Warren E. Burger: We’ll hear arguments next in number 71-1428, Hensley against the Municipal Court. Mr. Bass, you may proceed.
Stanley A. Bass: Mr. Chief Justice and may it please the Court. This case is here on certiorari to the United States Court of Appeals for the Ninth Circuit which affirmed the dismissal of a petition for writ of habeas corpus. The District Court in dismissing the petition did not reach any substantive issues but denied the petition on the sole ground that the petitioner being enlarged on his own recognizance by the state trial Judge pending the outcome the federal habeas proceeding was not “in custody” for purposes of the federal habeas statute. The issue presented is whether or not a federal habeas Judge is without power to entertain a petition for the writ until the state criminal defendant who is sentenced to imprisonment surrenders into jail. Whether the defendant has exhausted his available state court remedies and has been permitted by the very judge who imposed the sentence to remain at large, pending the outcome of the federal habeas proceeding. The background facts will be briefly as follows. The petitioner Hensley is a chief presiding officer of the Universal Life Church which has awarded honorary Doctor of Divinity degrees. He was charged of violating a California misdemeanor provision which prohibited the awarding of degrees which signify academic accomplishment without meeting accreditation requirements. The trial was held on May 19, 1969. At the close of the State’s case, the defendant moved to dismiss. The court held that it lacks jurisdiction in the State all throughout the proceedings. Subsequently, the State moved to reopen the case. Mr. Bienvenu, the defendant’s counsel at that time declined to appear at the reopening. He advised the prosecutor that neither he nor Hensley would appear. However, the traverse in this case states that Hensley was never advised by Mr. Bienvenu that he had to appear or that his failure to appear would result in conviction. On the contrary, he says, he was advised that the trial was dismissed and that he did not appear further.
Warren E. Burger: Is that still relevant to us?
Stanley A. Bass: That may be relevant in so far as we deal with his status on release on recognizance or whether or not there’s been a deliberate bypass. I think it may not be relevant, however, it’s offered in case questions do arise with respect to that but the Court held in defendant’s absence that the Court had jurisdiction and it found the defendant guilty in absentia. And on July 1, 1969, one year imprisonment was imposed plus a $625 fine and costs. And at that time, the state trial judge granted a stay and allowed the defendant to remain on his own recognizance of pending appeal. Subsequently, the conviction was affirmed and state trial judge permitted Hensley to remain on O.R. pending the exhaustion of state post conviction remedies which were habeas corpus in the District Court of Appeal and in the California Supreme Court. Then on June 16, 1970, Hensley filed his federal habeas. On the same day, the State trial judge granted a stay, an additional stay. Permitting him to remain at large, pending the determination of the federal habeas corpus application. Federal habeas corpus judge found that or ruled that Hensley was not in custody because he was on recognizance and he denied the petition. However, he granted a certificate of probable cause and the Court of Appeals affirmed, rehearing was denied. A timely petition for cert. was filed and this Court granted cert.
William H. Rehnquist: Mr. Bass, as the practical matter, is this about the only factual situation in which this -- in which the federal habeas petitioner will have exhausted state remedies and still be free on his own recognizance? I would think during the course of his appeal on state courts, for example, he can’t get federal habeas because he hasn’t exhausted his state remedies and that it might be a fairly limited situation in which this type of thing would occur?
Stanley A. Bass: Well, we don’t get into the question as to whether or not the state remedies are so ineffective as to check the rights of the petitioner that we have a question under 2254. Here, since Hensley was permitted to remain at large by the state trial judge, he exhausted all of his state remedies without the problem of his having to surrender and his sentence running and the question of possibly becoming moot. Here, the issue was preserved because at all times, he was permitted to remain on his recognizance by the state trial judge. The important factor to note is that the state trial judge who permitted Hensley to remain on his recognizance may well have felt that Hensley’s failure to appear in trial was not intentional and would have a bearing at such time as the Federal Court reaches the question of deliberate bypass. But it would appear that by releasing --
Thurgood Marshall: Well, couldn’t the state court reach the same point?
Stanley A. Bass: The state court reached the custody question.
Thurgood Marshall: Couldn’t it reach the same point as to whether he voluntarily absented himself or not?
Stanley A. Bass: They could but --
Thurgood Marshall: Was it litigated?
Stanley A. Bass: The problem was that it was never --
Thurgood Marshall: Was it litigated?
Stanley A. Bass: It was raised but the state habeas corpus petitions were denied without opinion. The opportunity to present a defense was lost by virtue of --
Thurgood Marshall: Was that a direct appeal?
Stanley A. Bass: There was a direct appeal.
Thurgood Marshall: What happened to that?
Stanley A. Bass: The appeal was affirmed by the --
Thurgood Marshall: Was that point raised in the direct appeal?
Stanley A. Bass: Which point, Your Honor?
Thurgood Marshall: That he deliberately absented himself?
Stanley A. Bass: I believe that the state court took the position that there was a presumption that anyone who absents themselves waives --
Thurgood Marshall: Is any of that in the record?
Stanley A. Bass: The --
Thurgood Marshall: Or do I have to go look for it?
Stanley A. Bass: I believe the -- no, the opinion of the --
Thurgood Marshall: And I don’t mind doing it.
Stanley A. Bass: The opinion of the state court is not in the record. The point here is that the record needs to be developed before the judge can make a finding that there’s been an intentional relinquishment of federal constitutional right. One cannot conclude there’s a bypass on this record.
Thurgood Marshall: And what is the point you raised on this federal habeas corpus?
Stanley A. Bass: Well, the issue this time is the custody question, but the underlying constitutional questions asserted in the petition relate to freedom of religion and the Fourteenth Amendment due process.
Thurgood Marshall: Freedom of religion?
Stanley A. Bass: Fourteenth Amendment due process and that he was sentenced, that he was convicted in absentia. And he’s also arguing that he was engaged in constitutionally protected activity. Because he did not have an opportunity to present a defense in the state court, the record -- no record is made of the First Amendment issue.
Thurgood Marshall: Why didn’t he have the opportunity to present in the state court?
Stanley A. Bass: That was due to a combination of factors. Part of which was the alleged inadvertence or incompetence of counsel in not telling Hensley that he had to appear, otherwise, he would lose his opportunity to make defense.
Thurgood Marshall: This point was raised on direct appeal with a competent counsel?
Stanley A. Bass: The point was not raised in the appeal taken to the Superior Court Appellate Department.
Thurgood Marshall: Was it raised in the state habeas corpus?
Stanley A. Bass: It was raised in the state habeas corpus.
Thurgood Marshall: By a competent counsel?
Stanley A. Bass: Yes.
Speaker: Do I understand, that you to have answered to Justice Marshall that the state appeal has been affirmed?
Stanley A. Bass: The state appeal was affirmed.
Harry A. Blackmun: The conviction was affirmed on appeal?
Stanley A. Bass: Yes, Your Honor.
Harry A. Blackmun: Do I also understand you intimate that there is no Younger against Harris issue in this context at all? Is this your position?
Stanley A. Bass: That’s correct. This is not a situation where he seeks to abort the state for prosecution. He has already been tried and sentenced and has exhausted what would be the -- all of the available state court remedies in California.
Harry A. Blackmun: You’re in the Federal Court before that exhaustion was completed, are you not?
Stanley A. Bass: No, he has exhausted. He has tendered to the state courts in his state habeas petitions. The issues that he seeks to raise here.
Harry A. Blackmun: But was this not tendered not made? I may have my facts wrong, was all this tender not made even to the Federal Court while the state appeal was still pending and undecided.
Stanley A. Bass: The timing on this is that he filed an appeal from the conviction. That appeal was affirmed. He then raised on petition for rehearing or for certification, the issues of lack of adequate representation and conviction in absentia. That was denied. He then filed habeas in the District Court of Appeal in California and that was denied. He then filed an original habeas in the California Supreme Court and that was denied.
Speaker: All of these after the appeal from the conviction had come down?
Stanley A. Bass: Yes, then subsequently, in June of 1970 he filed a federal habeas after there were no other procedures available in the state.
Warren E. Burger: What do you see as the scope of the issues in the federal habeas corpus proceeding now?
Stanley A. Bass: The first issue, I would think that the federal habeas judge would entertain is the question of deliberate bypass as to whether or not the petitioner Hensley intentionally relinquished his opportunity to appear and to raise any defense and Fourteenth Amendment due process. It would appear that the First Amendment issue might not be reached until the Fourteenth Amendment question as to whether or not Hensley deliberately absented himself from the state trial court would be resolved.
Speaker: Mr. Bass, I think my confusion rises from this -- he was sentenced to a year in a jail, was he not in addition to a fine?
Stanley A. Bass: Yes, that’s correct.
Speaker: Has he ever served any part of that time?
Stanley A. Bass: Not to my knowledge, I think he has not.
Speaker: Well, this is where I am confused. Why wasn’t he incarcerated when his appeal was affirmed?
Stanley A. Bass: Because the state trial judge continually granted stays, keeping Mr. Hensley on recognizance [Voice Overlap].
Speaker: While the habeas petitions were pending on state and federal?
Stanley A. Bass: The state trial judge granted a state pending appeal. He granted another state pending -- state habeas applications. He granted another stay pending, a federal habeas corpus. And after the federal habeas was denied, he granted a stay for about two weeks at which one Mr. Justice Black granted an eight-day stay. Mr. Justice Douglas granted a two-week stay and then a stay pending an appeal to the Court of Appeals for the Ninth Circuit was granted.
Harry A. Blackmun: And he’s been very generously treated, hasn’t he?
Stanley A. Bass: Except for the fact that he’s going to serve one year in jail if he does not get federal habeas corpus relief. The basis of our argument is that term in custody used by Congress relates to the class of cases not the timing as to when the petition must be filed. The state’s argument here is not based upon any legitimate needs of federal judicial administration. It’s not based upon any law enforcement needs but is based strictly upon an outmoded conceptual definition. In this case, if the habeas petition is not permitted to be filed while he’s on recognizance, he will file it when he’s in custody, there’ll be the same number of federal habeas petitions. There will not be an increase in the federal case law. Secondly, if he is not committed to file the habeas while he is on recognizance and must go into jail, there would be more pressure on the District Court to move more quickly, to hear the case. Whereas if he’s on recognizance granted by the state trial judge, the Federal Court can hear the thing in a more leisurely fashioned. As this Court pointed out in Peyton versus Rowe, it’s in everyone’s interest to hear the habeas corpus application. It’s in the state’s interest. It’s in the petitioner’s interest. It’s in the Court’s interest. In fact, it will cost the state money to incarcerate this person unnecessarily, perhaps. If it turns out that the federal rights are involved, there will be irretrievably loss. There’s absolutely no reason to commend the result urged by the state in this case. In Peyton versus Rowe, this Court allowed the use of anticipatory attack upon a future sentence. In Jones versus Cunningham, it was unnecessary to wait until parole was revoked before Jones could bring the habeas. In Strait versus Laird, it was unnecessary to wait until the servicemen were reactivated before he could bring his conscientious objector application. In this case, we deal not with the question of a District Court’s discretion but simply with the question of power. There is no need here, for example, for the Federal Court to determine if bail should be granted because the state trial judge has already granted the stay while he exhausts the federal habeas. This is the reverse situation of the case in the California Supreme Court called In re Smiley. There, a Federal Court granted on recognizance release and the California Supreme Court said that they had jurisdiction to grant habeas relief. They said, if they have the authority to release the person, there was no reason why it would be unreasonable for them to say they lack authority merely because someone else has done it for them.
Warren E. Burger: If you’re successful, the federal habeas corpus court will in effect have a trial de novo on all the issues, will they not, in practical thing?
Stanley A. Bass: Well, of course, that issue --
Warren E. Burger: From your point of view?
