Bader v . Warden CV-02-508-JD 01/23/03 P
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Seth Bader
v. Civil N o . 02-508-JD
Opinion N o . 2003 DNH 015
Jane Coplan, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
The Petitioner, Seth Bader, is an inmate at the New
Hampshire State Prison for Men (“NHSP”). He commenced this
action by filing a petition for a federal writ of habeas corpus.
See Document N o . 1 . Before the Court for consideration is the
Petitioner’s motion for a preliminary injunction seeking an order
granting him release from prison during the pendency of this
Court’s habeas corpus proceedings. See Document N o . 6. The
Respondent, NHSP Warden Jane Coplan, filed an objection.
The motion was referred to me for review and to prepare a
report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
See Document N o . 8 . On January 7 , 2003, the Court held a hearing
limited to counsel’s arguments as to the availability of bail
during the pendency of habeas corpus proceedings. At the
conclusion of that hearing, the Court allowed the parties two
additional weeks to submit supplemental memoranda of law.
After reviewing the parties’ submissions, and the relevant
authorities, I find that the Petitioner has not made the
extraordinary showing required for this Court to grant bail
during the pendency of post-conviction habeas corpus proceedings.
Accordingly, I recommend that the motion be denied.
BACKGROUND
On May 8 , 1998, the Petitioner was convicted in the
Rockingham County Superior Court of first degree murder, and
conspiracy to commit first degree murder. His convictions were
affirmed by the New Hampshire Supreme Court on September 1 3 ,
2002. In this habeas proceeding, the Petitioner raises five
grounds of constitutional error in the state court proceedings.1
The Petitioner contends in his motion for a preliminary
injunction that his petition presents substantial questions of
constitutional errors in the state courts because three of the
rulings in the state courts were “diametrically opposed” to
Supreme Court precedent. In this regard, he challenges the state
court rulings with respect to the trial court justice’s refusal
to recuse himself, the trial court’s admission of hearsay
1
He challenges his convictions based on the trial court
justice’s refusal to recuse himself, the prosecution’s failure to
disclose exculpatory evidence, the trial court’s admission of
hearsay evidence at trial, jury misconduct, and witness perjury.
2
evidence at trial, and the trial court’s response to the jury
misconduct issue. See Mot. for Prel. Injunction at 4 .
The Petitioner further contends that his evidence of actual
innocence presents an exceptional circumstance justifying his
release on bail during the pendency of this Court’s habeas
proceedings. See Pet. Reply Mem. at 3 . The Petitioner seeks an
evidentiary hearing with respect to his innocence claim. By
offer of proof, the Petitioner contends that he has credible
evidence that Sandro Stuto, one of the State’s witnesses, told
“John Doe,” an NHSP inmate, that the Petitioner was not involved
in the murder. The Petitioner contends that John Doe is willing
to testify at an evidentiary hearing. The Petitioner supposes
that if confronted with this evidence, Stuto would admit that he
perjured himself if granted immunity. The Petitioner further
supposes that an evidentiary hearing would show that another
State’s witness, Mary Jean Martin, instigated and organized the
murder for which the Petitioner has been convicted. He suggests
that Martin should be granted immunity from further prosecution
and ordered to testify.
In her objection, the Respondent characterizes the
Petitioner’s motion as a motion for release on bail. See
3
Document N o . 1 0 . The Respondent questions whether this Court has
the authority to grant bail during the pendency of a habeas
proceeding. Notwithstanding her doubt regarding the Court’s
authority, the Respondent contends that under First Circuit law
the Petitioner is not entitled to bail because he has not
demonstrated that any extraordinary circumstances exist that
warrant his release on bail.
STANDARD OF REVIEW
I. Standard for Reviewing Motions for Preliminary Injunctions
“The purpose of a preliminary injunction is to preserve the
status quo, freezing an existing situation so as to permit the
trial court, upon full adjudication of the case’s merits, more
effectively to remedy discerned wrongs.” CMM Cable Rep., Inc. v .
