United States v. McCandless, No. 16-15411 (9th Cir. 2016)
Annotate this CaseDefendant, a federal prisoner, seeks bail pending a decision by the district court on his petition for a writ of habeas corpus under 28 U.S.C. 2255. Defendant contends that he should be released on bail because if he prevails on his habeas petition, he will likely receive a reduced sentence of only 71 months, a period of confinement he has already served. In the habeas petition, defendant contends that his sentence is unconstitutional under Johnson v. United States because his advisory Sentencing Guidelines range was enhanced under the similar residual clause of the Guidelines’ career-offender provision. The court explained that its precedent holds that a district court’s order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. 1291 and is not otherwise appealable under the collateral order doctrine. Nor is the order subject to interlocutory review under 28 U.S.C. 1292(b) because a bail determination cannot materially advance the ultimate termination of the litigation. Therefore, the court construed this appeal as a petition for a writ of mandamus challenging the district court’s refusal to grant defendant's motion for bail. In this case, the district court did not commit clear error in denying the request for bail where defendant has failed to show either a high probability of success on the merits of his habeas petition or special circumstances that would warrant his release on bail. Accordingly, the court denied the petition.
Court Description: Habeas Corpus / Mandamus. The panel granted federal prisoner James McCandless’ motion to construe his interlocutory appeal as a petition for a writ of mandamus, and denied the petition, in a case in which McCandless contends that he should be released on bail pending a decision on his habeas corpus petition under 28 U.S.C. § 2255. McCandless contends that his enhancement under the residual clause of the Sentencing Guidelines career-offender provision is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015). The panel observed that a district court’s order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291, is not otherwise appealable under the collateral order doctrine, and is not subject to interlocutory review under 28 U.S.C. § 1292(b). The panel therefore construed the appeal as a mandamus petition challenging the district court’s refusal to grant McCandless’ motion for bail. The panel did not need to resolve whether district courts have authority to grant bail pending resolution of a habeas petition. The panel held that McCandless cannot demonstrate clear error in the denial of his request for bail because he has not shown either a high probability of success on the merits UNITED STATES V. MCCANDLESS 3 of his habeas petition or special circumstances that would warrant his release on appeal. The panel observed (1) that it is far from clear how the Supreme Court, in Beckles v. United States, 136 S. Ct. 2510 (cert. granted June 27, 2016), will rule on whether Johnson invalidates the residual clause of the Guidelines’ career-offender provision and whether such a rule would apply retroactively on collateral review; and (2) that McCandless has not shown that he will have over-served his lawful sentence in the event that Beckles is resolved in his favor.
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