Williams v. Ryan

          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. L ...