The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Introduction and Summary*fn1
By means of a motion brought pursuant to 28 U.S.C. § 2255, Bryan Epis seeks to vacate his marijuana cultivation convictions and sentences in this somewhat well-known-in-this- district case. He does so on several grounds, but primarily on his oft asserted ground of governmental misconduct in the course of the prosecution, i.e., misleading the jury into finding that this case involved a conspiracy to grow over 1000 marijuana plants within 1000 feet of a school. By the present interlocutory motion under submission, he seeks to be released on bail pending the ultimate adjudication of the § 2255 motion. For the reasons that follow, the court does not find that Epis has shown a high degree of success on his § 2255 motion, nor the special circumstances that must exist for release on bond post-conviction.
Having been involved steadily in a state marijuana prosecution based on 1994 activities, movant ("Epis") was arrested again on such a charge on June 26, 1997. Although his state (Butte County) charges were still pending, Epis was ordered released on his federal charges a few days later, July 2, on the posting of $500,000 bond, posted approximately one-month later.*fn2
This federal case thereupon stalled somewhat on account of changes in the prosecution team, a change in assignment of district judges, and numerous defense motions.
The first indictment was returned in July of 1997, the first superseding indictment in January of 2001, and the second superseding indictment, a year later. While Count 3 remained stable (cultivation of 100 or more plants within 1000 feet of a school), Count 1 evolved from a non-specified conspiracy to cultivate marijuana, to a 1000 plant or more conspiracy, to finally a 1000 plant or more cultivation conspiracy within 1000 feet of a school. (The great bulk of Epis' current challenge relates to this count and his assertion that the evidence presented by the government on this count related to an unrelated plan to cultivate marijuana in the Silicon Valley.)
Motion after motion was made in this case. Evidentiary hearings were held. Moreover, at one time in 1998, Epis had purportedly thought about pleading guilty, and even moved to enforce a purported agreement, without ever having pled guilty, but the parties disagreed on the contents of that plea agreement and/or its effective status. The court refused to enforce this "agreement." On July 11, 2002, Epis was convicted on Counts 1 and 3 of the second superseding indictment. Sentencing occurred on October 7, 2002 and Epis received 120 months on each of the two counts to run concurrently. Epis, who had been out on release was remanded on this date. Appeal was taken, and on August 6, 2004, the Ninth Circuit remanded the case to the district court on a limited basis pending final resolution of the appeal to consider the effect, if any, on the Supreme Court's then upcoming decision in Raich v. Ashcroft (later Gonzales), 545 U.S.1, 125 S.Ct. 2195 (2005), and also re-sentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004). Of note here, the Ninth Circuit also ordered Epis' release pending adjudication of the limited remand. At this time, counting the initial few days of jail confinement at the inception of the case, Epis had served approximately two years.
Protracted proceedings occurred again with respect to the limited remand. Raich was decided adversely to Epis' assertions on appeal in this case. On September 14, 2007, Epis was resentenced to 120 months on Count 1 and 87 months (concurrently) on Count 3. He was not remanded at this time, and his continued release pending appeal was confirmed by Order of October 19, 2007. The Epis direct review saga came to an end on August 11, 2009 when the Ninth Circuit affirmed the conviction and new sentencing. Epis was remanded into custody on February 22, 2010, and has remained so up to the present time. The parties disagree on the precise release date in BOP records (presumably taking into account both Counts), but suffice it to say that only, approximately three and one-half years of the 87 month (7 and one-quarter years) have been served. Even giving Epis the benefit of speculation that he will receive approximately one year "good time," he would not be released on Count 3, if Count 3 were the only Count in play, until mid 2013, or so. This fact becomes important in the bail pending adjudication of the § 2255 motion issue before the undersigned.
The Ninth Circuit has utilized both a conjunctive and disjunctive test for release pending adjudication of a § 2255 motion; the standards involve "special circumstances" and a "high probability of success." See Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964) (something more than a "clear case for release" on the merits of the petition must exist before release on bail appropriate) cited with approval in Aronson v. May, 85 S.Ct. 3 (1964) (Douglas, J in chambers), and United States v. Metts, 41 F.3d 1281, 1282 (9th Cir. 1995) (either special circumstances or a high probability of success may be grounds for release pending adjudication of a § 2255 motion). See also Vaughn v. Adams, 2006 WL 2585041 *9-10 (E.D. Cal. 2006) discussing the apparent discrepancy in Circuit law. However, the undersigned need not pick which line of authority is most appropriate because petitioner has shown neither special circumstances nor a high probability of success, at least with respect to Count 3.*fn3
The undersigned has reviewed the entire § 2255 motion in this case. Every issue, save perhaps one or two, is related to conviction on Count 1, and would not impact the conviction on Count 3. Thus, even if Epis could make out a clear case for success on the merits on his issues of governmental misconduct during litigation or ineffective assistance of counsel related to the same misconduct issue (all having to do with the context of exhibits demonstrating the scope of the conspiracy), such would not impact his conviction for Count 3 which involved the actual cultivation of marijuana 100 plants (but less than 1,000) within 1000 feet of a school.
Such a situation where a sentence must be served regardless of the final outcome on the merits of one count is the antithesis of special circumstances indicating that release on bail might be appropriate; it is a circumstance warranting the denial of the motion. Epis' argument that he might prevail on an issue which would result in the vacating of a conviction on another count is a non-sequitur, at least until such a time where the sentence on the unchallenged count would expire. Given that expiration of the sentence on Count 3 is at least two years in the future, the undersigned will not order release at this time.
Epis does challenge his counsel's failure to accept a plea offer made in 2002, (the Wong proposal-four years incarceration) different and presumably harsher from that which was at issue on the motion for specific performance (the Griffin proposal). Superficially that challenge could affect Count 3 as that Count would have been dismissed upon acceptance of the plea offer and entry of the guilty plea, or Count 3 may have been modified so that a four year plea would have fit the charge. The undersigned is unsure of the precise mechanics of the ...