Stanley A. Bass: --is not presented now, Mr. Chief Justice but it would appear to me that if the case is remanded back to the District Court, the first question that the District Court would have to answer is whether or not Hensley made a deliberate --
Warren E. Burger: Deliberate bypass. But after you crossed that?
Stanley A. Bass: After we crossed that, the question then is whether or not he was deprived of the effective assistance of counsel by losing his right to present substantial statutory as well as constitutional defenses. There’s a serious question as to whether or not the California statute applies to a church granting honorary Doctor of Divinity degrees, and that issue was never litigated because he did not have the opportunity to appear in the time that we raised it. So,--
Thurgood Marshall: Under whose jurisdiction is Mr. Hensley now?
Stanley A. Bass: Under the jurisdiction of the Municipal Court.
Thurgood Marshall: Does that lasts forever? I thought if it’s in California then he lose jurisdiction at the end of the term or at the end of sometime?
Stanley A. Bass: Excuse me, Your Honor. I thought you meant with respect to the stay that was granted.
Thurgood Marshall: Well, if he is not under somebody’s jurisdiction how do you get habeas corpus?
Stanley A. Bass: Well, he is under the eminent control of the sheriff who would be the person who runs the local jail to whom Hensley would have to surrender.
Thurgood Marshall: What does he have to do for the sheriff?
Stanley A. Bass: He has to surrender as soon as the stay expires.
Thurgood Marshall: What is he doing for the sheriff right now?
Stanley A. Bass: Nothing but however, there’s interesting parallel between this situation and the situation of Jones versus Cunningham where this Court pointed out the Jones could be rearrested at anytime the parole officer felt that he violated his parole. Under the California statute, the O.R. or recognizance could be revoked presumably without the same type of procedural due process as the trial. And Hensley could be taken any day if it were not for the stay --
Thurgood Marshall: Taken by whom?
Stanley A. Bass: By the sheriff and incarcerated in his jail.
Speaker: Was it -- is it a contempt not to show up?
Stanley A. Bass: It constitutes -- well, it pretty constitute a contempt. It certainly constitutes a separate crime.
Byron R. White: Is it a crime not to show up?
Stanley A. Bass: Oh, yes, in California it’s a crime. It constitutes a separate offense and if he’s caught outside the jurisdiction, extradition is automatically waived. And under those circumstances, it’s not a restraint to not share it by the public, generally.
Byron R. White: Definitely, it (Inaudible).
Stanley A. Bass: We submit that it is a very real difference.
Thurgood Marshall: But he doesn’t have to report to anybody. It’s nothing like probation or parole, is it?
Stanley A. Bass: It’s not like parole in this sense --
Thurgood Marshall: And it’s not like probation.
Stanley A. Bass: On the other hand, in the sense that it can be taken away so easily without notice, perhaps.
Thurgood Marshall: But he isn’t under any custody at all?
Stanley A. Bass: He is under the -- under the imminent incarceration, the threat of incarceration at any time.
Thurgood Marshall: Was it deemed to him and the man is indicted?
Stanley A. Bass: Well, the man is indicted, [Voice Overlap] he can’t bring habeas because he hasn’t exhausted his state court remedies. Hensley has run the string out.
Thurgood Marshall: Well, what is the difference between that? If these are his own recognizances they can be revoked tomorrow morning, can’t he?
Stanley A. Bass: Of course.
Thurgood Marshall: But he can’t get habeas.
Stanley A. Bass: Well, because he hasn’t exhausted the state court remedies. The doctrine of prematurity would take care of cases like that.
Speaker: I suppose the restraints imposed upon him are listed fully in the first paragraph of your argument on page 6.
Stanley A. Bass: That was taken from the statute. Right.
Speaker: Indeed and more than fully because you talked about, in some jurisdictions, territorial, and supervisory restrictions were also imposed which implies that that’s not true --
Stanley A. Bass: That’s true.
Speaker: --in California.
Stanley A. Bass: That is not -- that’s true and it’s not but we don’t think that the absence of territorial restrictions is that meaningful, if one looks at Strait versus Laird, for example.
Thurgood Marshall: I thought you said the only restriction was he could be picked up. Is that what you said?
Stanley A. Bass: No, I said the only restriction. He owes them a year.
Thurgood Marshall: Isn’t that what you said in response to my answer?
Stanley A. Bass: That is the only restriction that’s present in the sense that the restriction that he has to serve a year would be a term to be in future. However, that may be just a manifestable way of looking at it because may be -- maybe that’s tomorrow that he has to serve for a year.
Thurgood Marshall: What other restriction is he under?
Stanley A. Bass: The restrictions are -- well, as the California statute points out, he is required to appear whenever the judge requires him to come in and that in default he waives extradition that it’s an offense if he doesn’t show up.
Thurgood Marshall: Was that any different from being picked up?
Stanley A. Bass: Well, he’s got an outstanding detainer, a one year sentence.
Thurgood Marshall: Well, that’s what I’m saying. He can be picked up and put in jail. Now, what other else can be done to him other than that? Nothing!
Stanley A. Bass: Well, he owes a fine.
Thurgood Marshall: Well, what about the term on applying?
Stanley A. Bass: Well, I don’t think he’s ordered stand permitted in default of payment, but we think that the fact that he owes that one year sentence.
Thurgood Marshall: But your argument restricted the man who had been convicted?
Stanley A. Bass: Yes. My argument is restricted to a man who had been convicted and had been sentenced for imprisonment.
Thurgood Marshall: And who has exhausted the state remedies.
Stanley A. Bass: And who has exhausted the State remedies. We don’t deal with the situation --
Thurgood Marshall: All I am trying to suggest is you don’t load anything more on that court.
Stanley A. Bass: Right, I’m not dealing with the situation of a person who has merely fined. I’m not dealing with the situation of a person who’s already served the sentence and who just complains about the civil disabilities that come from conviction because this situation evolves the most graphic type of deprivation namely imprisonment. And the Court need not reached the other question particularly the question raised in the United States ex rel. Meyer versus Weil which is the Seventh Circuit case where the Supreme Court denied cert. last month.
Speaker: And what was involved in that case?
