United States District Court, M.D. Alabama, Northern Division
ORDER
W.
HAROLD ALBRITTON III SENIOR UNITED STATES DISTRICT JUDGE.
This
matter is before the court on Petitioner's Notice of
Appeal to District Court Judge from Magistrate Judge's
Order Denying Petitioner's Motion for Bail Pending Writ
of Certiorari, filed on November 2, 2018 (Doc. # 64), and
Petitioner's Motion to Amend Motion for Release Pending
Writ Of Certiorari, filed on July 12, 2019 (Doc. # 65). The
court construes these two documents to be Petitioner's
objections to the Magistrate Judge's order of October 23,
2018 (Doc. # 63) denying Petitioner's Motion for Release
Pending Writ of Certiorari (“Motion for
Release”), filed on October 19, 2018 (Doc. # 62). For
the reasons set forth below, the court finds that
Petitioner's objections are due to be overruled.
In her
Motion for Release (Doc. # 62), Petitioner asked to be
released from federal prison pending disposition of her
petition for writ of certiorari filed with the United States
Supreme Court. Petitioner stated she filed that petition
after the Eleventh Circuit Court of Appeals affirmed this
court's denial of her 28 U.S.C. § 2255 motion in
this case. In her § 2255 motion, Petitioner argued that
her trial counsel was ineffective for failing to object on ex
post facto grounds to the use of the 2011 Sentencing
Guidelines Manual at her sentencing, and to the imposition of
a four-level number-of-victims enhancement under U.S.S.G.
§ 2B1.1(b)(2)(B). In her Motion for Release, Petitioner
maintained she was likely to prevail on this claim in her
petition to the Supreme Court and that unless she was granted
the relief she sought through her motion, she might serve a
longer sentence while the petition was pending than the
sentence she would receive upon resentencing.
In
denying Petitioner's Motion for Release, the Magistrate
Judge found that Petitioner failed to present different or
more convincing arguments regarding the merits of her
ineffective assistance of counsel claim than she had
presented in her unsuccessful appeal to the Eleventh Circuit
from the denial of her § 2255 motion. Doc. # 63 at 3-4.
The Magistrate Judge further found that Petitioner's
Motion for Release presented no different or more convincing
arguments for release than Petitioner had presented in a
motion for bond pending appeal, which was denied by this
court pending Petitioner's appeal from the denial of her
§ 2255 motion. Id. Consequently, the Magistrate
Judge concluded that Petitioner failed to present a
“substantial question” as to the merits of her
ineffective assistance claim (id. at 4), a
requirement for release under 18 U.S.C. § 3143(b)(1),
the statute governing release pending appeal or a petition
for writ of certiorari.[1] See 18 U.S.C. §
3143(b)(1)(B).
In her
objection filed on November 2, 2018 (Doc. # 64), Petitioner
argues that the Magistrates Judge's order denying her
Motion for Release neglected to address every pertinent
element of § 3143(b)(1), including the likelihood of
flight, danger to the community, and purposes of delay.
See 18 U.S.C. § 3143(b)(1)(A), (B). However,
under the language of that statute, there is no requirement
that the court address the elements of likelihood of flight,
danger to the community, and purposes of delay if a
petitioner does not raise “a substantial question of
law or fact” likely to result in a reversal in the
petitioner's favor. See 18 U.S.C. §
3143(b)(1)(B)(i). Because Petitioner failed to present a
“substantial question” as to the merits of her
ineffective assistance of counsel claim, it was unnecessary
for the Magistrate Judge to address every element of §
3143(b)(1) when denying Petitioner's Motion for Release.
In her
objection filed on July 12, 2019 (Doc. # 65), Petitioner
presents additional arguments on why she thinks the
number-of-victims enhancement was miscalculated at her
sentencing and should have been objected to by her counsel,
but these arguments do not change the outcome in her case;
i.e., they do not present a “substantial
question” as to the merits of her ineffective
assistance of counsel claim.[2] Petitioner also refers to family
circumstances, which are not matters for consideration for
release under § 3143(b)(1). Nothing in Petitioner's
objection of July 12, 2019 establishes any error in the
Magistrate Judge's order denying her Motion for Release.
Accordingly,
Petitioner's objections (Docs. # 64 and 65) are
OVERRULED.
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Notes:
[1] In order to grant a Motion for Release
pending appeal or a petition for writ of certiorari, a court
must find-
(A) 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 if released under section 3142(b) or
(c) of this title; and
(B) 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,