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United States v. McCandless

United States Court of Appeals, Ninth Circuit

November 10, 2016

United States of America, Plaintiff-Appellee,
v.
James McCandless, AKA Mackie, Defendant-Appellant.

          Argued and Submitted October 20, 2016 Honolulu, Hawaii

         Appeal 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

         COUNSEL

          Marion Percell (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellant.

          Peter C. Wolff, Jr. (argued), Federal Public Defender; Alexander Silvert, First Assistant Federal Public Defender; Hawaii Federal Public Defender, Honolulu, Hawaii; for Defendant-Appellee.

          Before: J. Clifford Wallace, Jerome Farris, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus / Mandamus

         The 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.

         McCandless 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).

         The 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.

         The 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 his favor.

          OPINION

          PER CURIAM:

         James 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, ...


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