Kirby H. Hensley v. Municipal Court, San Jose-Milpitas Judicial District Santa Clara County, State of California

The sole question on appeal is whether or not a person released on his own recognizance following trial, conviction and sentence on a state criminal charge is within the purview of 28 U.S. C. § 2241, which extends the remedy of habeas corpus to persons “in custody” in violation of the federal constitution. We conclude that he is not.

Not long ago, this court squarely ruled on this question in Matysek v. United States, 339 F.2d 389 (1964), cert, denied 381 U.S. 917 , 85 S.Ct. 1545 , 14 L.Ed.2d 437 . We held that a person released on bail was not “in custody,” actual or constructive, so as to satisfy 28 U.S.C. § 2241 .

Appellant Hensley urges that Matysek has been implicitly overruled by the recent Supreme Court cases of Walker v. Wainwright, 390 U.S. 335 , 88 S.Ct. 962 , 19 L.Ed.2d 1215 (1968); Peyton v. Rowe, 391 U.S. 54 , 88 S.Ct. 1549 , 20 L.Ed.2d 426 (1968) and Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968). These cases are dis tinguishable because in each of them there existed actual or constructive custody. In Walker and Rowe, the petitioners were in actual custody and in Carafas , the petitioner was on parole. In Matysek , this court, while…