Leach v. USA
ORDER (1) DENYING DEFENDANT'S MOTION FOR RELEASE ON BAIL 74 , AND (2) STAYING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255 re: 1 ; doc. no. (73) in 1:05-cr-00531-JMS. Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 5/3/2016. (afc) Defendant Michael Lee Leach's 28 U.S.C. § 2255 Petition is STAYED pending a decision by the Supreme Court in Mathis v. United States, No. 15-6092 (U.S.). < FONT SIZE=1>ORDER filed in the instant case and in USA v. MICHAEL LEE LEACH, 1:05-00531-JMS 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
UNITED STATES OF AMERICA,
MICHAEL LEE LEACH,
Cr. No. 05-00531 JMS (01)
(Civ. No. 16-00124 JMS-RLP)
ORDER (1) DENYING
DEFENDANT’S MOTION FOR
RELEASE ON BAIL, AND
(2) STAYING DEFENDANT’S
MOTION TO VACATE UNDER 28
U.S.C. § 2255
ORDER (1) DENYING DEFENDANT’S MOTION FOR RELEASE ON
BAIL, AND (2) STAYING DEFENDANT’S MOTION TO VACATE UNDER
28 U.S.C. § 2255
Defendant Michael Lee Leach (“Defendant”) has filed a Motion for
Release on Bail, Doc. No. 74 (“Motion for Bail”), pending the resolution of his
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(“§ 2255 Petition”). Doc. No. 73. His § 2255 Petition contends that his current
revocation sentence for violating supervised release is unconstitutional after
Johnson v. United States, 135 S. Ct. 2551 (2015), and Descamps v. United States,
133 S. Ct. 2276 (2013).
Based on the following, Defendant’s Motion for Bail is DENIED, and
his § 2255 Petition is STAYED pending a decision by the Supreme Court in
Mathis v. United States, No. 15-6092 (U.S.) (argued Apr. 26, 2016).
Defendant pled guilty on February 8, 2006, pursuant to a
Memorandum of Plea Agreement, to violations of (1) 18 U.S.C. § 922(j) &
924(a)(2) (receipt and possession of a stolen firearm); (2) 18 U.S.C. §§ 922(g)(1)
& 924(a) (felon in possession of a firearm subsequent to three convictions for
violent felonies); and (3) 26 U.S.C. § 5861(d) (possession of an unregistered
shortened firearm). Doc. Nos. 16, 17. As to the felon-in-possession Count,
Defendant agreed that he had three previous convictions for “violent felonies” -two convictions for second degree burglary in Missouri, and a conviction for
second degree attempted robbery in Missouri. See Doc. No. 17, Plea Agreement at
Under the Armed Career Criminal Act (“ACCA”), if a defendant is
convicted of a firearms offense and has three or more prior convictions for “a
violent felony or a serious drug offense, or both,” the defendant is subject to a
The court sets forth only the background necessary to put its ruling regarding bail into
mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1).2 Given the
agreement that Defendant had three previous violent felony convictions, the court
sentenced Defendant on August 21, 2006 to a 102-month term of imprisonment
under the ACCA (after granting the government’s Motion for Downward
Departure for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1). The court also imposed a corresponding five-year term of supervised
release. Doc. No. 33.
Defendant eventually served his original sentence and -- after certain
events not germane to determining Defendant’s Motion for Bail -- was placed on
supervised release. On June 19, 2015, however, the court revoked Defendant’s
supervised release and sentenced Defendant to a 36-month term of imprisonment
for that violation of supervised release. Doc. No. 67.
The ACCA defines “violent felony” as follows:
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year . . . that -(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
18 U.S.C. § 924(e)(2).
The first clause in § 924(e)(2)(B)(ii) (“is burglary, arson, or extortion, involves use of
explosives”) is often called the “enumerated offense clause.” The second clause (“or otherwise
involves conduct that presents a serious potential risk of physical injury to another”) is referred to
as the “residual clause.”
