and Submitted October 20, 2016 Honolulu, Hawaii
from the United States District Court for the District of
Hawaii D.C. Nos. 1:15-cv-00461-DKW-BMK, 1:10-cr-00793-DKW-1
Derrick Kahala Watson, District Judge, Presiding
Percell (argued), Assistant United States Attorney; Florence
T. Nakakuni, United States Attorney; United States
Attorney's Office, Honolulu, Hawaii; for
C. Wolff, Jr. (argued), Federal Public Defender; Alexander
Silvert, First Assistant Federal Public Defender; Hawaii
Federal Public Defender, Honolulu, Hawaii; for
Before: J. Clifford Wallace, Jerome Farris, and Paul J.
Watford, Circuit Judges.
Corpus / Mandamus
panel granted federal prisoner James McCandless' motion
to construe his interlocutory appeal as a petition for a writ
of mandamus, and denied the petition, in a case in which
McCandless contends that he should be released on bail
pending a decision on his habeas corpus petition under 28
U.S.C. § 2255.
contends that his enhancement under the residual clause of
the Sentencing Guidelines career-offender provision is
unconstitutionally vague in light of Johnson v. United
States, 135 S.Ct. 2551 (2015).
panel observed 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, is
not otherwise appealable under the collateral order doctrine,
and is not subject to interlocutory review under 28 U.S.C.
§ 1292(b). The panel therefore construed the appeal as a
mandamus petition challenging the district court's
refusal to grant McCandless' motion for bail.
panel did not need to resolve whether district courts have
authority to grant bail pending resolution of a habeas
petition. The panel held that McCandless cannot demonstrate
clear error in the denial of his request for bail because he
has not shown either a high probability of success on the
merits of his habeas petition or special circumstances that
would warrant his release on appeal. The panel observed (1)
that it is far from clear how the Supreme Court, in
Beckles v. United States, 136 S.Ct. 2510 (cert.
granted June 27, 2016), will rule on whether Johnson
invalidates the residual clause of the Guidelines'
career-offender provision and whether such a rule would apply
retroactively on collateral review; and (2) that McCandless
has not shown that he will have over-served his lawful
sentence in the event that Beckles is resolved in
McCandless is a federal prisoner who seeks bail pending a
decision by the district court on his petition for a writ of
habeas corpus under 28 U.S.C. § 2255. He is serving a
145-month sentence for a drug-related conspiracy conviction,
with a projected release date of August 8, 2020. He contends
that he should be released on bail because if he prevails on
his habeas petition, ...