is imposed), held that the Virginia Supreme Court’s
refusal to extend Simmons to the present case, where
because the defendant had not yet been sentenced on
another prior conviction his parole ineligibility under
Virginia’s “three strikes” law was not conclusively
established at the time of the capital sentencing
proceeding, was neither contrary to, nor an unreasonable
application of, Simmons.
In Hameen v. Delaware, 212 F.3d 226 (3d Cir.
2000), the court of appeals held that when a petitioner
challenges not only the sentence in his particular case but
also a statutory scheme (here statutory amendments
requiring jurors to impose a death sentence if the
aggravating factors outweigh the mitigating), the federal
court has an obligation to evaluate the claim under both
the “contrary to” and “unreasonable application of”
clauses of 28 U.S.C. § 2254(d)(1).
IV. “IN CUSTODY” REQUIREMENT
A. “In Custody”
Habeas corpus is available only if the petitioner is in
custody in violation of the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2241(c)(3); Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439
(1973). The purpose of the “in custody” requirement is
“to preserve the writ of habeas corpus as a remedy for
severe restraints on individual liberty.” Hensley v.
Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36
L.Ed.2d 294 (1973). “In custody” is a jurisdictional
prerequisite. Young v. Vaughn, 83 F.3d 72 (3d Cir.), cert.
denied sub nom. Abraham v. Young, 519 U.S. 944, 117
S.Ct. 333, 136 L.Ed.2d 245 (1996).
Carafas v. La Vallee, 391 U.S. 234, 238, 88 S.Ct.
1556, 1560, 20 L.Ed.2d 554 (1968), held that the
petitioner must be in custody, pursuant to the conviction
or sentence being challenged, at the time the petition is
filed; however, expiration of a state prisoner’s sentence
before resolution of the habeas corpus petition will not
terminate the jurisdiction of the federal court. Accord,
Pringle v. Court of Common Pleas, 744 F.2d 297 (3d Cir.
1984).
Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9
L.Ed.2d 285 (1963), concluded that physical
confinement is not necessary; a state prisoner who is on
parole is considered “in custody” because of the
conditional nature of his release.
In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct.
1571, 36 L.Ed.2d 294, a petitioner enlarged on his own
recognizance pending execution of sentence was in
custody within the meaning of 28 U.S.C. § 2241(c)(3)
and 28 U.S.C. § 2254(a), in light of the restraints on his
liberty. Hensley’s release on personal recognizance was
subject to the conditions that he would appear when
ordered by the court, that he would waive extradition if
he was apprehended outside the State, and that a court
could revoke the order of release and require that he be
returned to confinement or post bail.In Justices of Boston Municipal Court v. Lydon, 466
U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984),
restraints on liberty of individual who was released on
personal recognizance after his first conviction was
vacated were not sufficiently different from those in
Hensley to mandate a different result. The failure of
Lydon to appear for trial without sufficient excuse would
constitute a criminal offense and if Lydon did fail to
appear, he could be required to serve the original two-year
sentence without further trial.The sex offender registration statutes of Oregon,
Washington and California do not place an individual in
custody; the statutes do not impose any significant
restraint on the liberty of someone required to register, as
he or she is free to move so long as law enforcement is kept
apprised of any new address. McNab v. Kok, 170 F.3d
1246 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d
1180 (9th Cir. 1998), cert. denied, 528 U.S. 1081, 119
S.Ct. 824, 142 L.Ed.2d 682 (1999); Henry v. Lungren,
164 F.3d 1240 (9th Cir.), cert. denied sub nom. Henry v.
Lockyer, 528 U.S. 963, 120 S.Ct. 397, 145 L.Ed.2d 309
(1999).According to Barry v. Bergen County Probation
Department, 128 F.3d 152 (3d Cir. 1997), cert. denied,
522 U.S. 1136, 118 S.Ct. 1097, 140 L.Ed.2d 152
(1998), an individual resentenced to 300 hours of
community service is “in custody” for purposes of
challenging his state convictions. The court of appeals
relied on Dow v. Circuit Court of the First Circuit, 995 F.2d
922 (9th Cir. 1993), cert. denied, 510 U.S. 1110, 114
S.Ct. 1051, 127 L.Ed.2d 372 (1994), which concluded
that a defendant found guilty of driving while intoxicated
and sentenced to fourteen hours attendance at an alcohol
rehabilitation program satisfied the “in custody”
requirement. According to the court of appeals in Barry,
the “fine-only” cases were not relevant because they
implicated property only, rather than a person’s liberty.