Stanley A. Bass: In that case, the prison had filed a habeas. He had just been fined. He raised a free-speech question. The Seventh Circuit said he was not in sufficient custody. The problem was he had posted 10% under the Illinois statute which could have been set off against the fine, so he never would’ve done any time in jail. There’s no anticipatory incarceration possible. Whereas in this case, of course, that one year is staring him in the face, and if he doesn’t get relief from the federal habeas court, he will be in jail. And of course, if he is in jail, everyday that he suffers in jail that may turn out to be unconstitutionally imposed. That would be irretrievable. He will never be able to get anything out of that. Moreover, if we’re dealing with cases involving very short sentence --
William H. Rehnquist: But that’s the faith of almost all habeas petitioners, isn’t it? It’s almost fortuitous that the state court here happened to grant bail because ordinarily, a federal habeas court won’t grant bail pending its own decision as to whether the state conviction is valid.
Stanley A. Bass: Well, I don’t have that probability as this Court in Shuttlesworth did state that the Federal Court have a power to do that. It is true that the in this case, the state court must have thought enough about the issues and perhaps Hensley’s non-dangerousness to allow him to remain on a recognizance for such a long period of time. And whether he’s being considered a charitable or just what is legally necessary, the fact of the matter is that he has not been recalled. He could be.
William H. Rehnquist: But the great majority, your habeas petitioners are in jail when they -- in serving time, it might be held invalid by the federal habeas court, are they not?
Stanley A. Bass: Yes, but the situation we deal with here is where a state judge has granted the stay. Under such circumstances, we find that it would be no reason why the federal judge should deny or asked you power to hear when the very reason for the state court allowing the man to stay is so the federal judge can hear the petition without being presented with stay applications or other types of emergency request for immediate relief.
Warren E. Burger: Well, wasn’t -- couldn’t it be said equally that the state judge was simply being appropriately deferential to the fact that a petition was filed not to anything more than that?
Stanley A. Bass: Well, I don’t think Mr. Chief Justice that a state court is required under any consideration of supremacy or federalism to grant such a stay. That would seem to be entirely a matter of discretion and if he decides not to grant the stay, then the petitioner would have to ask the District Court for that stay. But that was unnecessary in this case because the state granted it.
Lewis F. Powell, Jr.: Mr. Bass, does the record show affirmatively that the purpose of allowing Mr. Hensley to remain on bail was to enable him to file a petition of habeas corpus?
Stanley A. Bass: The pertinent provisions of the record of the record, Mr. Justice Powell, page 12 (a) of paragraph 8 of the return to the order of the show course, the state indicates, “he is at liberty on his own recognizance pending the outcome of this habeas corpus proceeding.” And on page 19 (a) of the record, it indicates that stay was granted by Judge Nelson who was the Judge of the Municipal Court.
Potter Stewart: It’s got a non sequitur on paragraph 8 unless I am reading too fast. The state concedes, this is the state’s return, isn’t it, the warden has returned or whoever?
Stanley A. Bass: Yes.
Potter Stewart: Municipal Court. He’s out on his own recognizance pending the outcome of this habeas corpus proceeding. Therefore, this Court is not on the position to here consider a grant of writ of habeas corpus.
Stanley A. Bass: I realized that --
Potter Stewart: What’s it therefore?
Stanley A. Bass: -- it sounds extremely illogical because the whole purpose of granting the stay was to allow him to do it and now by the state judge having allowed him to do that, then the federal judge says he can’t do that. There is a sort of --
William H. Rehnquist: Maybe Judge Nelson wasn’t as friendly to you as you thought. [Laughter]
Stanley A. Bass: Oh, I think that perhaps that he was. But I was going to suggest that I did have copies, actual copies of the state order granted by the state court. If the Court would wish I could leave copies with the clerk of the Court.
Warren E. Burger: But is the state in that allegation, the second sentence of paragraph 8, it’s saying any more than it’s saying now in this Court, that absent custody, no habeas corpus jurisdiction. Is it not all they are saying?
Stanley A. Bass: That’s true, that’s what they’re saying but the juxtaposition of the two sentences perhaps better than anything demonstrates the illogic of their position.
Lewis F. Powell, Jr.: Mr. Bass, is the court order which you mentioned shed any light on the question as to what the reason for granting the stay was --
Stanley A. Bass: No, Mr. Justice Powell, the order granted by the state court is a one-page order that simply says it’s order that the sentence given to the petitioners identified is hereby stayed pending determination of the petitioner’s writ of habeas corpus in the United States District Court in the Northern District of California. We would submit that in view of the fact that the state is asking Mr. Hensley to go through a meaningless ritual that Congress could not have intended in view of the fact that it serves no legitimate purpose. It does not serve judicial administration. It does not serve the state’s interest and it certainly doesn’t serve the petitioner’s interest to be incarcerated under such circumstances before he can file where in fact, we have imprisonment, a sentence of imprisonment involved here, under such circumstances, it is clear that the federal habeas court did have authority and that Mr. Hensley was in sufficient custody to be able to invoke the writ. Thank you.
Warren E. Burger: Thank you, Mr. Bass. Mr. Lempert.
Dennis Alan Lempert: Mr. Chief Justice, may it please the Court. The Court in its questions I think is struck upon the sole issue in this case as to whether or not an individual, who for whatever reason is not yet in custody, is a prisoner, can petition a Federal Court for habeas corpus. The sections that are cited in my brief are very clear. The preamble says that a prisoner may petition for habeas corpus when he is in custody and the Federal Constitution that goes on to set forth the other areas.
Thurgood Marshall: Mr. Lempert, how long does the Municipal Court grants his jurisdiction (Inaudible)?
Dennis Alan Lempert: Until such time as either the defendant is acquitted or until such time as the completion of the sentence, if one has imposed, is completed, including any period of probation.
Thurgood Marshall: Maybe less than or more than 20 years?
Dennis Alan Lempert: Until such time as the execution of the sentence begins. It seems to me is a very unusual circumstance that we’re confronted with here. But until such time --
Thurgood Marshall: It wasn’t clear in California one way or the other but sometimes the court reached to those standards.
