Opinion
No. 15-20247
11-13-2015
VINCENT E. BEASLEY, Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee
Summary Calendar Appeals from the United States District Court for the Southern District of Texas
USDC No. 4:14-CV-2708
Before WIENER, HIGGINSON, and COSTA, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. --------
Vincent E. Beasley pled guilty to sexual assault and was sentenced to eight years in prison. Beasley filed a habeas petition and a motion for release pending review of his habeas petition in district court. The district court denied his motion for release, denied a certificate of appealability ("COA"), and administratively closed his habeas case pending this appeal. Beasley now (1) moves for a COA on his motion for release, (2) appeals the denial of his motion for release, and (3) moves for his release pending appeal. An order denying a motion for release is not a final order for purposes of 28 U.S.C. § 2253(c)(1), so Beasley does not need a COA to appeal. See Harbison v. Bell, 556 U.S. 180, 183 (2009). His motion for a COA is DENIED as unnecessary.
Release should be granted to a prisoner pending postconviction habeas review "only when the [applicant] has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974). Examples of "extraordinary circumstances" include the "serious deterioration of the [applicant's] health while incarcerated, . . . short sentences for relatively minor crimes so near completion that extraordinary action is essential to make collateral review truly effective, . . . or possibly extraordinary delay in processing a habeas corpus petition." Id. at 702 n.1 (citations omitted).
We need not address the merits of Beasley's claim—an issue still before the district court—because he has not shown the existence of any "extraordinary circumstances" requiring his release. The district court did not err by denying his motion for release. See id. at 703. We AFFIRM. To the extent Beasley moved this court for his release pending appeal, we DENY his motion for the same reason.