Ocean Coast Prop., Inc., 48 F.3d 6 1 8 , 620 (1st Cir. 1995) (citing
Chalk v . U.S. Dist. C t . Cent. Dist. of Cal.,
840 F.2d 7 0 1 , 704
(9th Cir. 1988); Am. Hosp. Ass’n v . Harris,
625 F.2d 1328, 1330
(7th Cir. 1980)). Thus, if the court ultimately finds for the
movant, a preliminary injunction provides the court with a method
for preventing or minimizing any current or future wrongs caused
by the defendant. CMM Cable Rep.,
48 F.3d at 620.
4
The courts typically employ a four-part test in determining
whether a plaintiff has made a sufficient demonstration that
interim injunctive relief is warranted.2 The Respondent contends
that the Petitioner’s motion is in fact a motion for release on
bail, not a motion for a for a preliminary injunction. I agree.
“It is clear . . . that the essence of habeas corpus is an
attack by a person in custody upon the legality of that custody,
and that the traditional function of the writ is to secure
release from illegal custody.” Preiser v . Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus proceedings are characterized as
civil in nature. Fisher v . Baker,
203 U.S. 1 7 4 , 181 (1906). But
that characterization is inexact because habeas corpus
proceedings are essentially unique. Harris v . Nelson,
394 U.S.
2
A district court may grant a plaintiff’s request for a
preliminary injunction if the plaintiff satisfies a four-part
test: (1) the plaintiff is likely to succeed on the merits; (2)
the plaintiff will suffer irreparable harm if the injunction is
not granted; (3) the injury to the plaintiff outweighs any harm
which granting the injunction would inflict on the defendant; and
(4) the public interest will not be adversely affected by the
granting of the injunction. See Langlois v . Abington Hous.
Auth., 207 F.3d 4 3 , 47 (1st Cir. 2000); Public Serv. C o . of N.H.
v . Patch,
167 F.3d 1 5 , 25 (1st Cir. 1998). In the First Circuit,
the key issue in determining whether injunctive relief should be
granted is whether the plaintiff can demonstrate a likelihood of
success on the merits. See Philip Morris, Inc. v . Harshbarger,
159 F.3d 6 7 0 , 674 (1st Cir. 1998); Weaver v . Henderson,
984 F.2d
1 1 , 12 (1st Cir. 1993).
5
286, 293-294 (1969). Federal habeas corpus proceedings are
governed by a distinct set of statutes and procedural rules. See
28 U.S.C. §§ 2241-55 and Rules Governing Section 2254 Cases in
the United States District Courts (“Rules Governing § 2254
Cases”). Rule 11 of the Rules Governing § 2254 Cases provides
that: “The Federal Rules of Civil Procedure, to the extent that
they are not inconsistent with these rules, may be applied, when
appropriate, to petitions filed under these rules” (emphasis
added). Thus, a petitioner in a habeas corpus proceeding does
not have an absolute right to use of the procedures available in
the Federal Rules of Civil Procedure. See e.g., Harris,
394 U.S.
at 297-298 (finding that the broad ranging discovery permitted
under the Federal Rules of Civil Procedure is neither necessary
or appropriate in the context of a habeas corpus proceeding).
“Rule 11 permits application of the civil rules only when it
would be appropriate to do so.” See Advisory Committee Note to
Rule 11 Governing § 2254 Cases. In Pitchess v . Davis,
421 U.S.
482, 489 (1975), the Supreme Court held that Fed. R. Civ. P.
60(b) should not be applied in a habeas case when it would have
the effect of altering the statutory exhaustion requirement of
28
U.S.C. § 2254.
6
The Petitioner’s motion for a preliminary injunction is
inconsistent with the overall framework of a post-conviction
habeas corpus proceeding. That framework requires the district
court to give preliminary consideration to a habeas petition to
determine whether the petition ought to be summarily dismissed.
