United States District Court, D. Maine
ORDER ON SECOND EMERGENCY MOTION FOR BAIL AND STATUS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE .
Court denies an inmate's emergency request for bail
pending the resolution of her habeas corpus petition because
it concludes she fails to make the extraordinary showing
necessary to justify immediate release.
February 29, 2012, a federal grand jury issued a multi-count
indictment against Carole Swan, charging her with-among other
things-Hobbs Act extortion, tax fraud and false statements,
and false statements to obtain federal workers'
compensation benefits. Indictment (ECF No. 1). On
March 28, 2013, a federal grand jury issued a superseding
indictment against her. Superseding Indictment (ECF
No. 112). On July 26, 2013, a federal jury found Ms. Swan
guilty of five counts of making false statements in her
federal income tax returns and guilty of two counts of making
false statements to obtain federal workers' compensation
benefits. Jury Verdict Form (ECF No. 167). On
September 17, 2013, a second federal jury found Ms. Swan
guilty of three counts of Hobbs Act extortion. Jury
Verdict Form (ECF No. 273). On June 14, 2014, the Court
sentenced Carole Swan to eighty-seven months of imprisonment
on Hobbs Act extortion counts, thirty-six months of
imprisonment on tax counts, and sixty months of imprisonment
on workers' compensation counts. J. (ECF No.
20, 2014, Ms. Swan filed a notice of appeal to the Court of
Appeals for the First Circuit. Notice of Appeal (ECF
No. 360). On appeal, Ms. Swan raised a single issue: whether
suppression of her interview with two sheriff's deputies
was required. United States v. Swan, 842 F.3d 28, 29
(1st Cir. 2016). On November 21, 2016, the First Circuit
ruled that it was not and affirmed Ms. Swan's
convictions. Id. at 34.
April 20, 2017, Ms. Swan, acting pro se, filed two motions
with the Court.Mot. for Bail (ECF No.
444); Mot. for Reduction in Accordance to 18
U.S.C.[ § ]3582 (ECF No. 445) (Swan Mot.). On
May 5, 2017, the Government responded and requested leave to
supplement its response in the event that the Court reaches
the merits of Ms. Swan's motion, which the Court granted
on June 27, 2017. Gov't's Resp. in Opp'n to
Def.'s 18 U.S.C. § 3582 Mot. and for
Bail at 2 n.1 (ECF No. 450) (Gov't's
Opp'n); Am. Order Granting Mot. to Suppl.
Resp. (ECF No. 454). On May 18, 2017, Ms. Swan filed a
reply. Pet'r's Rebuttal of Gov't's
Opp'n of Bail Pending Final Disposition and the Lawful
Correction of Sentencing (ECF No. 451) (Swan
Reply). On July 11, 2017, the Government supplemented
its response to Ms. Swan's motion. Gov't's
Suppl. Resp. in Opp'n to Def.'s 18 U.S.C. §
3582 Mot. (ECF No. 456) (Gov't's Suppl.
Resp.). On July 24, 2017, Ms. Swan filed a supplemental
reply. Reply to Gov't's Suppl. Resp. of Opp'n
of 18 U.S.C. 3582 Mot. for Reduction of
Sentence (ECF No. 457) (Swan Suppl. Reply).
September 28, 2017, Ms. Swan filed a motion for a status
report concerning her motion for reduction of sentence.
Req. for Status of the Mot. Pending for Correction in the
Reduction of Sentence (ECF No. 458). On September 30,
2017, the Court granted her request for a status report,
indicating that the Court was working on the order and could
say no more. Order on Mot. for Status Report (ECF
No. 459). On October 4, 2017, the Court issued a
Castro Order, stating that it was treating her 18
U.S.C. § 3582 motion as an 18 U.S.C. § 2255 motion,
making the rules against a second or successive petition
applicable to her pending petition and giving Ms. Swan an
opportunity to withdraw or amend her motion. Castro
Order (ECF No. 460). On October 13, 2017, Ms. Swan
affirmed that she agreed with the recharacterization of her
§ 3582 motion. Pet'r Carole Swan's Resp. to
the Honorable Ct.'s Order of Conversion Regarding
the 18 U.S.C. [Â§] 3582 to 28 U.S.C. [Â§] 2255 (ECF No.
October 23, 2017, Ms. Swan filed an emergency motion for
release by bail pending the Court's decision on the
pending motions. Emergency Mot. for Release by Bail
Pending a Decision of the Honorable Ct. (ECF No. 464).
On October 25, 2017, the Government responded to Ms.
Swan's emergency motion for bail. Gov't's
Resp. in Opp'n to Def.'s Emergency Mot. for Bail
(ECF No. 465). On November 13, 2017, Ms. Swan filed a reply
to the Government's opposition to her emergency motion
for release. Pet'r's Resp. and Rebuttal to
Gov't's Opp'n of Emergency Mot. for Release by
Bail Pending a Decision of the Honorable Ct. (ECF No.
on October 26, 2017, the Magistrate Judge ordered the
Government to file a response to the pending § 2255
petition. Order to Ans. (ECF No. 466). On October
27, 2017, the Government filed its opposition to Ms.
Swan's § 2255 petition. Opp'n of the United
States of Am. to 28 U.S.C. Â§ 2255 Pet. (ECF No. 467).
Finally, on November 24, 2017, Ms. Swan requested a status
report from the Court on her emergency motion for release on
bail. Req. for Status of the Mot. for Release on Bail
Pending the Ct.'s Decision for Correction in the
Reduction of Sentence (ECF No. 470).
Order, the Court addresses only Ms. Swan's emergency
motion for bail. “[A] district court entertaining a
petition for habeas corpus has inherent power to release the
petitioner pending determination of the merits.”
Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir.
1972). However, to be entitled to bail while a habeas corpus
proceeding is pending, the petitioner must make an
“extraordinary . . . showing.” Layne v.
Gunter, 559 F.2d 850, 851 n.2 (1st Cir. 1977). At a
minimum, she must demonstrate a “likelihood of success
on the merits.” Woodcock, 470 F.2d at 94. As
Justice William O. Douglas wrote:
This applicant is incarcerated because he has been tried,
convicted, and sentenced by a court of law. He now attacks
his conviction in a collateral proceeding. It is obvious that
a greater showing of special reasons for admission to bail
pending review should be required in this kind of case than
would be required in a case where applicant had sought to
attack by writ of habeas corpus an incarceration not
resulting from a judicial determination of guilt. In this
kind of case it is therefore 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.
Glynn v. Donnelly, 470 F.2d 95, 97-98 (1st Cir.
1972) (quoting Aronson v. May, 85 S.Ct. 3, 6-7
(1964)) (citations omitted).
same time, the First Circuit Court of Appeals warned against
a “pre-judgment on the merits.”
Woodcock, 470 F.2d at 94. Without prejudging the
final merits of Ms. Swan's habeas corpus petition, the
Court does not conclude that she has presented a
“likelihood of success” on the merits nor that
she has presented an ...