18‐35 Illarramendi v. United States of America
2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2018 8 9 SUBMITTED: OCTOBER 10, 2018 10 DECIDED: OCTOBER 16, 2018 11 12 No. 18‐35 13 FRANCISCO ILLARRAMENDI, 14 Petitioner‐Appellant, 15 16 v. 17 18 UNITED STATES OF AMERICA, 19 Respondent‐Appellee. 20 ________ 21 22 Appeal from the United States District Court 23 for the District of Connecticut 24 No. 16‐cv‐1853 – Stefan R. Underhill, Judge. 25 ________ 26 27 Before: WALKER, CALABRESI, and LIVINGSTON, Circuit Judges. 28 ________ 29 30 Francisco Illarramendi appeals from the order of the District
31 Court of the District of Connecticut (Underhill, J.) denying his
32 motions for supervised release or bail pending resolution of his
33 motion to vacate his sentence under 28 U.S.C. § 2255. The United 2 No. 18‐35
1 States now moves for summary affirmance of the district court’s order
2 on the grounds that neither supervised release nor bail is warranted
3 under the circumstances and, regardless of the merits, Illarramendi
4 failed to obtain a certificate of appealability as required by 28 U.S.C.
5 § 2253(c)(1). We agree with the United States that neither supervised
6 release nor bail is warranted here and therefore GRANT the motion
7 for summary affirmance. A certificate of appealability from the
8 district court’s order is not necessary, however, because a denial of
9 supervised release or bail is not a “final order[] that dispose[s] of the
10 merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180,
11 183 (2009).
12 ________ 13 14 FRANCISCO ILLARRAMENDI, pro se, for Petitioner‐ 15 Appellant.
16 MICHAEL J. GUSTAFSON (John T. Pierpont, Jr., on the 17 brief), United States Attorney’s Office for the 18 District of Connecticut, New Haven, CT, for 19 Respondent‐Appellee.
20 ________ 21 22 PER CURIAM:
23 Francisco Illarramendi appeals from the order of the District
24 Court of the District of Connecticut (Underhill, J.) denying his 3 No. 18‐35
1 motions for supervised release or bail1 pending resolution of his
2 motion to vacate his sentence under 28 U.S.C. § 2255. The United
3 States now moves for summary affirmance of the district court’s order
4 on the grounds that neither supervised release nor bail is warranted
5 under the circumstances and, regardless of the merits, Illarramendi
6 failed to obtain a certificate of appealability as required by 28 U.S.C.
7 § 2253(c)(1). We agree with the United States that neither supervised
8 release nor bail is warranted here and therefore GRANT the motion
9 for summary affirmance. A certificate of appealability from the
10 district court’s order is not necessary, however, because a denial of
11 supervised release or bail is not a “final order[] that dispose[s] of the
12 merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180,
13 183 (2009).
14 BACKGROUND
15 On March 7, 2011, Petitioner‐Appellant Illarramendi pleaded
16 guilty to two counts of wire fraud, and one count each of securities
17 fraud, investor fraud, and conspiracy to obstruct justice. Plea Hearing
18 Tr., United States v. Illarramendi, No. 11‐cv‐0041 (D. Conn. March 21,
19 2011), ECF No. 9. The district court imposed a sentence of 156
20 months’ imprisonment and approximately $370 million in restitution,
1 Although Illarramendi’s motion was for supervised release, we liberally construe his pro se motion as seeking release on bail. The government accepts this interpretation in its memorandum in support of its motion to summarily affirm. Mem in Supp. of Mot. for Summ. Affirmance 6, ECF No. 33. 4 No. 18‐35
1 which we affirmed on appeal. See United States v. Illarramendi, 642 F.
2 App’x 64 (2d Cir. 2016) (summary order) (affirming sentence); United
3 States v. Illarramendi, 677 F. App’x 30 (2d Cir. 2017) (summary order)
4 (affirming restitution).
5 On November 14, 2016, Illarramendi filed a habeas corpus
6 petition under 28 U.S.C. § 2255 to vacate his sentence on the grounds
7 that (1) he was denied counsel of choice because his assets were frozen
8 in a related SEC civil proceeding; and (2) his attorneys provided
9 ineffective assistance during the plea negotiations and at sentencing.
