                              FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                        MAY 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 19-35172

                Plaintiff-Appellee,             D.C. Nos.     4:16-cv-00224-BLW
                                                              4:01-cr-00196-BLW-1
 v.                                             District of Idaho,
                                                Pocatello
JOHN ERNEST DADE,
                                                ORDER
                Defendant-Appellant.

Before: BERZON and COLLINS, Circuit Judges, and CHOE-GROVES,* Judge.

      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 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




      *
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
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 make a sufficient showing that release


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

                                           2
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


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 CHARLES 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).

                                            3
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 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


                                           4
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 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



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: 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.


                                          5
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

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


                                          6
motion for release on bail pending appeal under Rule 23(b) is DENIED.




                                       7
                                                                           FILED
United States v. Dade, No. 19-35172
                                                                           MAY 22 2020
BERZON, Circuit Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      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

      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.




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, 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).
      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 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 recent reports, nearly seventy-five percent of the

inmates at FCI Lompoc have now tested positive for COVID. See

https://www.bop.gov/coronavirus/ (reporting on May 11, 2020, 7:27 a.m. that 842


                                          2
of 1,162 inmates have “confirmed active cases” of COVID-19 at FCI Lompoc).2

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




2
  As of May 21, 2020, 2:50 p.m., the BOP website reports 939 total inmates at FCI
Lompoc and 291 “confirmed active cases” of COVID-19. Aside from the apparent
sizeable decrease in the total population, no explanation is apparent for this
dramatic drop in the number of current cases since May 11. Notably, the BOP
reports only “confirmed active cases”; it does not show a cumulative number of
inmates who have been infected. So it is possible that many infected individuals
have been transferred or released while the motion before us was pending, and
others have recovered.

                                          3
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 “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


                                           4
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 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.




                                            5
