Hensley v. Municipal Court Petition for a Writ of Certiorari to the US Court of Appeals for the Ninth Circuit

    I n  t h e

QLflurt of %  Stairs
October T eem, 1971- 

No................

K irby J . H ensley,

vs.
Petitioner,

Municipal Court, San J osic-Milpitas J udicial District, 
Santa Clara County, State of California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT

J ack Greenberg 
Stanley A. B ass

10 Columbus Circle 
Room 2030
New York, N. Y. 10019 
(212) 586-8397

P eter R. Steomer
515 N. First Street 
Room 201
San Jose, California 95112 
(408) 295-4430

Attorneys for Petitioner



I N D E X

Opinions Below ............................................................... 1

Jurisdiction ...................      2

Question Presented for Review.....................................  2

Constitutional and Statutory Provisions Involved......  2

Statement ........................................................................ 3

Reasons for Granting the Writ and Argument Ampli­
fying Same ............................................................   5

Conclusion ............................................................................... 8

A ppendices :

A. Order of the District Court Denying Petition
for Writ of Habeas Corpus................................  la

B. Order of the District Court Denying Recon­
sideration, But Granting a Certificate of Prob­
able Cause ...................................................    2a

C. Decision of the Court of Appeals Affirming 
Denial of Petition for Writ of Habeas Corpus 3a

D. Order of the Court of Appeals Denying Peti­
tion for Rehearing and Rejecting Suggestion 
for Rehearing In Banc .....................................  5a

T a b l e  o f  C ases

Beck v. Winters, 407 F.2d 125 (8th Cir. 1969) .............. 5
Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968) .............. 5

PAGE



Cantillon v. Superior Court, 305 F, Supp, 304 (C.D.
Cal. 1969), i*ev’d on other grounds, 442 F.2d 1338 
(9th Cir. 1971) ...........................................................  5

Capler v. City of Greenville, 422 F.2d 299 (5th Cir.
1970) ............................................................................ 5

Carafas v. LaVallee, 391 U.S. 234 (1968) ..................... 6
Carlson v. Landon, 342 U.S. 524 (1952) .....................  5
Choung v. People of the State of California, 320 F. 

Supp. 625 (E.D. Cal. 1970) .......................................  5, 7

Duneombe v. New York, 267 F. Supp. 103 (S.D.N.Y. 
1967) ..................................................................    5

Harris v Nelson, 394 U.S. 286 (1969) ............................  6

In Re Smiley, 66 Cal.2d 606, 58 Cal. Rptr. 579, 427 P.2d 
179 (1967) .................................. ...............................  5

Jones v. Cunningham, 371 U.S. 236 (1963) ...................  6

Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969) ..........  5
Matysek v. United States, 339 F.2d 389 (9th Cir. 1964) 4, 6 
Matzner v. Davenport, 288 F. Supp. 636 (D.N.J. 1968)

affd, 410 F.2d 1376 (3rd Cir. 1969) ..........................  5
McNally v. Hill, 293 U.S. 131 (1934) ............................  7

Ouletta v. Sarver, 307 F. Supp. 1099 (E.D. Ark. 1970), 
aff’d, 428 F.2d 804 (8th Cir. 1970) ............................  5

Peyton v. Rowe, 391 U.S. 54 (1968) ............................  7

Settler v. Larneer, 419 F.2d 1311 (9th Cir. 1969) ......  5
Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir.

1969) ...........................................................................  5
Stotts v. Perini, 427 F.2d 1296 (6th Cir. 1970) .............. 6

ii

PAGE



I l l

United States ex rel. Lawrence v. Woods, 432 F.2d
1072 (7th Cir. 1970) ..................................................  6

United States ex rel. Smith v. Di Bella, 314 F. Supp.
446 (i). Conn. 1970) ..................................................  5

Younger v. Harris, 401 U.S. 37 (1971) ........................  8

Constitutional Provisions and Statutes:

Article I, Section 9, Constitution of the United States 8
28 U.S.C. §1254(1) .... ....................................... ..........  2

§2241 (c)(3) .........................................2, 3,4, 5, 8
§2254(a) .......................................................  3

PAGE



In the

tourt uf %  ItttW States
October T erm, 1971 

No................

