(HC) Johnson v. Superior Court of the State of California for Kings County et al

Filing 9

ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATION Regarding Petitioner's Application for Release on Bail Pending Determination of Petition, signed by Magistrate Judge Jennifer L. Thurston on 9/24/19. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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)
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Petitioner,
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v.
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SCOTT KERNAN, Secretary of California
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Department of Corrections and Rehabilitation, )
et al.,
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Respondents.
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DERRICK L. JOHNSON,

Case No.: 1:19-cv-00976-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATION
REGARDING PETITIONER’S APPLICATION
FOR RELEASE ON BAIL PENDING
DETERMINATION OF PETITION

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Petitioner filed a Petition for Writ of Habeas Corpus on July 3, 2019. (Doc. 1.) In the petition,
Petitioner requested bail pending the determination of the petition. (Doc. 1 at 2.)
DISCUSSION
The Ninth Circuit Court of Appeals has not yet determined whether a district court has the

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authority to release a state prisoner on bail pending resolution of a habeas proceeding. In re Roe, 257

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F.3d 1077, 1079-1080 (9th Cir. 2001). However, even assuming a district court has this power, the

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exercise of such authority is reserved for extraordinary cases. Id., 257 F.3d at 1080; see also United

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States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (bail pending the resolution of a habeas

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corpus petition filed in a district court is reserved to "extraordinary cases involving special

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circumstances" and where there is a high probability of the petitioner's success). A petitioner must

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demonstrate circumstances that makes his situation exceptional and especially deserving of bail in the
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interests of justice. See Aronson v. May, 85 S.Ct. 3, 5, 13 L. Ed. 2d 6 (1964) (Douglas, Justice, in

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chambers); Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964). In addition to these factors, the

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Court must take into consideration the petitioner's risk of flight and the danger to the community

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should the petitioner be released. Marino v. Vasquez, 812 F.2d 499, 508-09 (9th Cir. 1987). Petitioner

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has made none of these showings.
RECOMMENDATION

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Accordingly, the Court RECOMMENDS that Petitioner’s request for release on bail pending
determination of the petition be DENIED.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, any party may file written objections with the Court.

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Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Replies to objections must be filed within ten court days of the date of service of

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any objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636

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(b)(1)(C). The parties are forewarned that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 24, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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