United States District Court, D. New Jersey
THOMPSON, DISTRICT JUDGE
matter comes before the Court on Petitioner Vernina
Adams' motion for release pending sentencing (ECF No. 18)
and motion for prompt ruling (ECF No. 23).Respondent United
States has not opposed either motion. For the reasons stated
herein, the motion for release is denied and the motion for a
prompt ruling is dismissed as moot.
pled guilty to a one-count Information charging her with
conspiracy to commit bank fraud, 18 U.S.C. § 1349, on
July 31, 2013. She was sentenced to 40 months imprisonment
with a 5 year period of supervised release to run
concurrently with two prior federal convictions. United
States v. Adams, 13-cr-0501 (D.N.J. May 9, 2016).
See also United States v. Adams, 5:15-0072 (S.D.
W.Va. Apr. 15, 2015); United States v. Adams, No.
12-584 (N.D. Cal. Nov. 4, 2013). She did not file a direct
appeal. On October 6, 2016, she filed a motion to vacate,
correct, or set aside her sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 1). The Court originally
administratively terminated the motion as it was not on the
proper form, (ECF No. 3), and Petitioner submitted an amended
motion on January 3, 2017, (ECF No. 7). The Court advised
Petitioner of her rights and the consequences of filing a
§ 2255 motion pursuant to United States v.
Miller, 197 F.3d 644 (3d Cir. 1999), and directed
Petitioner to inform the Court whether she wanted to proceed
with the amended motion as filed or to submit a second
amended motion subject to the one-year statute of
limitations. (ECF No. 9). Petitioner elected to file a second
amended motion on February 6, 2017. (ECF No. 11).
Court ordered Respondent United States to answer the
petition. (ECF No. 12). As Respondent did not answer the
petition within the time set by the Court, the Court issued
an order to show cause on May 8, 2017. (ECF No. 13).
Respondent answered the order the same day and requested an
extension of time to file an answer. (ECF No. 14). The Court
granted that extension request as well as a second extension
of time request made on July 18, 2017. (ECF Nos. 16 &
19). Respondent filed its answer on July 28, 2017. (ECF No.
10, 2017, Petitioner filed the instant motion for release
pending sentencing. (ECF No. 18). She filed a motion for a
prompt ruling on January 5, 2018. (ECF No. 23). Respondent
did not reply to either motion.
STANDARD OF REVIEW
courts have the discretion to order bail on bond pending the
outcome of § 2255 proceedings. See United States v.
Smith, 835 F.2d 1048, 1050 (3d Cir. 1987). "[B]ail
pending disposition of habeas corpus review is available
'only when the petitioner has raised substantial
constitutional claims upon which [s]he has a high probability
of success ... or exceptional circumstances exist which make
a grant of bail necessary to make the habeas remedy
effective.'" United States v. Weicksel, 517
Fed.Appx. 67, 68 (3d Cir. 2013) (per curiam) (quoting
Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir.
1992) (omission in original)). See also United States v.
Knight, m. l:08-CR-141-06, 2017 WL 75575, at *2(M.D. Pa.
Jan. 9, 2017).
argues she should be released on bail pending this
Court's decision in her § 2255 proceedings because
she has a high probability of success on the merits because
her offenses were part of the same course of conduct,
"possession of a fraudulent business is a continuous
offense which ceases only when the possession stops, "
and both of her offenses were based on the same evidence.
Motion at 1-3. She states she has already served 39 months
and 7 days in custody at the time of the riling of her motion
and that she will likely receive "a retroactive
concurrency to both relevant conduct offenses" and a
sentence of time served if the Court resentences her. Motion
at 3-4. She argues these are extraordinary circumstances
warranting release on bond pending this Court's decision.
Third Circuit has "previously observed that' [v]ery
few cases have presented extraordinary circumstances, and
those that have seem to be limited to situations involving
poor health or the impending completion of the prisoner's
sentence.'" In re Souels, 688 Fed.Appx.
134, 135 (3d Cir. 2017) (quoting Landano, 970 F.2d
at 1239 (alteration in original)). See also Lucas v.
Hadden, 790 F.2d 365, 367 (3d Cir. 1986) ("[A]
preliminary grant of bail is an exceptional form of relief in
a habeas corpus proceeding."). See Boyer v. City of
Orlando, 402 F.2d 966 (5th Cir. 1968) (granting bail to
prisoner sentenced to 120 days in prison); Johnston v.
Marsh, 227 F.2d 528, 529 (3d Cir. 1955) (permitting
state prisoner, "an advanced diabetic [who] was, under
conditions of confinement, rapidly progressing toward total
blindness[, ]" to be released to a hospital for
immediate treatment). Petitioner does not argue she is in
poor health and in need of immediate treatment, nor is she
scheduled for imminent release. According to the Bureau of
Prison's Inmate Locator, she is scheduled for release on
January 26, 2019. See BOP Inmate Locator,
available at https://www.bop.gov/inmateloc/ (last
visited Jan. 30, 2018). Furthermore, she has a 5 year period
of supervised release to serve at the conclusion of her
incarceration. See Burkey v. Marberry, 556 F.3d 142,
147-48 (3d Cir. 2009) (noting § 2255 petition was not
moot after petitioner's release from prison because he
still had to serve a period of supervised release);
United States v. Jackson, 523 F.3d 234, 242 (3d Cir.
2008). Petitioner has therefore failed to meet the Third
Circuit's test for extraordinary circumstances as her
release date is not imminent and she is not in poor health
such that urgent treatment is required. "Consequently,
this is not a case where the timing of the release date would
render the habeas remedy ineffective if the petitioner were
not granted bail." Souels, 688 Fed.Appx. at 135
(citing Landano, 970 F.2d at 1239).
there are no extraordinary circumstances warranting bail,
Petitioner's motion is denied. See Lucas v.
Hadden, 790 F.2d 365, 367 (3d Cir. 1986) (holding that
"absent a showing of extraordinary circumstances,
[petitioner] was improperly admitted to bail."). Her
motion for a decision is dismissed as moot.