United States District Court, M.D. Alabama, Northern Division
ORDER ON MOTION
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
the court is federal inmate Zedekiah Sykes's
“Motion for an Appeal's Bond.” Doc. # 8.
However, Sykes's case is not on appeal. Instead, he has a
motion under 28 U.S.C. § 2255 pending in this court, by
which he challenges the 36-month sentence imposed by the
district court upon the revocation of his supervised release
in March 2017. Doc. # 1.
was convicted of bank fraud in 2009 in the United States
District Court for the District of Oregon. For that offense,
he was sentenced to a 51-month term of imprisonment, followed
by a five-year term of supervised release. Sykes commenced
supervised release in March 2013, and in April 2016
jurisdiction over his supervised release was transferred to
this court. Thereafter, Sykes's probation
supervisor moved for revocation of his supervised release
based on various violations of his terms of supervision, and
on March 20, 2017, after a final revocation hearing,
Sykes's supervised release was revoked. Sykes did not
appeal that judgment, but on March 8, 2018, he filed a §
2255 motion in this court alleging claims of ineffective
assistance of counsel against the lawyers who represented him
in the revocation proceedings. Doc. # 1. That § 2255
motion is pending, and through his instant motion (Doc. # 8),
Sykes seeks release on bond pending a final decision by this
court on his § 2255 motion.
lists as his reasons to consider him for release on bond that
(1) he misses his family seriously; (2) he has maintained
excellent conduct in prison since April 2018, (3) he has
viable employment awaiting him; and (4) he poses no flight
risk if released. Doc. # 8 at 1-2.
this court's orders, the Government has filed a response
to Sykes's motion for release on bond. Doc. # 10. The
Government opposes Sykes's request for release on grounds
that Sykes fails to satisfy the requirements of 18 U.S.C.
§ 3143(b)(1), the federal statute governing release on
bond pending an appeal or a petition for writ of certiorari.
Doc. # 10 at 2-5. Under that statute, a defendant may be
placed on bail pending an appeal or certiorari petition where
the court finds “by clear and convincing evidence that
the person is not likely to flee or pose a danger to the
safety of any person or the community . . .; and that the
appeal is not for the purpose of delay and raises a
substantial question of law or fact likely to result in-(i)
reversal, (ii) an order for a new trial, (iii) a sentence
that does not include a term of imprisonment, or (iv) a
reduced sentence to a term of imprisonment less than the
total of the time already served plus the expected duration
of the appeal process. . . .” 18 U.S.C. §
3143(b)(1)(A) & (B). The Government argues that the
reasons for release asserted by Sykes fail to address §
3143(b)(1)'s requirement that the defendant raise a
“substantial question” of law or fact likely to
result in a reversal, an order for a new trial, or a reduced
sentence, and that Sykes also fails to satisfy his burden
under the statute of demonstrating that he is not a flight
risk. Doc. # 10 at 4-5.
the Government's reliance on 18 U.S.C. § 3143(b)(1)
in opposing Sykes's motion for release on bond, this
statute is “inapplicable to a convicted defendant who
is seeking postconviction relief . . . under 28 U.S.C. §
2255.” Cherek v. United States, 767 F.2d 335,
337 (7th Cir. 1985). See also, e.g., Fernandez v. United
States, 2017 WL 6597535, at *13 (S.D. Fla. 2017);
McGuigan v. United States, 2009 WL 136024, at *2
(M.D. Fla. 2009). Sykes's case is not on appeal, but
instead is pending in this court on his § 2255 motion.
While district courts have inherent power to place §
2255 petitioners on bail, Fernandez, 2017 WL
6597535, at *13, citing Ostrer v. United States, 584
F.2d 594, 596 n.1 (2d Cir. 1978), “[t]his power should
be exercised very sparingly because ‘[a] defendant
whose conviction has been affirmed on appeal (or who waived
his right of appeal, as by pleading guilty, or foregoing
appeal after being convicted following a trial) is unlikely
to have been convicted unjustly; hence the case for bail
pending resolution of his postconviction proceeding is even
weaker than the case for bail pending appeal,' and due to
the interest in the finality of criminal proceedings.”
Fernandez, 2017 WL 6597535, at *13, quoting
Cherek, 767 F.2d at 337. “Therefore, where
Section 3143 is inapplicable, a defendant should not be
granted bail if he cannot even satisfy the requirements of
that section.” Fernandez, 2017 WL 6597535, at
*13, citing Cherek, 767 F.2d at 337.
obtain release pending habeas review, the petitioner must
overcome a ‘formidable barrier.' Wilson v.
Sec'y, Dep't of Corr., 2016 WL 10891523, at *2
(M.D. Fla. 2016), citing In re Roe, 257 F.3d 1077 at
1080-81 (9th Cir. 2001); Baker v. Sard, 420 F.2d
1342, 1343 (D.C. Cir. 1969); Glynn v. Donnelly, 470
F.2d 95, 98 (1st Cir. 1972). Release on bail is not favored
in habeas proceedings because it “supplies the
sought-after remedy before the merits of petitioner's
application are determined.” Iuteri v.
Nardoza, 662 F.2d 159, 161 (2nd Cir. 1981).
Consequently, petitioners are rarely granted release on bail
pending disposition of their petitions. Martin v.
Solem, 801 F.2d 234, 329 (8th Cir. 1986).
qualify for release, the petitioner must show (1) the
presence of special circumstances in his case and (2) a clear
and readily evident entitlement to relief on the merits of
his habeas claims; making his application ‘exceptional
and deserving of special treatment in the interest of
justice.'” Wilson, 2016 WL 10891523, at
*3, citing Aronson v. May, 85 S.Ct. 3, 5 (1964);
Martin, 801 F.2d at 329; Dotson v. Clark,
900 F.2d 77, 79 (6th Cir. 1990). See also Calley v.
Callaway, 496 F.2d 701, 702 (5th Cir. 1974)
(“[b]ail should be granted to a . . . prisoner pending
post-conviction habeas corpus review only when the petitioner
has raised substantial constitutional claims upon which he
has a high probability of success, and also when
extraordinary circumstances exist which make the grant of
bail necessary to make the habeas remedy effective.”).
asserted grounds for release on bond, as the Government
maintains, do not even satisfy the requirements of 18 U.S.C.
§ 3143(b)(1). Therefore, Sykes makes an even weaker case
for release under the more stringent standard for release
pending resolution of his post-conviction proceeding. Sykes
fails to demonstrate exceptional circumstances necessitating
his release. Moreover, the court finds that Sykes has not
demonstrated a clear and readily evident entitlement to
relief on the merits of his § 2255 claims making his
request for release exceptional and deserving of special
treatment. See Wilson, 2016 WL 10891523, at *3;
Calley, 496 F.2d at 702.
that Sykes's motion for release on bond pending a final
decision by this court on his § 2255 motion (Doc. # 8)
See Criminal No. CR
08-421-01-MA in the United States District Court for the