10 Mot. to Vacate Sentence at vii, Illarramendi v. United States, No. 16‐cv‐
11 1853 (D. Conn. Nov. 14, 2016), ECF No. 1.2 The § 2255 petition is
12 pending before the district court.
13 On August 28 and 29, 2017, Illarramendi filed two motions in
14 the district court seeking “supervised release pending habeas
15 proceedings.” No. 16‐cv‐1853, ECF Nos. 18, 19. The district court
16 denied the motions, stating that it “has no authority to grant
17 supervised release to a sentenced inmate.” No. 16‐cv‐1853, ECF No.
18 23. Illarramendi then filed a notice of appeal with the district court
19 from the denial of supervised release and moved for leave to proceed
20 in forma pauperis. No. 16‐cv‐1853, ECF Nos. 24, 25. The district court
21 granted the motion for leave to proceed in forma pauperis. No. 16‐cv‐
22 1853, ECF No. 27.
2 The § 2255 action in the district court is hereinafter referred to as No. 16‐cv‐1853. 5 No. 18‐35
1 On appeal, the government now moves for us to summarily
2 affirm the district court’s order denying Illarramendi’s motions for
3 supervised release pending the outcome of his habeas proceeding
4 under 28 U.S.C. § 2255. Mem. in Supp. of Mot. for Summ. Affirmance
5 6, ECF No. 33. The government argues that (1) supervised release is
6 not available to Appellant pending a decision on his habeas petition
7 because supervised release can only be imposed as part of a criminal
8 sentence; (2) even if Illarramendi’s motion is construed as one seeking
9 release on bail, it is not warranted because his § 2255 motion does not
10 present substantial claims and there are no extraordinary
11 circumstances; and (3) Illarramendi failed to obtain a certificate of
12 appeal (COA) as required by 28 U.S.C. § 2253(c)(1). Id. at 3, 6.
13 DISCUSSION
14 We write here to address the question of whether a COA is
15 required to appeal from a denial of bail pending the disposition of a
16 petition for habeas corpus relief.
17 I. Certificate of Appealability
18 28 U.S.C. § 2253(c)(1) states that
19 [u]nless a circuit justice or judge issues a certificate of 20 appealability, an appeal may not be taken to the court of 21 appeals from the final order in a habeas corpus 22 proceeding in which the detention complained of arises 23 out of process issued by a State court; or the final order 24 in a proceeding under section 2255. 6 No. 18‐35
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18‐35 Illarramendi v. United States of America
2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2018 8 9 SUBMITTED: OCTOBER 10, 2018 10 DECIDED: OCTOBER 16, 2018 11 12 No. 18‐35 13 FRANCISCO ILLARRAMENDI, 14 Petitioner‐Appellant, 15 16 v. 17 18 UNITED STATES OF AMERICA, 19 Respondent‐Appellee. 20 ________ 21 22 Appeal from the United States District Court 23 for the District of Connecticut 24 No. 16‐cv‐1853 – Stefan R. Underhill, Judge. 25 ________ 26 27 Before: WALKER, CALABRESI, and LIVINGSTON, Circuit Judges. 28 ________ 29 30 Francisco Illarramendi appeals from the order of the District
31 Court of the District of Connecticut (Underhill, J.) denying his
32 motions for supervised release or bail pending resolution of his
33 motion to vacate his sentence under 28 U.S.C. § 2255. The United 2 No. 18‐35
1 States now moves for summary affirmance of the district court’s order
2 on the grounds that neither supervised release nor bail is warranted
3 under the circumstances and, regardless of the merits, Illarramendi
4 failed to obtain a certificate of appealability as required by 28 U.S.C.
5 § 2253(c)(1). We agree with the United States that neither supervised
6 release nor bail is warranted here and therefore GRANT the motion
7 for summary affirmance. A certificate of appealability from the
8 district court’s order is not necessary, however, because a denial of
9 supervised release or bail is not a “final order[] that dispose[s] of the
10 merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180,
11 183 (2009).
12 ________ 13 14 FRANCISCO ILLARRAMENDI, pro se, for Petitioner‐ 15 Appellant.
16 MICHAEL J. GUSTAFSON (John T. Pierpont, Jr., on the 17 brief), United States Attorney’s Office for the 18 District of Connecticut, New Haven, CT, for 19 Respondent‐Appellee.
