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

Opinion

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

Dated: September 24, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE