Aceval v. MacLaren

Filing 28

ORDER granting 16 Motion to revoke bond; finding as moot 25 and 27 Motions to revoke bond. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEXANDER ACEVAL,
Petitioner,

Case Number 2:12-CV-10897
Honorable Arthur J. Tarnow

v.
DUNCAN MACLAREN,
Respondent.
________________________________________/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO REVOKE
ORDER GRANTING PETITIONER UNCONDITIONAL RELEASE [Dkt 16]
Alexander Aceval, ("Petitioner"), filed A petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petition challenged his June 7, 2006, Wayne
Circuit Court guilty plea conviction of possession with intent to deliver 1,000 or more
grams of cocaine. MICH. COMP. LAWS § 333.7401(2)(a)(I). The Court granted the
petition on September 30, 2013, and because the Court fond that Petitioner’s rights
under the Double Jeopardy Clause were violated, it ordered Petitioner’s immediate
release from prison. The decision granting habeas relief was reversed by the United
States Court of Appeals for the Sixth Circuit. Presently before the Court is
Respondent’s motion to return Petitioner to prison. For the reasons that follow, the
Court will grant the motion.
I. Background
Following this Court’s decision granting habeas relief, Respondent appealed.

On August 18, 2014, the Sixth Circuit reversed, and held that the state courts’
rejection of Petitioner’s claims was neither contrary to nor an unreasonable
application of clearly established federal law. The Court, however, remanded the
case for a ruling on Petitioner’s due process based prosecutorial misconduct claim.
On October 23, 2014, the Sixth Circuit denied Petitioner’s petition for en banc
rehearing. On October 31, 2014, the Sixth Circuit issued its mandate in the case.
II. Discussion
While a grant of habeas relief is on appeal, Federal Rule of Appellate Procedure
23(c), permits the release of a prisoner while the decision ordering the release is
under review. As a decision ordering the release of the Petitioner is no longer under
review, Rule 23(c) no longer allows for Petitioner’s release from prison. Although
Petitioner claimed that he intended to file a petition for writ of certiorari in the United
States Supreme Court, it does not appear that he has done so.
Nevertheless, federal district courts have the inherent authority to grant bond
to a habeas petitioner while it considers the merits of his claims. See Nash v.
Eberlin, 437 F.3d 519, 526 n.10 (6th Cir. 2006). In order to receive bail pending the
district court’s decision on the merits of the habeas application, a prisoner must
show both that the petition contains a substantial claim of law and the existence of
some circumstances that make 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). Unlike the standard for granting release under Rule 23(c), this is a difficult
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standard and “[t]here will be few occasions where a prisoner will meet [it].” Lee v.
Jabe, 989 F.3d 869, 871 (6th Cir. 1993); Hilton, 481 U.S. at 774 (“Rule 23(c)
undoubtedly creates a presumption of release from custody . . . .”).
The Court notes that Petitioner has also filed a motion to amend his petition
to include further substantive claims challenging his conviction. Although
Respondent has not yet replied to this motion, it appears that at least some of the
new claims were not presented to the state courts, and Petitioner may require a stay
to return to the state courts to exhaust his new claims. At a minimum, the request to
add new issues may further delay a final adjudication by the Court.
Petitioner contends in his response that the claim remanded for consideration
is substantial. He also notes that since his release he has been working 12-hour
shifts in bona-fide employment, he is becoming reacquainted with his children, and
he is undergoing medical procedures. Even assuming that the remanded claim
constitutes a substantial claim of law, the Court finds that he is not entitled to bond
because he has not shown the existence of exceptional circumstances. See Dotson,
900 F.2d at 79. The loss of liberties such as employment, familial relations, and
medical care from providers of his choice are ordinary circumstances incident to
incarceration.
III. Conclusion
Based on the foregoing analysis, the Court will grant Respondent’s motion
[Dkt.16] and order Petitioner to present himself at the Charles Egeler Reception and
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Guidance Center, 3855 Cooper Street, Jackson, Michigan, within thirty (30) days of
this order.
Respondent’s second and third motions to revoke unconditional release
[Dkts. 25 and 27] are denied as moot.
SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: February 10, 2014
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on February 10, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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