See Rule 4 of the Rules Governing § 2254 Cases (providing for
summary dismissal of a petition which “plainly appears from the
face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court”).
The respondent need not file an answer to the petition unless
ordered to do so by the court after the preliminary review. See
Rule 3 of the Rules Governing § 2254 Cases. The Petitioner
acknowledges in his motion that he cannot establish his claim of
innocence without favorable findings of fact at an evidentiary
hearing. See Mot. for Preliminary Injunction at 5 . However,
Rule 8 of the Rules Governing § 2254 Cases contemplates that an
evidentiary hearing will not be held until after the district
court has completed the preliminary review, reviewed the
respondent’s answer or other pleading in response to the
petition, and reviewed the record of the state court proceedings.
In the instant case, the Court has only completed the preliminary
7
review. See Document N o . 2 2 . The mechanism that Petitioner
seeks to use to obtain an immediate evidentiary hearing, Rule 65
of the Federal Rules of Civil Procedure, is contrary to the
procedure set forth in the Rules Governing § 2254 Cases. I
recommend, therefore, that the Court consider the Petitioner’s
motion as a motion for bail, which has federal court precedent,
rather than as a motion for a preliminary injunction.
II. District Court’s Authority to Grant a State Prisoner
Bail During the Pendency of a Habeas Corpus Proceeding
There is no federal statute or court rule that addresses the
district court’s authority to grant a state prisoner bail during
the pendency of federal habeas corpus proceedings.3 However,
nearly every federal circuit court of appeal that has considered
the issue has found that the federal district courts have the
inherent authority to grant a state prisoner bail during the
pendency of habeas proceedings. See e.g., Woodcock v . Donnelly,
470 F.2d 9 3 , 94 (1st Cir. 1972); Mapp v . Reno,
241 F.3d 2 2 1 , 226
(2d Cir. 2001); Landano v . Rafferty,
970 F.2d 1230, 1239-40 (3d
3
By contrast, Rule 23 of the Federal Rules of Appellate
Procedure sets forth conditions for release on bail pending
review of a district court’s decision on a petition for a writ of
habeas corpus. See Fed. R. App. P. 2 3 . But that Rule does not
specifically address the possibility of release on bail pending a
district court’s decision on the petition.
8
Cir. 1991), cert. denied, 506 U.S. 955 (1992); In re Wainwright,
518 F.2d 173, 174 (5th Cir. 1975) (per curiam); Dotson v . Clark,
900 F.2d 7 7 , 79 (6th Cir. 1990); Cherek v . United States,
767
F.2d 335, 337 (7th Cir. 1985); Martin v . Solem,
801 F.2d 3 2 4 , 329
(8th Cir. 1986); Pfaff v . Wells,
648 F.2d 689, 693 (10th Cir.
1981); Baker v . Sard,
420 F.2d 1342, 1343-44 (D.C. Cir. 1969)
(per curiam); 4 but see In re Roe,
257 F.3d 1077 (9th Cir. 2001)
(declining to decide the issue, but raising doubt as to the
court’s authority). This inherent authority has been described
as incident to the power to hear and determine the case. Mapp,
241 F.3d at 225; see also, Baker,
420 F.2d at 1343 (“When an
action pending in a United States court seeks release from what
is claimed to be illegal detention, the court’s jurisdiction to
order release as a final disposition of the action includes an
inherent power to grant relief pendente lite, to grant bail or
release, pending determination of the merits); Johnston v . Marsh,
227 F.2d 5 2 8 , 530 (3d Cir. 1955) (courts have very wide authority
over the persons and business before i t , which includes the
discretion to grant bail).
4
See also, In re Shuttlesworth, 369 U.S. 3 5 , 35 (1962) (per
curiam) (vacating an order by a court of appeals in a habeas case
and suggesting that the district court may hear an application
for bail pending that court’s final disposition of the matter).
