United States v. 2020-05-21 | 19-35172 | USA V. JOHN DADE | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JOHN ERNEST DADE,
Defendant-Appellant.
No. 19-35172

D.C. Nos.
4:16-cv-00224-BLW
4:01-cr-00196-BLW-1

ORDER

Filed May 21, 2020

Before: Marsha S. Berzon and Daniel Paul Collins, Circuit
Judges, and Jennifer Choe-Groves,
*
Judge.

Order;
Dissent by Judge Berzon

*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.

2 UNITED STATES V. DADE

SUMMARY
**

28 U.S.C. § 2255 / Bail Pending Appeal

The panel filed an order denying John Ernest Dade’s
motion under Fed. R. App. P. 23(b) for release on bail
pending his appeal of the district court’s denial of his motion
under 28 U.S.C. § 2255 to vacate his sentence.

The panel held that even assuming arguendo that Dade
has established a likelihood of success on appeal, he has not
made the further showing required to warrant his release
pending appeal.

The panel explained that in addition to showing a
likelihood of success on the merits, Dade must make a
further showing of exceptional circumstances that go beyond
what would be required to justify his release if this were a
direct appeal rather than a § 2255 collateral attack. The
panel wrote that because the standards applicable to
collateral review are stricter than on direct appeal, a federal
defendant who would not be entitled to bail pending direct
appeal under the Bail Reform Act is, for that reason alone,
not entitled to bail pending resolution of his or her § 2255
proceedings. The panel held that Dade is not eligible for
release pending appeal under the Bail Reform Act because
he makes no showing that he is not likely to flee or pose a
danger to the safety of any other person or the community if
released. The panel wrote that without a showing that Dade
at least satisfies the Bail Reform Act’s standards, the risks of

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. DADE 3

COVID-19 do not entitle him to be released from detention
entirely.

Dissenting, Judge Berzon wrote that bail pending appeal
is warranted because Dade has established both a high
probability of success on the merits and special
circumstances, namely the COVID-19 pandemic and Dade’s
particular vulnerability. Judge Berzon wrote that this court
has unequivocally rejected the application of the Bail
Reform Act to a motion for bail pending appeal on habeas.
She would grant bail pending appeal and order a limited
remand to the district court to hold an immediate bond
hearing.

COUNSEL

Bart M. Davis, United States Attorney; Syrena C. Hargrove,
Assistant United States Attorney; United States Attorney’s
Office, Boise, Idaho; for Defendant-Appellant.

Samuel Richard Rubin, Federal Public Defender; Melissa
Winberg and Miles Pope, Assistant Federal Defenders;
Federal Defender Services of Idaho, Boise, Idaho; for
Plaintiff-Appellee.

ORDER
Appellant John Ernest Dade (“Dade”) moves for release
on bail pending his appeal of the district court’s denial of his
motion to vacate his sentence under 28 U.S.C. § 2255. Dade
contends that three of his five counts of conviction
impermissibly rely on 18 U.S.C. § 16(b), which contains a
residual definition of “crime of violence” that is facially

4 UNITED STATES V. DADE

invalid under Supreme Court precedent made retroactively
applicable on collateral review. Sessions v. Dimaya,
138 S. Ct. 1204 (2018); Welch v. United States, 136 S. Ct.
1257, 1268 (2016); Johnson v. United States, 135 S. Ct.
2551 (2015). We express no view of the merits of Dade’s
appeal, which has not yet been argued. Even assuming
arguendo that Dade has established a likelihood of success
on appeal, he has not made the further showing required to
warrant his release pending appeal. We therefore deny the
motion.
1

Under Rule 23-1 of this court, Dade’s “detention or
release” pending his appeal of the denial of his § 2255
motion is “governed by FRAP 23(b), (c) and (d).” Ninth Cir.
R. 23-1. Because the denial of a § 2255 motion is “a decision
not to release a prisoner,” the operative rule is Rule 23(b),
which states that, pending appeal, “the court or judge
rendering the decision, or the court of appeals, or the
Supreme Court, or a judge or justice of either court,” may
order that the prisoner be “detained in the custody from
which release is sought,” “detained in other appropriate
custody,” or “released on personal recognizance, with or
without surety.” Fed. R. App. P. 23(b). Rule 23(b) does not
itself set forth any substantive criteria for determining
detention or release, and our decision is instead governed by
equitable considerations. See United States v. Mett, 41 F.3d
1281, 1282 (9th Cir. 1995) (citing, inter alia, Aronson v.
May, 85 S. Ct. 3, 5 (1964) (Douglas, J., in chambers); United
States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986)); cf.
Hilton v. Braunskill, 481 U.S. 770, 777 (1987) (decision
under Rule 23(c) whether to stay release pending
government’s appeal depends on general equitable
considerations governing stays). Here, Dade has failed to