K irby J . H ensley,

vs.
Petitioner,

Municipal Court, San J ose-Milpitas J udicial District, 
Santa Clara County, State of California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the decision of the United States Court of Appeals for 
the Ninth Circuit, which affirmed, the denial of a petition 
for a writ of habeas corpus by the United States District 
Court for the Northern District of California.

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 in Appendix 
“A.” The District Court’s order denying reconsideration, 
but granting* a certificate of probable cause is unreported 
and is set forth in Appendix “B.”

The decision of the United States Court of Appeals for 
the Ninth Circuit is officially reported at 453 F.2d 1252,



2

and is set out in Appendix “C.” The order of the Court of 
Appeals denying petition for rehearing and rejecting sug­
gestion for rehearing in banc is set forth in Appendix “D.”

Jurisdiction

The judgment of affirmance of the Court of Appeals 
was entered on January 19, 1972. A timely filed petition 
for rehearing in banc was denied on February 18, 1972. 
.By order dated March 20, 1972, Mr. Justice Douglas ex­
tended the time for filing a petition for writ of certiorari 
to and including May 1, 1972.

The jurisdiction of this Court is invoked under 28 U.S.C. 
§1254(1). The District Court had jurisdiction under 28 
U.S.C. §2241(c) (3).

Question Presented for Review

Whether or not a person released on his own recogni­
zance following trial, conviction and sentence on a state 
criminal charge is within the purview of 28 U.S.C. §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 Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or 
Invasion the public Safety may require it.”

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

#



3

(c) The writ of habeas corpus shall not extend to a 
prisoner unless—

*  #  #

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

28 U.S.C. §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 Constitution . . .  of the United States.”

Statement

Petitioner, K irby J. H ensley, convicted of a misde­
meanor in the state court,1 and presently enlarged on his 
own recognizance,2 filed a petition for writ of habeas corpus 
in the United States District Court for the Northern Dis­

1 Hensley was sentenced to one year in jail plus $625 fine and 
penalty assessment for violation of California Education Code 
§29007, which prohibits the awrard of Doctor of Divinity degrees 
without requisite accreditation.

2 Hensley has been enlarged on recognizance at all times since 
his conviction. Initially, the state eourt stayed execution of sen­
tence. At the exhaustion of Hensley’s state remedies, the district 
eourt 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 pend­
ing the timely filing of a petition for a writ of certiorari.



4

trict of California, challenging the constitutionality of the 
state conviction.3

The District Conrt did not reach any substantive issues, 
but denied the petition on the ground that petitioner, being 
enlarged on his own recognizance, was not “in custody” 
for purposes of 28 U.S.C. §2241(c)(3).

The Court of Appeals affirmed, relying upon its previous 
dictum, in Matysek v. United States, 339 F.2d 389 (9th Cir. 
1964), to the effect that a person released on bail was not 
“in custody”, actual or constructive, so as to satisfy 28 
U.S.C. §2241. The Court of Appeals specifically noted, how­
ever, that “the decisional rule is different in several other 
circuits” and that “the Supreme Court has not, to this date, 
considered the express question posed herein.”

It is to review that ruling that the present petition for 
certiorari is filed.

3 The grounds for this Constitutional challenge are, briefly, as 
follows: 1) denial of free exercise of religion, by the imposition 
of punishment for essentially religious activity in awarding honor­
ary Doctor of Divinity certificates to individuals who complete a 
course of religious instruction, and 2) denial of due process of law 
and effective assistance of counsel, by the failure of trial counsel 
to appear and present any defense of fact or law that was available 
to petitioner when the trial court re-opened the case after having 
initially stayed the proceedings to determine if it had jurisdiction, 
and by the imposition of judgment of conviction in absentia.



5

REASONS FOR GRANTING THE WRIT AND 
ARGUMENT AMPLIFYING SAME

The Decision Below Admittedly Conflicts With Deci­
sions of Other Courts of Appeals Which Hold That 
State Prisoners on Bail Are “ In Custody” for Federal 
Habeas Corpus Purposes, and It Arguably Conflicts 
With Applicable Decisions of This Court.

