ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis. On November 19, 2008, petitioner's application for writ of habeas corpus was dismissed and petitioner was granted thirty days leave to file an amended petition. On December 8, 2008, petitioner filed a motion to set bail pending adjudication of his writ of habeas corpus, arguing he would be better able to prepare his petition outside prison and that he presents a low risk of flight since he has had no escapes or attempted escapes during his 27-1/2 year incarceration in state prison.
It is firmly established that it is within the inherent power of a district court to enlarge a state prisoner on bond pending hearing and decision on his application for a writ of habeas corpus. See e.g., In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 743 (3d Cir.), cert. denied, 414 U.S. 878 (1973); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). However, the bail standard for a person seeking collateral review is markedly different from the standard applied to a pretrial detainee. Persons accused of crimes and awaiting trial are presumed innocent and thus enjoy an Eighth Amendment right to be free from excessive bail. Stack v. Boyle, 342 U.S. 1, 4 (1951). In contrast, a habeas corpus petitioner requesting post-conviction relief has already been convicted and thus is no longer presumed innocent and no longer enjoys a constitutional right to freedom, however conditional. Aronson v. May, 85 S.Ct. 3 (1964) (Douglas, J., in chambers); Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972).
In a Ninth Circuit case decided prior to Aronson, it was held that: It would not be appropriate for us at this stage of the proceeding to enlarge this petitioner on bail even if we found that the allegations of his petition for habeas corpus made out a clear case for his release. Something more than that is required before we would be justified in granting bail. (Emphasis added.) (Footnote omitted.)
Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964). In Aronson, which cites the Ninth Circuit's decision in Benson, an applicant requested bail pending appeal from the denial of his petition for writ of habeas corpus. Justice Douglas set forth the following guidelines for determining when a habeas corpus petitioner could be released on bail:
In this kind of case it is therefore necessary to inquire whether, in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice. See Benson v. California, 328 F.2d 159 (9th Cir. 1964).
Aronson, 85 S.Ct. at 5 (emphasis added). Thus, Aronson requires a petitioner to demonstrate that his underlying claim raises substantial questions and that his case presents exceptional circumstances.*fn1
Moreover, a number of cases interpreting the first test of the Aronson analysis have required that petitioner's claims be more than substantial. See, e.g., Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974) (per curiam) (bail should be granted to a military prisoner pending post-conviction relief only when petitioner raises substantial constitutional claims upon which he has a high probability of success and when extraordinary or exceptional circumstances exist); Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972) (court will not grant bail unless petitioner presents not only a clear case on the law but a readily apparent case on the facts); see also Richardson v. Wilhelm, 587 F. Supp. 24, 25 (D. Nev. 1984); Monroe v. State Court of Fulton County, 560 F. Supp. 542, 545 (N.D. Ga. 1983).
Courts have also narrowly construed the second test of the Aronson analysis; namely, that petitioner show that his case presents exceptional circumstances justifying relief. See Calley, 496 F.2d at 702. Exceptional circumstances may be found and, in the court's discretion, warrant a petitioner's release on bail where: (1) petitioner's health is seriously deteriorating while he is incarcerated, Woodcock v. Donnelly, 470 F.2d 93 (1st Cir. 1972) (per curiam); Johnston v. Marsh, 227 F.2d 528 (3rd Cir. 1955); (2) there is an extraordinary delay in the processing of a petition, Glynn, 470 F.2d at 95; and (3) the petitioner's sentence would be completed before meaningful collateral review could be had, Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968) (bail granted where court concluded petitioner should present claims to state courts, despite state courts' precedents denying relief for his claim, and feared petitioner's sentence would run before exhaustion could be completed); see also Goodman v. Ault, 358 F. Supp. 743 (N.D. Ga. 1973).
Bail pending a decision in a habeas case is reserved for extraordinary cases involving special circumstances or a high probability of success. See Aronson v. May, 85 S.Ct. 3, 5, (1964); Galante v. Warden, 573 F.2d 707, 708 (2d Cir.1977). Petitioner has not demonstrated that he is entitled to release under either standard. Moreover, because petitioner has not yet filed his second amended petition, the court cannot determine whether his case presents a high probability of success. Accordingly, petitioner's motion for bail will be denied without prejudice. Petitioner will be granted a brief extension of time in which to file his second amended petition. Petitioner is cautioned that failure to file a second amended petition as required by this court's November 19, 2008 order will result in a recommendation that this action be dismissed.
IT IS HEREBY ORDERED that petitioner shall file his second amended petition on or before January 9, 2009; and
IT IS RECOMMENDED that petitioner's December 8, 2008 motion to set bail be denied without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the ...