Opinion
Civil Action No. 20-0527 (UNA)
03-10-2020
DWAYNE L. DAY, Petitioner, v. FRANKLIN COUNTY, Respondent.
MEMORANDUM OPINION
The Court construes the petitioner's pleading as a petition for a writ of habeas corpus. "The writ of habeas corpus shall not extend to a [petitioner] unless" he is "in custody" under some authority. 28 U.S.C. § 2241(c). A person is generally considered "in custody" if he is being held in a prison or jail, or if he is released on conditions of probation or parole, see, e.g., Jones v. Cunningham, 371 U.S. 236, 240 (1963) (finding that a paroled petitioner is "in custody" because parole restrictions "significantly restrain petitioner's liberty"), or subject to other non-confinement restraints on liberty, such the inability to "come and go as she or he pleases," as when a person is released on bail or on his own recognizance before trial, see, e.g., Hensley v. Municipal Court, 411 U.S. 345, 351-53 (1973) (holding that petitioner released on own recognizance pending appeal was "in custody" for purpose of habeas).
The petitioner has drafted his pleading in a series of disjointed phrases, and the Court cannot determine whether he meets the "in custody" requirement. Even if he were in custody, the petition does not name a proper respondent to a habeas petition. See Rumsfeld v. Padilla, 542 U.S. 426, 434-39 (2004) (discussing immediate custodian rule); accord Blair-Bey v. Quick, 151 F.3d 1036, 1039 (D.C. Cir. 1998).
The Court will grant the petitioner's application to proceed in forma pauperis and dismiss his petition without prejudice for want of jurisdiction. A separate order accompanies this Memorandum Opinion. DATE: March 10, 2020
/s/_________
TREVOR N. McFADDEN
United States District Judge