United States v. Dade, 052120 FED9, 19-35172

Docket Nº:19-35172
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN ERNEST DADE, Defendant-Appellant.
Judge Panel:Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES, Judge. BERZON, Circuit Judge, dissenting
Case Date:May 21, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN ERNEST DADE, Defendant-Appellant.

No. 19-35172

United States Court of Appeals, Ninth Circuit

May 21, 2020

D.C. Nos. 4:16-cv-00224-BLW, 4:01-cr-00196-BLW-1 District of Idaho, Pocatello

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES, [*] Judge.

ORDER

Appellant John Ernest Dade ("Dade") moves for release on bail pending his appeal of the district court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255. Dade contends that three of his five counts of conviction impermissibly rely on 18 U.S.C. § 16(b), which contains a residual definition of "crime of violence" that is facially invalid under Supreme Court precedent made retroactively applicable on collateral review. Sessions v. Dimaya, 138 S.Ct. 1204 (2018); Welch v. United States, 136 S.Ct. 1257, 1268 (2016); Johnson v. United States, 135 S.Ct. 2551 (2015). We express no view of the merits of Dade's appeal, which has not yet been argued. Even assuming arguendo that Dade has established a likelihood of success on appeal, he has not made the further showing required to warrant his release pending appeal. We therefore deny the motion.[1]

Under Rule 23-1 of this court, Dade's "detention or release" pending his appeal of the denial of his § 2255 motion is "governed by FRAP 23(b), (c) and (d)." Ninth Cir. R. 23-1. Because the denial of a § 2255 motion is "a decision not to release a prisoner," the operative rule is Rule 23(b), which states that, pending appeal, "the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court," may order that the prisoner be "detained in the custody from which release is sought," "detained in other appropriate custody," or "released on personal recognizance, with or without surety." Fed. R. App. P. 23(b). Rule 23(b) does not itself set forth any substantive criteria for determining detention or release, and our decision is instead governed by equitable considerations. See United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1995) (citing, inter alia, Aronson v. May, 85 S.Ct. 3, 5 (1964) (Douglas, J., in chambers); United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986)); cf. Hilton v. Braunskill, 481 U.S. 770, 777 (1987) (decision under Rule 23(c) whether to stay release pending government's appeal depends on general equitable considerations governing stays). Here, Dade has failed to make a sufficient showing that release is warranted under the applicable equitable standards.[2]

As we explained in Mett, release pending appeal of the denial of a § 2255 motion is "reserved . . . for extraordinary cases." 41 F.3d at 1282 (internal quotation marks and citation omitted). This requires an appellant to make a "heightened" showing beyond what would be required to warrant release on a direct criminal appeal. Kelly, 790 F.2d at 139. In Mett, we said that the requisite showing would involve "'special circumstances or a high probability of success.'" 41 F.3d at 1282 (quoting Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)). To the extent that our use of the disjunctive in Mett and Land might be thought to suggest that a "high probability of success" might alone be sufficient to warrant release, we clarify that a likelihood of success is not enough. A contrary rule would be an unwarranted departure from traditional equitable standards, see Hilton, 481 U.S. at 776 (likelihood of success is merely one factor in determining release under Rule 23), and it would lead to the anomalous result that release would be more easily obtained on collateral review than on direct appeal. Cf. 18 U.S.C. § 3143(b) (release pending appeal requires both a substantial showing on the merits and a showing that the defendant is "not likely to flee or pose a danger to the safety of any other person or the community"). Moreover, both Mett and Land drew their articulation of the relevant release standards from Justice Douglas's in-chambers opinion in Aronson, which made clear that the prisoner must show that, "in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and...

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