Tierney v. Abercrombie
Filing
121
ORDER DENYING PETITIONER'S APPEAL OF THE MAGISTRATE JUDGE'S ORDER DENYING MOTION FOR BAIL OR RELEASE re: 111 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/13/2012. ~ The Court construes petitioner's "Objections to U.S. Magistrate Judge Richard L. Puglisi denial of Bail or Release [dkt. no. 111 as Petitioner's Appeal of the magistrate judge's Order Denying Motion for Bail or Release [dkt. no. 110 ] ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,
)
)
Petitioner,
)
)
vs.
)
)
GOVERNOR NEIL ABERCROMBIE,
)
)
Respondent.
)
_____________________________ )
CIV. NO. 11-00246 LEK-RLP
ORDER DENYING PETITIONER’S APPEAL OF
THE MAGISTRATE JUDGE’S ORDER DENYING MOTION FOR BAIL OR RELEASE
Before the Court is pro se Petitioner Michael C.
Tierney’s (“Petitioner”) “Objections to U.S. Magistrate Judge
Richard L Puglisi denial of Bail or Release”, filed on June 25,
2012.
[Dkt. no. 111.]
The Court construes this document as
Petitioner’s Appeal1 of the magistrate judge’s Order Denying
Motion for Bail or Release, filed June 15, 2012 (“6/15/12
Order”).2
[Dkt. no. 110.]
The Court finds this matter suitable
for disposition without a hearing pursuant to Rule LR7.2(d) of
the Local Rules of Practice of the United States District Court
for the District of Hawai`i (“Local Rules”).
After careful
1
In contrast, a party may file objections “to a magistrate
judge’s case dispositive order, findings, or recommendations
under LR72.4, 72.5, and 72.6 [.]” Local Rule LR74.2.
2
The 6/15/12 Order ruled upon Petitioner’s “Motion for Bail
or Release Pending Disposition of Motion under Rule 60 b
F.R.C.P.”, filed on June 13, 2012 (“6/13/12 Bail Motion”). [Dkt.
no. 109.]
consideration of the Appeal and the relevant legal authority,
Petitioner’s Appeal is HEREBY DENIED for the reasons set forth
below.
STANDARD
Local Rule 74.1 states, in pertinent part:
A magistrate judge may hear and determine any
pretrial matter pending before the court, except
those motions delineated in LR72.4(a). . . . Any
party may appeal from a magistrate judge’s order
determining a motion or matter under LR72.3 . . .
within fourteen (14) days after being served with
a copy of the order.
Although Local Rule 74.1 applies to the determination of pretrial
matters, Rule 10 of the Rules Governing Section 2254 Cases, 28
U.S.C. foll. § 2254, states: “A magistrate judge may perform the
duties of a district judge under these rules, as authorized under
28 U.S.C. § 636.”
Thus, the magistrate judge had the authority
to rule upon Petitioner’s post-judgment 6/13/12 Bail Motion, and
Petitioner may appeal the magistrate judge’s ruling pursuant to
Local Rule 74.1.
In considering Petitioner’s Appeal, this Court must set
aside any portion of the magistrate judge’s 6/15/12 Order that
this Court determines is clearly erroneous or contrary to law.
See Local Rule LR74.1; see also 28 U.S.C. § 636(b)(1)(A).
“The
clearly erroneous standard applies to the magistrate judge’s
factual findings while the contrary to law standard applies to
the magistrate judge’s legal conclusions, which are reviewed de
2
novo.”
Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446
(C.D. Cal. 2007) (citations omitted).
Under the “clearly
erroneous” standard, the magistrate judge’s ruling must be
accepted unless, after reviewing the entire record, this Court is
“‘left with the definite and firm conviction that a mistake has
been committed.’”
United States v. Silverman, 861 F.2d 571,
576-77 (9th Cir. 1988) (some citations omitted) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
The district judge may not simply substitute his or her judgment
for that of the magistrate judge.
See Grimes v. City & Cnty. of
San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).
“A decision is
contrary to law if it applies an incorrect legal standard or
fails to consider an element of the applicable standard.”
Na
Pali Haweo Cmty. Ass’n v. Grande, 252 F.R.D. 672, 674 (D. Hawai`i
2008) (citation and quotation marks omitted).
DISCUSSION
I.
Jurisdiction
At the outset, this Court notes that, on July 12, 2012,
Petitioner filed a notice of appeal from the 6/15/12 Order to the
Ninth Circuit.
[Dkt. no. 119.]
Insofar as Petitioner filed the
instant timely Appeal to this Court before filing the notice of
appeal to the Ninth Circuit, the filing of the notice of appeal
did not divest this Court of jurisdiction to rule upon the
Appeal.
See, e.g., Olson v. Lui, Civ. No. 10–00691 ACK–RLP, 2012
3
WL 830288, at *1 (D. Hawai`i Mar. 8, 2012).
