Lee v. Jabe
| Decision Date | 02 April 1993 |
| Docket Number | No. 92-1745,92-1745 |
| Citation | 989 F.2d 869 |
| Parties | Robert LEE, Jr., Petitioner-Appellant, v. John JABE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert Lee, Jr. (briefed), pro se.
Kathleen Davison Hunter, Asst. Atty. Gen. (briefed), Office of the Atty. Gen., Habeas Div., Lansing, MI, for respondent-appellee.
Before: JONES and GUY, Circuit Judges; and LIVELY, Senior Circuit Judge.
Petitioner, Robert Lee, Jr., filed a habeas petition in district court challenging his custody under a state conviction. While this action was pending, Lee filed a motion for bond. The district court denied the motion and Lee filed this appeal.
Subsequent to filing his notice of appeal, petitioner sought a certificate of probable cause from the district court, which was denied on July 21, 1992. On August 11, 1992, respondent filed a motion seeking to have this appeal held in abeyance until this court determines whether a certificate of probable cause is a necessary prerequisite to appeal an order denying bail during the pendency of a habeas action. We denied the motion to hold the appeal in abeyance and granted a limited certificate of probable cause. We further directed that the parties address two issues: (1) whether a certificate of probable cause is required to appeal a district court's denial of bail pending disposition of a habeas action; and (2) whether the district court erred in denying bail. We now address these two issues.
Until recently, it was unclear in this circuit whether an order denying bail pending disposition of a habeas action was appealable. We resolved this issue in 1990 when we joined those circuits which concluded that the denial or granting of bail is appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Dotson v. Clark, 900 F.2d 77 (6th Cir.1990).
In Dotson, we addressed whether the result of our holding "will result in a tidal wave of appeals...." Id. at 79. In concluding that it would not, we noted:
There will be few occasions where a prisoner will meet [the] standard [for bail]. Moreover, it is doubtful that the district court or a circuit judge will issue the certificate of probable cause for an appeal required for appeals by state habeas petitioners in Federal Rule of Appellate Procedure 22(b)....
Subsequent to our decision in Dotson, the Second Circuit addressed this precise issue in Grune v. Coughlin, 913 F.2d 41 (2d Cir.1990). The court in Grune joined us in holding that an order denying bail is appealable, but went on to specifically hold:
Before an appeal by a party seeking habeas relief pursuant to section 2254 may proceed, the party must obtain a certificate of probable cause. 28 U.S.C. § 2253; Fed.R.App.P. 22(b); see Latella v. Jackson, 817 F.2d 12, 13 (2d Cir.1987) (per curiam), cert. denied, 484 U.S. 1010, 108 S.Ct. 708, 98 L.Ed.2d 658 (1988). We construe this requirement as extending not only to the final determination of the merits but also to an order denying bail. See Dotson, 900 F.2d at 79. The interest served by the certificate of probable cause requirement--relieving the state and the court system of the burdens resulting from the litigation of insubstantial appeals--is equally served whether the order appealed is a final disposition of the merits or a collateral order.
Although the Second Circuit cited to Dotson, it is not clear whether our comments relative to certificates of probable cause in Dotson were central to our decision or just dicta. If we did not decide this question in Dotson, we do now, and conclude as did the Second Circuit that a certificate of probable cause is a prerequisite to appealing the denial of a bail motion in a habeas proceeding. Our reasons are no different than those set forth in Grune. The same considerations that dictate a certificate of probable cause be required before appealing the denial of a habeas petition apply with equal force to an attempt to appeal an interlocutory and collateral order.
Since the petitioner did seek a certificate of probable cause from the district court, albeit after filing his notice of appeal, and since we granted a limited certificate of probable cause following the district court's denial, we are able to address the merits of petitioner's appeal from the denial of bail.
In Dotson, we stated:
In order to receive bail pending a decision on the merits, prisoners must be able to show not only a substantial claim of law based on the facts surrounding the petition but also the existence of "some circumstance making [the motion for bail] exceptional and deserving of special treatment in the interests of justice." Aronson v. May, 85 S.Ct. 3, 5, 13, L.Ed.2d 6, 9 (1964) (Douglas, J., in chambers); see Martin v. Solem, 801 F.2d at 329-330 [ (8th Cir.1986) ]; ...
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