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McNeely v. County of Sacramento

April 9, 2010

DOCK MCNEELY, PETITIONER,
v.
COUNTY OF SACRAMENTO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER and FINDINGS & RECOMMENDATIONS

Petitioner is currently a state prisoner,*fn1 and the instant case has been construed as an application pursuant to 28 U.S.C.§ 2254. See Order, filed on September 15, 2009 (docket # 6). Pending before the court are: 1) petitioner's motions to appoint counsel (docket # 2 and # 41); 2) petitioner's "motion for relief based on victims rights" (docket # 7); 3) petitioner's motion for witness protection and for a temporary restraining order (TRO) (which in the context of this habeas petition, must be construed as a motion for bail pending adjudication of the habeas), and motions to restrict petitioner's transfer during the pendency of habeas corpus proceedings (docket # 9, # 10 and # 25); 4) petitioner's motions "to correct error" (docket # 12 and # 24); 5) respondent's motion to dismiss (docket # 26), to which petitioner filed his opposition (docket # 34); 6) petitioner's motions for default judgment/entry of default (docket # 31, # 33, # 42 and # 43); 7) petitioner's motions for an evidentiary hearing (docket # 38 and docket # 40); 8) petitioner's "request for recall of commitment recommendation" (docket # 47). Standard for Bail Pending Collateral Review

"The federal court's authority to release a state prisoner on recognizance or surety in the course of a habeas corpus proceeding derives from the power to issue the writ itself." Marino v. Vasquez, 812 F.2d 499, (9th Cir. 1987), citing Ostrer v. United States, 584 F.2d 594 (2nd Cir.1978); 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, 94 S.Ct. 121 (1973); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). 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, Turner v. Yates, 2006 WL 1097319 *1(E.D. Cal. 2006)(adopted by Order, 2006 WL 2331125 (E.D. Cal. 2006), citing In re Wainwright, 518 F.2d at 174; United States ex rel. Thomas v. New Jersey, 472 F.2d at 743; Woodcock v. Donnelly, 470 F.2d at 94. However, the bail standard for a person seeking collateral review significantly differs from the standard applied to a pretrial detainee; persons accused of crimes and awaiting trial are presumed innocent and therefore enjoy an Eighth Amendment right to be free from excessive bail. Turner v. Yates, 2006 WL 1097319 *1, citing Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1 (1951). In contrast, a habeas corpus petitioner requesting post-conviction relief has already been convicted and is, therefore, no longer presumed innocent and no longer enjoys a constitutional right to freedom, however conditional. Turner, supra, citing 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). Turner, supra. In Aronson, which cites the Ninth Circuit's decision in Benson, an applicant sought bail pending appeal from the denial of his petition for writ of habeas corpus. Turner, supra. 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). Turner, supra. Aronson, therefore, requires a petitioner to demonstrate that his underlying claim implicates or raises substantial questions and that his case sets forth exceptional circumstances.*fn2 Turner, supra.

In addition, 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 there are extraordinary or exceptional circumstances); 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 case that is readily apparent 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). Turner, supra.

Courts moreover have narrowly construed the second test of the Aronson analysis: that petitioner show that his case presents exceptional circumstances justifying relief. See Calley, 496 F.2d at 702. Turner, supra. Exceptional circumstances may be found and, in the court's discretion, may warrant a petitioner's release on bail where: (1) petitioner demonstrates a health exigency or seriously deteriorating health while confined in prison, 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 95; and (3) petitioner's sentence would be completed before there could be meaningful collateral review, 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 court precedents denying relief for his claim, and noting that petitioner's sentence would have been served before exhaustion could be completed); see also Goodman v. Ault, 358 F. Supp. 743 (N.D. Ga. 1973). Turner, supra. Because the court concludes (see below) that petitioner has neither set forth substantial claims (much less "more than substantial) nor made a showing of the requisite exceptional circumstances, petitioner's motion for bail pending collateral review is denied as are his equally unavailing motions to restrict his transfer pending review of the instant habeas petition.

