Reem v. Hennessy

Filing 8

ORDER by Judge Breyer denying 5 Motion to Dismiss and granting petition for habeas corpus. (crblc2S, COURT STAFF) (Filed on 11/29/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JAMES REEM,
Petitioner,

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United States District Court
Northern District of California

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Case No. 17-cv-06628-CRB

v.
VICKI HENNESSY,

ORDER DENYING MOTION TO
DISMISS AND GRANTING
PETITION FOR HABEAS CORPUS

Respondent.
James Reem petitions this Court for a writ of habeas corpus. He argues that he is

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being detained by the State of California in violation of the United States Constitution

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because the state magistrate set bail so high as to convert his conditional release to a

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pretrial detention order, which imposes additional constitutional requirements that the

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hearing before the magistrate did not satisfy. California’s Attorney General agrees that

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Reem is being detained in violation of the constitution. Nevertheless, the Attorney

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General apparently prefers that Reem remain in custody. He argues that granting Reem’s

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petition would inappropriately interfere with state criminal proceedings against Reem. On

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the contrary, this is precisely the type of situation the writ is intended to address. The

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Court therefore GRANTS Reem’s petition. However, this order is STAYED for 48 hours

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to afford the state court an opportunity to conduct another detention hearing that accords

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with constitutional requriements.

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Reem, a 53-year-old San Francisco resident, has been detained in state prison

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pending trial. The due process clauses of the Fifth and Fourteenth Amendments bar

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pretrial detention unless detention is necessary to serve a compelling government interest.

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Lopez-Valenzuela, 770 F.3d at 780. A state may, however, impose conditions on an

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arrestee’s release, such as bail. Bail is a security, whether in the form of cash or a bond,

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given for the purpose of ensuring the appearance of the defendant in court. In re

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Underwood, 508 P.2d 721, 723–75 (Cal. 1973). “[B]ail set at a figure higher than an

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amount reasonably calculated to fulfill [its] purpose [of assuring the presence of the

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accused at trial] is ‘excessive’ under the Eighth Amendment.” Lopez-Valenzuela v.

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Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (quoting Stack v. Boyle, 342 U.S. 1, 5 (1951)).

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Setting excessive bail amounts to ordering pretrial detention, triggering the procedural

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requirements applicable to such an order. United States v. Mantecon-Zayas, 949 F.2d 548,

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550–51 (1st Cir. 1991).

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Reem was arrested on July 28, 2017, and charged with several felony and

United States District Court
Northern District of California

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misdemeanor offenses. Dkt. 1 Ex. A at 40–47. At his arraignment, defense counsel

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requested release without financial conditions. The magistrate denied this request, setting

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bail at $330,000. Dkt. 1 Ex. A at 58. Reem moved to reduce bail, arguing that the amount

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set was unreasonably high, and that, in the alternative, the magistrate failed to make the

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required findings for a pretrial detention order. A different magistrate denied the request.

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Dkt. 1 Ex. A at 97–98.

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On Sept. 11, Reem filed a petition for a writ of habeas corpus in the California

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Court of Appeal. The court summarily denied his petition on Sept. 14. Dkt. 1 Ex. B at 40.

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Reem next petitioned for review in the California Supreme Court. The Attorney General

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filed a statement of non-opposition, acknowledging that Reem’s detention had no legal

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basis. Dkt. 1 Ex. C. The California Supreme Court denied the petition for review on Nov.

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15. Dkt. 1 Ex. D. The following day, Reem filed an “emergency petition for writ of

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habeas corpus” in this Court. The Attorney General moved to dismiss the petition on Nov.

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22, and Reem filed his opposition on Nov. 27.

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Because Reem is not in custody “pursuant to the judgment of a state court,” see 28

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U.S.C. § 2254(a), this Court reviews Reem’s claims under 28 U.S.C. § 2241, which

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implements the “general grant of habeas corpus authority,” see Frantz v. Hazey, 533 F.3d

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724, 735 (9th Cir. 2008). Review under § 2241 is de novo. Id. at 736.
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Having declined to defend the constitutionality of Reem’s detention before the

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California Supreme Court, the Attorney General does not do so here. Nevertheless, he

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argues that this Court lacks authority to grant Reem’s petition for a writ of habeas corpus.

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Specifically, he contends that the Court should abstain from hearing the case under

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Younger v. Harris, 401 U.S. 37, 46 (1971).

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But Younger is inapposite. That case concerned the question of whether and when
a federal court may enjoin the enforcement of a statute in an ongoing state criminal

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prosecution. See Samuels v. Mackell, 401 U.S. 66, 69 (1971). Reem is not trying to halt

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his prosecution for the offenses with which he has been charged. Rather, he is challenging

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the decision to confine him prior to trial. That decision was made months ago, and Reem

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United States District Court
Northern District of California

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has exhausted his state appeals. Given that he has satisfied the exhaustion requirement—a

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fact the state does not appear to dispute—Younger does not preclude federal habeas relief.

