Opinion
CASE NO. 2:08-cv-336, CRIM. NO. 2:03-cr-00070.
February 23, 2009
ORDER
Petitioner has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In this federal habeas corpus petition, petitioner challenges his underlying convictions after a jury trial on mail fraud, use of fire to commit mail fraud, conspiracy to use fire to commit mail fraud, and money laundering with a forfeiture count. Petitioner asserts that he was denied the effective assistance of counsel and denied a fair trial based on alleged jury tampering.
Petitioner's unopposed request to supplement his § 2255 petition with the authority and argument attached therein, Doc. No. 174, hereby is GRANTED. Petitioner also has filed a request for release on bail pending review of this habeas corpus petition, Doc. No. 178, and a motion for summary judgment. Doc. No. 177. Respondent opposes petitioner's request for release on bail. Doc. No. 179. For the reasons that follow, petitioner's request for release on bail, Doc. No. 178, and his motion for summary judgment, and request for its designation as an urgent motion, Doc. Nos. 177, 180, are DENIED.
Petitioner requests release on bail or on his own recognizance arguing that he has substantial likelihood of success on the merits of his claims and because he is currently housed at a minimum security level facility.
Bail in habeas corpus cases is governed by Rule 23(b), Federal Rules of Appellate Procedure. See Jago v. United States District Court, 570 F.2d 618 (6th Cir. 1978). Rule 23 grants broad discretion to the district court in determining whether to release a prisoner during the pendency of a habeas appeal. There must be a strong showing by petitioner that special reasons or exceptional circumstances exist to warrant granting bail. See Dallo v. United States, 765 F.2d 581 (6th Cir. 1985); Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978); Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969).Morris v. Story, 800 F.2d 721, unpublished, 1986 WL 17814 (6th Cir. September 30, 1986).
A prisoner seeking release from custody under Rule 23 must demonstrate "not only a substantial claim of law based on the facts surrounding the petition but also the existence of `some circumstances 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, 13 L.Ed.2d 6 (1964) (Douglas, J., in chambers)).See also United States v. Cornish, 89 Fed.Appx. 569, unpublished, 2004 WL 473991 (6th Cir. March 10, 2004) (same). Petitioner has failed to meet this standard here. Petitioner's convictions have been affirmed by the United States Court of Appeals for the Sixth Circuit, which characterized the evidence of petitioner's guilt in this case as "ample." United States v. McAulif, 490 F.3d 526 (2007). The United States Supreme Court denied petitioner's petition for a writ of certiorari. McAulife v. United States, 128 S.Ct. 442 (2007).
Petitioner also has filed a motion for summary judgment. He contends that respondent has conceded in the Return of Writ "as a matter of law all the petitioner's . . . factual and legal argument's" aside from his claim of ineffective assistance of counsel, see Motion for Summary Judgment, at 1-2, and that he is therefore entitled to summary judgment on his habeas corpus claims. However, the record fails to support petitioner's motion. It is the position of the respondent that petitioner's "contentions are without merit and should . . . be denied." See Return of Writ. Further, the relief petitioner requests is not appropriate in federal habeas corpus proceedings. To grant a request for summary judgment on the grounds that respondent failed to answer petitioner's allegations
would be tantamount to granting Petitioner a default judgment, which is relief that is unavailable in habeas corpus proceedings. Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 138 (6th Cir. 1970), superseded on other grounds by statute as stated in, Cobb v. Perini, 832 F.2d 342 (6th Cir. 1987); Lemons v. O'Sullivan, 54 F.3d 357, 364-65 (7th Cir. 1995) ("Default judgment is an extreme sanction that is disfavored in habeas corpus cases."); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) ("The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment."); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987) ("a default judgment is not contemplated in habeas corpus cases").Alder v. Burt, 240 F.Supp.2d 651, 677 (E.D. Michigan 2003).
Therefore, petitioner's motion for summary judgment, request for designation as an urgent motion and his request for release, Doc. Nos. 177, 178, 180, are DENIED. Petitioner's unopposed request to supplement his § 2255 petition with the authority and argument attached therein, Doc. No. 174, hereby is GRANTED.