Montue v. Stainer

Filing 27

ORDER Denying Petitioner's Motion For Release On His Own Recognizance (Doc. 11 ), signed by Magistrate Judge Sandra M. Snyder on 12/3/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MONTUE,
Petitioner,

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ORDER DENYING PETITIONER'S
MOTION FOR RELEASE ON HIS
OWN RECOGNIZANCE

v.

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Case No. 1:14-CV-01231-AWI-SMS HC

M.D. STAINER,
Respondent.

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(Doc. 11)

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Petitioner John Montue is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On August 22, 2014, Petitioner moved for release on his own
recognizance pending resolution of his petition. Respondent opposes Petitioner's release, noting that

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the parole board has found him unsuitable for release seventeen times. The Court declines to release
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Petitioner.
I.

Procedural and Factual Background
In 1979, Petitioner was convicted of kidnap and robbery charges, and sentenced to a term of

imprisonment of seven years to life.
The most recent hearing on Petitioner's suitability for parole occurred on June 5, 2013. The
board denied parole for a term of three years. The board relied on Petitioner's serious criminal

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history and his questionable credibility. It found Petitioner's version of the underlying incident
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implausible. The board also expressed concern that Petitioner lacked adequate understanding of the

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factors that led to his crime and of his anger. On the decision's face sheet, the board recommended

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that Petitioner stay discipline free and earn positive chronos, and that he get self-help and therapy, if

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available.

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On August 1, 2014, the parole board, acting on its own motion, advanced Petitioner's next
parole hearing to February 3, 2015. The board noted that Petitioner was receiving satisfactory work

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reports in his job as a porter. Since his 2013 parole hearing, he had begun participation in
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Alcoholics Anonymous, Restorative Justice, and Alternatives to Violence. The 2015 hearing was

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scheduled to provide Petitioner with an opportunity to demonstrate that with the passage of time, he

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had developed a better understanding of the causes and conditions of his crime.

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II.

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Discussion
Arguing that he has been in custody for a time disproportionate to his culpability for the

underlying crimes, Petitioner contends that this Court should release him on his own recognizance.

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The Ninth Circuit has not resolved the issue of whether a district court may release a state
prisoner on bail pending resolution of habeas proceedings in extraordinary cases. In re Roe, 257

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F.3d 1077, 1080 (9th Cir. 2001). Even if a district court has the power to release a state prisoner

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pending resolution of a habeas proceeding, "the exercise of such authority is reserved for

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extraordinary cases." Roberson v. Copenhaven, 2013 WL 6182533 at *2 (E.D.Cal. Nov. 25, 2013)

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(No. 1:12-cv-01074-JLT). "[R]elease on bond is rarely granted in a habeas corpus case." Vaughn v.

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Adams, 2006 WL 2585041 at *10 (E.D. Cal. Sept. 5, 2006), adopted 2007 WL 499629 (E.D. Cal.
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Feb. 13, 2007) (No. CV-F-01-5241-OWW-DLB HC).
The federal court's authority to release a state prisoner on recognizance or surety in the

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course of a habeas corpus proceeding derives from the power to issue the writ itself. Marino v.

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Vasquez, 812 F.2d 499, 507 (9th Cir. 1987). See Ostrer v. United States, 584 F.2d 594, 596 n.1 (2nd

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Cir. 1978); In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975); United States ex rel. Thomas v. New
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Jersey, 472 F.2d 735, 743 (3d Cir. 1973); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per

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curiam). The district court has the inherent power to enlarge a state prisoner on bond pending

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hearing and decision on his application for a writ of habeas corpus. See Turner v. Yates, 2006 WL

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1097319 at *1, adopted 2006 WL 2331125 (E.D.Cal. April 26, 2006) (No. CIV S-03-2248-DFL-

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PAN P).

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The bail standard for a person seeking collateral review differs from that applicable to a

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pretrial detainee. McNeely v. County of Sacramento, 2010 WL 1444626 at *1 (E.D.Cal. April 12,
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2010) (No. 2:09-cv-02520-WBS-GGH P). Although accused persons awaiting trial are presumed

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innocent and have an Eighth Amendment right to be free from excessive bail, a habeas corpus

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petitioner requesting post-conviction relief has been criminally convicted and no longer possesses

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the right to personal freedom, however conditional. Id. As a result, a district may not appropriately

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release an individual on bail even if the allegations of his habeas petition set forth a clear case for
release. Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964). In addition to substantial issues set

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forth in the petition, some circumstance must make the application exceptional and deserving of
special treatment in the interests of justice.

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"In this kind of case it is therefore necessary to inquire whether, in addition to there being

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substantial questions presented by the appeal, there is some circumstance making this application

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exceptional and deserving of special treatment in the interests of justice." Aronson v. May, 85 S.Ct.

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3, 5 (1964). To secure release on bail or recognizance, a petitioner must set forth both substantial

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constitutional claims upon which he has a high probability of success and the presence of
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extraordinary or exceptional circumstances. Id. at 5.

