United States District Court, D. Arizona
Darryl D. Johnson, Petitioner,
Charles L Ryan, et al., Respondents.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT COURT JUDGE:
REPORT AND RECOMMENDATION
S, Willett United States Magistrate Judge
December 2017, Arizona state prisoner Darryl D. Johnson
(“Petitioner”) filed a “Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus” (Doc. 1)
(the “Petition”).On February 23, 2018, Petitioner
filed a “Motion for Release of a Prisoner in a Habeas
Corpus Proceedings” (Doc. 14). Respondents oppose the
Motion. (Doc. 16). For the reasons explained below, the
undersigned recommends that the Court deny Petitioner's
Motion (Doc. 14).
Ninth Circuit has not resolved whether a federal district
court has the authority to release a state prisoner pending
the resolution of a habeas proceeding. See In re
Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (declining to
resolve the issue as to whether a district court has the
authority to release a state prisoner on bail pending
resolution of habeas proceedings in extraordinary cases). Yet
even if a district court does have the authority to release a
state prisoner while a habeas proceeding is pending, such
authority is “reserved for extraordinary cases
involving special circumstances or a high probability of
success.” Land v. Deeds, 878 F.2d 318, 318
(9th Cir. 1989). “Special circumstances” include
a habeas petitioner's “serious deterioration of
health while incarcerated, and unusual delay in the appeal
process, ” Salerno v. United States, 878 F.2d
317 (9th Cir. 1987), or situations where “the sentence
was so short that if bail were denied and the habeas petition
were eventually granted, the defendant would already have
served the sentence, ” Landano v. Rafferty,
970 F.2d 1230, 1239 (3rd Cir. 1992).
support of his Motion (Doc. 14), Petitioner states that (i)
he “is in need of counsel”; (ii) “does not
have access to law library or any form of legal
assistance”; (iii) “has a better chance to be
granted a fair and impartial trial by being released from
custody”; and (iv) “has a stable home environment
that is crime free, ” including an employed spouse with
a stable income. (Id. at 2). Petitioner also asserts
that he will have a stable income upon his release.
(Id. at 2-3). It is noted that the Court previously
denied Petitioner's request for the appointment of
counsel. (Docs. 8, 13). It is also noted that
Petitioner's Reply (Doc. 15) to Respondents' Limited
Answer (Doc. 11) contains legal arguments and citation to
legal authority. Finally, Petitioner is not scheduled to be
released from prison until 2021; he is serving an eight-year
flat time sentence that was imposed in 2013. (Doc. 1 at 1-2).
The undersigned finds that even if the Court does have
authority to release Petitioner pending resolution of the
Petition, Petitioner has not shown that his is an
extraordinary case involving special circumstances or a high
probability of success. It is therefore recommended that the
Court deny Petitioner's Motion (Doc. 14).
on the foregoing, IT IS RECOMMENDED that the
Court deny Petitioner's “Motion for Release of a
Prisoner in a Habeas Corpus Proceedings” (Doc. 14).
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district
court's judgment. However, pursuant to Rule 72(b), Fed.
R. Civ. P., the parties shall have fourteen days from the
date of service of a copy of this recommendation within which
to file specific written objections with the Court.
Thereafter, the parties have fourteen days within which to
file a response to the objections. Failure to file timely
objections to any factual determinations of the Magistrate
Judge may be considered a waiver of a party's right to
appellate review of the findings of fact in an order or
judgment entered pursuant to the Magistrate Judge's
recommendation. See United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v.
Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007)
 The Petition became fully briefed on
February 26, 2018. (Docs. 1, 11, 15).
 The Arizona Department of
Corrections' online inmate database,
indicates that Petitioner's ...