United States District Court, E.D. California
ORDER ON MOTION FOR RELEASE (DOC. NO. 332)
On May
23, 2017, a jury found Petitioner Keith Foster guilty of
conspiracy to distribute and possess marijuana and conspiracy
to distribute and possess heroin, both in violation of 21
U.S.C. §§ 841(a)(1) and 846. Foster's
conviction and sentence were affirmed by the Ninth Circuit on
direct appeal on June 20, 2019. See Doc. No. 327. On
December 16, 2019, Foster filed a motion to vacate his
conviction and sentence under 28 U.S.C. § 2255, a motion
for release pending adjudication of his § 2255 petition,
and a motion to disqualify the undersigned. See Doc.
Nos. 331, 332, and 333. This order addresses the motion for
release. For the reasons that follow, Foster's motion for
release will be denied.
Petitioner's
Argument
Foster
argues that he is entitled to post-trial release while his
§ 2255 petition is pending pursuant to 18 U.S.C. §
3143. Foster argues that he has demonstrated constitutional
errors in that the prosecution, the district court, and the
Ninth Circuit incorrectly evaluated the sufficiency of the
evidence including the buyer-seller rule, he received
ineffective assistance of counsel regarding the insufficiency
of the evidence, and the undersigned should have recused
himself under 28 U.S.C. § 455.
Respondent's
Opposition
The
United States opposes Foster's motion. The United States
points out that 18 U.S.C. § 3143(b) does not apply to
habeas proceedings, it is an open question whether a district
court can order bail, and, even if district court can do so,
Foster has not demonstrated either a high probability of
success or special circumstances that would justify bail.
Discussion
After
review, the Court agrees with the United States'
opposition and cannot conclude that release pending the
adjudication of Foster's § 2255 petition is
appropriate.
First,
Foster's motion relies on 18 U.S.C. § 3143(b), known
as the Bail Reform Act. However, the Ninth Circuit has
clearly held § 3143(b) “does not apply to federal
prisoners seeking postconviction relief.” United
States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994). The
inapplicability of § 31413(b) to Foster is by itself
sufficient to deny the motion for release.
Second,
the Court cannot clearly hold that it has the authority to
grant Foster bail pending adjudication of his § 2255
petition. The Ninth Circuit has explained that it has
“not yet decided whether district courts have the
authority to grant bail pending resolution of a habeas
petition . . . .” United States v. McCandless,
841 F.3d 819, 822 (9th Cir. 2016). Foster's motion does
not cite McCandles. Because the Ninth Circuit
acknowledges that a district court's ability to grant a
habeas petitioner bail is an open question, without further
briefing on this issue from both parties, the Court cannot
grant relief.
Third,
McCandless explained that if district courts have
the authority to grant bail pending the resolution of a
habeas petition, that authority “is reserved for
‘extraordinary cases involving special circumstances or
a high probability of success.” Id. Here, in a
separate order, the Court has denied Foster's § 2255
petition. The arguments Foster makes in this motion regarding
recusal of the undersigned, ineffective assistance of
counsel, and insufficiency of the evidence and the
buyer-seller rule were all arguments that were made as part
of Foster's § 2255 habeas petition. Cf.
Doc. No. 331 with Doc. No. 332. The Court held that
these arguments were without merit and denied the § 2255
petition.[1] See Doc. No. 336. In particular,
the Court noted that Foster's attacks on the sufficiency
of the evidence were precluded by the Ninth Circuit opinion
on direct appeal, which held that the evidence was sufficient
to support both conspiracy convictions and found no error
regarding the absence of a “buyer-seller” jury
instruction. See id (citing inter alia United
States v. Jingles, 702 F.3d 494, 498-500 (9th Cir.
2012), United States v. Hayes, 231 F.3d 1132, 1139
(9th Cir. 2000), United States v. Redd, 759 F.2d
699, 701 (9th Cir. 1985), and Battaglia v. United
States, 428 F.2d 957, 960 (9th Cir. 1970)). Given the
Court's resolution of Foster's § 2255 habeas
petition, the Court cannot find that Foster has a high
probability of success. Further, Foster's application
does not address and thus, does not demonstrate that
“special circumstances” exist. No “special
circumstances” are apparent to the Court.
ORDER
Accordingly,
IT IS HEREBY ORDERED that Petitioner's motion for release
(Doc. No. 332) is DENIED.
IT IS
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