RESPONDENT: Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara Cty.
LOCATION: Frontiero's Residence
DOCKET NO.: 71-1428
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 411 US 345 (1973)
ARGUED: Jan 15, 1973
DECIDED: Apr 18, 1973
Dennis Alan Lempert - for respondent
Stanley A. Bass - for petitioner
Facts of the case
Media for Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara Cty.
Audio Transcription for Oral Argument - January 15, 1973 in Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara Cty.
Warren E. Burger:
We’ll hear arguments next in number 71-1428, Hensley against the Municipal Court.
Mr. Bass, you may proceed.
Stanley A. Bass:
Mr. Chief Justice and may it please the Court.
This case is here on certiorari to the United States Court of Appeals for the Ninth Circuit which affirmed the dismissal of a petition for writ of habeas corpus.
The District Court in dismissing the petition did not reach any substantive issues but denied the petition on the sole ground that the petitioner being enlarged on his own recognizance by the state trial Judge pending the outcome the federal habeas proceeding was not “in custody” for purposes of the federal habeas statute.
The issue presented is whether or not a federal habeas Judge is without power to entertain a petition for the writ until the state criminal defendant who is sentenced to imprisonment surrenders into jail.
Whether the defendant has exhausted his available state court remedies and has been permitted by the very judge who imposed the sentence to remain at large, pending the outcome of the federal habeas proceeding.
The background facts will be briefly as follows.
The petitioner Hensley is a chief presiding officer of the Universal Life Church which has awarded honorary Doctor of Divinity degrees.
He was charged of violating a California misdemeanor provision which prohibited the awarding of degrees which signify academic accomplishment without meeting accreditation requirements.
The trial was held on May 19, 1969.
At the close of the State’s case, the defendant moved to dismiss.
The court held that it lacks jurisdiction in the State all throughout the proceedings.
Subsequently, the State moved to reopen the case.
Mr. Bienvenu, the defendant’s counsel at that time declined to appear at the reopening.
He advised the prosecutor that neither he nor Hensley would appear.
However, the traverse in this case states that Hensley was never advised by Mr. Bienvenu that he had to appear or that his failure to appear would result in conviction.
On the contrary, he says, he was advised that the trial was dismissed and that he did not appear further.
Warren E. Burger:
Is that still relevant to us?
Stanley A. Bass:
That may be relevant in so far as we deal with his status on release on recognizance or whether or not there’s been a deliberate bypass.
I think it may not be relevant, however, it’s offered in case questions do arise with respect to that but the Court held in defendant’s absence that the Court had jurisdiction and it found the defendant guilty in absentia.
And on July 1, 1969, one year imprisonment was imposed plus a $625 fine and costs.
And at that time, the state trial judge granted a stay and allowed the defendant to remain on his own recognizance of pending appeal.
Subsequently, the conviction was affirmed and state trial judge permitted Hensley to remain on O.R. pending the exhaustion of state post conviction remedies which were habeas corpus in the District Court of Appeal and in the California Supreme Court.
Then on June 16, 1970, Hensley filed his federal habeas.
On the same day, the State trial judge granted a stay, an additional stay.
Permitting him to remain at large, pending the determination of the federal habeas corpus application.
Federal habeas corpus judge found that or ruled that Hensley was not in custody because he was on recognizance and he denied the petition.
However, he granted a certificate of probable cause and the Court of Appeals affirmed, rehearing was denied.
A timely petition for cert. was filed and this Court granted cert.