The Court below candidly acknowledged that its limited 
construction of the term “in custody,” as used in 28 U.S.C. 
§2241 (c)(3), was a minority view. Many of the other 
circuits have held that state prisoners on bail are “in cus­
tody” for federal habeas corpus purposes.4 Indeed, the 
Ninth Circuit itself, on other occasions, has apparently fol­
lowed the majority rule.5 And, two decades ago, this Court 
observed, in Carlson v. Landon, 342 U.S. 524, 547 (1952): 
“When a prisoner is out on bond he is still under court 
control, though the bounds of his confinement are enlarged. 
His bondsmen are his jailers.”

4 Marden v. Purdy, 409 F.2d 784, 785 (5th Cir. 1969); Capler 
v. City of Greenville, 422 F.2d 299, 301 (5th Cir. 1970); Beck v. 
Winters, 407 F.2d 125, 126-27 (8th Cir. 19691 ; Ouletta v. Sarver, 
307 F. Supp. 1099, 1101 n. 1 (E.D. Ark. 1970), aff’d, 428 F.2d 
804 (8th Cir. 1970) ; Burris v. Ryan, 397 F.2d 553, 555 (7th Cir. 
1968); United States ex rel. Smith v. Di Bella, 314 F. Supp. 446, 
448 (D. Conn. 1970) ; Dunconibe v. New York, 267 F. Snpp. 103, 
109 n. 9 (S.D.N.Y. 1967); Matzner v. Davenport, 288 F. Snpp 
636, 638 n. 1 (D.N.J. 1968), aff’d, 410 F.2d 1376 (3rd Cir. 1969). 
Interestingly, the California Supreme Court has already held that 
a person released on recognizance is under sufficient constructive 
custody to permit him to invoke the Writ of Habeas Corpus, See, 
In Re Smiley, 66 Cal.2d 606, 58 Cal. Rptr. 579, 427 P.2d 179 
(1967).

5 Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969) ; 
Settler v. Lameer, 419 F.2d 1311 (9th Cir. 1969); Cantillon v. 
Superior Court, 305 F. Supp. 304, 306-07 (C.D. Cal. 1969), rev’d 
on other grounds, 442 F.2d 1338 (9th Cir. 1971); Choung v. People 
of State of California, 320 F. Supp. 625 (E.D. Cal. 1970).



6

In addition, recent decisions of this Conrt and the 1966 
amendments to the federal habeas corpus statute, have 
combined effectively to undermine, if not actually overrule, 
the 1964 Matysek dictum, which the Court below felt “con­
strained” to follow.

In Jones v. Cunningham, 371 U.S. 236, 243 (1963), this 
Court said:

“[The writ of habeas corpus] is not now and never has 
been a static, narrow, formalistic remedy; its scope 
has grown to achieve its grand purpose—the protec­
tion of individuals against erosion of their right to be 
free from wrongful restraints upon their liberty.”

In Carafas v. La Vallee, 391 U.S. 234, 239 (1968), the 
Court stated:

“the statute does not limit the relief that may be granted 
to discharge of the applicant from physical custody. 
Its mandate is broad with respect to the relief that may 
be granted. It provides that ‘[t]he court shall . . . 
dispose of the matter as law and justice require.’ 28 
U.S.C. §2243. The 1966 amendments to the habeas cor­
pus statute seem specifically to contemplate the pos­
sibility of relief other than immediate release from 
physical custody. At one point, the new §2244(b) 
(1964 ed., Supp. II) speaks in terms of ‘release from 
custody or other remedy.’ ” 6

As this Court emphasized in Harris v. Nelson, 394 U.S. 
286, 291 (1969):

“The scope and flexibility of the writ—its capacity to 
reach all manner of illegal detention—its ability to cut

6 Carafas has been applied to authorize federal habeas challenges 
to convictions already served. Stotts v. Perini, 427 F.2d 1296 (6th 
Cir. 1970); United States ex rel. Lawrence v. Woods, 432 F.2d 
1072 (7th Cir. 1970).



7

through barriers of form and procedural mazes—have 
always been emphasized and jealously guarded by 
courts and lawmakers. The very nature of the writ 
demands that it be administered with the initiative and 
flexibility essential to insure that miscarriages of jus­
tice within its reach are surfaced and corrected.”