20 ________ 21 22 PER CURIAM:
23 Francisco Illarramendi appeals from the order of the District
24 Court of the District of Connecticut (Underhill, J.) denying his 3 No. 18‐35
1 motions for supervised release or bail1 pending resolution of his
2 motion to vacate his sentence under 28 U.S.C. § 2255. The United
3 States now moves for summary affirmance of the district court’s order
4 on the grounds that neither supervised release nor bail is warranted
5 under the circumstances and, regardless of the merits, Illarramendi
6 failed to obtain a certificate of appealability as required by 28 U.S.C.
7 § 2253(c)(1). We agree with the United States that neither supervised
8 release nor bail is warranted here and therefore GRANT the motion
9 for summary affirmance. A certificate of appealability from the
10 district court’s order is not necessary, however, because a denial of
11 supervised release or bail is not a “final order[] that dispose[s] of the
12 merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180,
13 183 (2009).
14 BACKGROUND
15 On March 7, 2011, Petitioner‐Appellant Illarramendi pleaded
16 guilty to two counts of wire fraud, and one count each of securities
17 fraud, investor fraud, and conspiracy to obstruct justice. Plea Hearing
18 Tr., United States v. Illarramendi, No. 11‐cv‐0041 (D. Conn. March 21,
19 2011), ECF No. 9. The district court imposed a sentence of 156
20 months’ imprisonment and approximately $370 million in restitution,
1 Although Illarramendi’s motion was for supervised release, we liberally construe his pro se motion as seeking release on bail. The government accepts this interpretation in its memorandum in support of its motion to summarily affirm. Mem in Supp. of Mot. for Summ. Affirmance 6, ECF No. 33. 4 No. 18‐35
1 which we affirmed on appeal. See United States v. Illarramendi, 642 F.
2 App’x 64 (2d Cir. 2016) (summary order) (affirming sentence); United
3 States v. Illarramendi, 677 F. App’x 30 (2d Cir. 2017) (summary order)
4 (affirming restitution).
5 On November 14, 2016, Illarramendi filed a habeas corpus
6 petition under 28 U.S.C. § 2255 to vacate his sentence on the grounds
7 that (1) he was denied counsel of choice because his assets were frozen
8 in a related SEC civil proceeding; and (2) his attorneys provided
9 ineffective assistance during the plea negotiations and at sentencing.
10 Mot. to Vacate Sentence at vii, Illarramendi v. United States, No. 16‐cv‐
11 1853 (D. Conn. Nov. 14, 2016), ECF No. 1.2 The § 2255 petition is
12 pending before the district court.
13 On August 28 and 29, 2017, Illarramendi filed two motions in
14 the district court seeking “supervised release pending habeas
15 proceedings.” No. 16‐cv‐1853, ECF Nos. 18, 19. The district court
16 denied the motions, stating that it “has no authority to grant
17 supervised release to a sentenced inmate.” No. 16‐cv‐1853, ECF No.
18 23. Illarramendi then filed a notice of appeal with the district court
19 from the denial of supervised release and moved for leave to proceed
20 in forma pauperis. No. 16‐cv‐1853, ECF Nos. 24, 25. The district court
21 granted the motion for leave to proceed in forma pauperis. No. 16‐cv‐
22 1853, ECF No. 27.
2 The § 2255 action in the district court is hereinafter referred to as No. 16‐cv‐1853. 5 No. 18‐35
1 On appeal, the government now moves for us to summarily
2 affirm the district court’s order denying Illarramendi’s motions for
3 supervised release pending the outcome of his habeas proceeding
4 under 28 U.S.C. § 2255. Mem. in Supp. of Mot. for Summ. Affirmance
5 6, ECF No. 33. The government argues that (1) supervised release is
6 not available to Appellant pending a decision on his habeas petition
7 because supervised release can only be imposed as part of a criminal
8 sentence; (2) even if Illarramendi’s motion is construed as one seeking
9 release on bail, it is not warranted because his § 2255 motion does not
10 present substantial claims and there are no extraordinary
11 circumstances; and (3) Illarramendi failed to obtain a certificate of
12 appeal (COA) as required by 28 U.S.C. § 2253(c)(1). Id. at 3, 6.
