APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Nos. 75-2683 and 75-2693).
Aldisert and Gibbons, Circuit Judges, H. Curtis Meanor,*fn* District Judge. Gibbons, Circuit Judge, dissenting.
Ethel Kravitz, petitioner and plaintiff below and twice appellant here, was convicted in 1959 of the second degree murder of her husband. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cert. den. 365 U.S. 846, 5 L. Ed. 2d 811, 81 S. Ct. 807 (1961). Following that affirmance of her conviction, appellant petitioned the United States District Court for the Middle District of Pennsylvania for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. That court denied her petition and the denial was affirmed by this court. In the Matter of Ethel Kravitz, 358 F.2d 734 (3d Cir. 1966).*fn1 In affirming, this court noted that all the contentions but one were devoid of merit. That issue involved the claim that incriminating statements had been admitted at the trial which had been procured from petitioner by police interrogation after focus upon her as the probable killer without being preceded by the advice that she had the right to remain silent or to have counsel present. With respect to this question, this court affirmed the denial of the petition because of a failure to exhaust state remedies. As to all other issues, the district court's denial was affirmed on the merits.
Thereafter, Mrs. Kravitz returned to the Pennsylvania courts. By this time, she was on parole. It was held, inter alia, that her failure to raise previously her contention that her conviction was invalid because of the admission of inculpatory statements precluded further litigation. Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970).
Petitioner then returned to the federal court, this time in the Eastern District of Pennsylvania, and filed two actions. By this time, she had been released from parole. On September 23, 1975, she filed a complaint against the Commonwealth of Pennsylvania and its Governor and Attorney General seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null and void." Jurisdiction was sought to be predicated on 28 U.S.C. § 1331(a) and § 1343(3) and (4) with the claim arising under 42 U.S.C. § 1983. This action was dismissed without opinion.
On the day following the filing of the complaint described above, Mrs. Kravitz filed her second petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254, naming the Governor, the Attorney General and the Commonwealth as respondents. The district court, adopting a magistrate's report, held that since Mrs. Kravitz, at the time of filing her petition, had been discharged from parole, she was no longer in custody and denied the petition. She now appeals from both adverse judgments. We shall first discuss the denial of her second petition for habeas corpus.
28 U.S.C. § 2241 provides in pertinent part:
(c) The writ of habeas corpus shall not extend to a prisoner unless --
(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . . .
28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
The requirement that the petitioner be in custody before the writ will lie has been given a broad construction providing the federal writ with an expansive reach. Besides those in actual confinement, the custody prerequisite has been held to encompass those on probation, United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3d Cir. 1975); United States ex rel. De Rosa v. Superior Court, 379 F. Supp. 957 (D. N.J. 1974); on parole, Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963) and those on bail, Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973). As a reading of these ...