time for a Writ of Habeas Corpus, the first petition having been dismissed due to his failure to exhaust his state remedies as required by 28 U.S.C. § 2254.
The initial question presented is whether a person who was convicted of a crime by a state court but who is now on parole and is restricted to the geographical limitations of a single city and is subject to immediate imprisonment for any violation of parole, comes within the definition of a "person in custody" under 28 U.S.C. § 2241 and § 2254 so as to give this court jurisdiction to grant habeas corpus. The Supreme Court has settled this issue in the affirmative in Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). There, the petitioner, a state prisoner, had filed for a Writ of Habeas Corpus in the United States District Court while still incarcerated, but he was paroled before his case came up on appeal. The Court of Appeals for the Fourth Circuit refused to allow him to substitute the State Parole Board as respondent and dismissed the case as moot since petitioner was no longer in custody under the meaning of 28 U.S.C. § 2241. The Supreme Court reversed. While the statute nowhere defines "in custody", the Court reviewed the history of the Great Writ and concluded that it had never been limited to actual physical restraint in a jail or prison. It stated:
History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus. * * *