On June 26, 2015, the Supreme Court decided Johnson, which
invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S. Ct. at
2557-58. Given Johnson, Defendant filed his § 2255 petition on March 18, 2016,
arguing that, absent the residual clause, his original sentence was based on an
improper determination that he is an armed career criminal under the ACCA.3
Defendant contends that -- without the ACCA sentence -- his original term of
supervised release should have been three years (not five). And if that is true, then
the maximum sentence imposed upon revocation for his violation of supervised
release should have been 24 months (not the 36 months that the court imposed on
June 19, 2015). See 18 U.S.C. §§ 3559, 3583(b)(2) & 3583(e)(3). His § 2255
petition thus seeks an amended judgment reducing his current term of
imprisonment from 36 to 24 months. See Doc. No. 75, Def.’s Mem. at 9. He also
seeks resentencing on the original conviction and credit for excessive time he
already served on the 102-month sentence, and to then apply that credit to his
current revocation sentence. Id. at 9-10. Finally, he seeks release on bail while
the court considers the § 2255 petition.4
After the petition was filed, the Supreme Court made Johnson retroactive to cases
properly-brought on collateral review. See Welch v. United States, 136 S. Ct. 1257, 2016 WL
1551144, at *8 (S. Ct. Apr. 18, 2016).
To be clear, this Order does not address the merits of the § 2255 petition; it only rules
The Court’s Power to Grant Bail Pending a Decision in a § 2255
Proceeding is Extremely Limited
“[T]here is abundant authority that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to admit applicants to
bail pending the decision of their cases[.]” United States v. Lee, 2016 WL
1039046, at *2 (D. Haw. Mar. 15, 2016) (quoting Cherek v. United States, 767
F.2d 335, 337 (7th Cir. 1985) (citing cases from the Second, Fifth, Sixth, and
Tenth Circuits)) (other citations omitted). That is, “[i]n a § 2255 proceeding, ‘the
court’s jurisdiction to order release as a final disposition of the action includes an
inherent power to grant relief pendente lite, to grant bail or release, pending
determination of the merits.’” United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir.
1986) (quoting Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969)).
The power to grant bail pending review, however, “is a limited one, to
be exercised in special cases only.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir.
2001). The power is to be exercised “only in unusual cases, or when extraordinary
or exceptional circumstances exist.” Id. (quoting Ostrer v. United States, 584 F.2d
on the Motion for Bail.
594, 596 n.1 (2d Cir. 1978). It is “a power to be exercised very sparingly.”
Cherek, 767 F.2d at 337.
In making such a bail determination, courts consider two primary
factors -- exceptional/extraordinary circumstances and a high probability of
success on the merits.5 See, e.g., United States v. Mett, 41 F.3d 1281, 1282 (9th
Cir. 1994) (citing Land v. Deeds, 878 F.2d 318, 318-19 (9th Cir. 1989)); see also
Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (reasoning that “bail
pending post-conviction habeas corpus review [is] available ‘only when the
petitioner has raised substantial constitutional claims upon which he has a high
probability of success, and also when extraordinary or exceptional circumstances
exist which make the grant of bail necessary to make the habeas remedy
effective”) (quoting Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974)).
Moreover, a petitioner should satisfy both factors before being
entitled to bail. See Lee, 2016 WL 1039046, at *3 (“[R]equiring both prongs
appears to be obvious . . . [because] it makes no sense that exceptional
circumstances alone would be sufficient if the petitioner was unlikely to succeed
on the merits”) (internal quotation marks and citation omitted); United States v.
The court must also consider traditional bail factors such as the potential that a
defendant will flee or pose a danger to the community. See, e.g., Baker, 420 F.2d at 1344.
Costa, 2016 WL 1555676, at *4 (D. Haw. Apr. 15, 2016) (“Both a high
probability of success on the merits of the habeas motion, and exceptional or
extraordinary circumstances, should be present to warrant release on bail.”).
