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BENHAM, Justice.
Habeas corpus. DeKalb Superior Court. Before Judge Hunter.
Farris filed a petition for pre-conviction habeas corpus relief (see OCGA 9-14-1 (a)) in DeKalb County after he was charged with theft of services in Fulton County and released on his own recognizance. Petitioner contended that respondent, the district attorney of Fulton County, was illegally restraining petitioner of his liberty by failing to dismiss the charges brought against petitioner. The habeas court denied the petition for habeas corpus relief, and we affirm.
1. Petitioner's motion to strike the brief of the Attorney General is denied.
2. The failure of the State to respond timely to the petition for habeas corpus relief does not entitle the petitioner to a default judgment. Huddleston v. Ricketts, 233 Ga. 112 (1) (210 SE2d 319) (1974).
3. OCGA 9-14-1 (a) provides:
Any person restrained of his liberty under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.
1  The U. S. Supreme Court has recognized that a petitioner enlarged on his own recognizance pending execution of sentence is "in custody" for purposes of the federal habeas corpus statute, and may seek relief thereunder since his release was subject to conditions. Hensley v. Municipal Court, 411 U. S. 345 (93 SC 1571, 36 LE2d 294) (1973). The opinion contains language suggesting that federal habeas relief is available, in limited instances, to persons arrested, released on their own recognizance, and awaiting trial. However,Hensley is best understood as interpreting "custody" to include those cases where a criminal defendant, already convicted and sentenced, would be imprisoned without further state judicial action had not the prison sentence been stayed by the federal court on habeas. [Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 327
Robert E. Wilson, District Attorney, Nancy A. Grace, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Mary Beth Westmoreland, Senior Assistant Attorneys General, for appellee.
Paul T. Wright, for appellant.
Saturday May 23 21:19 EDT

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