Peyton v. Rowe, 391 U.S. 54 (1968), actually applied the 
federal habeas corpus remedy to questions of future re­
lease. There, the Court overruled McNally v. Hill, 293 U.S. 
131 (1934), and said:

“to the extent that the rule of McNally postpones plen­
ary consideration of issues by the district courts, it 
undermines the character of the writ of habeas corpus 
as the instrument for resolving fact issues not ade­
quately developed in the original proceedings.”
391 U.S., at 73

“Bowe and Thacker may establish that the convictions 
they challenge were obtained in violation of the Con­
stitution. If they do, each day they are incarcerated 
under those convictions while their cases are in the 
courts will be time that they might properly have en­
joyed as free men.” Ibid., at 64

The limited interpretation of the federal habeas corpus 
statute by the court below renders the Great Writ a “nar­
row, formalistic remedy,” contrary to the clear implica­
tions of this Court’s decisions mentioned above. The 
majority view, on the other hand, realistically observes: 
“The fact that petitioner was forced to seek a federal 
stay order to fend off state incarceration is itself a sig­
nificant restraint ‘not shared by the public generally.’ ” 
Choung v. People of State of California, 320 F. Supp. 625, 
628 (E.D. Cal. 1970).



8

Moreover, in civil rights cases, where the validity of a 
state statute may be drawn in question, the defendant on 
bond7 would be forced under the Ninth Circuit rule, to 
surrender himself into the confines of an often decrepit, 
overcrowded penal institution, before the federal habeas 
judge would have the opportunity to pass upon the con­
stitutional challenge.8 Such an unjust result would be jus­
tified by neither common sense nor by a correct reading 
of 28 U.S.C. §2241 (c)(3).9

CONCLUSION

The Ninth Circuit has practically invited this Court to 
review this case. By virtue of the granting of federal 
stays, as well as of a certificate of probable cause, the is­
sue posed herein has been preserved. For the foregoing 
reasons, the petition for certiorari to review the decision 
of the Ninth Circuit Court of Appeals should be granted,

7 Any attempt to distinguish between release on recognizance 
and release on cash bail would ignore the fact that the imposition 
of non-fina.ncial conditions constitutes a string on one’s liberty to 
come and go as one pleases, and further, would raise serious equal 
protection problems of discrimination against indigents, whose 
only means of obtaining such conditional release is by individual 
recognizance.

8 Under this Court’s decisions in the septet beginning with 
Younger v. Harris, 401 U.S, 37 (1971), a civil suit challenging 
the constitutionality of a state statute, and seeking to enjoin prose­
cution thereunder, could not be maintained in federal court, absent 
a showing of “bad faith” enforcement.

9 The limited construction of the habeas remedy by the court 
below may also raise a question of unconstitutional suspension of 
the “Privilege of the Writ of Habeas Corpus,” guaranteed by 
Article I, Section 9 of the Constitution of the United States.



9

and the judgment should be reversed and remanded for 
further proceedings.

Respectfully submitted,

April, 1972.

J ack Greenberg 
Stanley A. B ass

10 Columbus Circle 
Room 2030 
(212) 586-8397

P eter R. Stromer
515 N. First Street 
Room 201
San Jose, California 95112 
(408) 295-4430

Attorneys for Petitioner



A P P E N D I C E S



Order Dated July 1, 1970
I n the

UNITED STATES DISTRICT COURT 
Northern District of California 

No. C-70 1276 RPP

K irby J . H ensley,
Petitioner,

v .

Municipal Court, San J ose-Milpitas J udicial District, 
Santa Clara County, State of California,

Respondents.

Petitioner, convicted of a misdemeanor in the state court 
and presently out on O.R. (own recognizance), brings an 
action in habeas corpus challenging the constitutionality 
of the state conviction.

The petition must be denied, because this court does not 
have jurisdiction over the matter. 28 U.S.C. §2241(c)(3) 
provides that the writ of habeas corpus shall not extend 
to a prisoner unless he is “in custody” in violation of the 
laws of the United States.

The law of this circuit is clear that one who is out on 
bail is not “in custody” for either habeas corpus or 28 
U.S.C. §2255 purposes. Matysek v. U.S., 339 F.2d 389, 
392-93 (9t,h Cir. 1964). A fortiori, a person out on O.R. 
would not be in custody either.

