United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
On May
29, 2018, Petitioner filed a motion asking to be released
from custody pending the resolution of his habeas petition.
(Doc. 36.) On December 6, 2018, Magistrate Judge Metcalf
issued a Report and Recommendation (“R&R”)
recommending that Petitioner's motion for release be
denied. (Doc. 68.) Afterward, Petitioner filed objections to
the R&R (Doc. 69) and a motion for ruling (Doc. 72). As
explained below, the Court will overrule Petitioner's
objections and adopt the R&R's conclusion that the
motion for release should be denied.
I.
Background
On June
13, 2017, Petitioner filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 seeking relief from his
convictions in Arizona for sexual abuse and two counts of
sexual molestation of a child. (Doc. 1.)
On
October 31, 2017, Petitioner filed an amended petition. (Doc.
17.)
On
November 16, 2017, the Court issued an order requiring
Respondents to answer the amended petition “within 40
days, ” i.e., by December 26, 2017. (Doc. 19
at 7.)
On
December 27, 2017-the day after this deadline had
elapsed-Respondents filed a motion for an extension of time
to file their answer. (Doc. 23.) The Court granted this
request and extended the answer deadline to February 9, 2018.
(Doc. 24.)
On
February 9, 2018, Respondents filed a second motion for an
extension of time to file an answer to the petition, or
alternatively, a motion to stay the habeas petition and hold
it in abeyance pending the outcome of Petitioner's state
post-conviction proceeding. (Doc. 25.) Four days later, on
February 13, 2018, Petitioner filed a motion objecting to any
extension of time that might be requested and seeking a
default judgment against Respondents. (Doc. 26.) On March 23,
2018, the Court ordered Respondents to either supplement
their motion to stay or withdraw it. (Doc. 29.) After
Respondents withdrew the stay request (Doc. 30), the Court
ordered Respondents to file an answer by April 27, 2018.
(Doc. 31.)
On
April 27, 2018, Respondents filed a third motion for an
extension of time to file an answer to the petition. (Doc.
32.) Petitioner moved for default (Doc. 33) and filed an
opposition to Respondents' motion for an extension (Doc.
34). The Court extended the response deadline to May 27, 2018
and cautioned that further extensions would not be granted
lightly. (Doc. 35 at 2-3.)
Respondents
did not file a response by the May 27, 2018 deadline. On May
29, 2018, Petitioner filed a 27-page document entitled
“Motion for Entry of Default or Release Pending Appeal
Decision.” (Doc. 36.) In it, Petitioner argues he is
entitled to a default judgment because Respondents repeatedly
missed the various deadlines the Court set for their answer
to his petition. (Id. at 1.) Petitioner
alternatively asks to be released from custody during the
pendency of these proceedings because he is “actually
innocent” and because he “was arrested as a
result of an illegal search and seizure . . ., an involuntary
confession was used . . ., the indictment was obtained using
perjured testimony by the only grand jury witness . . .,
petitioner was unconstitutionally denied bond, and among
other things the state is guilty of egregious prosecutorial
misconduct . . . .” (Id. at 3.)
On May
30, 2018, Magistrate Judge Metcalf issued an order denying
Petitioner's request for a default judgment. (Doc. 38.)
The order further stated that “[t]he Motion for
Preliminary Release Pending Appeal will be addressed by
separate Report & Recommendation.” (Id. at
1.) On June 13, 2018, Respondents filed an opposition to the
release request. (Doc. 39.) On July 6, 2018, Petitioner filed
a reply in support of his release request. (Doc. 47.)
On
December 6, 2018, Magistrate Judge Metcalf issued an R&R
concluding that Petitioner's release request should be
denied. (Doc. 68.) The R&R states that (1) requests for
bail in habeas proceedings are governed by Rule 23 of the
Federal Rules of Appellate Procedure, (2) bail in this
context should be granted only in “extraordinary cases
involving special circumstances or a high probability of
success, ” (3) Petitioner hasn't demonstrated
special circumstances (“His desire to be with family
for the holidays . . . is not special, but could be said of
most habeas petitioners with family.”), and (4)
Petitioner hasn't demonstrated a high probability of
success because the claim he identified as the strongest
claim in his amended petition-Ground 19, which asserts a
Fourth Amendment challenge to the prosecution's
introduction of a “confrontation call” in which
he made inculpatory statements-is a weak claim in light of
longstanding case law establishing that the Fourth Amendment
doesn't apply to confrontation calls and that Fourth
Amendment claims generally aren't cognizable on habeas
review. (Id.)
On
December 19, 2018, Petitioner filed written objections to the
R&R. (Doc. 69.) Respondents did not file a response to
the objections.
II.
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