Hilsgen, Cindy v. Hove, Nancy

Filing 17

ORDER denying respondent Nancy Hove's 14 motion to dismiss Petitioner Cindy Hilsgen may have until April 2, 2018, to respond to this order. Signed by District Judge James D. Peterson on 3/19/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CINDY L. HILSGEN,
Petitioner,

ORDER

v.

18-cv-102-jdp

NANCY HOVE,
Respondent.

Cindy Hilsgen filed a pleading that I construed as a petition for writ of habeas corpus
concerning her pretrial detention at the Pierce County Jail under a $50,000 bond that Hilsgen
considers to be excessive. See Dkt. 7. Given the likelihood that Hilsgen’s pretrial custody would
be mooted by prolonged briefing, I stated that the court would hold a telephonic hearing after
receiving the answer from respondent Sheriff Nancy Hove. Hove has filed an abbreviated
answer asking me to dismiss the case because the Hilsgen was released after the state court
lowered the bond amount to $30,000 and Hilsgen posted that amount.
Hove cites Johnson v. Hoy, 227 U.S. 245 (1913) and Stallings v. Splain, 253 U.S. 339,
343 (1920), for the proposition that a detainee released on bail or bond is not “in custody”
and cannot seek habeas relief. But this proposition is no longer good law: more recent case law
makes clear that habeas relief can be available to unincarcerated persons like those on bail or
bond. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (petitioner who remained free
on recognizance bond pending execution of sentence was “in custody” for purposes of habeas
relief); see also Jennings v. Rodriguez, 138 S. Ct. 830, 873 (2018) (“In the habeas context, we
have held that a person released on bail or on his own recognizance is in custody within the

meaning of the statute.” (internal quotations omitted)). Accordingly, I will deny Hove’s motion
to dismiss. Hove still has time left on her original deadline to file a full answer.
But the modification of the bond amount and Hilsgen’s release does raise the question
whether Hilsgen still seeks habeas relief. I will give her a short deadline to either confirm that
she wishes to continue litigating this case or that she chooses to voluntarily dismiss it.

ORDER
IT IS ORDERED that:
1. Respondent Nancy Hove’s motion to dismiss, Dkt. 14, is DENIED.
2. Petitioner Cindy Hilsgen may have until April 2, 2018, to respond to this order.
Entered March 19, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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