is, “ordering that a State release the prisoner or else correct the constitutional error through a new hearing”); Herrera v. Collins, 506 U.S. 390, 403, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence.”); Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (“[T]his Court has repeatedly stated that federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court.”); In re Bonner, 151 U.S. 242, 259-60, 14 S.Ct. 323, 38 L.Ed. 149 (1894) (<HOLDING>). Such “[conditional orders are essentially
holding that habeas claim not included in petition and never raised by petitioner before the district court as basis for habeas relief is procedurally defaulted recognizing for the first time that the habeas court had the power to retain the petitioner in conditional custody before granting relief holding that a habeas petitioner must be in custody under the conviction or sentence under attack at the time his petition is filed recognizing that federal habeas statutes require petitioner to be in custody when petition filed holding that the trial court had jurisdiction to grant rule 37 relief where petitioner herred was in custody at the time the court ruled on his motion