9
Respondent argues that any authority that the district
courts may have had to grant a state prisoner bail during the
pendency of a habeas proceeding was terminated by implication
after the passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), P.L. N o . 104-132, 110 Stat. 1214
(1996). 5 See Document N o . 3 1 . The Respondent has not directed
the Court to any authority that supports the view that Congress
sought to strip the federal courts of this particular aspect of
its judicial power when it passed the AEDPA. Therefore, I
consider the merits of Petitioner’s bail motion based on the
established judicial precedents.
5
Under the AEDPA, the federal courts are required to give
deference to state court judgments. The federal courts may not
grant a writ of habeas corpus to a state prisoner with respect to
any claim that was adjudicated on the merits in state court
proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary t o , or
involved an unreasonable application o f , clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (West 2002).
10
DISCUSSION
I . First Circuit Standard For Bail During a Habeas Proceeding
The lower federal courts have often cited the reasoning in
Aronson v . May, 85 S . C t . 3 , 5 (Douglas, Circuit Justice 1964),
when considering the propriety of bail during the pendency of a
habeas corpus proceeding. In Aronson, a petitioner requested
bail pending a decision by the Court of Appeals on an appeal from
the denial of his petition for a writ of habeas corpus. Justice
Douglas stated in the opinion:
This applicant is incarcerated because he has been
tried, convicted, and sentenced by a court of law. He
now attacks his sentence in a collateral proceeding.
It is obvious that a greater showing of special reasons
for admission to bail pending review should be required
in a case where [an] applicant had sought to attack by
writ of habeas corpus an incarceration not resulting
from a judicial determination of guilt.
85 S . C t . at 5 . Justice Douglas found that where a bail
applicant is a convicted prisoner it is necessary “to inquire
whether, in addition to there being substantial questions
presented by the appeal, there is some circumstance making this
application exceptional and deserving of special treatment in the
interests of justice.” Id. (citing Benson v . State of Cal.,
328
F.2d 159, 162 (9th Cir. 1964)).
The First Circuit discussed the Aronson and Benson opinions
11
when it considered the standards that courts in the First Circuit
should use for determining whether to grant a convicted and
sentenced prisoner’s bail application. See Glynn v . Donnelly,
470 F.2d 9 5 , 97-98 (1st Cir. 1972). The court in Glynn found:
Both in the district court, and on appeal, in the
absence of exceptional circumstances--whatever that may
include--the court will not grant bail prior to the
ultimate final decision unless petitioner presents not
merely a clear case on the law, . . . , but a clear,
and readily evident, case on the facts. Merely to find
that there is a substantial question is far from
enough.
Id. at 9 8 . The Glynn court’s finding establishes two possible
tests for deciding a state prisoner’s application for bail during
the pendency of a post-conviction habeas corpus proceeding.
Under the first test, the prisoner must show that there is a
substantial question of constitutional error, and that
exceptional circumstances exists for granting bail in the
particular case before the court. In the alternative, under the
second test, the prisoner must show that there is a clear case in
the prisoner’s favor on both the law and the facts. Under either
test, the prisoner’s ability to raise a substantial question of
constitutional error, standing alone, is insufficient. Glynn,
12
470 F.2d at 98. 6 The First Circuit reaffirmed the bail standard
that it enunciated in Glynn in Eaton v . Holbrook,
671 F.2d 6 7 0 ,
670 (1st Cir. 1982).
II. Application of Glynn Standards to the Petitioner’s Motion
The Petitioner does not have a clear and readily evident
case in his favor on the law and the facts. Each of his claims
of error, including the three state court rulings that the
Petitioner contends are diametrically opposed to Supreme Court
precedent, were considered and rejected by the New Hampshire
Supreme Court. See State v . Bader, 808 A.2d 12 (N.H. 2002). In
that decision, the court addressed the Petitioner’s claims under
both federal and state law.
