Evans v. Fink et al

Filing 26

ORDER denying 25 Motion for Release. Signed by Jeremiah C. Lynch on 9/6/2012. Mailed to Evans. (TAG, )

FILED

SEP 06 2012
PATRICKE. DUFFY,

CCE,;(A

IN THE UNITED STATES DISTRICT coU"ffoePUTY ClERK MiSSQUlTFOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MARTY EVANS,
Petitioner,
vs.

Cause No. CV 11-112-M-DWM-JCL

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ORDER DENYING MOTION
FOR RELEASE

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LEROY KIRKEGARD, Warden,
Montana State Prison;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondent.

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This case is before the Court on Petitioner Marty Evans's petition for writ of
habeas corpus under 28 U.S.C. § 2254. Evans is a state prisoner proceeding pro se.
On July 20, 2012, Respondent ("the State") was ordered to file an Answer on
two claims relating to his sentence - not on the validity of his conviction. The
Answer is due on September 17, 2012.
On September 5,2012, Evans moved for release on his own recognizance. He
states that he "has been incarcerated for almost 4 years this December." Mot. (doc.

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25) at 2. He was sentenced to serve 50 years for attempted sexual assault on a child.
He adds:
Evans has a criminal "History" ofmainly consisting Resisting Arrest by
running away from the law and Obstructing Justice by lieing to the law
about his identity.
Evans states that all ofthis and his prior bail jumping is "history"
in the past and is requesting a chance to prove his willingness to be a
productive person in society.

Id. at 2-3.
The Ninth Circuit has not decided whether a federal court has the authority to
release a state prisoner on bail while a habeas petition is pending. In re Roe, 257 F 3d
1077, 1079-80 (9th Cir. 2001) (per curiam). Assuming it does, "[b]ail pending a
decision in a habeas case is reserved for extraordinary cases involving special
circumstances or a high probability ofsuccess." Land v. Deeds, 878 F.2d 318, 318-19
(9th Cir. 1989) (per curiam). The only claims on which an Answer was required
involve the length and conditions ofEvans's sentence, not the constitutionality ofhis
detention per se. Therefore, his case does not approach the very high standards
required by Land. See also James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure § 14.2, at 621 (3d ed. 1998) (internal quotations and
citations omitted). Release is not appropriate, on recognizance or on any other basis.

Based on the foregoing, the Court enters the following:

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ORDER
Evans's motion for release (doc. 25) is DENIED.
Eyans must immediately notify the Court ofany change in his mailing address
by filing a "Notice of Change of Address." Failure to do so may result in dismissal
of his case without notice to him.
DATED this G,H-day of Septem

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e miah C. Lynch
nited States Magistrate Judge

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