Tierney v. Abercrombie
Filing
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ORDER DENYING PETITIONER MICHAEL TIERNEY'S: 17 (1) APPEAL OF ORDER DENYING MOTIONS FOR RELEASE ON BAIL, APPOINTMENT OF COUNSEL, AND EVIDENTIARY HEARING; AND (2) REQUEST FOR A CERTIFICATE OF APPEALABILITY: "On the basis of the foregoing , Plaintiff's Motion, titled Notice of Appeal Certificate of Appealability and filed May 12, 2011, is HEREBY DENIED. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on May 31, 2011. (bbb, )CERTIF ICATE 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
#A0102434,
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Plaintiff,
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vs.
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WARDEN NOLAN P. ESPINDA,
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Defendant.
_____________________________ )
CIVIL NO. 11-00246 LEK-RLP
ORDER DENYING PETITIONER MICHAEL TIERNEY’S:
(1) APPEAL OF ORDER DENYING MOTIONS FOR RELEASE ON
BAIL, APPOINTMENT OF COUNSEL, AND EVIDENTIARY HEARING;
AND (2) REQUEST FOR A CERTIFICATE OF APPEALABILITY
Before the Court is pro se Petitioner Michael Tierney’s
(“Petitioner” or “Tierney”) “Notice of Appeal Certificate of
Appealability” (“Motion”), filed on May 12, 2011.
[Dkt. no. 17.]
In the Motion, Plaintiff seeks “to appeal the denial of release
or bail pending disposition of his application of his Petition
for Writ of Habeas Corpus.”
[Motion at 1.]
a “Certificate of Appealability”.
[Id.]
Plaintiff also seeks
The Court construes
Plaintiff’s Motion as both an appeal to this Court of the
magistrate judge’s Order Denying Motions for Release on Bail,
Appointment of Counsel, and Evidentiary Hearing (“Bail Order”),
[filed 5/4/11 (dkt. no. 13),] and a request that this Court
certify the Bail Order for interlocutory appeal.
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 consideration of the Motion and the
relevant legal authority, Petitioner’s Motion is HEREBY DENIED.
BACKGROUND
On April 21, 2011, Tierney filed a petition for writ of
habeas corpus (“Petition”).
[Dkt. no. 5.]
On April 26, 2011,
the magistrate judge issued an order that, inter alia, dismissed
the Petition for failure to name a proper respondent and directed
Petitioner to file an amended petition on or before May 25, 2011.
[Dkt. no. 8.]
On April 28, 2011, Petitioner filed three motions,
including his “Motion for Release or Bail Pending Disposition of
Application of Petition of Writ of Habeas Corpus” (dkt. no. 10)
(“Bail Motion”).
On May 4, 2011, the magistrate judge issued the
Bail Order denying these motions.
Petitioner filed his amended petition on May 5, 2011.
[Dkt. no. 14.]
DISCUSSION
I.
Appeal of the Bail Order
Petitioner “requests to appeal the denial of release or
bail pending disposition of his application of his Petition for
Writ of Habeas Corpus.”
[Motion at 1.]
The Court interprets
this request as an appeal of the Bail Order to this Court.
A party may appeal to the district court any
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pretrial nondispositive matter ruled on by a
magistrate judge. 28 U.S.C. § 636(b)(1)(A). A
magistrate judge’s order regarding nondispositive
matters may be reversed by the district court
judge only when it is “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.
R. Civ. P. 72(a).
JJCO, Inc. v. Isuzu Motors Am., Inc., Civ. No. 08-00419 SOM-LEK,
2009 WL 3569600, at *2 (D. Hawai`i Oct. 30, 2009) (footnote
omitted).
The threshold of the “clearly erroneous” test
is high and significantly deferential. “A finding
is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948); Mathews v. Chevron Corp., 362 F.3d
1172, 1180 (9th Cir. 2004). In comparison, a
magistrate judge’s order is contrary to law if the
judge applies an incorrect legal standard or fails
to consider an element of the applicable standard.
See Hunt v. Nat’l Broad. Co., 872 F.2d 289, 292
(9th Cir. 1989) (noting that such failures
constitute abuse of discretion).
Club at Hokuli`a, Inc. v. Am. Motorists Ins. Co., Civil No.
