Opinion
3:20-CV-0103-C-BH
08-26-2021
LEO WILLIAM THOMPSON, ID # 2238303, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Referred to U.S. Magistrate Judge
By Special Order No. 3-251, this habeas case has been automatically referred for full case management.
Before the Court is the petitioner's Motion for Appeal Bond, received August 24, 2021 (doc. 27). Based on the relevant filings and applicable law, the motion is DENIED.
Leo William Thompson (Petitioner), an inmate currently incarcerated in the Texas Department of Criminal Justice correctional facility in Bridgeport, Texas, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions in the 413th District Court of Johnson County, Texas, for possession of a controlled substance, and the revocation of his probation for theft of property on November 28, 2018. (See doc. 3 at 2; doc. 18 at 3-4.) He now seeks to be released on bond pending determination of his habeas petition, citing the Texas Code of Criminal Procedure. (See doc. 27 at 2.)
Citations to the record refer to the CM/ECF system page number at the top of each page.
There are no federal statutes or rules that authorize federal district courts to grant a state prisoner release pending determination of a federal habeas corpus petition. See In re Wainwright, 518 F.2d 173, 174 (5th Cir.1975) (per curiam). Despite the “lack of specific statutory authorization, ” however, federal district courts have inherent power and jurisdiction to release prisoners, including state prisoners, on bail pending that determination. See id. In order to show entitlement to release pending determination of his federal habeas petition, a state prisoner must show either that he “has raised substantial constitutional claims upon which he has a high probability of success, ” or that “extraordinary and 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) (per curiam); see also Nelson v. Davis, 739 Fed.Appx. 254 (5th Cir. 2018) (per curiam) (applying Calley standard to denial of bail pending determination of a state prisoner's § 2254 petition); Watson v. Goodwin, 709 Fed.Appx. 311 (5th Cir. 2018) (per curiam) (same); Beasley v. Stephens, 623 F. App'x. 192 (5th Cir. 2015) (same). Nelson noted that examples of “extraordinary circumstances” justifying release, including “‘serious deterioration of the petitioner's health while incarcerated'; where a short sentence for a relatively minor crime is ‘so near completion that extraordinary action is essential to make collateral review truly effective'; and possibly where there has been an ‘extraordinary delay in processing a habeas corpus petition.'” 739 Fed.Appx. at 255 (quoting Calley, 496 F.2d at 702 n.1).
In Wainright, the Fifth Circuit Court of Appeals “observe[d] without deciding that it that it is probably within the power of a United States magistrate [judge] to enlarge a state prisoner on bail pending district court consideration of his habeas corpus action.” Id. at n. 1 (citing 28 U.S.C. § 636(a)(1)).
The Fifth Circuit has noted that although Calley involved a habeas petitioner whose underlying conviction was in the military court system, it drew the legal standard in that case from Aronson v. May, 85 S.Ct. 3 (1964), which involved a civilian challenging his convictions in federal district court. See United States v. Pfluger, 522 Fed.Appx. 217, 218 n. 1. (5th Cir. 2013) (per curiam).
Here, “[r]egardless of the merits of [Petitioner's] claims, on which the district court has not yet ruled, [he] has not shown the existence of any ‘extraordinary or exceptional circumstances' necessitating his release on bond to make the post-conviction remedy effective.” United States v. Roberts, 250 F.3d 744, 2001 WL 274751, at *1 (5th Cir. 2001) (per curiam). Petitioner has not alleged any exceptional or “extraordinary circumstances” such as those identified in Calley, or any circumstances similar or analogous to the examples set out in that case. The motion for release on bond is DENIED.