Who Can File a Federal Habeas Corpus Petition?

A federal habeas petitioner must be “in custody” at the time the petition is filed. 28 U.S.C. § 2254(a); Carafas v. LaVallee (1968) 391 U.S. 234, 238, 88 S. Ct. 1556; 20 L. Ed. 2d 554; Sailer v. Gunn (9th Cir. 1977) 548 F. 2d 271, 273, fn. 1.  A person is “in custody” for purposes of federal habeas while confined in a prison or jail for a criminal charge or conviction. U.S. ex rel. Wirtz v. Sheehan (E.D. Wis. 1970) 319 F. Supp. 146, 147.  

A person also is “in custody” while on probation or parole, or released on their own recognizance. Spencer v. Kemna (1998) 523 U.S. 1, 7, 118 S. Ct. 978; 140 L. Ed. 2d 43 (parole); Benson v. California (9th Cir. 1964) 328 F. 2d 159, 162 (probation); Hensley v. Municipal Court (1973) 411 U.S. 345, 351-353, 93 S. Ct. 1571; 36 L. Ed. 2d 294 (own recognizance); Justices of Boston Municipal Ct. v. Lydon (1984) 466 U.S. 294, 300-301, 104 S. Ct. 1805; 80 L. Ed. 2d 311 (own recognizance).

Once a criminal sentence and any period of supervised release has been fully served, the petitioner is no longer in custody and generally cannot bring a petition. Williamson v. Gregoire (9th Cir.1998) 151 F.3d 1180, 1183 (in custody requirement not met if only continuing requirement is to pay fine or register as person with sex offenses).  An exception is that a person can use a petition for habeas corpus to request review of a prior conviction that is being used to enhance a new sentence that they are currently serving. Pogue v. Ratelle (S.D. Cal. 1999) 58 F. Supp. 2d 1140; Brock v. Weston (9th Cir.1994) 31 F. 3d 887; United States v. Price (9th Cir.1995) 51 F. 3d 175; Custis v. United States (1994) 511 U.S. 485, 497, 114 S. Ct. 1732; 128 L. Ed. 2d 517; but see Maleng v. Cook (1989) 490 U.S. 488, 492, 109 S. Ct. 1923; 104 L. Ed. 2d 540; Allen v. Oregon (9th Cir. 1998) 153 F. 3d 1046, 1048-1049; Feldman v. Perrill (9th Cir. 1990) 902 F. 2d 1445, 1448-1449.

A person who is in a hospital on a civil commitment generally is considered to be “in custody” for purposes of federal habeas corpus.  Examples include persons found to be not guilty by reason of insanity (NGI), and persons committed as Mentally Disordered Offenders (MDO’s) or as Sexually Violent Predators (SVP’s). Duncan v. Walker (2001) 533 U.S. 167, 176, 121 S. Ct. 2120; 150 L. Ed. 2d 251; Brock v. Weston (9th Cir. 1994) 31 F. 3d 887, 890; Tyars v. Finner (9th Cir. 1983) 709 F. 2d 1274, 1279. 

Placement of an immigration hold on a person held in state prison does not constitute being “in custody” on the immigration case. 

Garcia v. Taylor (9th Cir. 1994) 40 F. 3d 299, 303-304.  On the other hand, if a person is serving a sentence in one jurisdiction and has a detainer for an unserved sentence in another jurisdiction, that person is deemed to be “in custody” on the second case. Malong, supra, 493-494.

If a person is discharged from custody after filing a petition challenging a criminal conviction, courts will not dismiss the case as moot because they will assume that there are continuing “collateral consequences” of the conviction. Carafas v. LaVallee (1968) 391 U.S. 234, 237-238, 88 S. Ct. 1556; 20 L. Ed. 2d 554; Selam v. Warm Springs Tribal Correctional Facility (9th Cir. 1998) 134 F. 3d 948, 951; Chacon v. Wood (9th Cir. 1994) 36 F. 3d 1459, 1463; Sailer v. Gunn (9th Cir. 1977) 548 F. 2d 271, 273.  This rule has also been applied to an SVP civil commitment. Carty v. Nelson (9th Cir. 1995) 426 F. 3d 1064, 1071.

In cases involving parole revocations or losses of custody credits due to disciplinary violations, courts will not assume that there are continuing “collateral consequences” after the petitioner is discharged from custody.  The court will dismiss the petition unless the petitioner can show that there are still actual consequences of the parole revocation or disciplinary finding. Spencer v. Kemna (1998) 523 U.S. 1, 8-9, 118 S. Ct. 978; 140 L. Ed. 2d 43; Lane v. Williams (1982) 455 U.S. 624, 631, 102 S. Ct. 1322; 71 L. Ed. 2d 508; Cox v. McCarthy (9th Cir. 1987) 829 F. 2d 800, 803.  

This is a difficult standard to meet. See, e.g., Spencer, supra, at 14-16 (rejecting argument that parole revocation fully served had continuing collateral consequences because it could be considered in future sentencing or parole proceedings or for impeachment; also rejecting claim that petition should be allowed because civil rights action for money damages was barred unless parole vocation was deemed invalid by habeas proceeding); Maciel v. Cate (9th Cir. 2013) 731 F. 3d 928, 932 (no continuing consequence of expired parole term); Burnett v. Lampert (9th Cir. 2005) 432 F. 3d 996, 999-1000 (challenge to deferral of parole date was made moot by person’s release and subsequent reincarceration for violating parole); Munoz v. Rowland (9th Cir. 1997) 104 F. 3d 1096, 1098 (rejecting argument that challenge to gang segregation had continuing consequences because the gang validation could be a basis for segregation during future incarceration). See also Wilson v. Terhune (9th Cir. 2003) 319 F. 3d 477, 480 (petition moot where person challenged disciplinary finding for escape, but the punishments had been completed or withdrawn, and collateral consequences – increase in classification score, loss of family visits, possibility of delayed suitability for parole, and transfer -- were either based on the fact of the underlying behavior or speculative).

This article would not be possible without reference to the Prison Law Office’s wonderful treatise, California Prison and Parole Law Handbook.  We thank them for their great work.