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The exhaustion requirement addresses the same concerns of comity between federal and

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state courts as Younger does. See Dickerson v. State of La., 816 F.2d 220, 225–26 (5th

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Cir. 1987) (“The exhaustion doctrine of section 2241(c)(3) was judicially crafted on

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federalism grounds in order to protect the state courts’ opportunity to confront and resolve

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initially any constitutional issues arising within their jurisdictions as well as to limit federal

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interference in the state adjudicatory process.”).

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A number of circuit courts have entertained habeas petitions alleging

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unconstitutional detention or excessive bail prior to trial. See Atkins v. People of State of

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Mich., 644 F.2d 543, 549 (6th Cir. 1981) (“The protection against unreasonable bail

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pending trial has been found by the federal courts to be one of the few rights . . . whose

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vindication may be asserted prior to trial, either by direct appeal of an adverse

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interlocutory order or by a petition for habeas corpus.”) (emphasis added); accord, Finetti

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v. Harris, 609 F.2d 594, 599 (2d Cir. 1979); Jenkins v. Harvey, 634 F.2d 130, 132 (4th Cir.

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1980); Meechaicum v. Fountain, 696 F.2d 790, 792 (10th Cir. 1983). The Supreme Court

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has also recognized the right to bring a habeas petition prior to trial. Braden v. 30th

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Judicial Circuit Court of Kentucky, 410 U.S. 484, 488 (1973) (allowing petitioner to raise
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speedy trial claim prior to trial where he had exhausted available state remedies). As has

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the Ninth Circuit. Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (“[T]he general

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grant of habeas authority in § 2241 is available for challenges by a state prisoner who is

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not in custody pursuant to a state court judgment—for example, a defendant in pre-trial

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detention or awaiting extradition.”) (emphasis added).
Against these authorities, the Attorney General offers up an unpublished Ninth

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Circuit case, Lazarus v. Baca, 389 Fed. App’x 700 (9th Cir. 2010), and a slew of district

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court cases citing Lazarus. Lazarus cited none of the circuit court cases analyzing this

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issue, reasoning only that granting a writ of habeas corpus to release a prisoner from pre-

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trial detention would interfere with a pending state criminal prosecution by increasing the

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United States District Court
Northern District of California

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chance that the prisoner will not appear at trial. This argument fails on both the facts and

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the law: on the facts, because the state could simply hold another (constitutionally

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adequate) detention hearing; on the law, because this is not the type of interference

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Younger had in mind. Younger concerned a federal court’s decision to enjoin a district

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attorney from prosecuting an individual under a state statute. Younger, 401 U.S. at 38–40.

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That is plainly not the situation here: granting habeas relief will have no direct effect on

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Reem’s prosecution. The Court thus finds Lazarus and the cases relying on it

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unpersuasive. 1
The Attorney General next pushes policy considerations into the ring, noting that

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the Legislature is considering reforms to the state’s pretrial detention system “based in part

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on policy concerns similar to those that petitioner seeks to place before the Court.” Mot. at

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7. But Reem is not arguing that he is entitled to habeas relief as a matter of public policy.

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To be clear, the Court disagrees with the reasoning of the following cases: Bautista v. California,
2016 U.S. Dist. LEXIS 135005, at *2–4 (C.D. Cal. 2016) (citing Lazarus); Bartmann v. Unknown,
2015 U.S. Dist. LEXIS 171906, at *1–2 (C.D. Cal. 2015) (citing Lazarus); Torelli v. L.A. State
Police, 2014 U.S. Dist. LEXIS 145623, at *1–6 (C.D. Cal. 2014) (citing Lazarus); Goldsmith v.
Lewis & Clark Cty., 2014 U.S. Dist. LEXIS 27718, at *10–11 (D. Mont. 2014) (citing Lazarus);
Hunter v. Youngblood, 2013 U.S. Dist. LEXIS 174315, at *2–7 (E.D. Cal. 2013) (citing Lazarus);
Nesbitt v. California, 2012 U.S. Dist. LEXIS 180594, at *2–7, adopted, 2012 U.S. Dist. LEXIS
180593 (C.D. Cal. 2012) (citing Lazarus); Robinson v. Sniff, 2009 U.S. Dist. LEXIS 36391, at
*2–3 (C.D. Cal. 2009). Merrick v. Ornell is distinguishable because the petitioner in that case did
not exhaust his state remedies. See 1997 U.S. Dist. LEXIS 24410, at *2 (N.D. Cal. 1997).
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