Habeas corpus may be used only if the client is in custody, actual or constructive, resulting from the conviction.[206]  If there is no custody, the court lacks jurisdiction, and the habeas corpus action will be dismissed with prejudice.

 

Actual physical incarceration is not required; courts have also expanded the writ of habeas corpus to persons who are in constructive custody.[207]  “The thrust of these cases is that a person is in custody constructively if he [or she] may later lose his [or her] liberty and be eventually incarcerated.”[208]  Conditions constituting constructive custody include release on probation or parole, commitment under a civil narcotics addict program, outpatient status under an order of commitment to a state hospital,[209] and release on bail or own recognizance.  Habeas corpus is also available to those who may not currently be in custody, but who are “subject to restraints not shared by the public generally.”[210]

 

            The court has habeas jurisdiction if the client is in “custody” at the time the petition is filed, even if the client is later released from custody, as long as the client will still suffer damage from denial of habeas relief and the case is therefore not moot.[211]  Thus, if the client is on parole when the habeas corpus petition is filed, but is released from parole before the hearing, the superior court still has jurisdiction to adjudicate the cause of action so long as immigration consequences hinge on the outcome of the hearing.

 

            In the immigration context, a habeas petition is not subject to dismissal where the non-citizen was ordered deported after the petition was filed, so long as jurisdiction existed on the date the petition was filed.[212]  Where the non-citizen has already been removed from the United States prior to filing a federal habeas corpus petition, however, he was never in “custody” for jurisdictional purposes, unless s/he can demonstrate that the deportation order was executed in violation of the immigration judge’s order.[213]

 

            Parole is normally automatically terminated, and therefore, custody for habeas corpus purposes concluded, once five years have elapsed, unless the Parole Commission has made a decision to extend parole under the individual circumstances of the case.  When, however, an early termination decision has been requested and a determination is delayed beyond the five-year mark, parole does not terminate automatically with the expiration of the term.[214]   Under those circumstances, constructive custody for habeas purposes would continue to exist.

[206] Maleng v. Cook, 490 U.S. 488, 490-492 (1989); Mendez v. Superior Court (2001) 87 Cal.App.4th 791, as modified by 88 Cal.App.4th 238; Penal Code § 1473(a); In re Azurin (2001) 87 Cal.App.4th 20; In re Wessley W. (1981) 125 Cal.App.3d 240, 246-247.

[207] Jones v. Cunningham, 371 U.S. 236, 240 (1963). 

[208] In re Wessley W. (1981) 125 Cal.App.3d 240, 246, 177 Cal.Rptr. 243, 245 (person whose probation had terminated 15 years earlier was not in constructive custody).  See generally C.E.B., Appeals and Writs in Criminal Cases, § 2.94 (2d ed. 2008).

[209] See, e.g., People v. Haynes (1980), 104 Cal.App.3d 118, 123, fn. 1, 164 Cal.Rptr. 552; In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375 (probation); In re Sturm (1974) 11 Cal.3d 258, 265, 113 Cal.Rptr. 361 (parole); In re Bye (1974) 12 Cal.3d 96, 99, fn.2, 115 Cal.Rptr. 382, cert. den. 420 U.S.996 (1975) (narcotics program); In re Moye  (1978) 22 Cal.3d 457, 461, 149 Cal.Rptr. 491 (outpatient status).

[210] In re Catalano (1981) 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 672 (person was in sufficient constructive custody under an order to pay a $100 fine in 30 days because s/he could be jailed thereafter for failure to pay).

[211] See Sibron v. New York, 392 U.S. 40, 55-56 (1968).  See C.E.B., Appeals and Writs in Criminal Cases, § 2.96 (2d ed. 2008).

[212] Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001).

[213] Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001).

[214] Benny v. U.S. Parole Commission, 295 F.3d 977 (9th Cir. 2002).

Fifth Circuit

DETENTION " IMMIGRATION DETAINERS
Koetting v. Thompson, 995 F.2d 37 (5th Cir. 1993) (although a detainer issued in connection with a parole violation does not constitute custody for habeas purposes where no liberty interest is impinged, custody does exist where the detainer implicates a liberty interest by interfering with the petitioners ability to defend against the parole revocation proceedings). Thanks to Lisa Brodyaga.

Ninth Circuit

JUDICIAL REVIEW -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT REMOVAL PROCEEDINGS -- EXPEDITED REMOVAL " HABEAS CORPUS " CUSTODY REQUIREMENT
Smith v. U.S. Customs and Border Protection, 741 F.3d 1016 (9th Cir. Jan. 9, 2014) (affirming district courts denial of government's motion to dismiss habeas corpus action for lack of jurisdiction, since alien was not in custody, as required for federal jurisdiction over his 2241 habeas petition, and alien was ordered removed under the expedited removal statute, and thus was not entitled to hearing under statute providing for limited habeas review of expedited removal orders).

