Habeas corpus may be used only if the client is in custody, actual or constructive, resulting from the conviction.[113]  If there is no custody, the court lacks jurisdiction, and the habeas corpus action will be dismissed with prejudice. [114]  To be in “custody” requires that the defendant must be in prison or jail, or have his or her liberty under some other form of restraint as part of a federal sentence, such as by being on probation, parole, release on one’s own recognizance or on bail, or on supervised release.[115]

 

Actual physical incarceration is not required; courts have expanded the availability of the writ of habeas corpus to persons who are in constructive custody.[116]  “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.”[117]  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,[118] 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.”[119] Note that federal parole continues past its term until affirmatively terminated by the court.[120]

 

            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.[121]  Thus, if the client is on parole when the habeas corpus petition is filed, but is released from parole before the hearing, the court still has jurisdiction to adjudicate the cause of action so long as immigration consequences hinge on the outcome of the hearing.

            The Supreme Court has held that a defendant in custody as a result of a federal recidivist statute may not use federal post-conviction remedies to attack the validity of the underlying prior conviction, except in narrow circumstances.[122]

 

As long as the habeas petition was filed before deportation or removal occurred, the custody requirement is met.[123]   After a noncitizen has already been removed from this country, she cannot then file a petition for habeas corpus[124] because s/he is no longer “in custody,” unless the INS has effected the removal in violation of an Immigration Judge’s order and after interfering with the right to counsel.

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

[114] 28 U.S.C. § 2255; United States v. Thiele, 314 F.3d 399 (9th Cir. December 24, 2002) (28 U.S.C. § 2255 is available to seek release from custody, but not for other types of relief, such as relief from a restitution order, even if motion also contains cognizable claims for release from custody); Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538 (5th Cir. 2003) (for court to have jurisdiction, habeas petitioner must be “in custody” for the actual conviction or sentence he or she wishes to challenge).

[115] Balik v. United States, 161 F.3d 1341 (11th Cir. 1998) (parole); United States v. Brown, 117 F.3d 471 (11th Cir. 1997) (supervised release).

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

[117] In re Wessley W., 125 Cal.App.3d 240, 246, 177 Cal.Rptr. 243, 245 (1981) (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 (3d ed. 2003).

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

[119] In re Catalano, 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 672 (1981) (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).

[120] Benny v. U.S. Parole Comm’n, 295 F.3d 997 (9th Cir. July 2, 2002) (U.S. Parole Commission jurisdiction over parolee not automatically terminated under 18 U.S.C. § 4211(c)(1), if five years on parole release elapse without early termination decision, but writ of mandamus should issue requiring early termination hearing and decision).

[121] See Sibron v. New York, 392 U.S. 40, 55-56 (1968); United States v. Morgan, 346 U.S. 502 (1954); United States v. RaOLite of Philadelphia, Inc., 612 F.2d 740 (3d Cir. 1979).

[122] Daniels v. United States, 532 U.S. 374 (2001) (defendant in custody after conviction of recidivist statute cannot file habeas corpus to challenge the constitutionality of the prior convictions upon which the recidivist enhancement was based, except where the claim is based upon ineffective assistance of counsel, and this claim was raised during federal sentencing proceedings).

[123] Reyes-Sanchez v. Ashcroft, 261 F.Supp.2d 276 (S.D.N.Y. 2003).

[124] If, however, the petition was filed prior to the execution of the removal order, jurisdiction is preserved.  Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003); Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002); Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).

POST CON RELIEF - HABEAS - FEDERAL - PROPER CUSTODIAN
In Rumsfeld v. Padilla, __ U.S. __, 2004 WL 1432135 (June 6, 2004) (habeas is  limited to the "immediate custodian"; proper respondent to habeas is "the person" with ability to produce prisioners body before court, i.e. the warden of facility where prisoner is being held, not Attorney General or other remote supervisory official).

First Circuit

CRIM DEF - SENTENCE - DEPORTATION DOES NOT AUTOMATICALLY TERMINATE PAROLE FOR PURPOSES OF CRIMINAL HISTORY SCORE
United States v. Carrasco-Mateo (1st Cir. November 23, 2004) (deportation does not automatically terminate defendants existing parole term or status for purposes of calculating criminal history score).
http://laws.lp.findlaw.com/1st/03-1553.html

Third Circuit

JUDICIAL REVIEW - HABEAS CORPUS - CUSTODY REQUIREMENT - NO CUSTODY AFTER REMOVAL FROM UNITED STATES
Kumarasamy v. Atty Gen. of the US, __ F.3d __ (3d Cir. Jun. 23, 2006) (petitioners who have already been removed from the United States do not satisfy the "in custody" requirement for habeas corpus jurisdiction). http://caselaw.lp.findlaw.com/data2/circs/3rd/052323p.pdf

Sixth Circuit

POST-CONVICTION RELIEF " FEDERAL " HABEAS CORPUS " CUSTODY
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (A petitioner who has served the full term of his sentence still satisfies the in-custody requirement of 2255 provided he filed the motion while incarcerated and shows that he is suffering, and will continue to suffer, serious disabilities"collateral consequences"as a result of the conviction. Carafas v. LaValleee, 391 U.S. 234, 238"39, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).).

Ninth Circuit

POST CON RELIEF " VEHICLES " FEDERAL " HABEAS CORPUS " CUSTODY
Durbin v. California, __ F.3d __ (9th Cir. Jun. 20, 2013) (federal habeas review of constitutional challenge to California conviction triggering three-strikes rule permitted even though petitioner was no longer in custody on the prior conviction, where petitioner acted with reasonable diligence by filing pro se state habeas petition raising his constitution claim).

POST CON RELIEF - FEDERAL - HABEAS - CUSTODY - CHALLENGING ONLY RESTITUTION DID NOT CHALLENGE LAWFULNESS OF CUSTODY AND SO COULD NOT SUSTAIN JURISDICTION UNDER 28 U.S.C. 2254
Bailey v. Hill, ___ F.3d ___ (9th Cir. Mar. 31, 2010) (habeas petition challenging only state restitution order in criminal case did not challenge the lawfulness of custody under federal law and therefore did not sustain jurisdiction under the federal habeas statute, 28 U.S.C. 2254).

POST CON RELIEF - HABEAS - FEDERAL - CUSTODY REQUIREMENT IS A JURISDICTIONAL PREREQUISITE
Wilson v. Belleque, 554 F.3d 816 (9th Cir. Feb. 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. Feb. 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).").

Tenth Circuit

POST CONVICTION RELIEF - HABEAS - FEDERAL - CUSTODY REQUIREMENT
Broomes v. Ashcroft, __ F.3d __ (10th Cir. Feb. 17, 2004) (petitioner cannot collaterally attack an expired state court conviction under 28 U.S.C. 2241 or 2254); accord, Drakes v. INS, 330 F.3d 600, 605-606 (3d Cir., cert. denied, 124 S.Ct. 541 (2003); Contreras v. Schiltgen, 151 F.3d 906, 907-908 (9th Cir. 1998); Neyor v. INS, 155 F.Supp.2d 127, 138-139 (D.N.J. 2001).
http://laws.findlaw.com/10th/026419.html