United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge
THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES
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.
For the reasons set forth herein, the Magistrate Judge
recommends that the Court deny the Motion for Habeas Corpus
Release (Doc. 7).
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).
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). 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).
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).
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).
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
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.
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
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 ...