POST CON RELIEF -- HABEAS " FEDERAL " CUSTODY REQUIREMENT IS A JURISDICTIONAL PREREQUISITE
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("[28 U.S.C.] Section 2241(c)(3) states that the writ shall not extend to a state prisoner unless [h]e is in custody in violation of the Constitution or laws or treaties of the United States. The text of the statute makes clear, and the Supreme Court has confirmed, that custody is a jurisdictional prerequisite to habeas review under 2241(c)(3)"); citing Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.)

POST CON RELIEF -- HABEAS " FEDERAL " CUSTODY -- DEFINED
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("[T]he Supreme Court has construed the phrase in custody very broadly. '[T]he use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.' Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). To satisfy the custody requirement, the Supreme Court has held that a petitioner must show that he is subject to a significant restraint upon his liberty 'not shared by the public generally.' Id. at 240, 83 S.Ct. 373. For example, the custodial requirement has been held met by prisoners released on parole, id. at 242-43, 83 S.Ct. 373, prisoners released on their own recognizance, Hensley, 411 U.S. at 351, 93 S.Ct. 1571, and prisoners free on bail, Lefkowitz v. Newsome, 420 U.S. 283, 286 n. 2, 291 n. 8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).").

POST CON RELIEF " HABEAS " FEDERAL " CUSTODY REQUIREMENT INCLUDES A PERSON IN CUSTODY ON A PRIOR CONVICTION, BUT NOT " YET"IN CUSTODY ON PENDING CHARGES, WHERE HE WOULD HAVE BEEN IN CUSTODY ON THE PENDING CHARGES IF NOT ON THE PRIOR
Wilson v. Belleque, 554 F.3d 816 (9th Cir. February 5, 2009)("custody" in violation of the laws of the United States, under 28 U.S.C. 2241(c)(3) should be construed to include circumstances where the sovereign seeking to prosecute a petitioner is currently detaining the petitioner based on convictions or charges not being challenged, where petitioner is not currently in custody under pending Oregon charges, because he is serving a sentence on a prior conviction, but would be in custody under the pending charges if he were not: "It would be illogical to conclude that a petitioner released on his own recognizance with an obligation to appear for trial is in custody for the purpose of habeas review but an incarcerated petitioner who is forced to appear in court to answer new charges is not."), citing Peyton v. Rowe, 391 U.S. 54, 55, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968)(a prisoner serving consecutive sentences is in custody under any one of them and thus can challenge a sentence that he is scheduled to serve in the future, since a contrary rule represents an indefensible barrier to prompt adjudication of constitutional claims in the federal courts.); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)(where petitioner was serving a sentence in an Alabama prison, and brought a petition for a writ of habeas corpus in Kentucky, alleging that Kentucky's failure to afford him a trial on a then three-year-old indictment violated his constitutional right to a speedy trial, "prisoners in custody under one sentence [can] attack a sentence which they had not yet begun to serve . . . a petitioner held in one State [can] attack a detainer lodged against him by another State.).

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT " PAROLE OR PROBATION CONSTITUTES CONSTRUCTIVE CUSTODY
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 826 (4th Dist. Feb. 14, 2013) (But once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and this avenue [habeas corpus] is foreclosed. (People v. Villa (2009) 45 Cal.4th 1063, 1069"1070, 90 Cal.Rptr.3d 344, 202 P.3d 427; see also People v. Kim, supra, 45 Cal.4th at p. 1108, 90 Cal.Rptr.3d 355, 202 P.3d 436.)).

CAL POST CON " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT " COLLATERAL CONSEQUENCES DO NOT CONSTITUTE CONSTRUCTIVE CUSTODY FOR PURPOSES OF HABEAS CORPUS JURISDICTION
People v. Mbaabu, 213 Cal.App.4th 1139, 152 Cal.Rptr.3d 818, 826 (4th Dist.Feb. 14, 2013) (Moreover, collateral consequences of a criminal conviction"even those that can later form the basis of a new criminal conviction"do not of themselves constitute constructive custody. (Villa, at p. 1070, 90 Cal.Rptr.3d 344, 202 P.3d 427.)).

Other

CAL POST CON " HABEAS " CUSTODY " REVOKED PROBATION STOPS RUNNING AND CONTINUES CONSTRUCTIVE CUSTODY INDEFINITELY
People v. Salas, 210 Cal.App.4th 974, 148 Cal.Rptr.3d 852 (Cal.App. 2 Dist. Oct. 31, 2012) (affirming probation violation sentence where defendants probation was revoked, the running of the probationary period was tolled, and the court had jurisdiction later to revoke probation and execute defendant's suspended sentence).