Id. Petitioner has submitted an 81-
page legal memorandum with his petition supporting his claims of
constitutional error, see Attachment to Document N o . 1 , which
6
The court in Glynn was mindful of a point made by the court
in Benson that:
There are thousands of prisoners confined in state
prisons, any of whom, with a little assistance from
their cell mates, would have little difficulty in
drafting a petition for writ of habeas corpus which
would allege substantial violations of constitutional
rights. We do not propose, by ruling in this case, to
open the door to the release of those thousands of
prisoners on the basis of mere allegations in their
petitions.
470 F.2d at 98 n.2 (quoting Benson,
328 F.2d at 162 n . 2 ) .
13
will require careful review before the merits may be decided. I
find, therefore, that the Petitioner does not meet the “clear
case on the law and the facts” standard for bail under Glynn.
Even if the Petitioner has raised substantial questions of
constitutional error in the state court proceedings, he has not
shown that extraordinary circumstances exist warranting bail
pending a determination of the merits of his habeas petition.
The Petitioner’s claim of actual innocence is dependent on
anticipated factual findings in his favor after an evidentiary
hearing. Such findings are not certain as his argument regarding
the significance of the alleged Stuto recantation has been
considered and rejected in the state courts. See State v . Bader,
808 A.2d at 29-33. Moreover, Petitioner acknowledges that his
innocence claim is contingent at least in part on grants of
immunity to Stuto and Martin.7 Petitioner supposes that upon
confrontation with the John Doe testimony, either Stuto will
admit that he perjured himself in the state court proceedings or
it will be clear to the finder of fact that Stuto’s trial
testimony should not be believed. Petitioner further supposes
that if granted immunity from further prosecution, Martin would
7
Petitioner has not provided any evidence that the State is
inclined to provide any such grants of immunity.
14
recant her testimony. Petitioner’s claim rests on speculation,
which does not present the extraordinary circumstances required
to grant a state prisoner bail during the pendency of a habeas
proceeding.
The district court’s inherent authority to grant bail to a
habeas petitioner must be exercised very sparingly because a
defendant whose conviction has been affirmed on appeal is
unlikely to have been convicted unjustly. Cherek, 767 F.2d at
337. The types of exceptional circumstances that some courts
have discussed as potentially applicable include cases where the
remaining time that the petitioner has to serve is short and the
merits of petitioner’s constitutional claim is clear. See e.g.,
Boyer v . City of Orlando,
402 F.2d 966 (5th Cir. 1968) (release
on bail may be required in order to make the writ of habeas
corpus an effective remedy). In other cases where the courts
have found exceptional circumstances warranting bail, the courts
have found that the petitioner suffers from a severe medical
illness that requires treatment outside of prison. See e.g.,
Johnston v . Marsh,
227 F.2d 5 2 8 , 529 (3d Cir. 1955) (petitioner
granted bail allowing him to go to a private hospital pending
review of his habeas petition). Neither of these examples of
15
exceptional circumstances apply to the instant case.
The Petitioner relies on Ouimette v . Moran, 942 F.2d 1 (1st
Cir. 1991), in support of his argument that he should be granted
bail pending consideration of his habeas petition. In Ouimette,
the First Circuit affirmed a district court’s order issuing a
writ of habeas corpus and unconditionally releasing from prison a
petitioner who had been sentenced to life imprisonment.
Id. at
13. The court noted while discussing the case chronology that
the petitioner was released on bail before the district court
granted the petitioner’s habeas petition and ordered his
unconditional release.
Id. at 3 . There is no discussion in the
court’s opinion of the propriety of the district court’s bail
decision.
Setting aside the question of whether the district court
correctly decided the petitioner’s bail application in Ouimette,
which is suspect, the procedural posture of that case when the
court granted bail differs from the circumstances here. In
Ouimette, the petitioner moved for release on bail after the
district court denied the state’s motion to dismiss the petition
for a writ of habeas corpus. See Ouimette v . Moran, 762 F. Supp.