Defendant is Not Entitled to Bail
Defendant has not met his burden to justify release on bail. Although
Johnson applies retroactively, see Welch, 2016 WL 1551144, at *8, it is unlikely
that Defendant would be released immediately even if the court were to grant his
§ 2255 petition. Defendant’s supervised release was revoked on June 19, 2015
(less than a year ago), and so even if this court reduces his revocation sentence
from 36 to 24 months, he would still have significant time left to serve. Defendant
admits this. See Doc. No. 75, Def.’s Mem. at 12 (“So [Defendant] has about a year
left to go on the revocation sentence he should be serving.”). Defendant, however,
seeks to utilize a “time bank” consisting of credit for time he will have overserved
on his original (and unconstitutional) 102-month sentence, should he prevail on
the merits of his § 2255 petition. Applying this “time bank” to the remaining time
on his revocation sentence, he argues that he would be entitled to be released
immediately -- and he thus seeks bail as a type of equitable interim relief.
But the record indicates that, under the present circumstances, the
Bureau of Prisons (“BOP”) “would not permit any form of imprisonment credit
towards [Defendant’s] current revocation imprisonment term.” Doc. No. 81,
Probation Officer Mem. at 1. See also United States v. Powell, 2015 WL
8957629, at *1 (D. Me. Dec. 15, 2015) (concluding that a defendant -- whose
original sentence was reduced based on Johnson’s invalidation of the ACCA’s
residual clause -- “is not entitled to credit his overserved time in incarceration
against his period of supervised release”). Cf. United States v. Johnson (Roy), 529
U.S. 53, 60 (2000) (indicating in a similar context that “excess time served in
prison” “does not reduce the length of a supervised release term”).
Such a result makes complete sense as a matter of sentencing policy.
See id. at 59 (“The objectives of supervised release would be unfulfilled if excess
prison time were to offset and reduce terms of supervised release. . . . Supervised
release fulfills rehabilitative ends, distinct from those served by incarceration.”)
(emphasis added); U.S. Sentencing Guidelines Manual § 1B1.10 cmt n.7(A)
(“Only a term of imprisonment as part of the original sentence is authorized to be
reduced under this section. This section does not authorize a reduction in the term
of imprisonment imposed upon revocation of supervised release.”) (Policy
Statement regarding a reduction in term of imprisonment as a result of a
retroactively-applicable amended guideline range). If a “time bank” of overserved
time existed for such use, it could easily be abused. A defendant on supervised
release could feel free to violate the terms of supervised release, secure in the
knowledge that he could cash in his account if the court revoked his supervised
Defendant challenges -- as contrary to BOP policy -- the Probation
Officer’s statement that the BOP would not credit excessive time served to a
subsequent revocation sentence. See Doc. No. 82, Def.’s Reply at 12 (citing BOP
Sentence Computation Manual, Policy Statement 5880.28 § I.3.c.(2)). The cited
BOP policy statement, however, is based on 18 U.S.C. § 3585(b) (regarding
calculation of a term of imprisonment and credit for prior custody).7 And
The creation or use of such a “time bank” is also contrary to U.S.S.G. § 7B1.3(e)
(Policy Statement regarding revocation of supervised release), which provides:
Where the court revokes probation or supervised release and
imposes a term of imprisonment, it shall increase the term of
imprisonment determined under subsections (b), (c), and (d) above
by the amount of time in official detention that will be credited
toward service of the term of imprisonment under 18 U.S.C.
§ 3585(b), other than time in official detention resulting from the
federal probation or supervised release violation warrant or
U.S. Sentencing Guidelines Manual § 7B1.3(e). And the corresponding commentary explains
that § 7B1.3(e) “is designed to ensure that the revocation penalty is not decreased by credit for
time in official detention other than time in official detention resulting from the federal probation
or supervised release violation warrant or proceeding.” Id. cmt. n.3
Section 3585(b) provides:
Credit for prior custody.--A defendant shall be given credit toward
the service of a term of imprisonment for any time he has spent in
“§ 3585(b) does not authorize a district court to compute credit for time served.
Rather, the prerogative to grant credits in the first instance rests with the Attorney
General, acting through the [BOP].” United States v. Peters, 470 F.3d 907, 909
(9th Cir. 2006) (citing United States v. Wilson, 503 U.S. 329, 334-35 (1992)).
“Furthermore, under § 3585’s statutory scheme, credits cannot be calculated until
the defendant commences serving his sentence.” Id. (citing Wilson, 503 U.S. at
333). “[D]istrict courts lack authority at sentencing to give credit for time served.”
