Henry v. United States of America, No. 2:2009cv00435 - Document 12 (M.D. Fla. 2009)
Court Description: OPINION AND ORDER denying 11 Motion for release pending outcome of habeas petition. Signed by Judge John E. Steele on 8/12/2009. (RKM)
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION HOWARD HENRY, Petitioner, vs. Case No. 2:09-cv-435-FtM-29DNF UNITED STATES OF AMERICA, Respondent. ___________________________________ OPINION AND ORDER This matter comes before the Court on petitioner s Motion for Release Pending Outcome of Habeas Petition (Doc. #11) filed on August 6, 2009. Petitioner seeks release from his imprisonment until his § 2255 petition is resolved. petitioner has failed to demonstrate an entitlement term of Because to such release, the motion is denied. Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) sets forth the applicable standard: A prisoner seeking release pending habeas corpus can be granted bail under two sets of circumstances: first, he must demonstrate a likelihood of success on the merits of a substantial constitutional claim; second, extraordinary and exceptional circumstances must exist which make the grant of bail necessary to preserve the effectiveness of the habeas corpus relief sought. Gomez, 899 F.2d at 1125. Although the government s response to the § 2255 motion is not yet due, a preliminary review establishes that petitioner satisfies neither standard. The Court has already ruled against petitioner as to the issue of the guilty plea before the magistrate judge, see Case No. 2:06-cr-121-FTM-29DNF, Doc. #276. Challenges to proceeding. 2009). restitution are not cognizable in a § 2255 Mamone v. United States, 559 F.3d 1209 (11th Cir. Petitioner s belated claim of innocence is affirmatively refuted by the facts he admitted during his guilty plea and the facts presented at his sentencing hearing. Additionally, none of his claims of ineffective assistance of counsel appear to satisfy the standard in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, it is now ORDERED: Petitioner s Motion for Release Pending Outcome of Habeas Petition (Doc. #11) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this August, 2009. Copies: Counsel of record Howard Henry -2- 12th day of
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