Motion to Dismiss

On October 2, 2009, the County of Sacramento informed the court that petitioner, on August 20, 2009, was convicted by a jury for a violation of Cal. Penal Code § 290(g)(2). Docket # 14, p. 2, & Exhibit A. Petitioner thereafter was sentenced on September 18, 2009, to a term in state prison of seven years and four months. Id.

In an Order, filed on October 15, 2009, the court stated the following: Petitioner, a state prisoner proceeding pro se, has purportedly filed an action pursuant to 42 U.S.C. § 1983, wherein petitioner, as plaintiff, sought to implicate, inter alia, Sacramento and Placer Counties, Sacramento County Sheriff John McGinness, various Sacramento County sheriff's deputies, a Placer County deputy district attorney, his own counsel,California Justice Department officials and a Sacramento County judge, for alleged misdeeds, including false arrest, malicious prosecution, and abuse of process for holding and prosecuting him on the basis of an underlying conviction that had been invalidated. Complaint, pp. 1-84. However, this court has been compelled to construe the putative complaint as an application pursuant to 28 U.S.C. § 2254 because petitioner seeks his immediate release from custody.

The undersigned directed respondent Sacramento County Sheriff John McGinness to provide a response to petitioner's request for immediate release within twenty days. See Order, filed on September 15, 2009 (dkt # 6). Rather than responding on substantive grounds, County Counsel, on behalf of the sheriff, asks this court to dismiss the sheriff as respondent on the basis that, although petitioner, as of that filing was still being held within the Sacramento County Main Jail, he was pending transfer to the custody of the California Department of Corrections and Rehabilitation following imposition of a state prison term on September 18, 2009. Response, p. 2. According to an abstract of judgment submitted by respondent, petitioner was convicted, on August 20, 2009, of two counts of failure to register (count one in 2007 and count two in 2008) under Cal. Penal Code § 290. Exhibit A to response. Petitioner was thereafter sentenced to a term of seven years, four months on September 18, 2009. Id., at 10.

The court takes judicial notice of McNeely v. McGinness, CIV S-08-0175 LEW JFM P[], which distinguished between any requirement for petitioner to register as a sex offender, pursuant to Cal. Pen. Code § 290, predicated on a 1995 conviction and any such requirement that would have been based on an invalidated 1998 conviction. In that case, the court found that the 2006 and 2007 offenses for which he was charged for failing to register were based on the valid 1995 conviction (and had yet to be adjudicated). The judgment in Case No. CIV-S-08-0175 was summarily affirmed in an unpublished memorandum from the Ninth Circuit, filed in that case docket on February 10, 2009. Docket # 28.

This court is unable to determine from the respondent Sheriff's response whether the current conviction rests on a 1998 conviction of petitioner's which has been invalidated or an earlier 1995 conviction, which evidently has not (although petitioner claims that conviction to be invalid as well). As petitioner has been transferred to Deuel Vocational Institution (DVI), Warden S.M. Salinas will be substituted in for Sheriff McGinness as respondent in this case.[] Because petitioner has alleged that his present conviction is predicated on an invalidated judgment, the court will require an accelerated response from the Attorney General's Office.

Order, filed on October 15, 2009 (docket # 18), pp. 1-3.

In the response, the Attorney General, counsel for respondent, clarifies that petitioner was charged in a Sacramento County Superior Court complaint, filed on September 28, 2007, in count 1 with having failed to register within five days of changing residence (Cal. Penal Code § 290(g)(2)) and in count two with having failed to register within five days of changing residence also in violation of Cal. Penal Code § 290(g)(2). Motion to Dismiss (MTD), p. 2, citing Clerk's Transcript (1CT 116-17). (Lodged Document Clerk's Transcript, Volume 1, pp. 116-17). As respondent maintains, the complaint filed "expressly stated that petitioner was obligated to register because of an August 25, 1995, Placer County conviction." Id. The complaint also alleged that petitioner had been convicted on August 25, 1995, of continuous sexual abuse of a child under Cal. Penal Code § 288.5. Id., citing 1CT at 117.

Respondent sets forth the following chronology which the court finds has been supported in its independent review of the record submitted (MTD, pp. 2-4) (where any supporting record has not been produced, it is noted):

* On January 10, 2008, public defender relieved as counsel for petitioner pursuant to petitioner's Faretta*fn3 motion ...


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