Lively v. Birkett

Filing 18

ORDER denying 17 Motion for Immediate Release. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC LIVELY,
Petitioner,
v.

Case Number: 2:10-cv-12110
Honorable Lawrence P. Zatkoff

TOM BIRKETT,
Respondent,
__________________________/
ORDER DENYING PETITIONER’S MOTION FOR IMMEDIATE RELEASE
On May 25, 2010, Petitioner Eric Lively filed a pro se “Petition for Writ of Habeas
Corpus” [dkt. # 1], challenging the constitutionality of his 2008 convictions for possession
with intent to deliver or manufacture methamphetamine or ecstasy and possession of
marijuana. Pending before the Court is his “Motion for Immediate Release on Personal
Recognizance Bond” [dkt. # 17], filed on January 19, 2012. For the reasons set forth below,
the Motion is denied.
I.
Petitioner seeks immediate release from custody or release on bail pending disposition
of his Habeas Petition. Petitioner’s argument in favor of release on bail relies upon Federal
Rule of Appellate Procedure 23(c), which provides:
While a decision ordering the release of a prisoner is under review, the
prisoner must–unless the court or judge ordering the decision, or the court of
appeals, or the Supreme Court, or a judge or justice of either court orders
otherwise–be released on personal recognizance, with or without surety.
The United States Supreme Court has held that this rule “undoubtedly creates a

presumption of release from custody in such cases.” Hilton v. Braunskill, 481 U.S. 770, 774
(1987). Rule 23(c) addresses situations where a party appeals a district court’s decision
granting habeas relief and ordering a petitioner’s release. This Court has not granted habeas
relief in this case. Therefore, Rule 23(c) is inapplicable to Petitioner’s case.
To receive bond pending a decision on the merits of a Habeas Petition, a petitioner
must show a substantial claim of law based on the facts surrounding the Petition and the
existence of “some circumstance making the [motion for bail] exceptional and deserving of
special treatment in the interests of justice.” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)
(citing Aronson v. May, 85 S.Ct. 3, 5 (1964)). “There will be few occasions where a prisoner
will meet this standard.” Dotson, 900 F.2d at 79. Because a habeas petitioner “is appealing
a presumptively valid state conviction . . . it will indeed be the very unusual case where a
habeas petitioner is admitted to bail prior to a decision on the merits in the habeas case.” Lee
v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993).
In this case, Petitioner contends that he has presented substantial claims to the Court
and there are exceptional circumstances in his case that make it deserving of special
treatment, namely that his counsel was ineffective and did not properly argue his Fourth
Amendment claim. Petitioner also alleges that he does not pose a flight risk. The Court finds
that Petitioner’s claims are insufficiently persuasive to establish the existence of any
extraordinary and exceptional circumstances which merit immediate release on bond.
Moreover, the Court has not yet had the opportunity to review Respondent’s Answer
to the Petition and the Rule 5 Materials. Therefore, it is premature for the Court to order the

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immediate release of Petitioner without having had the opportunity to fully review the record.
With that, the Court denies Petitioner’s request for his immediate release from custody.
Accordingly, IT IS ORDERED that Petitioner’s “Motion for Immediate Release on
Personal Recognizance Bond” [dkt. # 17] is DENIED.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: February 1, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of
record by electronic or U.S. mail on February 1, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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