Dennis Alan Lempert: At the termination of the trial or the termination of the sentence.
Thurgood Marshall: But what happens on appeal if you leave the jurisdiction?
Dennis Alan Lempert: Not if the sentence is stayed as such. If there is no stay of execution, yes, termination of the --
Thurgood Marshall: Well, could he hold the sentence over the period of one year?
Dennis Alan Lempert: No, not volitionally. The judge could not.
Thurgood Marshall: I thought you said he can stay as long as he wanted to?
Dennis Alan Lempert: Well, at the request of the defendant, he could.
Thurgood Marshall: He could?
Dennis Alan Lempert: I believe he could. If the defendant requests that the court refrain from imposing sentence or for having that sentence executed, at the defendant’s request, the defendant had suffered no prejudice by the system but rather with his own --
Thurgood Marshall: I think it’s what you stated awhile ago?
Dennis Alan Lempert: No. But here, we have a situation where the defendant was sentenced and the judge in the trial court granted a stay to permit the defendant the opportunity to refrain from going into custody until such time as his appeals have been terminated. Mr. Stromer, the counsel who is representing the defendant at the time the federal habeas corpus petitions first filed, notified Judge Nelson the fact that he was in fact filing a petition with the Federal District Court in San Jose with Judge Peckham and Judge Nelson as a result of the request made by Mr. Stromer, delayed and stayed temporarily the execution of the sentence thereby continuing Mr. Hensley and his own recognizance. Thereafter, the judges of this Court and the Ninth Circuit continued to stay the proceedings. We are now almost at the fourth anniversary of the time the alleged offense took place. Counsel in his statement indicates that the state has no legitimate interest whether or not the defendant goes into custody at this time or some future time. And I would respectfully defer with that. The state has a very substantial interest. As any defendant has a right to a speedy trial, so to as the state have a right to a prompt an expeditious execution of sentence. Otherwise, that the purpose of sentence doesn’t do anything.
William H. Rehnquist: But Mr. Lempert, the state could have vindicated that right here, couldn’t it through its own Municipal Court judges’ refusal to grant the stay?
Dennis Alan Lempert: Only up till 1970, thereafter, it was the Federal Courts and the Justices of this Court and other courts of the Ninth Circuit that prevented the Municipal Court from acting. And at this point in time, the defendant has been out of custody following in the imposition of sentence some three-and-a-half years. It just does not seem appropriate. The fact that the petitioned for writ habeas corpus initially was devised as a system, as a means to have a prompt in expeditious examination of a detention by a defendant, generally, before trial has been expanded by the legislature, by Congress to permit a means while after conviction when an individual is in custody, is a prisoner to have the courts examine that detention.
William H. Rehnquist: But Mr. Lempert, if Judge Nelson hadn’t granted this stay, is it fair to suggest that nonetheless before determination on the merits of the federal habeas petition either the District Court or a judge of the Ninth Circuit or a Justice of this Court would’ve enlarge the petitioner?
Dennis Alan Lempert: Well, the -- that could’ve been done if the Federal Courts had wanted to do that, that is if the defendant had gone into custody, there is machinery whereby when a petitioner files a habeas corpus in Federal Court, he can be released by the Federal Courts. But here, because of the -- Judge Nelson wanting to do the defendant a favor if you will, and Mr. Stromer continued temporarily or stayed temporarily until such time as there was a consideration of the habeas petition by the Federal District Court. Thereafter, the matter was taken out of Judge Nelson’s hands by the subsequent stays that were issued by the Ninth Circuit and by this Court. And it reverts back to the question as to whether or not this Court or the Federal Courts can exceed the authority that is granted to it by the legislature, by the statute authorizing the issuance of habeas corpus. The statute is clear. It relates to a prisoner and it relates to someone in custody. Now, the Court has regularly defined or expanded on what is custody, what status someone has to be in, in order to be in custody. In Jones, it indicated that a parolee is in custody because he can’t drive a car, he can’t work without the permission of the parole officer, he can’t go places or do things. He is in custody. Not necessarily with bars around him but nonetheless, restricted. This defendant in this case, his whereabouts are totally unknown, at least as far as the people are concerned. He can be sitting in this courtroom. He can be out of the country. He is operating his business and there is no restriction on any of his activities whatsoever, except one that with the lawful order of Court, he shall surrender back to the Court. And that I don’t feel is the type of custody, the type of restraint, the type of interference that is such a magnitude that requires the invocation of the habeas corpus. It doesn’t qualify for that custody that is required by federal habeas corpus. One of the questions that was asked is under whose control is the defendant presently? And that I think, similarly procedurally presents a very interesting question. Counsel responded he is under the control of the Municipal Court. The Municipal Court has no power over the defendant at this time. It cannot lawfully order anything respecting the defendant because the Court is precluded from that by a stay granted within the federal system. And the sheriff is under no -- has no control over the defendant. He cannot volitionally go out and seize the defendant or arrest the defendant or do anything with respect to him. The petition for habeas corpus is addressed to the sentencing Municipal Court. And it is not properly any person or any entity that has the control over the defendant. And I would submit that --
Harry A. Blackmun: Suppose that you -- but the moment, within one minute theoretically, at least after this person out of penitentiary he could bring the same habeas corpus?
Dennis Alan Lempert: That’s correct. Once he goes into custody and once he is in custody, then the right accrues to file the petition for writ of habeas corpus.
Harry A. Blackmun: And then could the District Court release him at that time?
Dennis Alan Lempert: If the District Court at that time wanted to exercise its discretion, yes it could. But that presents the question that maybe a more desirable system, it may well be that it might, the system should have a procedure whereby someone who is in imminent danger of going into custody can have access to federal habeas corpus and if the Congress so desires, then they want to pass legislation which would permit that. But under the present status of the law, the Congress has not gone so far and they still require in the legislation that the person be in custody.
Harry A. Blackmun: What if you’re under an order to show up at the time certain?