The petition for habeas corpus is denied.
Is IS SO ORDERED.

Dated: July 31, 1970.
/s /  R obert F. P eckham 

United States District Judge

la



2a

Order Dated August 4, 1970
(Caption omitted)

Petitioner’s motion for reconsideration of his habeas 
corpus petition is denied.

However, petitioner is granted a certificate of probable 
cause so that he may test this court’s reliance on Matysek 
v. United States, 339 F.2d 389, 392-93 (9th Cir. 1964) in 
the Court of Appeals for the Ninth Circuit.

Certificate of probable cause granted.

Is IS SO ORDERED.

August 4, 1970.

/s / R o b er t  F. P e c k h a m  
United States District Judge



3a

Opinion of United States Court of Appeals 
for the Ninth Circuit

(Caption omitted)

[January 19, 1972]
Appeal from the United States District Court 

for the Northern District of California

Before: K oelsch and Carter, Circuit Judges, and 
Sm ith ,* District Judge.

P eb Curiam:

The sole question on appeal is whether or not a person 
released on his own recognizance following trial, conviction 
and sentence on a state criminal charge is within the pur­
view of 28 U.S.C. §2241, which extends the remedy of 
habeas corpus to persons “in custody” in violation of the 
federal constitution.* 1 We conclude that he is not.2

Not long ago, this court squarely ruled on this question in 
Matysek v. United States, 339 F.2d 389 (1964), cert, denied 
381 U.S. 917. We held that a person released on bail was

* Honorable Russell E. Smith, United States District Judge, 
Missoula, Montana, sitting by designation.

1 Henslev has been at liberty on recognizance at all times since 
conviction.' Initially the state court stayed execution of sentence. 
At the exhaustion of Hensley’s state remedies the district com-t 
issued a stay of execution pending habeas proceedings therein. 
Both the district court and this court denied a stay of execution 
pending this appeal. Subsequently, the Circuit Justice granted 
the stay.

2 We are unable to treat this petition as one seeking coram nobis 
relief because Hensley seeks to challenge a state court proceeding 
in federal court. Coram nobis lies only to challenge errors oc­
curring in the same court. 7 Moore’s Federal Practice ([60.14, p. 46.



4a

Opinion of United States Court of Appeals 
for the Ninth Circuit

not “in custody,” actual or constructive, so as to satisfy 
28 U.S.C. §2241.3

Appellant Hensley urges that Matysek has been implicitly 
overruled by the recent Supreme Court cases of Walker v. 
Waimvright, 390 U.S. 335 (1968); Peyton v. Rowe, 391 
TJ.S. 54 (1968) and Carafas v. LaVallee, 391 U.S. 234 
(1968). These cases are distinguishable because in each of 
them there existed actual or constructive custody. In 
Walker and Rotve, the petitioners were in actual custody 
and in Carafas, the petitioner was on parole. In Matysek, 
this court, while recognizing that release on parole consti­
tuted constructive custody, distinguished a bail situation 
holding that the attendant restrictions did not constitute 
custody. The Supreme Court has not, to this date, con­
sidered the express question posed herein.

We feel, therefore, constrained to follow Matysek v. 
United States, supra.

Affirmed.

3 The decisional rule is different in several other circuits. Capler 
v. Greenville, 422 F.2d 299 (5th Cir. 1970); Burris v. Ryan, 397 
F.2d 553 (7th Cir. 1968); Ouletta v. Sarver, 428 F.2d 804 (8th 
Cir. 1970).



5a

Order Denying Petition for Rehearing and Rejecting 
Suggestion for Rehearing In Banc

(Caption omitted)

Before: K oelsch and Carter, Circuit Judges, and 
# Smith , District Judge

The panel as constituted in the above case has voted to 
deny the petition for rehearing and to reject the suggestion 
for a rehearing in banc.

The full court has been advised of the suggestion for an 
in banc hearing, and no judge of the court has requested 
a vote on the suggestion for rehearing in banc. Fed. R. 
App. P. 35(b).

The petition for rehearing is denied, and the suggestion 
for a rehearing in banc is rejected.

M. Oliver K oelsch 
United States District Judge

* Honorable Russell E. Smith, United States District Judge, 
Missoula, Montana, sitting by designation.



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