Thomas v. USA

          REPORT AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge

         TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:

         Movant Joel Leon Thomas, Jr., who is confined in the United States Penitentiary in Adelanto, California, has filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”). Pending before the Court is Movant's Motion for Habeas Corpus Release (Doc. 7)^[1]. For the reasons set forth herein, the Magistrate Judge recommends that the Court deny the Motion for Habeas Corpus Release (Doc. 7).

         BACKGROUND

         After a Detention Hearing held on March 9, 2012, the Court found by clear and convincing evidence that the Defendant/Movant posed a danger to the community, and no condition or combination of release conditions would reasonably assure the safety of the community. Therefore, Defendant/Movant was detained pending his trial. (CR Doc. 9).

         Movant was convicted by a jury of the following: conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a) (count 1); armed bank robbery and aiding and abetting in violation 2113(a), (d), (e) and 2 (count 2); use of a firearm in a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii) and 2 (count 3); conspiracy to commit bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 371, 2113(a), and 2 (count 4); bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a) and 2 (count 5); conspiracy to commit bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 371, 2113(a), and 2 (count 6); armed bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a) and 2 (count 7); and use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii) and 2 (count 8). On September 11, 2014, the Court sentenced Movant to a 594-month term of imprisonment followed by five years on supervised release (CR Doc. 541)^[2]. The Court concluded that the Defendant/Movant “gave false testimony during trial, ” and that the false testimony was willful and material to the question of guilt or innocence. (Doc. 13-2 at 7).

         On December 20, 2016, the Ninth Circuit affirmed Movant's convictions and sentences. United States v. Thomas, 843 F.3d 1199 (9th Cir. 2016). However, on May 8, 2017, the Ninth Circuit granted rehearing in part, vacated the sentence and remanded for reconsideration in light of United States v. Dean, 137 S.Ct. 1170 (2017). United States v. Thomas, 856 F.3d 624 (9th Cir. 2017). On August 24, 2017, the Court resentenced Movant to 504 months in prison followed by five years on supervised release (CR Doc. 706).

         Movant appealed. On March 16, 2018, the Ninth Circuit granted the government's motion for a summary affirmance. United States v. Thomas, No. 17-10371 (9th Cir. Mar.16, 2018) (CR Doc. 16). On March 29, 2018, Movant filed a motion for reconsideration. (CR Doc. 17). On August 14, 2018, Movant filed a motion to withdraw his motion for reconsideration, and on August 28, 2018, the Ninth Circuit granted that motion. (CRDoc.19). On September 5, 2018, the mandate issued. (CR Doc. 20).

         On September 11, 2018, the Court screened the § 2255 Motion and ordered Plaintiff to file a response in the civil case (Doc. 4 at 4). Briefing of the § 2255 Motion remains pending.

         In his Motion for Habeas Corpus Release, Movant requests that the Court release him on bail or bond pending the Court's decision in this habeas case because (i) his case has a high probability of success, (ii) he is not a danger to the community, (iii) he is not a flight risk, (iv) exceptional circumstances exist to support release, and (v) Movant's case is extraordinary (Doc. 7). The Government has filed a Response (Doc. 13) opposing release. No. Reply has been filed and the time to do so has passed.

         LEGAL AUTHORITY

         “Neither the Bail Reform Act nor federal habeas statutes speak to whether bail may be granted to a federal prisoner while his or her Section 2255 motion is pending in district court.” United States v. Carreira, 2016 WL 1047995 *1 (D. Haw. 2016) (unpublished). “Nevertheless, there is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their cases, but a power to be exercised very sparingly.” Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985) (citing In re Wainwright, 518 F.2d 173 (5th Cir.1975) (per curiam)); Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir.1978); cf. Jago v. United States District Court, 570 F.2d 618 (6th Cir.1978); Pfaff v. Wells, 648 F.2d 689 (10th Cir.1981)).

         Yet even if a district court does have the authority to release a federal 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: (i) “a serious deterioration of health while incarcerated, and unusual delay in the appeal process, ” Salerno v. United States, 878 F.2d 317 (9th Cir. 1987); and (ii) situations where “the sentence was so short that if bail were denied and the ...