Dennis Alan Lempert: At the time that you appear, you’re responding to court’s order but I don’t believe that you are in custody of that court.
Harry A. Blackmun: What about when the time passes and you don’t show?
Dennis Alan Lempert: If it’s a willful failure to appear, you may very well be in contempt of that court. You may well be in violation of the order of the court.
Harry A. Blackmun: But you don’t think you’re in custody?
Dennis Alan Lempert: Not at that time if it would be -- the defendant could be anywhere at that time.
Potter Stewart: You might be guilty as indicated in the argument of a separate offense also.
Dennis Alan Lempert: A different offense under the California --
Potter Stewart: Under a constitute custody?
Dennis Alan Lempert: Under the California recognizance release.
Potter Stewart: Right.
Dennis Alan Lempert: A defendant in order to be released on his own recognizance relinquishes certain rights.
Speaker: When you’re released on bail and the only restriction on you is don’t leave the jurisdiction, don’t leave the county, is that custody?
Dennis Alan Lempert: Generally speaking, when someone is released on bail and aren’t in California, there is no territorial restriction.
Speaker: I didn’t ask you that. I asked you, suppose you were under territorial restriction.
Dennis Alan Lempert: I don’t believe so.
Warren E. Burger: But if there were such a territorial jurisdiction, did it disappear when the federal habeas proceedings restarted? You’ve said the state courts have been powerless ever since that petition.
Dennis Alan Lempert: That’s correct.
Warren E. Burger: So, whatever the restrictions were, they vanished then, did they not?
Dennis Alan Lempert: I would think if the Court at this time, if the Municipal Court were to issue an order requiring the defendant to appear tomorrow, at its Court and the defendant chose not to appear that that would violate no law, that the defendant could not be prosecuted for that because the Court has no jurisdiction to issue such an order.
Potter Stewart: Because of the Federal Court’s stay?
Dennis Alan Lempert: Because of the Federal Court’s stay.
Potter Stewart: Or the Federal Circuit’s just to stay.
Dennis Alan Lempert: Whichever. Because of the present status of that case, the Court could not issue a lawful order because it is precluded from [Voice Overlap].
Potter Stewart: The federal -- if there was a federal jurisdiction, it was destroyed by the issuance of a stay by a federal judge?
Dennis Alan Lempert: No. I don’t think that necessarily follows. There was no federal jurisdiction, I believe because the defendant was not in custody. Notwithstanding that fact, the fact that the Federal Courts have stayed, the execution of sentence I don’t think affects one way or the other defendant’s custodial status. I believe you indicated that if the defendant were ordered to appear and did not, would he then not be in custody? Clearly not. He would be somewhere, somewhere other than where he was supposed to be but not in anyone’s custody. He could not be restrained unless he was found and placed in custody.
Speaker: But I believe that the Court has held that the parolee released from physical custody but under certain restraints is in custody for the purposes of the federal. One of those typical restraints is a territorial jurisdiction. Don’t leave the state or don’t leave the county or something like that. Now, but the only sanction for that is you’ll be jumping bail if you -- or you’ll be violating your parole if you leave the county. You might be committing a crime where your parole might be revoked. If you’re under an obligation to show up at a certain time and you don’t show up, you certainly have some obligation that other people of the community don’t have.
Dennis Alan Lempert: Yes.
Speaker: And you’re supposed to be in some place at a certain time that you aren’t.
Dennis Alan Lempert: Correct but that is not, I feel, the type of custody that requires the invocation of habeas corpus. A parolee is an individual who is not only suffering from a single requirement or a single restriction on his daily existence. As this Court has pointed out in Jones, suffering from a whole range of prohibitions with respect to job, family, his domicile, who he can associate with, where he can go and where he can’t go.
Warren E. Burger: Mr. Lempert, if the person is served with a subpoena in a civil case, an automobile accident case and he’s under an obligation to appear on a day certain as soon as he receives that subpoena, is he not?
Dennis Alan Lempert: If it’s properly served upon him, yes.
Warren E. Burger: Assuming that and he’s been paid the fees in advance etcetera, would habeas corpus be available to lift that subpoena?
Dennis Alan Lempert: Under counsel’s argument, I think it would be because if any individual is subjected to an order of Court, the violation for which would result in the possible incarceration of a person which if an individual willfully violates a proper subpoena or summon served upon him could be subjected to writ, a body attachment and be incarcerated. And on the counsel’s argument, yes, that person would spontaneously get the right to file a petition for habeas corpus.
Lewis F. Powell, Jr.: Which would you rather have to pay, say a habeas corpus petition or 1983 complaint?
Dennis Alan Lempert: I don’t know.
Lewis F. Powell, Jr.: I beg your pardon?
Dennis Alan Lempert: I don’t know.
Thurgood Marshall: Mr. Lempert, if we backed up a minute. Did Judge Nelson gave a stay when they first went into the Federal Court, right?
Dennis Alan Lempert: That’s correct, Your Honor. For --
Thurgood Marshall: In that stage, wouldn’t we have been citing to all of these and he said, “No, wait a minute. Before I give you the stay, let me push him in.”
Dennis Alan Lempert: That’s correct. Had that occurred -- had Judge Nelson at that time --
Thurgood Marshall: Then this whole point would have been gone.
Dennis Alan Lempert: That’s correct. Had there been a remittitur from the Supreme Court of the State of California, re-conferring jurisdiction on the Municipal Court and if at that time Judge Nelson had declined to grant the stay of execution of the sentence, the defendant would have been at that time been taken into custody and thereafter would have been eligible to file its petition for federal habeas corpus and his request for release.
Thurgood Marshall: And a stay, just revoke the one they’ve given.
Dennis Alan Lempert: It would’ve terminated. It had terminated. The stay had terminated because of the decision --
Thurgood Marshall: If Judge Nelson had done nothing, this could’ve been a very good writ.
Dennis Alan Lempert: That’s correct.
