In order to use state or federal habeas, the petitioner must establish illegal custody.  For example, thirty-two states have some type of custody requirement like that of the common law writ of habeas corpus,[301] although usually it is not necessary that the petitioner be incarcerated at the time to be eligible.  In addition to traditional forms of custody, such as jail, prison, probation and parole, it is possible to argue two newer forms:

 

            1.         The petitioner is in INS custody (arrest, physical incarceration, or release on bond pending INS court appearances) solely as a result of the unconstitutional criminal conviction; and

 

            2.         The petitioner is in constructive custody as a result of the conviction since s/he is required to register as a narcotics or sex offender by going into the police station every time s/he moves and registering on pain of criminal prosecution.

 

These newer arguments have yet to be accepted by federal courts.  See § § 5.35, et seq., supra.

 

            In addition to actual incarceration, the concept of custody includes constructive custody such as release on bond, probation, or parole.[302]  Thus, it is important to file the petition before probation or parole expires.  (A nonstatutory motion to vacate may be attempted on constitutional grounds if the client is no longer in sufficient custody for habeas corpus to be employed.)

            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, so long as the client will still suffer damage from denial of habeas relief and the case is therefore not moot.[303]  Thus, if the client is on parole when habeas is filed but is released from parole before the hearing, the court still has jurisdiction so long as immigration or other collateral consequences continue to hinge on the outcome of the habeas hearing.  See § 5.38, supra.

[301] Id. at 120.

[302] See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373 (1963); Varga v. Rosenberg, 237 F.Supp. 282, 285 (S.D. Cal. 1964).

[303] E.g., Carafas v. LaVallee, 391 U.S. 234 (1968) (habeas not moot so long as petitioner continues to suffer actual damage from the conviction, such as collateral consequences of inability to serve as a juror or to vote); In re Walters, 15 Cal.3d 738, 126 Cal.Rptr. 239 (1975).

First Circuit

CAL POST CON - HABEAS CORPUS - CUSTODY -- DEFENDANT CAN CHALLENGE CONSTITUTIONALITY OF STATE CONVICTION BY HABEAS CORPUS, THOUGH DIRECT CUSTODY HAS EXPIRED, IF HE IS RESTRAINED OF HIS LIBERTY IN FEDERAL IMMIGRATION CUSTODY SOLELY ON ACCOUNT OF THE CONVICTION
People v. Villa, ___ Cal.App.4th ___, 2007 WL 706941 (1st Dist. March 9, 2007) (noncitizen in federal immigration custody solely as a result of a California criminal conviction may properly file a petition for habeas corpus in criminal court on the basis of ineffective assistance of counsel, even though actual and constructive California criminal custody resulting from that conviction has expired, petitioner was not entitled to that relief here because he did not allege that he is in custody or restrained of his liberty solely on account of the California conviction, and therefore did not adequately allege a basis for habeas corpus relief), disagreeing with In re Azurin (2001) 87 Cal.App.4th 20 (a petitioner may not use habeas corpus where a California conviction provides the sole basis for confinement in a federal deportation proceeding).

Second Circuit

POST CON RELIEF - FEDERAL - HABEAS - CUSTODY - IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. 2254 for purposes of habeas corpus jurisdiction).

Tenth Circuit

POST CON RELIEF " VEHICLES " NEW MEXICO " HABEAS CORPUS " ICE CUSTODY IS INSUFFICIENT TO CONSTITUTE CRIMINAL CUSTODY FOR HABEAS CORPUS TO CHALLENGE VALIDITY OF CRIMINAL CONVICTION
State v. Favela, ___ N.M. App. ___, ___ P.3d ___, 2013 WL 4499459 (Aug. 8, 2013) (ICE custody does not constitute criminal custody sufficient to support a habeas corpus petition for the purpose of challenging criminal conviction).

Other

POST CON RELIEF " TEXAS " VEHICLES " HABEAS CORPUS " CUSTODY
State v. Golding, ___ Tex. App. ___, ___ S.W.2d ___ (1st Dist. Ct. App. May 12, 2011) (to establish habeas corpus jurisdiction, a petitioner must establish that he or she was either (1) confined or restrained or (2) suffered collateral legal consequences from the conviction; the denial of an opportunity to apply for naturalization and the fact that the plea renders a noncitizen deportable if apprehended are sufficient collateral legal consequences to invoke the trial courts habeas jurisdiction; the potential consequences were sufficient; it was not necessary to wait until the petitioner had actually suffered them); citing TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2005)).

POST CON RELIEF " WASHINGTON " RELAXED CUSTODY REQUIREMENT
Unlike Wisconsin and Illinois, Washington State has a much less restrictive "restraint" requirement (petitioner need only establish that she or he is "under some ... disability resulting from a judgement or sentence in a criminal case.")

POST CON RELIEF " ILLINOIS PCR AMENDMENT RE CUSTODY
Illinois is considering legislation to amend the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-), 1(a), to extend the concept of custody for state habeas corpus purposes to provide that: Any person imprisoned in the penitentiary or otherwise confined, or subject to being confined by the state, local, or federal government as a result of a state criminal conviction may institute a proceeding under this Article if the person asserts that: [sufficient grounds of legal invalidity exist].