The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION FOR IMMEDIATE RELEASE (DOC. 6) FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S EMERGENCY MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE, IMMEDIATE RELEASE, AND INJUNCTIVE RELIEF (Doc. 7) OBJECTIONS DEADLINE: 30 days
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus ostensibly pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court are Petitioner's motion for immediate release on his own recognizance, filed on January 29, 2009, and Petitioner's emergency motion for immediate release, injunctive relief, and for issuance of an order to show cause, filed on March 2, 2009.
On June 8, 2009, the Court issued findings and recommendations to deny Petitioner's motions for release and for injunctive relief. (Doc. 10.) In the same document, the Court also recommended dismissal of the petition because Petitioner, who complained of his pretrial detention with respect to state criminal charges, purported to proceed pursuant to 28 U.S.C. § 2254, which authorizes habeas relief for persons in custody pursuant to the judgment of a state court; however, there was no state court judgment due to the pretrial status of the relevant state court criminal proceedings.*fn1
The Court adopted the findings and recommendation of the Magistrate Judge to dismiss the action, and the action was dismissed. Petitioner appealed the judgment. By order of the United States Court of Appeals for the Ninth Circuit, filed on December 10, 2009, the judgment of dismissal was summarily vacated, and the case was remanded to allow the Court to consider Petitioner's previously filed objections to the findings and recommendations and to enter a new order. On April 1, 2010, the Magistrate Judge vacated the findings and recommendations. (Doc. 21.)*fn2 On April 14, the action was reassigned to the undersigned Magistrate Judge.
Because the findings and recommendations were vacated without exception, the Court concludes that Petitioner's two motions concerning release remain pending.
II. Petitioner's Motion for Immediate Release
On January 28, 2009, Petitioner filed a motion for immediate release on his own recognizance, arguing that he was entitled to release pursuant to state law. (Doc. 6.)
In habeas corpus proceedings, a district court has inherent power, derived from the power to issue the writ of habeas corpus itself and the habeas corpus statutes (28 U.S.C. §§ 2241-2255), to direct the release of a state prisoner on his or her own recognizance or on a surety. Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987). Fed. R. App. P. 23 governs release on bail. The decision is made as appears fitting to the Court; relevant factors include the risk of flight, risk of danger to the community, the availability of alternative remedies to the petitioner. 812 F.2d at 508-09.
However, federal courts reserve bail pending resolution of a habeas corpus petition to "extraordinary cases involving special circumstances" and where there is a high probability of the petitioner's success on the merits. United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994), quoting , Land v. Deeds, 878 F.2d 318, 318-319 (9th Cir. 1989). Further, the petitioner must show circumstances that make him exceptional and especially deserving of special treatment in the interests of justice. Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964). The Court must also consider the petitioner's risk of flight and the danger to the community should the petitioner be released. Marino v. Vasquez, 812 F.2d 499, 508-09 (9th Cir. 1987).
In the present case, Petitioner has not alleged specific facts demonstrating that he is entitled to release.
Accordingly, it will be recommended that Petitioner's motion for immediate release be denied.
III. Petitioner's Motion for Issuance of an Order to Show Cause, Immediate Release, and Injunctive Relief
On March 2, 2009, Petitioner filed a motion for issuance of an order to show cause, immediate release, and for injunctive relief. (Doc. 7.) Petitioner asserts in the motion generally that he was subjected to torture and experimentation by Respondents, custodians at the Kings County Jail, involving x-rays, lasers, radiation, microwaves, and other electronic means. He states that he suffered permanent injuries to his genitals as a result. He also asserts that he was subject to illegal seizure and kidnaping. (Mot. 2, 4.) However, Petitioner does not state any specific facts concerning ...