Opinion
No. CV-18-02711-PHX-DJH (MHB)
07-10-2019
John Richard Tacquard, Petitioner, v. Charles L Ryan, et al., Respondents.
NOT FOR PUBLICATION
ORDER
This matter is before the Court on Petitioner's Motion for Release on Personal Recognizance pending a ruling on his Habeas Corpus Petition. (Doc. 15). Magistrate Judge Bridget S. Bade issued a Report and Recommendation ("R&R") that the Motion be denied, finding that Petitioner had not established that any special circumstances exist to warrant his release. (Doc. 18). Petitioner timely filed an objection. (Doc. 19). Judge Bade has explained the background and status of this habeas case in the R&R and the Court need not repeat that information here.
I. Standard of Review
The district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121. The judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
II. Applicable Law
Petitioner did not object to any of the legal authority relied on in the R&R. The R&R noted that the Ninth Circuit has not resolved whether the district court may grant release pending resolution of a habeas corpus petition. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (noting divergence among circuits and declining to resolve whether release may be granted pending a decision by the district court on a habeas petition). Therefore, for purposes of deciding Petitioner's Motion, Judge Bade operated under the assumption that the Court has authority to release Petitioner on bail. See United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (federal sentence); Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987) (state court sentence).
In these matters, bail is reserved for "'extraordinary cases involving special circumstances or a high probability of success.'" Mett, 41 F.3d at 1282 (quoting Land v. Deeds, 878 F.2d 318 (9th Cir. 1989)). "Special circumstances" include "a serious deterioration of health while incarcerated, and unusual delay in the appeal process." Salerno v. United States, 878 F.2d 317 (9th Cir. 1987). Special circumstances also include situations in which "the sentence was so short that if bail were denied and the habeas petition were eventually granted, the defendant would already have served the sentence." Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992).
III. Analysis
In his objection, Petitioner takes issue with the R&R's conclusion that he has not shown "a serious deterioration of health while incarcerated," arguing that prison is a "highly violate environment" which puts him at risk of physical harm in the event of a prison riot. (Doc. 19 at 2). Petitioner does not argue that he has any severe medical conditions or that his health has seriously deteriorated since he became incarcerated. See Salerno v. United States, 878 F.2d 317 (9th Cir. 1987). The Court finds that Petitioner's risk of injury in prison is not a "special circumstance" envisioned by Salerno. Moreover, Petitioner does not argue that his sentence is so short that he will serve out his sentence prior to a decision being made on his Habeas Petition.
For the foregoing reasons, and after conducting its own de novo review, the Court concludes that Petitioner has not demonstrated "special circumstances" that warrant his release at this time. Therefore, the R&R will be adopted, and his Motion denied.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Bade's R&R (Doc. 18) is accepted and adopted. Petitioner's Motion (Doc. 15) is denied.
Dated this 10th day of July, 2019.
/s/_________
Honorable Diane J. Humetewa
United States District Judge