United States District Court, D. Hawaii
ORDER (1) DENYING DEFENDANT’S MOTION FOR RELEASE ON BAIL, AND (2) STAYING DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255
J. Michael Seabright Chief United States District Judge
Defendant Michael Lee Leach (“Defendant”) has filed a Motion for Release on Bail, Doc. No. 74 (“Motion for Bail”), pending the resolution of his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Petition”). Doc. No. 73. His § 2255 Petition contends that his current revocation sentence for violating supervised release is unconstitutional after Johnson v. United States, 135 S.Ct. 2551 (2015), and Descamps v. United States, 133 S.Ct. 2276 (2013).
Based on the following, Defendant’s Motion for Bail is DENIED, and his § 2255 Petition is STAYED pending a decision by the Supreme Court in Mathis v. United States, No. 15-6092 (U.S.) (argued Apr. 26, 2016).
Defendant pled guilty on February 8, 2006, pursuant to a Memorandum of Plea Agreement, to violations of (1) 18 U.S.C. § 922(j) & 924(a)(2) (receipt and possession of a stolen firearm); (2) 18 U.S.C. §§ 922(g)(1) & 924(a) (felon in possession of a firearm subsequent to three convictions for violent felonies); and (3) 26 U.S.C. § 5861(d) (possession of an unregistered shortened firearm). Doc. Nos. 16, 17. As to the felon-in-possession Count, Defendant agreed that he had three previous convictions for “violent felonies” --two convictions for second degree burglary in Missouri, and a conviction for second degree attempted robbery in Missouri. See Doc. No. 17, Plea Agreement at 2-3.
Under the Armed Career Criminal Act (“ACCA”), if a defendant is convicted of a firearms offense and has three or more prior convictions for “a violent felony or a serious drug offense, or both, ” the defendant is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). Given the agreement that Defendant had three previous violent felony convictions, the court sentenced Defendant on August 21, 2006 to a 102-month term of imprisonment under the ACCA (after granting the government’s Motion for Downward Departure for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1). The court also imposed a corresponding five-year term of supervised release. Doc. No. 33.
Defendant eventually served his original sentence and -- after certain events not germane to determining Defendant’s Motion for Bail -- was placed on supervised release. On June 19, 2015, however, the court revoked Defendant’s supervised release and sentenced Defendant to a 36-month term of imprisonment for that violation of supervised release. Doc. No. 67.
On June 26, 2015, the Supreme Court decided Johnson, which invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2557-58. Given Johnson, Defendant filed his § 2255 petition on March 18, 2016, arguing that, absent the residual clause, his original sentence was based on an improper determination that he is an armed career criminal under the ACCA.Defendant contends that -- without the ACCA sentence -- his original term of supervised release should have been three years (not five). And if that is true, then the maximum sentence imposed upon revocation for his violation of supervised release should have been 24 months (not the 36 months that the court imposed on June 19, 2015). See 18 U.S.C. §§ 3559, 3583(b)(2) & 3583(e)(3). His § 2255 petition thus seeks an amended judgment reducing his current term of imprisonment from 36 to 24 months. See Doc. No. 75, Def.’s Mem. at 9. He also seeks resentencing on the original conviction and credit for excessive time he already served on the 102-month sentence, and to then apply that credit to his current revocation sentence. Id. at 9-10. Finally, he seeks release on bail while the court considers the § 2255 petition.
A. The Court’s Power to Grant Bail Pending a Decision in a § 2255 Proceeding is Extremely Limited
“[T]here 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[.]” United States v. Lee, 2016 WL 1039046, at *2 (D. Haw. Mar. 15, 2016) (quoting Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985) (citing cases from the Second, Fifth, Sixth, and Tenth Circuits)) (other citations omitted). That is, “[i]n a § 2255 proceeding, ‘the court’s jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits.’” United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986) (quoting Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969)).
The power to grant bail pending review, however, “is a limited one, to be exercised in special cases only.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). The power is to be exercised “only in unusual cases, or when extraordinary or exceptional circumstances exist.” Id. (quoting Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978). It is “a power to be exercised very sparingly.” Cherek, 767 F.2d at 337.
In making such a bail determination, courts consider two primary factors -- exceptional/extraordinary circumstances and a high probability of success on the merits.See, e.g., United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (citing Land v. Deeds, 878 F.2d 318, 318-19 (9th Cir. 1989)); see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (reasoning that “bail pending post-conviction habeas corpus review [is] available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional ...