In The

Supreme Court of the United States




Decided April 18, 1984

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 9–0
Note: No other Justices joined this opinion.
Citation: 466 U.S. 294 Docket: 82–1479Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in the judgment.

I agree that the judgment of the Court of Appeals should be reversed. Unlike the Court, however, I conclude that the District Court lacked jurisdiction to hear respondent Lydon's habeas petition at this stage in the ongoing state court proceeding.

The Court suggests that federal habeas jurisdiction exists whenever (i) a state defendant is subject to minimal legal restraints on his freedom and (ii) the defendant has exhausted state avenues of relief with respect to the particular federal claim brought to the habeas court. Then, recognizing that its unadorned test might greatly expand federal habeas jurisdiction, the Court, ante at 466 U. S. 302, emphasizes "the unique nature of the double jeopardy right." In my view, the Court first unnecessarily expands the holding in Hensley v. Municipal Court, 411 U. S. 345 (1973), and then limits the damage by restricting its exhaustion analysis to double jeopardy claims. I would prefer to search for a more principled understanding of the statutory term "custody."

Under Massachusetts law, as I read it, Lydon is no longer in custody "pursuant" to the judgment entered at his first trial. Lydon has invoked his right to a second trial and appeared at the second proceeding. Under Massachusetts law, therefore, the results of the first trial -together with any incidental "custody" imposed in consequence of that trial -have already been eliminated. The restraints on Lydon's freedom now derive not from the prior conviction, but from the fact that a new criminal proceeding is in progress. Every state defendant who fails to attend a criminal trial risks punitive sanctions not dissimilar to those to which Lydon is currently exposed.

Federal habeas jurisdiction plainly does not attach merely because a state criminal defendant, whose freedom to come and go as he pleases is limited in some way in connection with a criminal proceeding, has exhausted state interlocutory review of a particular federal claim. Federal habeas jurisdiction is absent because "custody" in connection with an ongoing trial is usually not "in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. §§ 2241(c)(3), 2254(a), even when the proceedings themselves or the underlying charge are constitutionally defective. Most constitutional rights exist to protect a criminal defendant from conviction -not from the process of trial itself.

In this regard, however, I agree with the Court that double jeopardy is different. Here, custody incident to a trial may violate the Constitution because the trial itself, regardless of its outcome, is unconstitutional. For this reason, I agree that a prisoner who is incarcerated in connection with a criminal proceeding is "in custody in violation of the Constitution," 28 U.S.C. § 2254(a), when the proceeding violates his double jeopardy rights. Cf. Arizona v. Washington, 434 U. S. 497 (1978). But I do not agree that the minor restraints on Lydon's freedom, incurred in connection with an ongoing state trial, satisfy the jurisdictional requirements of the habeas statute. Nor do I believe that Hensley dictates a different result.

In Hensley, the Court made it quite clear that a relaxed definition of "custody" was accepted only because incarceration was imminent and, absent federal intervention, inevitable. The habeas petitioner in Hensley had exhausted "all available state court opportunities to have [his] conviction set aside," 411 U.S. at 411 U. S. 353 ; see also id. at 411 U. S. 346, 411 U. S. 347, and n. 4, 411 U. S. 351, 411 U. S. 352, not merely all available court opportunities to review the particular claim in question. Hensley emphasized that the typical restrictions on freedom attending a release on personal recognizance would not, standing alone, constitute "custody" within the meaning of the habeas statute. Such restraints amount to "custody" only when state judicial proceedings have been completed and incarceration has become a purely executory decision. Hensley accepted a liberal definition of "custody" only in conjunction with an unusual requirement of absolute exhaustion -exhaustion not of the particular claim in question, cf. 28 U.S.C. § 2254(b), but of all possible state avenues of relief from the conviction.

My reading of Hensley thus leads me to conclude that a state criminal defendant should be considered "in custody pursuant to the judgment of a State court," 28 U.S.C. § 2254(a), only when he is under physical restraint, cf. Arizona v. Washington, supra, or under a legal restraint that can be converted into physical restraint without a further judicial hearing. * The latter situation will normally arise only when state judicial proceedings (as distinguished from particular claims raised in those proceedings) have been entirely exhausted.

Lydon's condition clearly does not meet the Hensley test as I understand it. Lydon has not come close to exhausting state opportunities to have the conviction set aside. Lydon cannot be incarcerated without a further judicial hearing. His position is thus functionally indistinguishable from that of a defendant pressing an interlocutory appeal. One claim may have been exhausted, but others have not. In these circumstances, incarceration is far from inevitable, and the minor constraints that attend a release on personal recognizance are much less significant. If Massachusetts stood ready to incarcerate Lydon on the basis of the conviction at the first trial, my view of the case would be different.

The Court makes clear, ante at 466 U. S. 302 -303, its view that double jeopardy claims are "unique" for federal habeas purposes. This might be sufficient reason to bring such a claim within Hensley's rationale even when only the specific claim has been exhausted. Cf. Abney v. United States, 431 U. S. 651 (1977); Arizona v. Washington, supra; Braden v. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484 (1973). For my part, I would prefer to avoid relaxing Hensley's clear holding that the minimal constraints of a release on personal recognizance constitute "custody" only when the State stands ready to incarcerate the habeas petitioner without further judicial hearing. A special purpose jurisdictional exception for double jeopardy allegations seems inadvisable simply because the habeas statute contains no license for such an exception. "Custody" is the touchstone relied on by § 2254; of all the possible unconstitutional infringements on personal freedom, only unlawful "custody" has been identified as providing a sufficient basis for federal intervention. I would therefore hold that a state criminal defendant is not "in custody pursuant to the judgment of a State court" while he remains free from physical restraint and the State remains unable to impose such restraint without a further judicial hearing.


* Even if the habeas petitioner is in physical custody, it may well be appropriate for a federal court to abstain from deciding the petition until state court proceedings have been completed.

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