Robben v. D'Agostini
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 09/18/17 DENYING 8 Motion for bail review. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TODD ROBBEN,
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No. 2:16-cv-2742-CMK-P
Petitioner,
vs.
ORDER
JOHN D’AGOSTINI,
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge
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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the
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action. Pending before the court is petitioner’s motion for release (Doc. 8).
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Petitioner moves this court for an order authorizing his release from custody
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pending resolution of his habeas petition. Petitioner contends he was sentenced to six months in
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jail, which is much longer than similarly situated people, for an alleged probation violation. He
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argues that punishment is grossly disproportionate to his offense, which violations constitutional
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norms. From his habeas petition, it appears petitioner was convicted of driving under the
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influence and was sentenced to five years probation and six months in custody. However, it
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appears petitioner was thereafter convicted of violating the terms of his probation. It is unclear to
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the court what his current sentence for the probation violation is.
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Under current circuit authority, it is not clear whether this court has the authority
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to release petitioner prior to the resolution of habeas petition as he requested. Petitioner cites
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Aronson v. May, 85 S.Ct. 3 (1964), Blair v. McCarthy, 881 F.3d 602 (1989) (overruled by
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McCarthy v. Blair, 498 U.S. 954 (1990), and Land v. Deeds, 878 F.2d 318 (9th Cir. 1989), in
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support of his request. However, none of those cases clearly support his position. While
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Aronson and Land may have lent some support to petitioner’s petition, any such support has been
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called into question by more recent Ninth Circuit authority. In In re Roe, 257 F.3d 1077, 1080
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(9th Cir. 2001), the Ninth Circuit specifically decided to side-step the question of whether a
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district court has the authority to grant a pre-decision release of a state prisoner. Instead, the
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Court decided that “[a]ssuming, arguendo, that a district court has the authority to release a state
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prisoner on bail pending resolution of habeas proceedings in extraordinary cases,” there must be
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a showing “that this is an ‘extraordinary case [] involving special circumstances or high
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probability of success.’” Id. (quoting Land, 878 F.2d at 318). If this court does the same, and
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assumes arguendo that it has the authority to grant petitioner’s request under 28 U.S.C. § 2254,
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petitioner would have to make a showing that this is an “extraordinary case” involving “special
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circumstances or a high probably of success.” Id. Even taking the standards from the cases
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petitioner cites, to qualify for release petitioner must show (1) the presence of special
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circumstances in his case and (2) a clear and readily evident entitlement to relief on the merits of
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his habeas claims; making his application “exceptional and deserving of special treatment in the
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interest of justice.” Aronson, 85 S.Ct. at 5.
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Here, petitioner argues he should be released prior to resolution of his habeas
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petition because he is serving a sentence much longer than similarly situated people. Even
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assuming the truth of his argument, he fails to make a showing that this is an “extraordinary
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case” involving “special circumstances” or “a high probability of success.” The claims petitioner
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raises in his petition include unfair trial, ineffective assistance of counsel, and Due Process
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violation relating to trial testimony. Nothing in his petition appears to rise to the level of special
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circumstances, nor does petitioner point to any. Rather, these are similar claims raised by a
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majority of prisoners on post-conviction appeal. As other courts have discussed, an arrestee
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asking for bail is presumed innocent as he has not been convicted of any offense; whereas a
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petitioner requesting a post-conviction release does not have the same presumption. Petitioner
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simply fails to meet his burden of showing (or even alleging) special circumstances.
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Based on the foregoing, the court cannot find special circumstances at this time to
grant petitioner’s request to be released prior to the resolution of his habeas petition. This is
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especially true at this early stage of the proceedings. The request will be denied without
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prejudice.
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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for bail or
release (Doc. 8) is denied.
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DATED: September 18, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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