CAL POST CON " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT
In re Douglas, 200 Cal.App.4th 236, 132 Cal.Rptr.3d 582, 590 (4th Dist. Oct. 27, 2011) (constructive custody, for habeas corpus jurisdictional purposes, includes hose on parole, probation, bail, or release on own recognizance pending hearing on the merits of a habeas corpus petition; Without actual or constructive custody, courts have no authority to grant relief.); citing People v. Villa (2009) 45 Cal.4th 1063, 1069"1070; In re Stier (2007) 152 Cal.App.4th 63, 82; In re Wessley W. (1981) 125 Cal.App.3d 240, 246.

CAL POST CON " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT
In re Douglas, 200 Cal.App.4th 236, 132 Cal.Rptr.3d 582 (4th Dist. Oct. 27, 2011) (sex offender registration requirement does not constitute constructive custody for purposes of habeas corpus jurisdiction in California).

CAL POST CON " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT
In re Douglas, 200 Cal.App.4th 236, 132 Cal.Rptr.3d 582, 590 (4th Dist. Oct. 27, 2011) (petitioner is not in custody, for purposes of attacking a 1997 conviction, even though he is in current constructive custody as a result of later convictions for failure to register as a sex offender based on the registration requirement imposed as a result of the 1997 conviction).

ARTICLE " COURT REJECTS ARGUMENT THAT CURRENT CUSTODY FOR FAILURE TO REGISTER, BASED ON PRIOR SEX CONVICTION, DOES NOT CONSTITUTE CUSTODY SUFFICIENT TO ALLOW HABEAS CHALLENGE TO UNDERLYING CONVICTION
In In re Douglas, 200 Cal.App.4th 236, 132 Cal.Rptr.3d 582, 590-91 (4th Dist. October 27, 2011), the court of appeal held that a habeas petitioner is not in custody, for purposes of attacking a 1997 conviction by habeas corpus, even though he is in current constructive custody as a result of later convictions for failure to register as a sex offender based on the registration requirement imposed as a result of the 1997 conviction. The court reasoned as follows: Sex offender registration requirements have repeatedly been expressly excluded from the expanded constructive custody definition. (Resendiz v. Kovensky (9th Cir.2005) 416 F.3d 952, 959; Stier, supra, 152 Cal.App.4th at pp. 81"83; People v. Pickelsimer (2010) 48 Cal.4th 330, 338"39.) Rather, the registration requirement is merely a collateral consequence of conviction that is not [itself] sufficient to render an individual in custody for the purposes of a habeas attack upon it. [Citation].' [Citations.] Stier, supra, at p. 83.) Even collateral consequences that may later form the basis of new criminal convictions are not themselves sufficient to constitute constructive custody for habeas corpus purposes. (People v. Villa, supra, 45 Cal.4th at p. 1070.) Courts have further explained that registration requirements do not establish constructive custody because, by themselves, they do not impose a severe restraint on an individual's liberty. (Resendiz v. Kovensky, supra, 416 F.3d at p. 959.) Defendant's case bears similarity to Stier, where the petitioner desired access to an expired conviction because he did not want to comply with the sex offender registration requirement. (Stier, supra, 152 Cal.App.4th at pp. 70-72.) The petitioner, a physician, was convicted of taking indecent liberties with a child in North Carolina in 2000 but had his probation transferred to California where he lived. (Id. at p. 70.) In 2002, the petitioner successfully completed probation in California but continued to register as a sex offender as required. (Id. at pp. 70"71.) In 2004, new legislation provided for the revocation of medical licenses of those required to register as sex offenders under section 290. (Stier, supra, at p. 71.) The petitioner filed a petition for writ of habeas corpus, alleging that his liberty is unlawfully restrained and he is subject to constructive custody or may face criminal prosecution unless his duty to register is terminated. (Ibid.) The trial court granted relief and the appellate court reversed, holding that the speculative risk of future custody in the event [the petitioner] fails to register as a sex offender [does not] prove [ ] constructive custody as required in a habeas corpus action. [Citations.] (Id. at pp. 82"83.) Defendant concedes the mere registration requirement itself does not constitute constructive custody for habeas corpus purposes, but argues that his situation differs from that in Stier. Instead of merely being in threat of future custody, Defendant contends that because he was arrested, charged with failing to register in 2008, 2009, and 2010, and is now out on bail, he is currently in constructive custody. We disagree that Defendant is in constructive custody for the conviction under attack. California courts have previously determined that once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and [the] avenue [of petition for writ of habeas corpus] is foreclosed. [Citation.] People v. Pickelsimer, supra, 48 Cal.4th at p. 339.) When Defendant's probation concluded in 2000, constructive custody ended and habeas corpus ceased to be the appropriate avenue by which to seek relief. Defendant's argument that he is in constructive custody and should therefore have access to his expired conviction is unavailing because he is not currently in