Saturday, November 26, 2016

Case o' The Week: Time for Land's End - McCandless and Bail Pending Habeas Resolution

Black Friday and Cyber Monday -- a fine time for the Ninth to be mulling Land's end.
United States v. McCandless, 2016 WL 6647768 (9th Cir. Nov. 10, 2016), decision available here.

Players: Per curiam decision with Judges Wallace, Farris, and Watford. Hard-fought appeal by Hawaii Federal Public Defender Peter Wolff and First Assistant Alexander Silvert.

Facts: McCandless, a Career Offender, is serving a 145-month sentence. Id. at *1. He received a § 5K1.1 departure on his original sentence: if the same percentage reduction was applied to his post-Johnson sentence, his term would be an (already-served) 71 months. Id. The district court stayed its decision on McCandless’s Johnson habeas petition pending Beckles. Id. at *2. The court then denied McCandless’s motion for bail.

Issue(s): Is a district court’s order denying bail pending resolution of a habeas decision a final decision subject to review under 28U.S.C. § 1291, or otherwise appealable under the collateral order doctrine?

Held: “Our precedent holds that a district court's order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291 and is not otherwise appealable under the collateral order doctrine. Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam).” Id. at *2.

Of Note: Having found the bail order was not appealable, the panel construed this case as a petition for a writ of mandamus – then denied it under the high mandamus standard. Id. at *2 (discussing Bauman’s "exceptional circumstances amounting to a judicial usurpation of power” standard). The problem, however, was the fundamental threshold issue -- the appealability of the district court's bail order.
  The Ninth, respectfully, has it wrong.
  The panel itself flagged this problem, conceding that the Ninth is really alone on a “lopsided split”: six other circuits have all held that an order denying bail pending resolution of a habeas petition is appealable. Id. at *2 & n.1. 
  What Ninth decision handcuffed this three-judge panel and forced this outcome? Land, a dusty two-paragraph opinion, where the habeas petitioner does not appear to have been represented. Ironically, the Ninth itself has parted ways with the gist of Land, correctly holding that the denial of bail in connection with probation revocation proceedings is appealable under the collateral order doctrine. See United States v. Loya, 23 F.3d 1529,1530 n.1 (9th Cir. 1994).
  McCandless should go en banc, the Court should overrule Land, and the Ninth should end its lonely outlier status on this important issue.

How to Use: For Johnson warriors watching clients overserve illegal sentences while stays stall for Beckles, McCandless is a discouraging outcome. Even under the tough mandamus standard, however, hope remains.
  McCandless argued that an original § 5K1.1 reduction, applied to his post-Johnson sentence, would have meant that he was overserving his custodial term. Id. at *3. The Ninth rejected that argument as “entirely speculative.” Id. 
   We have no shortage, however, of Johnson petitioners who are currently overserving their vanilla Guideline terms, when the correct post-Johnson calcs are applied. If your client is overserving a post-Johnson guideline term (without departures or variances), don’t let McCandless dissuade you from bringing a mandamus petition on a bail denial. Even if the Ninth doesn’t correct its Land precedent on the appealability of bail orders, there still may be mandamus hope for a subset of petitioners with “clean” Johnson overserving claims.
For Further Reading: District courts should not punt on habeas decisions, staying cases while SCOTUS lumbers towards its Beckles decision. So says the Tenth Circuit in a string of recent enlightened decisions. See e.g., United States v. Smith, 2016 WL 6609499 (10th Cir. Nov. 9, 2016) (mem.).
  That was, we thought, also the longstanding Ninth rule, based on a thoughtful opinion penned by Judge Thompson: United States v. Yong, 208 F.3d 1116,1121 (9th Cir. 2000) (“The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time . . . A long stay also threatens to create the perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights.”) (quotations and citations omitted).
  Sadly, and despite Yong, the Ninth has proven far more tolerant of stays than the Tenth.  See, e.g., United States v. Dunlap, No. 16-16271 (Oct. 20, 2016) (Ord.) (“This appeal is dismissed for lack of jurisdiction because the district court’s order staying proceedings pending the Supreme Court’s decision in Beckles v. United States is not appealable as a final judgment or as an order that comes within the collateral order doctrine.”)
   How many petitioners will overserve unlawful terms, as petitions are back-burnered while Beckles is mulled by the Supreme Court? Law students looking for a Note subject should take a close look at the Johnson litigation experience. As Judge Thompson correctly predicted in Yong, it’s tough to vindicate constitutional rights when petitioners can’t pry decisions from the federal courts.

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


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