                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS March 22, 2016
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 DELMART E.J.M. VREELAND, II,

          Petitioner - Appellant,
 v.
                                                        No. 16-1013
                                               (D.C. No. 1:14-CV-02175-PAB)
 DAVID ZUPAN, Warden; THE
                                                          (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.



      Nearly eight years into a state prison term for various sex and drug crimes,

Delmart Vreeland filed a petition for a writ of habeas corpus in federal district

court under 28 U.S.C. § 2254. Confident in his chances of having his conviction

and sentence set aside, Mr. Vreeland also filed a motion for release on bail

pending resolution of his habeas claims. As the district court recognized,

however, a motion for release at this late stage required Mr. Vreeland to show not

only “a clear case on the merits of the habeas petition,” but also “exceptional


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
circumstances.” See Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981); Aronson

v. May, 85 S. Ct. 3, 5 (1964) (Douglas, J., in chambers). Finding that Mr.

Vreeland failed to meet the first of these requirements, the district court declined

to proceed to the second and denied his motion for release on bail in an order

issued before and separately from any consideration of the merits of his

underlying habeas petition.

      Mr. Vreeland now seeks to appeal the district court’s bail ruling. But at

least a couple potential jurisdictional questions immediately present themselves.

For one, is an order denying bail pending a ruling on the merits of a habeas

petition a final appealable decision under 28 U.S.C. § 1291? For another, must

Mr. Vreeland obtain a certificate of appealability (COA) under 28 U.S.C.

§ 2253(c)(1)(A) in order to invoke our jurisdiction to consider an adverse bail

ruling ancillary to an underlying § 2254 petition?

      On the first question, room for debate may exist but we are persuaded that

an order denying bail in habeas proceedings is “severable from the merits,”

determines the disputed question “conclusively,” and (absent an interlocutory

appeal) is “effectively unreviewable,” so that it indeed constitutes a final

collateral order sufficient to trigger our jurisdiction under § 1291. Dotson v.

Clark, 900 F.2d 77, 78 (6th Cir. 1990); see also Pagan v. United States, 353 F.3d

1343, 1345 n.4 (11th Cir. 2003) (collecting cases).




                                        -2-
      On the second question, room for debate may exist too. In Harbison v.

Bell, 556 U.S. 180 (2009), the Supreme Court explained that the statutory COA

requirement applies to final orders that “dispose of the merits of a habeas corpus

proceeding.” Id. at 183. And at least at first blush an order denying bail pending

disposition of a habeas claim might appear not to qualify as that. At the same

time, both sides before us seem to agree that a COA is necessary and neither

discusses the Court’s guidance in Harbison. But in the end the resolution of this

second question doesn’t turn out to matter much for Mr. Vreeland’s appeal falters

under either standard. Where Pfaff requires a petitioner to make a clear showing

on the merits (plus extraordinary circumstances), to secure a COA a petitioner

need only show that “reasonable jurists” would find the district court’s

determination “debatable.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

And our independent review of both Mr. Vreeland’s petition and the record

reveals he cannot meet even the more forgiving COA standard — in fact, we

would willingly adopt the district court’s bail order as our own. See United States

v. Saro, 252 F.3d 449, 452-53 (D.C. Cir. 2001).

      Mr. Vreeland’s request for a COA, his motion to supplement the appellate

record, and his motion requesting that this court accept jurisdiction over




                                        -3-
additional and otherwise unappealable orders are denied. This appeal is

dismissed.



                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




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