Opinion
99-CV-5805(ILG)
July 11, 2001
MEMORANDUM AND ORDER
The petitioner has moved this Court pursuant to Rule 23(b) Fed.R.App.Pr. for an order that would release him from custody pending appeal from this Court's denial of his motion brought pursuant to 28 U.S.C. § 2255. In a habeas context, the grant of bail is reserved for extraordinary cases involving special circumstances or a high probability of success.United States v. Mett, 41 F.3d 1281 (9th Cir. 1995). The "special circumstance" urged upon the Court is the surgical removal of a cancerous kidney approximately one year ago. Absent, however, is any authoritative submission that the surgery was anything other than successful and that the prognosis for the petitioner's future is anything other than good. His belief in a high probability of success is the belief harbored by every appellant, without more.
The petitioner was sentenced on February 11, 1998, to a term of 123 months following a finding by a jury that he was guilty of interference with commerce by robbery (truck hijacking) in violation of 18 U.S.C. § 1951 and possessing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). The sovereign's interest in continuing custody is strongest when the remaining portion of a sentence is long, as it is here. Hilton v. Brounskill, 481 U.S. 770, 777 (1987). It is significant to note too that "The eligibility of a habeas petitioner for bail is not on the same footing as that of a pretrial accused who is presumptively innocent, or that of a convicted defendant on direct appeal, both of whom have a right to bail unless the Court finds an undue risk of flight . . . and undue risk of danger to the community. . . ." Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978) which then quoted Justice Douglas in Aronson v. May, 85 S.Ct. 3, 5 (1964) as follows:
"This applicant is incarcerated because he has been tried, convicted and sentenced by a court of law. He now attacks his conviction in a collateral proceeding. It is obvious that a greater showing of special reasons for admission to bail pending review should be required in this kind of case than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt. . . . (I)t is therefore necessary to inquire whether, in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice." (Citations omitted).
The Court has reviewed the petitioner's submission and concludes that it does not present an extraordinary case involving special circumstances nor does it portend a high probability of success. His motion, therefore, is denied.
SO ORDERED.