Forrest v. United States of America

Filing 13

ORDER DENYING 11 MOTION FOR BAIL AND DENYING 12 MOTION FOR NEW APPOINTED COUNSEL. Signed by Judge James D. Todd on 11/21/2016. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JUSTIN R. FORREST,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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No. 16-1097-JDT-egb
Crim. No. 07-10058-JDT

ORDER DENYING MOTION FOR BAIL AND
DENYING MOTION FOR NEW APPOINTED COUNSEL

The Movant, Justin R. Forrest, filed a pro se motion pursuant to 28 U.S.C. § 2255 on
May 13, 2016, in which he challenges his sentence on the basis of the decision in Johnson
v. United States, 135 S. Ct. 2551 (2015). (ECF No. 1.) In accordance with Administrative
Order 2015-18, Forrest is now represented by M. Dianne Smothers, an Assistant Federal
Public Defender. The case is being held in abeyance pending the decision of the Sixth
Circuit Court of Appeals on Forrest’s application to file a second, successive § 2255 motion.
On August 11, 2016, Forrest filed a pro se motion for bail pending the outcome of this
case. (ECF No. 11.) There is no statutory authority for releasing a prisoner on bond pending
a ruling in a § 2255 proceeding; however, district courts have the inherent power to grant
bail. See Jago v. U.S. Dist. Ct., 570 F.2d 618, 622 (6th Cir. 1978). A movant “must be able
to show not only a substantial claim of law based on the facts surrounding the petition but

also 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) (quoting Aronson v. May, 85 S. Ct. 3, 5 (1964)); see also Morgan v. United
States, No. 93-2267, 1994 WL 182141, at *1 (6th Cir. May 11, 1994) (“Exceptional
circumstances must exist to warrant granting bail, along with a substantial likelihood of
success in the § 2255 motion.”).
Forrest contends that exceptional circumstances are present in this case because he
will be entitled to immediate release if his § 2255 is granted. However, the Court finds that
possibility alone does not constitute the kind of exceptional circumstance deserving of
special treatment that warrants the granting of bond. Therefore, the motion for bail is
DENIED.
On November 14, 2016, Forrest filed a pro se motion for new appointed counsel.
(ECF No. 12.) He claims that Ms. Smothers has failed to adequately communicate with him
and falsely advised him that his application to file a second or successive § 2255 motion had
been granted by the Sixth Circuit. Therefore, Forrest contends he has been misled and lied
to by counsel.
While Ms. Smothers did advise Forrest that leave to file a successive § 2255 motion
had been granted when that was not actually the case (see ECF No. 12-1), there is nothing
to suggest that it was anything but inadvertent. There is no indication there was any attempt
to deliberately mislead or lie to Forrest. Furthermore, counsel’s failure to respond to
Forrest’s messages about the possibility of filing a reply to the Government’s response to his
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application in the Sixth Circuit is not sufficient justification to appoint a new attorney.1
The motion for new counsel is DENIED.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

The Sixth Circuit’s case-opening letter did not provide for the filing of a reply to the
Government’s response, nor is such a reply specifically authorized by the Federal Rules of
Appellate Procedure, the Sixth Circuit Rules or the Sixth Circuit’s Internal Operating
Procedures.
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