13 DISCUSSION
14 We write here to address the question of whether a COA is
15 required to appeal from a denial of bail pending the disposition of a
16 petition for habeas corpus relief.
17 I. Certificate of Appealability
18 28 U.S.C. § 2253(c)(1) states that
19 [u]nless a circuit justice or judge issues a certificate of 20 appealability, an appeal may not be taken to the court of 21 appeals from the final order in a habeas corpus 22 proceeding in which the detention complained of arises 23 out of process issued by a State court; or the final order 24 in a proceeding under section 2255. 6 No. 18‐35
1 In Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990), we held that
2 § 2253’s COA3 requirement applied “not only to the final
3 determination of the merits [of the habeas proceeding] but also to an
4 order denying bail” during the habeas proceeding. We reasoned that
5 the interest served by requiring such a certificate—namely, relieving
6 “the court system of the burdens resulting from litigation of
7 insubstantial appeals—is equally served whether the order appealed
8 is a final disposition of the merits or a collateral order.” Id.
9 Almost two decades later, the Supreme Court decided Harbison
10 v. Bell, 556 U.S. 180 (2009). In Harbison, the district court denied
11 appellant’s motion to authorize his federally appointed counsel in his
12 habeas proceeding to represent him in a related state clemency
13 proceeding. Id. at 182. Appellant appealed, but failed to obtain a
14 COA under § 2253(c)(1). Id. at 183. The Court held that because
15 § 2253(c)(1) “governs final orders that dispose of the merits of a
16 habeas corpus proceeding—a proceeding challenging the lawfulness
17 of the petitioner’s detention[,] . . . [a]n order that merely denies a
18 motion to enlarge the authority of appointed counsel . . . is not such
19 an order and is therefore not subject to the COA requirement.” Id.
3 In 1990, when Grune was decided, § 2253 required a certificate of probable cause before a party could appeal from a habeas proceeding. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and amended § 2253 to, inter alia, change the name of a certificate of probable cause to a certificate of appealability. Pub. L. No. 104‐132, § 102 110 Stat. 1214, 1217 (1996). There is no substantial difference between the two certificates. 7 No. 18‐35
1 We have never addressed Harbison’s effect on Grune in a
2 published decision, but two motions panels in unpublished orders
3 denied as unnecessary COA motions in appeals from the denial of
4 bail, with one order specifically citing Harbison for support. See Mot.
5 Order, United States v. Riccio (Lasher), No. 17‐1629 (2d Cir. Nov. 6,
6 2017), ECF No. 135; Mot. Order, Fan v. United States, No. 17‐1619 (2d
7 Cir. Aug 29, 2017), ECF No. 32. We agree with the two decisions. In
8 Grune, we acknowledged that “the denial of bail . . . is a collateral and
9 conclusive determination of the issue presented,” but never
10 pretended that it was somehow a final disposition of the habeas
11 proceeding. Grune, 913 F.2d at 44. Therefore, consistent with
12 Harbison, we hold that a COA is not required when appealing from
13 orders in a habeas proceeding that are collateral to the merits of the
14 habeas claim itself, including the denial of bail. Thus, in this case, the
15 absence of a COA was not a bar to Illarramendi’s appeal from the
16 district court’s order denying his motion for supervised release or bail
17 pending resolution of his habeas petition.
18 II. Appellant’s Remaining Arguments
19 After review of the record and Appellant’s arguments, we
20 conclude that his motion for supervised release or bail pending
21 review of his 28 U.S.C. § 2255 motion lacked merit because the
22 motion does not present substantial questions and Appellant has not
23 demonstrated that “extraordinary circumstances exist that make the 8 No. 18‐35
1 grant of bail necessary to make the habeas relief effective.” Mapp v.
2 Reno, 241 F.3d 221, 226 (2d Cir. 2001) (internal citation, quotations,
3 and alteration omitted). We therefore grant summary affirmance of
4 the district court’s order. See United States v. Bonilla, 618 F.3d 102,
5 107–08 (2d Cir. 2010).
6 CONCLUSION
7 For the reasons stated above, the government’s motion for
8 summary affirmance of the district court’s order denying supervised
9 release is GRANTED.