1
Judge Berzon would grant the motion and has filed a dissent.

UNITED STATES V. DADE 5

make a sufficient showing that release is warranted under the
applicable equitable standards.
2

As we explained in Mett, release pending appeal of the
denial of a § 2255 motion is “reserved . . . for extraordinary
cases.” 41 F.3d at 1282 (internal quotation marks and
citation omitted). This requires an appellant to make a
“heightened” showing beyond what would be required to
warrant release on a direct criminal appeal. Kelly, 790 F.2d
at 139. In Mett, we said that the requisite showing would
involve “‘special circumstances or a high probability of
success.’” 41 F.3d at 1282 (quoting Land v. Deeds, 878 F.2d
318, 318 (9th Cir. 1989)). To the extent that our use of the
disjunctive in Mett and Land might be thought to suggest that
a “high probability of success” might alone be sufficient to
warrant release, we clarify that a likelihood of success is not
enough. A contrary rule would be an unwarranted departure
from traditional equitable standards, see Hilton, 481 U.S.
at 776 (likelihood of success is merely one factor in
determining release under Rule 23), and it would lead to the
anomalous result that release would be more easily obtained
on collateral review than on direct appeal. Cf. 18 U.S.C.
§ 3143(b) (release pending appeal requires both a substantial

2
We note that Dade failed to seek release pending appeal from the
district court before filing his motion in this court. Although the text of
Rule 23(b) does not itself require that relief first be sought in the district
court, the equitable principles that govern such discretionary requests
generally require that an applicant “start by making the request to the
court or judge who rendered the decision under review.”
16AA C
HARLES WRIGHT, ARTHUR MILLER, EDWARD COOPER, &
CATHERINE STRUVE, FEDERAL PRACTICE AND PROCEDURE § 3969 (4th
ed. 2008); see also Smith v. Caldwell, 339 F. Supp. 215, 216 (S.D. Ga.)
(“Requests for release pending appeal” in habeas cases “should
ordinarily be filed first in the district court.”) (citing Baker v. Sard,
420 F.2d 1342 (D.C. Cir. 1969)), aff’d, 458 F.2d 160 (5th Cir. 1972).

6 UNITED STATES V. DADE

showing on the merits and a showing that the defendant is
“not likely to flee or pose a danger to the safety of any other
person or the community”). Moreover, both Mett and Land
drew their articulation of the relevant release standards from
Justice Douglas’s in-chambers opinion in Aronson, which
made clear that the prisoner must show that, “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.” 85 S. Ct. at 5 (emphasis added). Thus,
in addition to showing a likelihood of success on the merits,
Dade must make a further showing of exceptional
circumstances that go beyond what would be required to
justify his release if this were a direct appeal rather than a
§ 2255 collateral attack.
Dade has not made this showing. Although the Bail
Reform Act does not apply on collateral review, see Mett,
41 F.3d at 1282, it cannot be the case that a prisoner whose
detention would be required under that Act pending direct
appeal can obtain release pending appeal on collateral
review. We agree with the Seventh Circuit that, because the
standards applicable to collateral review are stricter than on
direct appeal, a federal defendant who would not be entitled
to bail pending direct appeal under the terms of § 3143(b) is,
for that reason alone, not entitled to bail pending resolution
of his or her § 2255 proceedings. Cherek v. United States,
767 F.2d 335, 337–38 (7th Cir. 1985).
3
Here, Dade is not

3
The dissent is mistaken in contending that Cherek is inconsistent
with our decision in Mett. Just as we concluded in Mett, the Seventh
Circuit explicitly stated that “the statute governing bail pending appeal
from a federal conviction, 18 U.S.C. § 3143(b), is inapplicable here.”
767 F.2d at 337; see also Mett, 41 F.3d at 1282 (“The Bail Reform Act
does not apply to federal prisoners seeking postconviction relief.”). But
as Cherek explained, that does not mean that § 3143 is irrelevant:

