Hensley v. Municipal Court/Dissent Rehnquist
[p354] MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE POWELL join, dissenting.
The issue in this case is whether petitioner was in "custody," within the meaning of 28 U.S.C. § 2241, entitling him to the benefit of the extraordinary writ of habeas corpus. The Court of Appeals for the Ninth Circuit unanimously held that he was neither in actual nor constructive custody. If there is any vestige left of the obvious and original meaning of "custody" the court below was right and the majority opinion of this Court today has further stretched both the letter and the rationale of the statute.
Petitioner has been free on his own recognizance since his conviction and the imposition of sentence in the summer of 1969. The California statute authorizing his release imposes no territorial or supervisory limitations and he has been subject to none. He has not been required to post any security for his appearance. At the time of the filing of his federal habeas petition, the only conceivable restraint on him was that at the time of the expiration of the stay granted by the state court, petitioner would have had to surrender himself to the custody of the sheriff. The record shows that for the three and one-half years since his conviction, petitioner has utilized his freedom to travel both within and without the State of California for business purposes.
Petitioner was under no greater restriction than one who had been subpoenaed to testify in court as a witness. [p355] This is simply not "custody" in any known sense of the word, and it surely is not what was meant by Congress when it enacted 28 U.S.C. § 2241. The Court apparently feels, like Faust, that it has in its previous decisions already made its bargain with the devil, and it does not shy from this final step in the rewriting of the statute. I cannot agree, and I therefore dissent.