Of common law origin and extending over hundreds of years, the “Great Writ” of habeas corpus is documented in American law by
Article I, Section 9, Clause 2, of the United States Constitution: “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Ex parte Bollman, 4 Cranch 75, 8 U.S. 75, 2 L.Ed. 554 (1807). By the passage of the Judiciary Act of 1789, Congress granted courts the statutory authority to issue the writ. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81–82. Under the federal statutes governing the procedure, the power to grant the writ is limited.
28 U.S.C. § 2241(c) (Supp.2006). To qualify for consideration of the merits of the claim, a federal prisoner must be “in custody.”
28 U.S.C. § 2241(c)(1), (3). Similarly, federal courts have jurisdiction to grant habeas corpus relief when a prisoner is “in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2254(a) (2000). The United States Supreme Court has interpreted this “statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”
Maleng v. Cook, 490 U.S. 488, 490–91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).
That interpretation has been extended to include consecutive sentences “in the aggregate, not as discrete segments.”
Garlotte v. Fordice, 515 U.S. 39, 47, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995) (one serving consecutive state sentences is “in custody” and may make a habeas corpus attack on the first of the sentences, even after it has expired, until all sentences have been served).