(HC) Johnson v. Superior Court of the State of California for Kings County ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK L. JOHNSON, ) Case No.: 1:19-cv-00976-JLT (HC) ) 12 Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE 13 v. ) ) FINDINGS AND RECOMMENDATION 14 SCOTT KERNAN, Secretary of California ) REGARDING PETITIONER’S APPLICATION Department of Corrections and Rehabilitation, 15 et al., ) FOR RELEASE ON BAIL PENDING ) DETERMINATION OF PETITION 16 Respondents. ) ) 17 18 Petitioner filed a Petition for Writ of Habeas Corpus on July 3, 2019. (Doc. 1.) In the petition, 19 Petitioner requested bail pending the determination of the petition. (Doc. 1 at 2.) 20 DISCUSSION 21 The Ninth Circuit Court of Appeals has not yet determined whether a district court has the 22 authority to release a state prisoner on bail pending resolution of a habeas proceeding. In re Roe, 257 23 F.3d 1077, 1079-1080 (9th Cir. 2001). However, even assuming a district court has this power, the 24 exercise of such authority is reserved for extraordinary cases. Id., 257 F.3d at 1080; see also United 25 States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (bail pending the resolution of a habeas 26 corpus petition filed in a district court is reserved to "extraordinary cases involving special 27 circumstances" and where there is a high probability of the petitioner's success). A petitioner must 28 demonstrate circumstances that makes his situation exceptional and especially deserving of bail in the 1 interests of justice. See Aronson v. May, 85 S.Ct. 3, 5, 13 L. Ed. 2d 6 (1964) (Douglas, Justice, in 2 chambers); Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964). In addition to these factors, the 3 Court must take into consideration the petitioner's risk of flight and the danger to the community 4 should the petitioner be released. Marino v. Vasquez, 812 F.2d 499, 508-09 (9th Cir. 1987). Petitioner 5 has made none of these showings. 6 RECOMMENDATION 7 Accordingly, the Court RECOMMENDS that Petitioner’s request for release on bail pending 8 determination of the petition be DENIED. 9 This Findings and Recommendation is submitted to the United States District Court Judge 10 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 11 Local Rules of Practice for the United States District Court, Eastern District of California. Within 12 twenty-one days after being served with a copy, any party may file written objections with the Court. 13 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendation.” Replies to objections must be filed within ten court days of the date of service of 15 any objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 16 (b)(1)(C). The parties are forewarned that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: September 24, 2019 /s/ Jennifer L. Thurston 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28