Case o' The Week: What COVID Crisis? - Dade and Bail Pending Appeal, in COVID-19 Era

  The Lompoc-elephant in the room? 

  Merits no mention, in troubling Ninth order.

United States v. Dade, 2020 WL 2570354 (9th Cir. May 21, 2020) (Ord.), decision available here.

Players: Order by Judge Collins and visiting “Judge for the United States Court of International Trade” Choe-Groves. 

  Courageous and compelling dissent by Judge Berzon.

  Righteous and hard-fought motion for bail pending appeal by AFDs Melissa Winberg and Miles Pope, Federal Defender Services of Idaho. (Note: the Order erroneously lists a different Defender office).

Facts: Dade, an elderly man with respiratory problems, has served 18 of his 28-year federal sentence – and is now incarcerated in Lompoc. Id. at *3 (Berzon, J., dissenting).

  Dade appealed a denial of his § 2255 federal habeas, and moved for release pending appeal. Id.

Issue(s): “[ ] Dade . . . moves for release on bail pending his appeal of the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255.” Id. at *1. “[I]n addition to showing a likelihood of success on the merits, Dade must make a further showing of exceptional circumstances that go beyond what would be required to justify his release if this were a direct appeal rather than a § 2255 collateral attack.” Id. at *2.

Held: “We express no view of the merits of Dade’s appeal, which has not yet been argued. Even assuming arguendo that Dade has established a likelihood of success on appeal, he has not made the further showing required to warrant his release pending appeal. We therefore deny the motion.” Id. at *1. “Although the Bail Reform Act does not apply on collateral review, . . . it cannot be the case that a prisoner whose detention would be required under that Act pending direct appeal can obtain release pending appeal on collateral review. We agree with the Seventh Circuit that, because the standards applicable to collateral review are stricter than on direct appeal, a federal defendant who would not be entitled to bail pending direct appeal under the terms of § 3143(b) is, for that reason alone, not entitled to bail pending resolution of his or her § 2255 proceedings.” Id. at *2 (citations omitted). 

  “Because Dade’s request for release would fail under § 3143(b), [the Bail Reform Act],if this were a direct appeal, he can fare no better on an appeal in a collateral challenge under § 2255, where he must satisfy a more demanding standard. Accordingly, Dade’s motion for release on bail pending appeal under Rule 23(b) is DENIED.” Id. at *3.

Of Note: Nearly a thousand Lompoc inmates are COVID-19 positive – the federal prison is such a hot spot that it jeopardizes the re-opening of an entire county. See article here. 

   Remarkably, however, Dade’s incarceration at Lompoc merits no mention in the Order. 

 

The Hon. Judge Marsha Berzon

Fortunately, Judge Berzon makes clear what is really at stake, in a pointed dissent that lays bare the COVID-19 dangers faced by this elderly inmate. See id. at *3 (Berzon, J., dissenting) (“[The government] asserts that the BOP has policies in place to ensure the safety of inmates, but those policies have been appallingly ineffective in FCI Lompoc where Dade is incarcerated.”) Beyond its COVID-19 shortcomings, the Order also inexplicably requires an Appellant seeking release to also satisfy the Bail Reform Act, in addition to FRAP 23. As Judge Berzon explains, this requirement “plainly violates this circuit’s precedent.” Id. This brief Order is deeply troubling on many fronts -- will the Ninth take a second look?     

How to Use: The majority complains that Dade did not first seek release in the district court, and intimates that missing step affects the analysis of the “equitable principles that govern” these “discretionary requests.” Id. at *1 & n.2. 

  If seeking release in the Ninth under FRAP 23, make sure to check that “district court motion” box first.

                                               

For Further Reading: The BOP is resuming moves of inmates out of local detention facilities and into federal prisons. See New York Times article here. 

   Here in NorCal, our clients may finally escape the Santa Rita frying pan – but god help them as they’re now shoved into the BOP fire. See USA Today Op Ed here. 

Image of “Elephant in the Room” from https://blog.ncqa.org/the-election-and-what-it-means-for-ncqa-and-health-care-policy/out-of-frying-pan-into-the-fire/

Image of the Hon. Judge Marsha Berzon from https://www.law.com/therecorder/almID/1202733565420/

Image of “Out of the Frying Pan and Into the Fire” from https://www.forbes.com/sites/rodgerdeanduncan/2014/10/14/is-there-an-elephant-in-the-room-name-it-and-tame-it/#7264aaf334dd

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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