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Courts construing the first prong on the Aronson analysis have required that the petitioner's

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claims be more than substantial. McNeely, 2010 WL 1444626 at *2; Turner, 2006 WL 1097319 at

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*1. See, e.g., Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974) (per curiam) (holding bail may

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be granted to a military prisoner seeking post-conviction relief only when the petitioner has raised
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constitutional claims upon which he has a high probability of success and when there are

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extraordinary or exceptional circumstances); Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972)

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(holding that the court will grant bail only when the petitioner presents both a clear case on the law

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and a case readily apparent on the facts); Richardson v. Wilhelm, 587 F.Supp. 24, 25 (D.Nev. 1984)

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(denying bail where the petitioner did not demonstrate a reasonable probability that his challenged

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sentence was attributable to weight given an improper factor); Monroe v. State Court of Fulton

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County, 560 F.Supp. 542, 545 (N.D.Ga. 1983) (limiting release in collateral actions to only
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exceptional circumstances). The Ninth Circuit has emphasized how extraordinary constitutional
claims would need to be to satisfy this prong:
There are thousands of prisoners confined in state prisons, any of whom, with
little assistance from their cell mates, would have no difficulty in drafting a
petition for writ of habeas corpus which would allege substantial violations of
constitutional rights. We do not propose . . . to open the door to the release of
those thousands of prisoners on the basis of mere allegations in their petitions.

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Roe, 257 F.3d at 1080 (quoting Benson, 328 F.2d at 163 n. 2).

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Noting that Roe's claim of actual innocence rested on the statements of a codefendant to his

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counsel that Roe was not involved in the crime and the plethora of evidence of the codefendant's

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lack of credibility, the appellate court also emphasized that an argument for release in a post-

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conviction action needed to be far stronger. Here, Petitioner bases his claim that the parole board's

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procedure for setting a base term is unconstitutional on a settlement agreement which is neither

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publically available nor appended to his motion, apparently involving a similar claim against the

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parole board by an unrelated petitioner. In re Roy Butler (Cal. App. Dist. 1, March 7, 2014) (Nos.
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A139411 and A137273).1 This authority is not compelling.
Nor does Petitioner demonstrate exceptional circumstances justifying relief, as required for

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the second Aronson prong. In its discretion, a court may find exceptional circumstances when (1) a

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See also In re Roy Butler, 2014 WL 2779170 (App. Brief ) (Cal. S.Ct., May 15, 2014) (No. S217611) (referring to
settlement between Butler and the parole board).

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petitioner demonstrates a health exigency that cannot be appropriately addressed in prison (Roe, 257

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F.3d at 1081); (2) processing of the petition has been delayed for an unconscionable time period

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(Glynn, 470 F.2d at 99); or (3) an extraordinary claim could not be resolved before the court could

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complete collateral review (Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir. 1968)). See also

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Cooley v. Holland, 2014 WL 3889974 at *5 (E.D. Cal. Aug. 7, 2014) (No. 2:14-cv-00343-KJN P)

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(denying motion for release despite the approaching end of the petitioner's approximately seven-year

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sentence where the petitioner failed to demonstrate extraordinary circumstances or a high probability
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of success); Hall v. San Francisco Superior Court, 2010 WL 890044 at *13 (N.D.Cal. Mar. 8, 2010)

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(No. C 09-5299 PJH) (denying motion for release due to low probability of success of the

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petitioner's claims but noting that the short remaining duration of the petitioner's sentence constituted

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extraordinary circumstances).

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Finally, a district court considering the release of a habeas petitioner must consider the
petitioner's risk of flight and danger to the community if he were to be released. Marino, 812 F.2d at

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508-09; Rodrigues v. Johnson, 2014 WL 3890679 at *17 (E.D.Cal. Aug. 7, 2014) (No. 1:13-cv01322-BAM HC). In determining suitability for release, the court may rely on the crime of which

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the petitioner was convicted and the outcome of his most recent parole denial. Canas v. Curry, 2010

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WL 5088222 at *2 (N.D.Cal. Dec. 8, 2010) (No. C 09-0081 MMC (PR)) (finding evidence to

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support the board's finding of unsuitability for parole based on the petitioner's criminal history,

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history of drug abuse, and recently acquired insight into his criminal and addictive behavior).

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Petitioner's convictions for kidnapping and robbery, which resulted in a sentence of seven years to
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life in prison, are serious. Following Petitioner's most recent parole hearing, the face sheet of which

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he has appended to his reply brief, the board denied parole based on Petitioner's serious criminal

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history, his questionable credibility, his implausible version of the underlying incident, and his

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adequate understanding of the factors that led to his crime and of his anger. Although the board

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advanced Petitioner's next parole hearing based on apparent improvement in Petitioner's job
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performance and participation in self-help activities, it set the date in 2015 to allow Petitioner to

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continue to establish evidence of improved performance. Even if Petitioner had presented a more

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compelling case, the Court could not confidently have concluded that he could safely be released.

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III.

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Conclusion and Order
Petitioner's having failed to establish an unusually substantial constitutional claim and

extraordinary circumstances, the Court hereby DENIES Petitioner's motion for release on his own

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recognizance.
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IT IS SO ORDERED.
Dated:

December 3, 2014

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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