constructive custody for the conviction he wishes to attack. Instead, he is in constructive custody for the failure to register charges. Defendant is hopeful that we will choose to follow the Ninth Circuit's approach in Zichko v. Idaho (9th Cir.2001) 247 F.3d 1015 (Zichko ). In Zichko, the petitioner was convicted of raping his minor daughter in 1987. ( Id. at p. 1017.) In 1997, one month before his 10"year sentence was set to expire, he filed a petition for habeas corpus. (Id. at pp. 1018"1019.) At the time he filed his petition, he was incarcerated for failing to register as a sex offender. (Id. at p. 1019) The Ninth Circuit held that the petitioner was in constructive custody for the purposes of the federal habeas corpus statute because the expired conviction [was] a necessary predicate to the failure to register charge. [Citation]. (Ibid.) Zichko may deal with similar facts to the case at hand, but we are not bound by the opinions of the lower federal courts and we decline to extend its holding here. (People v. Cleveland (2001) 25 Cal.4th 466, 480.) The end result of applying Zichko is that failure to register as a sex offender, resulting in subsequent arrest and charges, is rewarded with access to expired convictions. Such a result is untenable and contrary to principles described in Supreme Court case law. In Maleng v. Cook (1989) 490 U.S. 488 ( Maleng ), the Court addressed the issue of an old conviction being used to enhance a later one. The petitioner was in custody on a later offense and filed a petition for writ of habeas corpus attacking an earlier, expired conviction because it had been used to enhance his sentence on the later offense. (Id. at pp. 489"90.) The Supreme Court stated: We have never held, however, that a habeas petitioner may be in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Id. at p. 491.) The Supreme Court then elaborated that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it. (Id. at p. 492.) In the present case, Defendant is in custody pursuant to his second offense (failing to register as a sex offender), not pursuant to his earlier offense (sexual battery). His detention and probation were fully complete as of 2000, and sex offender registration was a collateral consequence. For our purposes, it is of no import that the failure to comply with the requirements of the collateral consequence led to his current constructive custody. The Supreme Court revisited the issue of custody and collateral attacks in Daniels v. U.S. (2001) 532 U.S. 374 (Daniels ) and Lackawanna County Dist. Attorney v. Coss (2001) 532 U.S. 394 (Lackawanna ). In Daniels, the petitioner was convicted in 1994 of being a felon in possession of a firearm. (Daniels, supra, at p. 376.) While in custody for the 1994 conviction, he attempted to attack several of his old convictions, which had been used to enhance his current sentence. (Id. at pp. 376"77.) The Court held that despite being in custody on a new conviction, the petitioner could not challenge his old convictions, reasoning that the presumption of validity that attached to the prior conviction at the time of sentencing is conclusive.... (Id. at p. 382.) Lackawanna similarly involved a prisoner challenging prior, expired convictions that had been used to enhance the sentence he was currently serving. (Lackawanna, supra, at pp. 398"99.) The Court extended the holding in Daniels to cover federal habeas corpus petitions brought to challenge state convictions, noting the importance of finality of convictions and ease of administration. (Lackawanna, supra, at pp. 402"04.) The principle underlying the Supreme Court decisions in Maleng, Daniels, and Lackawanna is that, for habeas corpus purposes, custody on a later case does not allow an earlier, expired conviction to be collaterally challenged, even if it is used to enhance a later case. Such collateral attacks on expired convictions amount to nothing more than end run[s] around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly. Daniels, supra, 532 U.S. at p. 383.) Extending this principle to the case before us, we find that Defendant has not been in constructive custody for the 1997 conviction since his probation ended in 2000. Ignoring his legal obligation to register as a sex offender should not give him access to expired convictions. Even if we were to find that Defendant was in constructive custody for the purposes of a habeas corpus petition, Defendant defaulted on his obligation to seek a timely legal remedy and is thus not entitled to relief. (Id. at 590-91.)

CAL POST CON " HABEAS CORPUS " VENUE
Every judge in California has habeas corpus jurisdiction, and thus, no matter where the petitioner is held, the habeas corpus petition can be filed anywhere. The Rules of Court authorize (but do not require) a petition to be transferred to another county if the petition challenges a judgment in that county, or if the defendant challenges conditions of detention in that county. (Cal. Rules of Ct., rule 4.552(b)(2).) A petition challenging the denial of parole or a finding of unsuitability must be heard in the superior court which rendered the underlying judgment. (Cal. Rules of Ct., rule 4.552(c).) John Hamilton Scott, O.K., I Wrote It; Now Where Do I File It?, CALIFORNIA DEFENDER 74, 74 (Winter 2008-2009).