UNITED STATES V. DADE 7

eligible for release pending appeal under the standards set
forth in § 3143(b). That statute requires that, in addition to
making a sufficient showing on the merits, a prisoner must
also show “by clear and convincing evidence that the person
is not likely to flee or pose a danger to the safety of any other
person or the community if released.” Id. Dade’s motion
makes no such showing, much less a clear and convincing
one. Moreover, the Government has stated that, if Dade
prevails on this appeal, it intends to recharge and retry him,
thereby underscoring the inappropriateness of releasing him
while his § 2255 appeal remains pending.
Dade argues, and the dissent agrees, that this case
involves the “special circumstance[]” of the COVID-19
pandemic and the risks to Dade if he contracts it in prison.
See Land, 878 F.2d at 318. This is indeed a special
circumstance, and it might warrant a change in the
conditions of his confinement (including transfer to another
facility) if those risks are not being adequately addressed.
See Farmer v. Brennan, 511 U.S. 825, 835 (1994)
(Government must not be deliberately indifferent to the
medical needs of prisoners); cf. also Gordon v. County of
Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (“claims
for violations of the right to adequate medical care brought
by pretrial detainees against individual defendants under the
Fourteenth Amendment must be evaluated under an
objective deliberate indifference standard” (internal
quotation marks and citation omitted)). But we do not have
that issue before us in this motion. Instead, we have only

because § 3143 provides “a more favorable standard” than a defendant
asserting a § 2255 motion is “entitled to,” it follows that “a defendant
who cannot bring himself within its terms is not entitled to bail” in
connection with those § 2255 proceedings. Cherek, 767 F.2d at 337.
Mett did not address this further question.

8 UNITED STATES V. DADE

Dade’s request that, in light of the risks of COVID-19, he
should be released from detention entirely. Without a
showing that Dade at least satisfies § 3143(b)(1)(A)’s
standards, he is not entitled to that relief. Had he met those
standards, then Dade’s asserted risks in prison would be a
factor that we could consider in exercising our overall
discretion under Rule 23. But whether or not he faces a risk
from COVID-19 in prison has no bearing on whether he will
be a danger to the community if released, and that is what
counts under § 3143(b)(1)(A).
Because Dade’s request for release would fail under
§ 3143(b) if this were a direct appeal, he can fare no better
on an appeal in a collateral challenge under § 2255, where
he must satisfy a more demanding standard. Accordingly,
Dade’s motion for release on bail pending appeal under Rule
23(b) is DENIED.

BERZON, Circuit Judge, dissenting:

I respectfully dissent. A § 2255 petitioner is entitled to
bail pending appeal under Federal Rule of Appellate
Procedure 23 in “extraordinary cases involving special
circumstances or a high probability of success.” See United
States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (quoting
Land v. Deeds, 878 F.2d 318, 318–19 (9th Cir.1989)). Bail
pending appeal in this case is warranted because Dade has
established both.
1

1
Our case law phrases this test as disjunctive, but I agree with the
majority that both a high probability of success and special
circumstances are required to grant bail under Federal Rule of Appellate
Procedure 23(b). Mett quotes Land, which in turn cites Aronson v. May,

UNITED STATES V. DADE 9

The underlying crimes at issue on appeal—Idaho
burglary, battery, and assault—are misdemeanors under
Idaho law that were prosecuted as federal crimes of interstate
domestic violence (and thus carried a greatly enhanced
sentence) because Dade traveled from Utah to Idaho to
commit them. Dade has served eighteen years of his twenty-
eight-year sentence.
Based on a preliminary review of this case, Dade has a
high probability of success on the merits under the standard
in United States v. Geozos, 870 F.3d 890, 896 (9th Cir.
2017). The jury could have relied on Idaho burglary or
battery as the basis for his convictions for interstate domestic
violence under 18 U.S.C. § 2261A(2)(B)(i) and brandishing
a firearm in relation to interstate domestic violence under
18 U.S.C. § 924(c). As the government recognizes, state
burglary offenses in 2002 were determined to be crimes of
violence based on the residual clause of the federal crime of
violence definition, 18 U.S.C. § 16(b). As to harmlessness,
as to which we rely on current law, see Geozos, 870 F.3d
at 897, it is clear at least that burglary and battery are now
not within the force clause categorically.
This case also involves special circumstances, namely
the COVID-19 pandemic and Dade’s particular
vulnerability. The government recognizes that Dade’s
underlying medical condition—a history of respiratory

85 S. Ct. 3, 5 (1964), as support for this test. See Land, 878 F.2d at 318–
19. Aronson reasoned that “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.” 85 S. Ct. at 5.
Other circuits have considered these requirements in the conjunctive.
See, e.g., Anderson v. Napel, No. 17-1740, 2017 WL 5895735 *1 (6th
Cir. 2017) (citing Aronson, 85 S. Ct. at 5).