Potter Stewart: Then doesn’t this get very circular or am I confused? In other words, if we should affirm the Court of Appeals in the Ninth Circuit in this case, as you’re asking us to do then no judge in the future will ever issue a stay because he’ll say, “I have no habeas corpus jurisdiction until or unless you’re incarcerated,” isn’t that right? So, this case would never arise again.
Dennis Alan Lempert: That -- it depends on which judge we say would not have a jurisdiction.
Potter Stewart: [Voice Overlap] would it not?
Dennis Alan Lempert: It would depend which judge, a federal judge.
Potter Stewart: I’m not talking about a federal judge. In this case, as I understand that the man was convicted on the Municipal Court.
Dennis Alan Lempert: Correct.
Potter Stewart: The Municipal Court judge released him on his own recognizance pending an appeal and--
Dennis Alan Lempert: Within the state.
Potter Stewart: Through the state system.
Dennis Alan Lempert: That’s correct.
Potter Stewart: And by its own terms, that municipal judges stay would have terminated after the affirmance of the conviction in the state’s system, correct?
Dennis Alan Lempert: Well, procedurally no because there is an automatic stay with the filing of the petition with the District Court of Appeal. The stay that was granted by Judge Nelson was a stay up until the time that the appellant division of the Superior Court either affirmed or denied the case.
Potter Stewart: But then after affirmance, the stay would’ve terminated?
Dennis Alan Lempert: That’s correct.
Potter Stewart: Had it not been for the intervention of the federal district judge, is that right?
Dennis Alan Lempert: Well, there was no intervention by the federal district judge in the custodial status of the defendant.
Potter Stewart: No, only after an application for habeas corpus, is that right?
Dennis Alan Lempert: But under my theory –
Potter Stewart: [Voice Overlap] you better tell me what happened.
Dennis Alan Lempert: Under – well, in this case, the defendant was convicted. He appealed to the Appellate Department of the Superior Court where the conviction was affirmed.
Potter Stewart: Right.
Dennis Alan Lempert: There was a request for certification to the District Court of Appeal which was denied. A petition for habeas corpus was filed in the state and the District Court of Appeal denied.
Potter Stewart: And the whole time, this man was out on his recognizance.
Dennis Alan Lempert: That’s correct.
Potter Stewart: Because of the original Municipal Court Order, plus the operation of the California law [Voice Overlap].
Dennis Alan Lempert: And by the operation of the law. That’s correct. And it was a petition filed in the Supreme Court of the State of California again for habeas corpus which was similarly denied. That time, there would have been a remittitur 30 some more days following the determination by the California Supreme Court.
Potter Stewart: And automatically, the man would’ve gone --
Dennis Alan Lempert: And automatically, the man would’ve gone to jail. The day that that would’ve occurred, Mr. Stromer went to Judge Nelson and indicated to him that he was in the process --
Potter Stewart: And who’s Judge Nelson?
Dennis Alan Lempert: He was the trial judge in the Municipal Court.
Potter Stewart: And he is still back at the State Municipal Court?
Dennis Alan Lempert: That’s correct. Mr. Stromer, the defendant’s counsel of that time, went to Judge Nelson and said, “We are filing now a petition for writ of habeas corpus before the Federal Court. Please, can we keep Mr. Hensley out until such time as the Federal Court’s got the case?” And Judge Nelson being a magnanimous individual, agreed to do that.
Potter Stewart: And that he’s also unaware of the Ninth Circuit rule?
Dennis Alan Lempert: Unaware of the Ninth Circuit rule, it was never even brought up whether or not there was jurisdiction in the Federal Court to hear the case. The impression at that time was at the Ninth Circuit rather that the Federal District Court Judge Peckham would consider the petition and would be dispositive of the case. At the time for the return for the order to show cause why the petition should not be granted. I brought up that question at the court, did not have the jurisdiction to hear the case. At that time, the Federal Courts then by granting stays continued the defendant on his own recognizance. Had the Federal Courts not at that time at the Ninth Circuit or Justices of this Court, interfered at that time, the defendant similarly would have gone in custody and that time, would’ve been eligible for federal habeas corpus. It may be as secured as root and maybe that regardless of the verdict of this Court, in this case, the matter is going to go back to Judge Peckham even the defendant will be in custody when that happens or he’ll be out of custody. But whether or not --
Potter Stewart: And in the absence, I guess really what it boils down to that. However, this case is decided in the absence of a stay order by a federal judge. The person is going to be in prison, isn’t he?
Dennis Alan Lempert: That’s correct. In jail.
Potter Stewart: In jail. Starting on the serving of the sentence?
Dennis Alan Lempert: That’s correct.
Potter Stewart: It takes a stay order of a federal judge --
Dennis Alan Lempert: To keep him out.
Potter Stewart: To keep him in the status that this man now is.
Dennis Alan Lempert: That’s correct. And the question is --
Potter Stewart: And the ordinary operation of state law, this question isn’t going to arise because he’ll begin serving a sentence. That’s in the conclusion of the state --
Dennis Alan Lempert: All the appeal rights of the defendant have ruled the state court and collateral rights. And the whole question goes back again to whether or not this Court or the Federal Court system has been given the right by the Congress to hear a case such as this.
Speaker: I’m sorry, Mr. Lempert but I’m confused. If Judge Peckham had not issued the stay order --
Dennis Alan Lempert: Judge Peckham did not issue the stay order.
Speaker: Well, who was the first federal judge to issue a stay order?
Dennis Alan Lempert: I believe it was Justice Black.
Speaker: Well, are you suggesting that had that not issued --
Dennis Alan Lempert: The defendant would have been incarcerated.
Speaker: Now, how would you have been incarcerated in light of Judge Nelson’s admitting him on his own recognizance pending decision of the habeas corpus?
Dennis Alan Lempert: Because the habeas corpus was determined by Judge Peckham when he dismissed the petition for one of jurisdiction. And at that time, a petition was filed with Justice Black to continue the defendant on his own recognizance pending a filing in the Ninth Circuit. And thereafter, Mr. Justice --
Speaker: Well, had Judge Nelson’s stay expired with Judge Peckham’s decision?
