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HENSLEY v. MUNICIPAL COURT

decided: April 18, 1973.

HENSLEY
v.
MUNICIPAL COURT, SAN JOSE-MILPITAS JUDICIAL DISTRICT, SANTA CLARA COUNTY



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. Blackmun, J., filed an opinion concurring in the result, post, p. 353. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 354.

Author: Brennan

[ 411 U.S. Page 345]

 MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case requires us to determine whether a person released on his own recognizance is "in custody" within the meaning of the federal habeas corpus statute, 28 U. S. C. §§ 2241 (c)(3), 2254 (a). See Peyton v. Rowe, 391 U.S. 54 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Jones v. Cunningham, 371 U.S. 236 (1963). Petitioner initiated this action in the United States District Court for the Northern District of California, challenging a state court conviction on First and Fourteenth

[ 411 U.S. Page 346]

     Amendment grounds. The court denied relief, holding that since the petitioner was enlarged on his own recognizance pending execution of sentence, he was not yet "in custody" for purposes of the habeas corpus statute. The Court of Appeals for the Ninth Circuit agreed that release on one's own recognizance is not sufficient custody to confer jurisdiction on the District Court, and affirmed the judgment. 453 F.2d 1252 (1972).*fn1 We granted certiorari, 409 U.S. 840 (1972), and we reverse.

Convicted of a misdemeanor in California Municipal Court for violation of § 29007 of the California Education Code,*fn2 petitioner was sentenced to serve one year in jail and pay a fine of $625. He appealed his conviction unsuccessfully to the Appellate Department of the Superior Court, and his efforts to have the conviction set aside on state court collateral attack have proved equally unavailing. It appears that petitioner exhausted all available state court remedies prior to filing this petition for federal habeas corpus. See 28 U. S. C. § 2254 (b).*fn3

[ 411 U.S. Page 347]

     At all times since his conviction petitioner has been enlarged on his own recognizance. While pursuing his state court remedies he remained at large under an order of the state trial court staying execution of his sentence. And the state trial court extended its stay, even after the Supreme Court of California declined to hear his application for post-conviction relief, apparently to permit petitioner to remain at large while seeking habeas corpus in the United States District Court. Pending appeal from the District Court's denial of relief, an application for extension of the state court stay was granted by Mr. Justice Black, as Acting Circuit Justice, on August 12, 1970, and extended by MR. JUSTICE DOUGLAS, as Circuit Justice, on August 20, 1970, and again on September 9, 1970.*fn4 The Court of Appeals affirmed the denial of habeas corpus, but granted a 30-day stay of its mandate pending application for certiorari. That stay was extended by MR. JUSTICE DOUGLAS, as Circuit Justice, on March 20, 1972, and it is pursuant to his order that petitioner remains at large at the present time.

[ 411 U.S. Page 348]

     The California Penal Code provides that any court that may release a defendant upon his giving bail may release him on his own recognizance, provided he agrees in writing that:

"(a) He will appear at all times and places as ordered by the court or magistrate releasing him and as ordered by any court in which, or any magistrate before ...


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