Fontenot v. Ryan et al

Filing 32

ORDER denying 29 Petitioner's Motion for Release; denying 30 Motion to Expand Current Motion under Review; granting 31 Motion for Status. The Clerk of Court shall mail Petitioner date stamped copies of Documents 29 and 30 . The Cler k shall also mail Petitioner a copy of the docket list in this case. Petitioner is hereby notified that his § 2254 Petition is currently under review by this Court. Signed by Magistrate Judge Eric J Markovich on 9/12/2016. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derrick Berry Fontenot,

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Petitioner,

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ORDER

v.

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No. CV-15-00089-TUC-JGZ (EJM)

Charles Ryan, et al.,

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Respondents.

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Pending before the Court are Petitioner’s Motion for Custody or Release of a

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Prisoner in a Habeas Corpus Proceeding (Doc. 29), Motion to Expand Current Motion

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under Review (Doc. 30), and Motion for Status of Case and Copies (Doc. 31).

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Petitioner previously filed a Motion for Custody or Release of a Prisoner in a

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Habeas Corpus Proceeding. (Doc. 27). The Court denied the motion, reasoning that:

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“There is no controlling case law from the Ninth Circuit directing whether the district

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courts have the authority to grant release pending a decision on a habeas petition filed by

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a state prisoner. Further, even assuming this Court does possess such authority, Petitioner

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has failed to present any argument suggesting that his case falls within the ‘extraordinary

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circumstances’ where bail is warranted.” (Doc. 28 at 5).

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In his present Motion for Release, Petitioner states that he will explain why he

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should be released pending review of his § 2254 Petition. However, Petitioner fails to

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present any argument as to why this Court should grant his release, but rather focuses his

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motion on addressing the substantive arguments at issue in the Petition. Likewise, in his

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Motion to Expand the Motion for Release, Petitioner presents additional case law in

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support of his Petition, but makes no argument specific to the Motion for Release. Thus,

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Petitioner has wholly failed to present the Court with any argument as to why the Court

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should grant his release.

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Further, even assuming that the First Circuit case of Woodcock v. Donnelly, 470

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F.2d 93 (1st Cir. 1972), is binding on this Court, which it is not, the court’s statement that

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“a district court . . . has inherent power to release the petitioner pending determination of

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the merits” does not mean that the district court is required to release a petitioner simply

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because he requests it. Id. at 94. More importantly, as previously noted by this Court, the

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Ninth Circuit has not yet resolved the issue of whether a federal court has the power to

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grant bail to a prisoner pending a decision on a habeas corpus petition. See In re Roe, 257

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F.3d 1077, 1080 (9th Cir. 2001); see also United States v. Carreira, 2016 WL 1047995,

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at *1 (D. Haw. Mar. 10, 2016) (“this Court cannot act where it lacks the authority to do

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so, and . . . it is not clear that district court authority to grant bail pending a Section 2255

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motion exists in this Circuit at this time.”). Even assuming that the district courts do have

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such authority, in Roe the court noted that bail should only be granted in extraordinary

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cases. Roe, 257 F.3d at 1080; see also Canas v. Curry, 2010 WL 5088222, at *1 (N.D.

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Cal. Dec. 8, 2010) (“assuming such authority exists, the Court notes that a prisoner’s

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release on bail pending a decision in a habeas case is reserved for extraordinary cases

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involving special circumstances or a high probability of success.”). Here, even assuming

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that this Court does have the authority to grant Petitioner’s release, Petitioner’s Motion

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for Release and Motion to Expand the Motion for Release fail to make any argument as

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to why this is an “extraordinary case[] involving special circumstances [and has] a high

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probability of success” such that bail is warranted.

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Accordingly,

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IT IS HEREBY ORDERED denying Petitioner’s Motion for Release. (Doc. 29).

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IT IS FURTHER ORDERED denying Petitioner’s Motion to Expand Current

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Motion under Review. (Doc. 30).
IT IS FURTHER ORDERED granting Petitioner’s Motion for Status (Doc. 31)
as follows:
1) The Clerk of Court shall mail Petitioner date stamped copies of Documents 29 and
30.

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2) The Clerk shall also mail Petitioner a copy of the docket list in this case.

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3) Petitioner is hereby notified that his § 2254 Petition is currently under review by

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this Court. All appropriate responses and replies have been filed, and no additional

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filings are required for the Court to issue a decision on the Petition. Petitioner shall

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be notified by the Court when any further action is taken in his case.
Dated this 12th day of September, 2016.

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