10 UNITED STATES V. DADE

issues—and advanced age put him in the high-risk category
should he contract the virus. It asserts that the BOP has
policies in place to ensure the safety of inmates, but those
policies have been appallingly ineffective in FCI Lompoc
where Dade is incarcerated. According to the most recent
reports, over seventy-five percent of the inmates at FCI
Lompoc have now tested positive for COVID. See
https://www.bop.gov/coronavirus/ (last visited May 12,
2020, 2:05 p.m.) (reporting 886 of 1,162 inmates have
“confirmed active cases” of COVID-19 at FCI Lompoc).
That BOP’s official protocols have not worked—or not been
implemented—at FCI Lompoc is not surprising. Dade
describes conditions inconsistent with the BOP’s announced
new policies in response to the virus: “[H]e has not been
isolated due to his vulnerabilities and instead is housed with
hundreds of other individuals, sleeping approximately
26 inches apart in double bunk beds.” See Emergency
Motion, Dkt. 83 at 12. And inmates at FCI Lompoc are
“given two handmade masks, [but] they are able to see
through them, other inmates do not consistently wear their
masks, and they have no ability to disinfect or clean them
other than by washing them in the communal sinks and
letting them air dry,” Reply, Dkt. 94 at 5; see also id. at 4–6
(describing other conditions at FCI Lompoc). Dade also cites
numerous news articles noting the particular risk to inmates,
practical difficulties in effectuating BOP’s protective
policies, and BOP’s overall ineffectiveness in controlling the
spread of the virus. Emergency Motion at 10–13. So the risk
to Dade both of contracting the virus if he remains at FCI
Lompoc and of becoming extremely ill or dying is quite
high.
I note with concern that as recently as April 30, 2020, the
government assured us that the risk of COVID-19 infection
at FCI Lompoc was being adequately mitigated by BOP’s

UNITED STATES V. DADE 11

“aggressive steps to protect inmates’ health [and] to limit the
spread of COVID-19,” see Response, Dkt. 90 at 16–21, such
that Dade was at little risk of contracting the virus. Dade’s
own reports of the on-the-ground situation turned out to be
exceedingly more accurate, disturbingly so.
I also note that the majority’s conclusion that Dade must
satisfy the requirements of the Bail Reform Act plainly
violates this circuit’s precedent. In Mett, we unequivocally
rejected the application of 18 U.S.C. § 3143(b) to a motion
for bail pending appeal on habeas. See 41 F.3d at 1282.
“Appellants are collaterally attacking their sentences. The
Bail Reform Act does not apply to federal prisoners seeking
postconviction relief.” Id. (citation omitted). “Instead, Fed.
R. App. P. 23 governs the issue of the release or detention of
a prisoner, state or federal, who is collaterally attacking his
or her criminal conviction.” Id. To the extent we should
consider whether Dade poses a danger to the community as
part of the equitable consideration of special circumstances,
any danger Dade poses here can be adequately addressed by
imposing restrictions on his release. Dade notes that he “is
amenable to any restrictions the Court is inclined to order”
on his release, “since his primary concern is surviving to
learn the resolution of his appeal.” Reply, Dkt. 94 at 11.
Whether Dade continues to pose a threat and what
restrictions would be appropriate to mitigate that threat are
questions of fact that the district court is better positioned
than this panel to resolve.
I would grant bail pending appeal and order a limited
remand to the district court to hold an immediate bond
hearing. See Rose v. Baker, 17-15009, Dkt. 62 at *3–4 (9th
Cir. April 9, 2020) (remanding the case “to the district court
for the limited purpose of conducting a bond hearing to
determine bond and other appropriate conditions for

12 UNITED STATES V. DADE

release”). Dade asserts that he has friends that will take him
in so that he may shelter in place if released, but the district
court would be better suited to test the truth of those
assertions, the adequacy of the available housing options,
and otherwise set bail conditions.