Howard: Defendant merely subject to "dead-docketed" indictment not "in custody" for habeas purposes

In Howard v. Warden, No. 13-12831 (Jan. 9, 2015), the Court held that a person subject, without more, to a Georgia “dead-docketed” indictment – a process by which prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court – is not “in custody” for habeas corpus purposes. The Court therefore affirmed the dismissal of Howard’s petition. Howard was subject since 1995 to a dead-docketed indictment for burglary. Evidence of this 1995 burglary was introduced at a 1997 trial for an unrelated offense, but it was never used to enhance any sentence. The record showed no relationship between the 1995 indictment and Howard’s current custody. Though recognizing that the caselaw broadly construed the term “in custody” for habeas purposes to include situations where a person is not in actual, physical custody, the Court found that Howard had not shown that he was subject to some type of restraint that was not shared by the general public. Consequently, the Court lacked jurisdiction to consider his habeas claims.