Appeal from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge. Agnes Scranton appeals from an order denying her petition for federal habeas corpus to review the denial by the New York State courts of applications to dismiss an indictment for murder for failure to provide a speedy trial. Opinion reported below, 402 F. Supp. 1010 (S.D.N.Y. 1975).
Medina, Mulligan and Gurfein, Circuit Judges.
Petitioner Agnes Scranton appeals from an order of the United States District Court for the Southern District of New York (Richard Owen, Judge) entered November 10, 1975, which denied her petition for a writ of habeas corpus. She claims that the failure of the state to prosecute her for some five years after her indictment in January of 1970 deprived her of her constitutional right to a speedy trial and that the indictment must therefore be dismissed.
In limine we must deal with the question whether appellant was sufficiently "in custody" to warrant a federal court to issue a writ of habeas corpus. While we agree with the result arrived at by Judge Owen, we think a brief further discussion will be helpful as this appears to be the first time this particular point of law has come up for decision in the Second Circuit. As was done below, we treat the petition before us as an application under the broader habeas statute, 28 U.S.C., Section 2241.
On January 6, 1970, Mrs. Scranton was indicted in the Supreme Court of the State of New York, New York County, for the murder of her fifteen-month-old daughter. In March, 1970, she was released on $10,000 bail, having been incarcerated since the day of her indictment. Since March 9, 1974, she has been released on parole. For all practical purposes this granting by the New York State courts of "parole" or release on her own recognizance is the equivalent of bail. Release "on parole" was apparently substituted for a bail release because once bail is exonerated in New York, it is not simple to reset it as the entire bail-setting and posting process must be repeated.
Relying primarily on Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973), Judge Owen found that Mrs. Scranton met the "in custody" requirements of Section 2241 since she, released prior to trial on bail and later on parole, is subject to restraints tantamount to those borne by Hensley, released on his own recognizance following his conviction, whom the Court found to be "in custody."
The State argues that the restraints suffered by Mrs. Scranton are not sufficiently severe to constitute "custody" for habeas corpus. Unlike the case of Hensley, it is said, there is no certainty that Mrs. Scranton will ever be convicted or incarcerated. The State's argument would seem to be predicated on the assumption that the only reason Hensley was "in custody" was that he was subject to the imminent possibility of incarceration pursuant to a sentence imposed after conviction. Thus we are told that it is not the restraint inherent in being "on bail" or "on parole" that is so severe as to merit habeas relief, but rather the imminency of imprisonment after conviction that warrants the issuance of the writ. That is not our reading of the Hensley decision.
Hensley, like Mrs. Scranton, was "subject to restraints 'not shared by the public generally * * *.'" 411 U.S. at 351, citing Jones v. Cunningham, 371 U.S. 236, 240, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963). As the Court in Hensley stated, the petitioner "cannot come and go as he pleases. His freedom of movement rests in the hands of state judicial officers, who may demand his presence at any time and without a moment's notice. Disobedience is itself a criminal offense." 411 U.S. at 351. Mrs. Scranton is subject to equally burdensome restraints. Under New York Criminal Procedure Law Section 510.40 (2) (McKinney's 1975), she may be ordered to appear before the court at any time and is obliged "to render [herself] at all times amenable to the orders and processes of the court." Since her present release is a matter of court discretion, it may be retracted at any time. New York Criminal Procedure Law Section 530.60 (McKinney's 1975). Indeed, just prior to the commencement of a trial on March 4, 1974, Mrs. Scranton was in fact again placed in jail.
While it is true that Mrs. Scranton is not presently incarcerated, "besides physical imprisonment, there are other restraints on a [woman's] liberty * * * which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Jones v. Cunningham, supra, 371 U.S. at 240.
We do not regard the pre-conviction - post-conviction distinction as a meaningful test for determining whether a petitioner is "in custody." Section 2241 contains no requirement, as does 28 U.S.C., Section 2254, that a petitioner be "in custody" pursuant to a judgment as a prerequisite to habeas relief. Nor do we find persuasive the argument that Mrs. Scranton is not "in custody" because she is subject to no greater restraint than any other individual under indictment. It is the validity of that very indictment and the restraint it has occasioned which her petition brings into question. Finally, we do not believe that our conclusion will result in unwarranted or obtrusive intervention by the federal ...