468, 470 (D.R.I. 1991). Due to the difficult standard that
16
petitioners must meet in a post-conviction habeas proceeding, the
denial of a state’s motion to dismiss may be viewed as a
determination by the court that the petitioner has at least
raised a substantial question of constitutional error.8 In
contrast to the procedural posture of Ouimette, this Court has
only performed a preliminary review of Bader’s petition. See
Rule 4 of the Rules Governing § 2254 Cases. The Petitioner’s
ability to survive preliminary review does not constitute a
finding that he has raised a substantial question, and certainly
does not indicate that he has presented a clear case on the law
and the facts. Given these differences between Ouimette and the
instant case, I find that Ouimette does not support the
Petitioner’s request for bail.
8
As discussed above, however, raising a substantial
question, standing alone, does not support a finding that release
on bail pending a final determination of the merits of a habeas
petition is warranted. Under Glynn, the petitioner must still
demonstrate that exceptional circumstances exist in the case. 470
F.2d at 9 8 . It is unclear from the published opinions in the
Ouimette case whether exceptional circumstances existed in that
case. See Ouimette,
762 F. Supp. at 470 n.2 (listing the bail
conditions that were set without discussion of the reasons why
bail was appropriate).
17
III. Standards Under the Federal Bail Statutes
Viewing this case under the standards that are applied to
bail applications by convicted federal prisoners, an analogy that
the Petitioner invites in his motion,9 shows that granting the
instant bail application would be particularly inappropriate.
Under the Federal Bail Reform Act of 1984, codified at 18 U.S.C.
§§ 3142-52, there is a statutory presumption that a person who
has been found guilty of an offense, and sentenced to serve a
term of imprisonment, shall be detained during the pendency of an
appeal. See
18 U.S.C. § 3143(b). Such a person may be released
from detention if the court makes two required findings: (1) that
clear and convincing evidence exists that the person is not
likely to flee or pose a danger to the safety of any other person
or the community, and (2) that the appeal is not for the purpose
of delay and raises a substantial question of law or fact
requiring any of four enumerated forms of post-conviction relief.
See
18 U.S.C. § 3143(b)(1). However, under
18 U.S.C. §§
3143(b)(2) and 3142(f)(1)(B), the district court must order the
detention of a person who has been found guilty of an offense for
which the maximum sentence is life imprisonment or death during
9
See Mot. for Prel. Injunction at p . 3 .
18
the pendency of an appeal or petition for a writ of certiorari.
The statutes provide no exceptions for such a prisoner. New
Hampshire state law is consistent with the federal rule. See
N.H. RSA 597:1-a, I (providing that a defendant convicted for an
offense punishable by death or a term of life imprisonment
without possibility of parole shall not be allowed bail pending
sentence or appeal).
The state’s interest in a prisoner’s continued custody
during appeal is strongest where the remaining portion of the
sentence is long. See Hilton v . Braunskill, 481 U.S. 7 7 0 , 777
(1987)). The Petitioner was convicted and sentenced to serve a
term of life imprisonment in the state court. The Petitioner
collaterally attacks the constitutionality of his state
convictions in his petition for a federal writ of habeas corpus.
By analogy to the treatment that a federal court must give a
federal prisoner’s application for bail pending appeal under
18
U.S.C. § 3143(b), bail should not be available in this case
because of the nature of the Petitioner’s sentence. Since the
Petitioner would not be entitled to bail pending appeal if he had
been sentenced to life imprisonment in a federal court, it would
be incongruous to find that he could be granted bail in federal
19
court while he collaterally attacks his state court convictions.
CONCLUSION
For the reasons set forth above, I recommend that the
Petitioner’s motion for injunctive relief granting him bail
during the pendency of this Court’s habeas corpus proceedings be
denied.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United
States v . Valencia-Copete,
792 F.2d 4 , 6 (1st Cir. 1986).
James R. Muirhead
United States Magistrate Judge
Date: January 2 3 , 2003
cc: B . Michael Cormier, Esq.
Neals-Erik W . Delker, Esq.
Stephen E . Borofsky, Esq.
20