This Court therefore
turns to the merits of the instant Appeal.
II.
Merits of Petitioner’s Appeal
In the 6/15/12 Order, the magistrate judge denied
Petitioner’s 6/13/12 Bail Motion because Petitioner did not
present any special or extraordinary circumstances warranting his
release on bail.
The magistrate judge noted that the 6/13/12
Bail Motion cited legal authority related to the substantive
issues Petitioner raised in his pending motion under Federal Rule
of Civil Procedure 60(b); Petitioner’s cited authority did not
address the issue of bail or release pending a ruling on a Rule
60(b) motion.
In the instant Appeal, Petitioner argues that his
6/13/12 Bail Motion does present legal authority addressing that
issue.
In particular, the Appeal cites United States v.
Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004), for the proposition
that “due process protections require defendants have opportunity
to make evidentiary showing to secure release on bail because
statute confers sufficient liberty interest in continued release
and guilty verdict does not extinguish that interest.”
at 1.]
Motion.
[Appeal
Petitioner also cited Abuhamra in the 6/13/12 Bail
[6/13/12 Bail Motion at 1.]
Abuhamra does not support Petitioner’s position that he
is entitled to bail or release pending the disposition of his
4
Rule 60(b) motion.
In Abuhamra, the defendant was free on a
secured bond during the four-and-a-half-year period between his
arrest and his conviction.
The government moved for remand after
the verdict, and the district court initially granted the motion.
In denying Abuhamra’s motion for reconsideration, the district
court relied upon an ex parte and in camera submission from the
government regarding Abuhamra’s dangerousness.
Neither the
government’s submission nor the district court’s sealed final
order denying release on bail were ever provided to Abuhamra.
389 F.3d at 314-17.
The Second Circuit ultimately concluded
that, except in certain rare exceptions, “a court should
generally not rely on evidence submitted by the government ex
parte and in camera in ruling on a criminal defendant’s
application for release on bail.”
Id. at 332.
The Second
Circuit remanded the case to the district court for
reconsideration of Abuhamra’s bail application.
Id.
Abuhamra is inapplicable to the instant case.
First,
the magistrate judge did not consider ex parte or in camera
evidence in denying Petitioner’s 6/13/12 Bail Motion.
Second,
Petitioner’s interest in bail or release does not rise to the
same level as Abuhamra’s interest.
Unlike Abuhamra, who sought
to continue his pretrial release, Petitioner is incarcerated at
the Saguaro Correctional Center, and this Court has denied his
petition for writ of habeas corpus.
5
[Order, filed 9/30/11 (dkt.
no. 42).]
Petitioner seeks bail or release pending the
disposition of his Rule 60(b) motion filed on May 22, 2012.
[Dkt. no. 101.]
The Court emphasizes that the May 22, 2012 Rule
60(b) motion is Petitioner’s fifth such motion, and all four of
his previous Rule 60(b) motions were denied.
[Order Denying
Third & Fourth Rule 60(b) Motions for Reconsideration and Denying
Motion for Recusal, filed 5/17/12 (dkt. no. 98).]
Petitioner’s Appeal also cites 18 U.S.C. § 3145(c),
which states:
An appeal from a release or detention order, or
from a decision denying revocation or amendment of
such an order, is governed by the provisions of
section 1291 of title 28 and section 3731 of this
title. The appeal shall be determined promptly.
A person subject to detention pursuant to section
3143(a)(2) or (b)(2), and who meets the conditions
of release set forth in section 3143(a)(1) or
(b)(1), may be ordered released, under appropriate
conditions, by the judicial officer, if it is
clearly shown that there are exceptional reasons
why such person’s detention would not be
appropriate.
Petitioner’s Appeal, however, does not present any argument why
this Court should grant him release on bail pursuant to
§ 3145(c).
Finally, this Court notes that none of the cases
Petitioner cited in the 6/13/12 Bail Motion, except Abuhamra,
address the issue of bail or release.
This Court also agrees
with the magistrate judge that Petitioner has not presented any
special or extraordinary circumstances warranting his release on
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bail.
Accordingly, the Court CONCLUDES that the 6/15/12 Order
was neither clearly erroneous nor contrary to law and DENIES
Petitioner’s Appeal.
CONCLUSION
On the basis of the foregoing, Petitioner’s June 25,
2012 filing titled “Objections to U.S. Magistrate Judge Richard L
Puglisi denial of Bail or Release” is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 13, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHAEL C. TIERNEY V. GOVERNOR NEIL ABERCROMBIE; CIVIL NO. 1100246 LEK-RLP; ORDER DENYING PETITIONER’S APPEAL OF THE
MAGISTRATE JUDGE’S ORDER DENYING MOTION FOR BAIL OR RELEASE
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