Dennis Alan Lempert: The stay in term -- the terms of the stay were conditioned upon the determination of the case by the District Court in San Jose, yes.
Speaker: By Judge Peckham only?
Dennis Alan Lempert: That’s correct.
Speaker: So, but in another case, that this case could arise again then in the sense that a state judge might enlarge a man on his own recognizance pending the filing, the decision on the petition for habeas corpus.
Dennis Alan Lempert: I don’t think so because I don’t think a state court or a judge of a state court can confer jurisdiction upon the Federal Court.
Speaker: I didn’t -- but what if the state judge, do it though. He wouldn’t do it for that purpose but --
Dennis Alan Lempert: Well, he might do it out of ignorance.
Potter Stewart: It might depend on how this case today is decided.
Dennis Alan Lempert: Depending of course on how this case is decided.
Potter Stewart: Otherwise, there would be no point in doing it.
Dennis Alan Lempert: That’s correct.
Potter Stewart: If he would hold that this Federal Court wouldn’t entertain it.
Dennis Alan Lempert: That’s correct. The law would be clear at that time because this Court had not addressed itself to that question. It is considered what certain circumstances are custody and what are not. But it hasn’t said that an individual on bail or an individual released on his own recognizance whether that person is or is not deemed to be in custody. The California Courts recognized the doctrine of constructive custody. That is a person out on bail on his own recognizance is deemed to be in custody. But I analogize that to somebody being a little bit pregnant. You’re not. Either you are or you’re not and I think that the federal law requires that the person is in jail. Now, it may be an antiquated doctrine, it may not be. I feel, that’s what the Congress has intended and if they intended something different, they all would set something different.
William J. Brennan, Jr.: Well, you don’t mean a different federal statute in light of what we held in Jones. It means in every case, you have to be in jail before --
Dennis Alan Lempert: I think Jones went so far --
William J. Brennan, Jr.: Now, but perhaps [Voice Overlap] was not in jail.
Dennis Alan Lempert: I appreciate that but jail can mean different things. A parolee and as the Court has pointed out other types of people, although may be not behind bars are still in custody because their lives are not their own.
William J. Brennan, Jr.: Well, the question is whether one on his own recognizance is in custody in the same way?
Dennis Alan Lempert: Yes. Absolutely.
Warren E. Burger: If he surrendered to the state now, voluntarily, to begin his sentence within 30 minutes or even three minutes thereafter, a federal district judge could let him out again pending determination, could he not?
Dennis Alan Lempert: Yes.
Warren E. Burger: And you wouldn’t question that the Federal Court had jurisdiction --
Dennis Alan Lempert: Would not.
Warren E. Burger: -- then?
Dennis Alan Lempert: Absolutely.
Byron R. White: Why not?
Dennis Alan Lempert: Because the statute said so. 2241 then confers jurisdiction on the Federal Court. Now, this Court obviously has the power to say an individual who released on his own recognizance is in custody but I don’t think that that would be a reasonable interpretation of 2241.
Byron R. White: But if a fellow is in custody, he files his habeas corpus petition and the district judge before maybe the petitioner’s filed then enlarges it on his own recognizance.
Dennis Alan Lempert: The critical time is at the time of the filing of the petition. If he is in at that time, the courts have jurisdiction. If he is out at that time, the Court is no or at least the Federal Court.
Warren E. Burger: Even if he’s just sitting in the anteroom of the State Judge Nelson’s office?
Dennis Alan Lempert: Waiting to go in. That would be my view. Again, it may be a very narrow construction of the law of the rule.
William J. Brennan, Jr.: But suppose that Judge Peckham might have said to himself, “Well, I don’t have jurisdiction of this petitioner’s petition for habeas corpus since he’s not in custody but I’ll take this petition as a 1983 application, alleging deprivation of constitutional rights and I will now, treating it that way incident to a 1983 petition, I’ll continue on his own recognizance.” Could he have done that?
Dennis Alan Lempert: Possibly. I don’t know. But the petition in this case was filed under 2241 at a habeas corpus under (c) (3).
William J. Brennan, Jr.: Well, of course, not uncommon, isn’t it? [Voice Overlap] mystery things.
Dennis Alan Lempert: I appreciate that but I think what the defendant is doing in this case is it’s intending to have the Federal Courts act as a super appellate review by way of written on nature of coram nobis to get the matter heard as an appeal rather than a habeas corpus. Was that as various, in my view very precise meanings and very précised requirements? Which requirements have not been met by this defendant in this case? Thank you.
Warren E. Burger: Do you have anything further?
Stanley A. Bass: Yes, Yes, Mr. Chief Justice. For the record, after the federal habeas was denied, the state trial judge then granted another stay of about 12 days and that was the stay that kept him out until Mr. Justice Black acted on August the 12th. The habeas petition was denied on July 31, so that the -- there was dovetailing throughout of stay orders that were granted by the state trial judge before the federal judge did know.
Warren E. Burger: Did I get the impression that you thought that you said before that going in, in this process of surrendering himself to custody of the state and then immediately filing on a petition for habeas corpus in the Federal Court and asking, was this a meaningless ritual, is that?
Stanley A. Bass: I thought it was a meaningless ritual for the petitioner to have to go through. I also have mentioned in the brief that I thought that it would be an extremely inadequate remedy to suggest that all he has to do is surrender either into the anteroom or to the institution of confinement and then he could probably be bailed by a federal judge. The two circuits, the Fifth and the Eighth Circuit that decided the issue the other way, contrary to the Ninth Circuit, both involved civil rights cases coming out of itself. And it was no accident that in those cases it was extremely important that the person who is still out on some sort of former release be allowed to seek vindication in the federal courts in a timely fashion. And we submit that there really is no reason other than just a definitional one which is outmoded, and we think has been superseded by Strait versus Laird and all of the pervious cases that this person can be considered in custody for the purposes of 2241 (c) (3). Thank you.
Warren E. Burger: Very well, Mr. Bass. Mr. Lempert, thank you. The case is submitted.