J. MICHAEL SEABRIGHT, Chief District Judge.
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 2-3.
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 mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1).
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.
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.
"[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 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.
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. 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 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 release.
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).
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 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 petition.
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.
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.
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."
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
that has not been credited against another sentence.