine whether 
habeas corpus could be used to test the legality 
of a given restraint on liberty, this Court has 
generally looked to common-law usages and the 
history of habeas corpus both in England and in 
this country.”

While the Constitution in Article I, Section 9, pro­
vides the minimum criteria for the grant of federal 
habeas corpus, Congress has enlarged upon that mini­
mal grant to permit the federal courts to entertain 
a broader range of applicants for federal habeas. 
However, the jurisdiction of the federal courts is 
nonetheless not absolute; its power is restricted by 
the limitations imposed upon it by Congress.4 The 
extent of the constitutionally provided federal habeas 
as envisioned by the framers of the constitution was

4“At the time the privilege of the writ was written into the 
Federal Constitution it was settled that the writ lay to test any 
restraint contrary to fundamental law, which in England stemmed 
ultimately from Magna Charta but in this country was embodied 
in the written Constitution. Congress in 1867 sought to provide 
a federal forum for state prisoners having constitutional defenses 
by extending the habeas corpus powers of the federal courts to 
their constitutional maximum.” Fay v. Noia, 372 U.S. at 426.



8

to free a person accused of the crime from actual 
physical custody in jail on bail, not. to free him from 
bail. See McNally v. Hill, 293 U.S. 131,137-138 (1934). 
See also Payton v. Poe, 391 U.S. 54 (1968) (reversed 
on other ground).

This court has long recognized that an applicant 
for federal habeas corpus must be in a position to 
benefit from the writ, i.e., to be released from custody, 
whether immediately or in the future. Where the 
applicant is already free either on bail or otherwise, 
the court is powerless to grant any relief. Johnson 
v. Hoy, 227 U.S. 245, 247, 248 (1913); Stalling v. 
Splain, 253 U.S. 339 (1920).5

Mr. Justice Rehnquist in his dissent in Strait v. 
Laird, 406 U.S. 141, 146 (1972), aptly points out that 
“notions of custody have changed over the years.” 
Those changing notions, however, cannot be such as

5“Of course if there is no prisoner to release, if there is no 
custody to he discharged, if there is no such restraint as requires 
relief, then the civil court has no power to interfere with the 
military court or other tribunal over which it has by law no 
appellate .jurisdiction.

The writ of habeas corpus is not a writ of error, though in 
some cases in which the court issuing it has appellate power over 
the court by whose order the petitioner is held in custody, it may 
be used with the writ of certiorari for that purpose. In such case, 
however, as the one before us it is not a writ of error. Its purpose 
is to enable the court to inquire, first, if the petitioner is re­
strained of his liberty. If  he is not, the court can do nothing 
but discharge the writ. If there is such restraint, the court can 
then inquire into the cause of it, and if the alleged cause be 
unlawful it must then discharge the prisoner.” Wales v. Whitney, 
114 U.S. 564 at 570.

Furthermore, by voluntarily giving bail to appear in Wyoming, 
the purpose of the removal proceedings have been accomplished 
and all questions in controversy in the habeas corpus and in the 
removal proceedings terminated, whether his arrest and detention 
had originally been valid was, therefore, rendered immaterial. 
In re Esselborn, 8 F. 904.



9

to depart completely from the reasonable meaning’ of 
the term “ custody”. However, should the court deter­
mine that a defendant released on his own recogni­
zance is eligible for federal habeas, corpus, that 
determination would be one not founded on either 
constitutional or legislative authority, but rather on 
judicial fiat.

The Petitioner’s brief at Page 9 suggests that the 
conditions, imposed on a defendant’s release on his 
own recognizance are of such magnitude that permit 
the invocation of federal habeas corpus. However, 
when compared with the restraints on liberty as de­
lineated in Jones v. Cunningham, supra., the condi­
tions under which the defendant was released pale 
into insignificance.6

As the first circuit stated in Allen v. United States, 
349 F. 2d 362 (1st Cir. 1969) wherein a federal pri­
soner who was out on bail following an appeal 
was denied habeas corpus by that court on the basis 
that the only restraint imposed on that defendant 
was the requirement to subject himself to the court 
upon reasonable notice, which condition did not re­
strain the defendant nor constitute custody of him.

Interestingly, Petitioner fails to include in toto Sec­
tion 1318 of the California Penal Code, which section

Petitioner is confined by the parole order to a particular com­
munity, house, and job at the sufferance of his parole officer. 
He cannot drive a ear without permission. He must periodically 
report to his parole officer; permit the officer to visit his home 
and job .at any time; and follow the parole officer’s advice. He is 
admonished to keep good company and good hours; work regu­
larly; keep away from undesirable places; and live a. clean, honest, 
and temperate life. Jones v. Cunningham, 371 U.S. at 242.



10

contains the substantive basis for a release on one’s 
own recognizance. That section reads as follows: 

Upon good cause being shown, any court or 
magistrate who could release a defendant from 
custody upon his giving bail, may release such 
defendant on his own recognizance if it appears 
to such court or magistrate that such defendant 
will surrender himself to custody as agreed by 
following the provisions of this article. Cal. Penal 
Code §1318 (West-1968) (emphasis supplied).

By statutory definition, a defendant released on his 
own recognizance is discharged from custody subject 
only to the termination of that status by a magistrate 
for either the failure to appear when ordered or the 
failure to give bail or other security determined neces­
sary by that court. Until that time, a released person 
is free to do as he or any other person in our com­
munity wishes. He is not required to remain in any 
particular community, house or job (this Petitioner 
has in fact traveled widely during the last 3y2 years 
since his conviction). He can drive a vehicle if he 
wishes, and he need not report to any person.

Were this court to extend habeas jurisdiction pur­
suant to 28 U.S.C. §2241 to individuals in the position 
of this Petitioner, the probable increase in the rate 
of habeas petitions- would substantially increase as 
contrasted with the increase experienced between 1961 
and 1971.7

7See Appendix A attached hereto.



11

CONCLUSION

We respectfully submit that the judgment of the 
United States Court of Appeals should be affirmed.

Dated, San Jose, California,
December 18,1972.

L ou is P . B k r g n a  ,
D istrict A ttorney, S an ta  Clara County,

D e n n is  A l a n  L em pekt ,
Deputy D istrict A ttorney, S an ta  Clara County,

iAttorneys for Respondent.

(Appendix A Follows)



A p p e n d ix  A



Appendix A

UNITED STATES DISTRICT COURTS

PETITIONS FILED BY STATE 
AND FEDERAL PRISONERS

FISCAL YEARS 1961-1971

PET IT IO NS

17.000

16.000
Petitions by State Prisonersn| by State r

14,000

12,000

10,000

8,000

6,000

4,000

2,000

Petit ons by Federal Prisoners

a
e^eral Prisom

Motions to vacate sentence

Habeas Corpus and others

1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971

Source: Administrative Office of the United States Courts