10-00241 JMS-LEK, 2010 WL 4386741, at *3 (D. Hawai`i Oct. 26,
2010) (some citations omitted).
A district judge must not simply
substitute her judgment for the magistrate judge’s judgment.
JJCO, 2009 WL 3569600, at *2 (citing Grimes v. City & County of
San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (noting that a
magistrate judge’s nondispositive pretrial orders under §
636(b)(1)(A) are not subject to a de novo determination)).
Petitioner’s Motion does not identify any aspects of
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the Bail Order that are “clearly erroneous or contrary to law[,]”
nor has this Court found any.
The Court therefore FINDS that
there are no grounds warranting reversal of the denial of
Petitioner’s Bail Motion.
Petitioner’s Motion is therefore
DENIED to the extent that it appeals the Bail Order to this
Court.
II.
Request for Certification for Interlocutory Appeal
Petitioner requests a certificate of appealability from
this Court to appeal the Bail Order to the Ninth Circuit.
[Motion at 1.]
Petitioner also argues that the Bail Order is
immediately appealable as a collateral order because the subject
of the order is separable from its merits and the order would
otherwise be unreviewable.
[Id. (citing Grune v. Coughlin, 913
F.2d 41, 43-44 (2d Cir. 1990)).]
The Court construes
Petitioner’s request for a certificate of appealability as a
request to certify the Bail Order for interlocutory appeal.1
A district judge can certify an otherwise nonappealable order for interlocutory appeal pursuant to 28 U.S.C. §
1292(b), which states, in pertinent part:
When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
1
The Court notes that Plaintiff cannot obtain a certificate
of appealability for the Bail Order because it is not a final
order. See 28 U.S.C. § 2253(c).
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involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the
order may materially advance the ultimate
termination of the litigation, he shall so state
in writing in such order. . . .
This district court has recognized that:
An interlocutory appeal should be granted
“only in exceptional situations in which allowing
an interlocutory appeal would avoid protracted and
expensive litigation.” In re Cement Antitrust
Litig., 673 F.2d [1020,] 1026 [(9th Cir. 1982)]
(citing U.S. Rubber Co. v. Wright, 359 F.2d 784,
785 (9th Cir. 1966) (per curiam)); see also
Coopers & Lybrand [v. Livesay], 437 U.S. [463,]
475 [(1978)]; United States v. Woodbury, 263 F.2d
784, 788 n.11 (9th Cir. 1959). The party seeking
certification of an interlocutory order has the
burden of establishing the existence of such
exceptional circumstances. See Coopers & Lybrand,
437 U.S. at 475.
Durham v. Cnty. of Maui, Civ. No. 08-00342 JMS/LEK, 2010 WL
3984658, at *2 (D. Hawai`i Oct. 8, 2010).
Petitioner cites Grune v. Coughlin, 913 F.2d 41, 43-44
(2d Cir. 1990), for the proposition that an order denying bail
pending review of a habeas petition is immediately appealable as
a collateral order.
[Motion at 1.]
has held to the contrary.
The Ninth Circuit, however,
See Land v. Deeds, 878 F.2d 318, 318
(9th Cir. 1989) (per curiam) (dismissing for lack of jurisdiction
appeal of a magistrate judge’s order denying bail pending a
decision on a petition for a writ of habeas corpus because it was
“neither an appeal from a final judgment, nor a valid
interlocutory appeal under the collateral order exception”
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(citations omitted)).
The Court therefore FINDS that the Bail
Order does not present an exceptional situation in which an
interlocutory appeal is warranted, particularly where there was
no pending habeas petition in this case at the time Petitioner
filed the Bail Motion.
Petitioner’s Motion is therefore DENIED
to the extent that it requests certification of the Bail Order
for interlocutory appeal.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion,
titled “Notice of Appeal Certificate of Appealability” and filed
May 12, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 31, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHAEL C. TIERNEY V. WARDEN NOLAN ESPINDA; CIVIL NO. 11-00246
LEK-RLP; ORDER DENYING PETITIONER MICHAEL TIERNEY’S (1) APPEAL OF
ORDER DENYING MOTIONS FOR RELEASE ON BAIL, APPOINTMENT OF
COUNSEL, AND EVIDENTIARY HEARING; AND (2) REQUEST FOR A
CERTIFICATE OF APPEALABILITY
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