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United States v. Shields

United States District Court, N.D. California, San Jose Division

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVIN RUSSELL “RUSTY” SHIELDS, Defendant.

          ORDER DENYING DEFENDANT'S EMERGENCY MOTION FOR IMMEDIATE RELEASE [RE: ECF 463]

          BETH LABSON FREEMAN United States District Judge

         Defendant Melvin Russell “Rusty” Shields, a federal prisoner serving a seventy-eight month term of imprisonment, has filed an Emergency Motion for Immediate Release from prison (“Motion for Release”). See Def.'s Motion for Release, ECF 463. The motion is DENIED for the reasons discussed below.

         A jury convicted Shields of thirty-two counts, including conspiracy, wire fraud, bank fraud, securities fraud, and making false statements to a bank. Verdict Form, ECF 266. The judge who presided over the trial, Judge Ronald M. Whyte, sentenced Shields to a seventy-eight month term of imprisonment, a five year term of supervised release, a special assessment of $3, 200, and a restitution payment in the amount of $7, 222, 905.03. Judgment, ECF 350. The Ninth Circuit Court of Appeals affirmed the judgment and conviction on December 21, 2016 and it denied Shields' petition for panel rehearing and petition for rehearing en banc on March 30, 2017. Shields did not file a petition for a writ of certiorari.

         On June 16, 2017, Shields submitted a letter directed to Judge Whyte, asking for a modification of his sentence to permit him to care for his minor child, L.S., who suffers from epilepsy. Letter Request, ECF 459. Specifically, the letter asked Judge Whyte to grant him compassionate release under “Amendment 799” to United States Sentencing Guideline 1B1.13. Id. The letter was referred to the undersigned judge as a General Duty matter because Judge Whyte has retired. This Court denied the letter request, concluding that although the Guideline amendment referenced by Shields broadened the eligibility criteria for compassionate release, it did not dispense with the requirement that the Bureau of Prisons must make a motion before a court may consider a reduction in the term of imprisonment. See Order Denying Defendant's Letter Request for Modification of Sentence, ECF 460.

         On July 14, 2017, Shields filed both a motion to vacate his judgment and conviction under 28 U.S.C. § 2255 (ECF 462) and the present Motion for Release (ECF 463). On the same date, the case was reassigned to the undersigned judge. See Order Reassigning Case, ECF 461. Shields contends that “[t]his court now has jurisdiction and authority with the concurrent filing of Petitioners [sic] 28 USC 2255 motion to grant petitioner's release.” Motion for Release at 1, ECF 463. In support of that contention, Shields cites the Federal Rules of Appellate Procedure, which are inapplicable, and numerous decisions from other jurisdictions, which are not controlling.

         This Court instead turns for guidance to the Ninth Circuit's recent decision in United States v. McCandless, discussing a district court's authority to release a federal prisoner on bail pending disposition of a § 2255 motion. See United States v. McCandless, 841 F.3d 819 (9th Cir. 2016). While Shields does not seek release on bail, McCandless is instructive regarding the scope of a district court's authority. The Ninth Circuit observed that it had “not yet decided whether district courts have the authority to grant bail pending resolution of a habeas petition, ” and it declined to do so in McCandless. Id. at 822. However, the court stated that “[i]f district courts have that authority . . . it is reserved for ‘extraordinary cases involving special circumstances or a high probability of success.'” Id. The Ninth Circuit found that McCandless could not establish a high probability of success where his § 2255 motion turned on the Supreme Court's resolution of a particular issue which had “substantial arguments on both sides.” Id. at 822. The Ninth Circuit also found that McCandless had failed to show special circumstances, characterizing as “speculative” his argument that absent bail he could end up serving more than his lawful term of imprisonment. Id. at 822-23.

         Nothing in McCandless suggests that this Court has the authority to grant Shields the relief he seeks in his present motion, outright release from prison, or even the relief he sought in his prior letter, service of the remainder of his sentence on home confinement. And even if it were to construe Shields' motion as a request for release on bail pending disposition of his § 2255 motion, the Court would conclude that Shields has failed to establish an entitlement to bail under the test set forth above. While the Court has determined that Shield's § 2255 motion sets forth cognizable claims and has ordered the Government to respond, see Order Setting Briefing Schedule, ECF 466, requiring a response is a far cry from determining that Shields is likely to succeed on the merits. Based on the record before it, the Court cannot make such a determination. Finally, although it understands the urgency and concern Shields feels for the health and well-being of his child, the Court is not persuaded that L.S.'s epilepsy constitutes “special circumstances” sufficient to qualify this as an “extraordinary case.”

         Accordingly, Shield's Motion ...


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