Marden v. Purdy
| Decision Date | 10 April 1969 |
| Docket Number | No. 26152.,26152. |
| Citation | 409 F.2d 784 |
| Parties | Jay William MARDEN, Appellant, v. E. Wilson PURDY, as Sheriff of Dade County, Florida, Appellee. E. Wilson PURDY, as Sheriff of Dade County, Florida, Appellant, v. Jay William MARDEN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe N. Unger, Ray H. Pearson, Frates, Fay, Floyd & Pearson, Miami, Fla., for appellant.
Richard E. Gerstein, State's Atty., Harold Mendelow, Asst. Atty. Gen. of Florida, Miami, Fla.; Earl Faircloth, Atty. Gen., Tallahassee, Fla., for appellee.
Before THORNBERRY and AINSWORTH, Circuit Judges, and DAWKINS, District Judge.
Appellant Jay William Marden was convicted of robbery in a Florida state court. His direct appeal was unsuccessful and it is agreed that available state remedies have been exhausted. His petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was denied without hearing by the court below. On appeal, he persists in assertions made below that his motion to suppress evidence in state court was improperly denied and that a post-arrest identification procedure was unconstitutional.
By way of a cross-appeal, the State maintains that its motion to dismiss for want of federal jurisdiction was improperly denied. This contention is based on the "in custody" requirement of section 2254: At the time appellant filed his petition in the court below he was free on cash bond and was not truly in the custody of the sheriff to whom the petition was directed. We agree with the district court that the use of habeas corpus is not restricted "to situations in which the applicant is in actual, physical custody", Jones v. Cunningham, 1963, 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9 L.Ed.2d 285, and that the bond was a sufficient restraint on this applicant's liberty to support habeas jurisdiction. In Jones v. Cunningham, the Court held the "in custody" requirement to be satisfied by an applicant who is on parole, and in Foster v. Gilbert, S.D.Fla.1967, 264 F.Supp. 209, a district court sustained habeas jurdisdiction as to an applicant who has been released in the custody of his attorney. Recently, the Supreme Court held in Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 that habeas jurisdiction in a case that has not been finally decided is not terminated by the unconditional release from prison of an applicant who was in custody when he filed his petition. This is a further indication that actual physical confinement is not a prerequisite to habeas jurisdiction. We agree with the court below that there is sufficient predicate in the cases for holding that an applicant free on bond satisfies the "in custody" requirement. As the court observed, there is no logical reason why such an applicant should be required to surrender himself into actual custody in order to invoke the jurisdiction of a federal court.
Appellant's first contention is that the fruits of the crime discovered in a search of his person should have been suppressed by the state court because the arrest was illegal. The relevant facts are that shortly after the robbery appellant was arrested in an unincorporated area of Dade County, Florida by officers of the Miami Shores Police Department. The robber had been described to the officers by the victim, who was in charge of a realty office, and a nearby liquor store operator as a man wearing tennis shoes and a blue windbreaker. About 500 yards from the scene of the crime, they came upon a man fitting this description. Appellant immediately raised his arms in surrender, revealing a gun under his windbreaker as he did so. He was arrested instantly. An arrest warrant signed three days later by one of the officers recited that the arrest was for "possession of a weapon without a permit." The problem created by the face of the warrant — a problem...
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...ineligible for habeas corpus relief. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Marden v. Purdy, 409 F.2d 784 (5 Cir.1969). Petitioner's arguments before this court are substantially identical to those presented at every level of the state court proc......
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