                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            August 17, 2006
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 06-4167
 DANIEL JOSEPH PALERMO,                             (D.C. Nos. 2:05-CV-265-DS and
                                                           2:02-CR-246-DS)
           Defendant-Appellant.                                (D.Utah)




                                 ORDER AND JUDGMENT *


Before BRISCOE, HARTZ, and McCONNELL, Circuit Judges.


       Daniel Joseph Palermo, proceeding pro se, appeals the district court’s denial of his

motion for release on recognizance or surety pending the district court’s decision on the

merits of his 28 U.S.C. § 2255 petition. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

       Palermo pled guilty on August 29, 2002, to possession of an unregistered sawed-

off shotgun. He was sentenced on November 11, 2002, to sixty-four months’

imprisonment, to be followed by thirty-six months’ supervised release. Palermo did not

file a direct appeal.


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders;
nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Palermo has since filed a 28 U.S.C. § 2255 motion to vacate or set aside his

sentence, asserting that his trial counsel was ineffective for ignoring his alleged

instruction to file a notice of appeal. According to the record, the district court has set an

evidentiary hearing on the merits of Palermo’s motion for September 12, 2006. Although

Palermo filed a motion for release on recognizance or surety pending the outcome of his §

2255 motion, the district court denied that motion. Palermo now appeals from the district

court’s order of denial and, together with his notice of appeal, has filed a motion for

release with this court.

       It is apparent from the record on appeal that Palermo is not entitled to release

pending the outcome of his § 2255 motion. An inmate seeking federal habeas relief must,

in order to obtain release pending a determination on the merits of his petition, make a

showing of exceptional circumstances or demonstrate a clear case on the merits of his

habeas petition. Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981). Although Palermo

asserts he is suffering from various health problems, has endured significant delay in the

district court’s processing of his § 2255 motion, and is on the verge of being transferred

from prison to a halfway house, none of these assertions constitute exceptional

circumstances. Moreover, he has not demonstrated a clear case on the merits.

       Palermo’s motion for expedited consideration is GRANTED. His motions for

appointment of counsel and for release are DENIED. The order of the district court




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denying Palermo’s motion for release on recognizance or surety is AFFIRMED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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