United States District Court, D. Hawaii
ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION OF ORDER DENYING MOTION FOR RELEASE ON
Michael Seabright Chief United States District Judge
3, 2016, the court denied Defendant Michael Lee Leach’s
(“Defendant”) Motion for Release on Bail, and
stayed Defendant’s Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence (“§ 2255
Petition”), pending a decision by the Supreme Court in
Mathis v. United States, No. 15-6092 (“May 3,
2016 Order”). Doc. No. 83. On May 6, 2016, Defendant
filed a Motion to Reconsider the May 3, 2016 Order in part
(“Motion for Reconsideration”). Doc. No. 84.
Defendant seeks reconsideration of the denial of bail pending
a decision on the § 2255 Petition, but does not oppose
staying the § 2255 Petition pending Mathis.
Id. at 1. The government filed its response on May
19, 2016. Doc. No. 86. Based on the following, the Motion for
Reconsideration is DENIED.
STANDARD OF REVIEW
is permitted only where there is “(a) Discovery of new
material facts not previously available; (b) Intervening
change in law; [or] (c) Manifest error of law or fact.”
Local Rule 60.1; see also School Dist. No. 1J, Multnomah
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993) (“Reconsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.”) (citation omitted). “There may
also be other, highly unusual, circumstances warranting
reconsideration.” ACandS, Inc., 5 F.3d at
“motion for reconsideration must accomplish two goals.
First, a motion for reconsideration must demonstrate reasons
why the court should reconsider its prior decision. Second, a
motion for reconsideration must set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision.” Donaldson v. Liberty Mut. Ins.
Co., 947 F.Supp. 429, 430 (D. Haw. 1996). “Whether
or not to grant reconsideration is committed to the sound
discretion of the court.” Navajo Nation v.
Confederated Tribes & Bands of the Yakama Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citation
3, 2016 Order twice emphasized that the court was not
addressing or ruling on the merits of the § 2255
petition. See May 3, 2016 Order at 4 n.4 & at 10
n.8; United States v. Leach, 2016 WL 2344197, at *2
n.4 & at *3 n.8 (D. Haw. May 3, 2016). To repeat, the
court is only assessing whether Defendant satisfies the
extraordinary circumstances/high probability of success
analysis to be entitled to release on bail while the §
2255 petition is under review. See, e.g., Cherek
v. United States, 767 F.2d 335, 337 (7th Cir. 1985). And
to repeat again, Defendant has not met this high burden.
takes issue with the May 3, 2016 Order’s analysis of
the “time bank” issue, repeating his argument
that Policy Statement 5880.28 § I.3.c. (2) in the Bureau
of Prisons (“BOP”) sentencing computation manual
would automatically entitle him to a sentence of time-served
on his revocation sentence if the court grants the §
2255 petition. Defendant asserts that the mandatory language
of the policy statement “demands an evidentiary
hearing” regarding statements made in a probation
officer’s memorandum. Doc. No. 84, Mot. at 6. He seeks
an evidentiary hearing on the bail issue so that
“counsel could cross- examine the BOP officials”
and “confront them with the BOP’s own policy
statement.” Id. at 9. The government responds
by arguing that Policy Statement 5880.28 § I.3c. (2) is
inapplicable. Doc. No. 86, Gov’t Mem. at 2.
court refuses to hold such an evidentiary hearing, especially
at this bail stage under the circumstances of this case.
Doing so would prematurely and unnecessarily turn this bail
matter into a hearing on the merits of the § 2255
motion. Regardless of the court’s view of the BOP
sentencing computation manual -- as the court reasoned in the
May 3, 2016 Order -- “[18 U.S.C.] § 3585(b) does
not authorize a district court to compute credit for time
served. Rather, the prerogative to grant credits in the first
instance rests with the Attorney General, acting through the
[BOP].” United States v. Peters, 470 F.3d 907,
909 (9th Cir. 2006) (citing United States v. Wilson,
503 U.S. 329, 334-35 (1992)). “[D]istrict courts lack
authority at sentencing to give credit for time
served.” Id. (citation omitted).
also makes much of the court’s footnote regarding
whether Descamps v. United States, 133 S.Ct. 2276
(2013) applies retroactively, arguing that -- especially in
an initial § 2255 petition (that is, not a “second
or successive” § 2255 petition) --
Descamps is not a “new rule” and is thus
not subject to a retroactivity bar under Teague v.
Lane, 489 U.S. 288 (1989). But this argument is
completely unnecessary in this case, and especially in this
bail context. Again, “if this court were to resentence
Defendant today, it would apply current law
--Descamps (as interpreted by other binding
precedent) -- to determine armed career criminal
status.” May 3, 2016 Order at 11, 2016 WL 2344197, at
*4 (footnote omitted).
most importantly, the record demonstrates that Defendant is
an extremely poor candidate for bail regardless of
Descamps and the court’s view of the
“time bank” issue. Defendant has had his
supervised release revoked twice. See Doc. No. 50
(revoking supervised release on Nov. 14, 2014); Doc. No. 67
(revoking supervised release on June 19, 2015). Most
recently, the court imposed the maximum revocation sentence
(with no term of supervised release to follow) because
Defendant admitted he was very difficult (if not
impossible) to supervise, and flatly told the court he would
not comply with any additional terms of supervised release.
He told the court he did not want to work with probation
officers, and would not do so under any circumstances. Given
this history of defiance, combined with his record of
violence and drugs, the court would not grant Defendant bail
in this § 2255 petition even assuming he has a valid
argument that Johnson v. United States, 135 S.Ct.
2551 (2015) applies to his original ACCA sentence.
See May 3, 2016 Order at 6 n.5; 2016 WL 2344197, at
*2 n.5 (“The court must also consider traditional bail
factors such as the potential that a defendant will flee or
pose a danger to the community.”) (citation omitted).
Motion for Reconsideration of the Court’s Order Denying
Defendant’s Motion for ...