APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Garth, Biggs and Maris, Circuit Judges.
These are appeals by the respondents in three allied habeas corpus proceedings from orders of the district court granting the petitions of the relators for writs of habeas corpus. The relators are being held by the State of New Jersey in the Mercer County Detention Center on charges of possession, possession with intent to distribute, and conspiracy to possess and distribute marijuana, bail being set at $500,000 as to each of them. All the relators except Casavina face a maximum penalty of 10 years in prison and a fine of $30,000. Casavina faces a maximum prison term of 15 years and a $45,000 fine.
Two of the petitions, one by Fielding, Mentzer, Vickers, Chippas and Lutz jointly, and another by Romano, were filed July 21, 1978. The third, by Koenig and Casavina, was filed July 31, 1978. The district court ordered the respondents to show cause returnable July 25th and August 2d, respectively, why the writs should not be granted and referred the petitions to a United States magistrate for consideration and recommendations. The magistrate, after hearing testimony as to Fielding, Mentzer, Vickers, Chippas, Lutz and Romano filed his report on July 28th holding that fixing uniform bail of $500,000 for each relator was beyond the range within which judgments could rationally differ in relation to the apparent elements of the situation and amounted to legal arbitrariness and discrimination in the administration of the bail right in violation of the federal constitution. The magistrate accordingly concluded that the relators were entitled to habeas relief and directed that each relator for whom a constitutional bail had not been set by the state court in the interim should appear in the district court on August 2, 1978, "at which time the terms of the enlargement of each shall be set."
On August 2d the magistrate held a hearing on the petition of Koenig and Casavina. Finding that Koenig had not exhausted his state remedies he recommended that his petition be dismissed without evidentiary hearing. As to Casavina the magistrate followed his report as to the six other relators and found the $500,000 bail set for him also to be excessive. He accordingly directed that unless a constitutional bail had been set for this relator prior to August 18th, he should appear in the district court on that date "at which time the terms of his enlargement shall be set."
The district court adopted as its opinions the reports and recommendations of the magistrate, granting on July 31st the petitions of Fielding, Mentzer, Vickers, Chippas, Lutz and Romano for writs of habeas corpus and on August 15th denying the petition of Koenig and granting that of Casavina. Writs of habeas corpus were accordingly issued directed to the warden of the Mercer County Detention Center commanding him to have the bodies of the relators in the district court on August 2d and 18th, respectively. The writs have not been executed, however, in view of a stay granted by this court on August 1st.
We are confronted at the outset with the question whether we have jurisdiction to entertain the appeals, namely, whether the orders of the district court of July 31st and August 15th were final appealable orders. We conclude that they were not and that the appeals must accordingly be dismissed.
The orders of the district court from which these appeals were taken ordered that the petitions for a writ of habeas corpus be granted and further ordered that the report and recommendation of the magistrate be adopted and incorporated as the opinion of the court. They did not, however, direct that the relators be released from their state custody, either forthwith or conditionally, as was done in the order appealed from in United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 736-737 (3d Cir.), Cert. den., 414 U.S. 878, 94 S. Ct. 121, 38 L. Ed. 2d 123 (1973).*fn1 It is true that the report and recommendation of the magistrate found that the bail fixed for the relators by the state court was unconstitutionally excessive and that the relators were entitled to relief through habeas corpus. The report followed with the direction that each relator for whom a constitutional bail had not been set earlier should appear in court on August 2d (August 18th in the case of Casavina) at which time the terms of enlargement of each should be set. The district court did not embody these conclusions and recommendations of the magistrate in its orders, however, but merely adopted them as its opinion.
An opinion of a court is not appealable as such, however,*fn2 and the findings and conclusions set forth in it are not directly reversible on appeal but only when and as they are incorporated in or support an order, judgment or decree of the court which is under appellate review. Here the only orders of the district court, which are before us on appeal were to adopt the magistrate's reports as the Opinions of the court and to grant the writs of habeas corpus petitioned for by the relators. We are satisfied that both orders were purely procedural and interlocutory. Writs of habeas corpus were in fact issued and they merely directed that the relators be brought before the court on August 2d (August 18th in the case of Casavina). Because of the stay issued by this court, the writs were not executed and hearings on August 2d and 18th were not held. At the hearings on the return of the writs, when they are ultimately held, the court will doubtless enter orders finally disposing of the proceedings either by discharging the relators from custody forthwith or at a fixed future date if in the meantime the state court has not effected a reduction of their bail to figures which the district court finds to be within constitutional limits, or by remanding them to state custody if such a reduction of the bail has been made in the interim between the issuance of the writs and the hearing on their return. Any one of these orders would appear to be a final one terminating the proceedings in which it was entered and as such would be appealable. See United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 742 (3d Cir.), Cert. denied, 414 U.S. 878, 94 S. Ct. 121, 38 L. Ed. 2d 123 (1973).
Here, however, hearings on the return of the writs of habeas corpus have not yet been held and orders disposing of the relators' custody, either absolutely or conditionally, have not been made by the court. All that has actually been done by the court is to conclude as a result of the hearings on the orders to show cause that the relators have made a showing sufficient to entitle them to release from state custody and to issue writs of habeas corpus to bring them into the custody of the district court so that the court may then make appropriate orders with respect to their state custody, discharging them from it or remanding them to it. It is true that the court has concluded in the magistrate's reports and recommendations which it adopted as its opinions that the relators' state custody was invalid at the time of the show cause hearings and that it might then have ordered the release of the relators from state custody, either absolutely or conditionally, thus rendering unnecessary the formal issuance and service of writs of habeas corpus as appears to have been the procedure followed in the Thomas case.
The district court was aware, of course, of the difference between orders to issue writs of habeas corpus to bring the relators into court, purely procedural orders, and orders for the relators' discharge from custody, definitive orders determining and enforcing their right. Here the court deliberately chose the normal and traditional procedure of issuing the writs of habeas corpus first and deferring until the return of the writs the framing and entry of orders, in accordance with its adopted opinions, discharging the relators from state custody if the amount of the state bail has not been reduced in the interim. This may well have been because of the fact that if such a reduction should be made, as is quite possible in view of the conclusion that the present bail is unconstitutionally excessive which was made in the opinions adopted by the district court, the question whether the bail as thus reduced was still unconstitutionally excessive would still have to be adjudicated by the court before any definitive order with respect to the relators' custody could be framed or the terms and conditions, if any, to be incorporated therein could be formulated. It is thus clear to us that final appealable orders in these cases have yet to be made.
The appeals will be dismissed.
GARTH, Circuit Judge, ...