Id. (citation omitted).8
In short, this case does not present extraordinary circumstances, and
Defendant has not demonstrated a high probability of success (at least as to the
“time bank” issue). This is not a situation, for example, where it appears clear that
if Defendant were resentenced today -- applying Descamps and without
official detention prior to the date the sentence commences -(1) as a result of the offense for which the sentence was
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed;
that has not been credited against another sentence.
In any event, as noted above, this Order is not a ruling on the merits of the § 2255
petition -- the court is only assessing whether Defendant satisfies the extraordinary
circumstances/high probability of success analysis to be entitled to release on bail, which is very
limited in these circumstances and is a power “to be exercised in special cases only.” Mapp, 241
F.3d at 226.
considering an ACCA enhancement -- he would receive a sentence of time served.
Compare Landano, 970 F.2d at 1239 (“[I]f bail were denied and the habeas
petition were eventually granted, the defendant would already have served the
sentence.”). Defendant is not entitled to bail pending a decision on his § 2255
The Court Stays this Action Pending Mathis
The parties also debate whether Descamps applies retroactively to
invalidate the court’s prior treatment of Defendant’s two prior Missouri burglary
convictions as violent felonies.9 It is unclear at this stage, however, whether the
retroactivity question will make any difference in this case. As this court noted in
Lee, if this court were to resentence Defendant today, it would apply current law -Descamps (as interpreted by other binding precedent)10 -- to determine armed
career criminal status. Lee, 2016 WL 1039046, at *4 n.8. But this does not mean
that defendants may use Descamps by itself (where Johnson does not apply) to
Courts have determined that Descamps did not announce a new substantive rule of
constitutional law made retroactive to cases on collateral review. See, e.g., United States v.
Berkley, 623 F. App’x 346 (9th Cir. 2015) (upholding denial of § 2255 motion, reasoning that
Descamps was not made “retroactively applicable to cases on collateral review”) (citing Ezell v.
United States, 778 F.3d 762, 766 (9th Cir. 2015)); Headbird v. United States, 813 F.3d 1092,
1097 (8th Cir. 2016); King v. United States, 610 F. App’x 825, 829 (11th Cir. 2015); Costa, 2016
WL 1555676, at *6; United States v. Christian, 2016 WL 1229080, at *6 (E.D. Wash. Mar. 28,
2016); but cf. Mays v. United States, ___ F.3d ___, 2016 WL 1211420 (11th Cir. Mar. 29, 2016).
See, e.g., Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (en banc) (as
amended); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).
retroactively obtain resentencings to invalidate prior, and otherwise final, ACCA
judgments. See, e.g., United States v. Gillette, 2015 WL 1393248, at *3 (D. Vt.
Mar. 25, 2015) (“[D]ozens of courts around the country have reached the same
conclusion as this Court that Descamps did not announce a new rule or recognize
a new right authorizing collateral attacks on ACCA sentences that are already
final.”) (citations omitted).
Nevertheless, as the parties recognize, the Supreme Court in Mathis is
contemporaneously considering key aspects of the Descamps methodology.
Indeed, the Supreme Court heard oral argument in Mathis just days ago, on April
26, 2016. An opinion in Mathis could certainly provide guidance on how to
analyze issues in this case. Accordingly, the court -- as suggested by the
government, see Doc. No. 79, Gov’t Mem. at 12 -- STAYS this action pending a
decision by the Supreme Court in Mathis. See, e.g., Landis v. N. Am. Co., 299
U.S. 248, 254 (1936) ([T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants.”). Under the
present circumstances, the parties will not be prejudiced by such a stay.
Defendant’s Motion for Release on Bail, Doc. No. 74, is DENIED.
Meanwhile, a decision on the merits of Defendant’s § 2255 petition is STAYED,
pending the Supreme Court’s resolution of Mathis.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 3, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
United States v. Leach, Cr. No. 05-00531 JMS (01), Order (1) Denying Defendant’s Motion for
Release on Bail, and (2) Staying Defendant’s Motion to Vacate under 28 U.S.C. § 2255
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