20-3354

Daum v. Eckert

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 8th day of September, two thousand twenty-one.

PRESENT:

BARRINGTON D. PARKER,

JOSEPH F. BIANCO,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

Terry Daum,

Plaintiff-Appellant,

v. 20-3354

Stewart Eckert,

Defendant-Appellee.

_____________________________________

FOR PLAINTIFF-APPELLANT: Terry Daum, pro se, Fallsburg,

NY.

FOR DEFENDANT-APPELLEE: Morrie I. Kleinbart, Alexander

Fumelli, Assistant District 

Attorneys, for Michael E. 

McMahon, District Attorney of 

Richmond County, Staten Island, 

NY.
2

Barbara D. Underwood, Solicitor 

General, Andrew W. Amend, 

Assistant Deputy Solicitor General 

for Criminal Matters, Priscilla 

Steward, Assistant Attorney 

General, for Letitia James, 

Attorney General of the State of 

New York, New York, NY. 

Appeal from an order of the United States District Court for the Eastern District of New 

York (Kovner, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the appeal is DISMISSED in part, and the order of the district court is 

AFFIRMED in part. 

Plaintiff-Appellant Terry Daum was convicted of eight counts of robbery in 1997 in state 

court and filed a successive petition for habeas corpus in the district court in 2017. The petition 

was stayed pending resolution of Daum’s habeas proceedings in state court. In May 2020, Daum, 

proceeding pro se, sought emergency relief related to the COVID-19 pandemic. The district court 

construed his request as either a motion to lift the stay or a request for bail pending resolution of 

his habeas petition. The district court denied relief, reasoning that Daum failed to show that his 

habeas petition raised a substantial issue, that he did not show extraordinary circumstances 

warranting bail, and that the stay should not be lifted. We assume the parties’ familiarity with the 

underlying facts, the procedural history, and the issues on appeal.

I. Appellate Jurisdiction

As an initial matter, the order at issue is only partially reviewable on appeal. An order 

denying bail is considered collateral to the merits and may be reviewed prior to a final order on 
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the merits. Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990). Therefore, we may review the 

portion of the order denying Daum bail. 

However, we dismiss Daum’s appeal to the extent he seeks to challenge the district court’s 

denial of his motion to lift the stay. We have jurisdiction over final decisions of the district court. 

28 U.S.C. § 1291. A final decision “ends the litigation on the merits and leaves nothing for the 

court to do but execute the judgment.” In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 

F.3d 30, 35 (2d Cir. 2014) (internal quotation marks omitted). To be final, an order must 

conclusively determine the pending claims of all parties to the litigation unless the district court 

directs entry of judgment on the dismissed claims or parties pursuant to Federal Rule of Civil 

Procedure 54(b). Citizens Accord, Inc. v. Town of Rochester, N.Y., 235 F.3d 126, 128 (2d Cir. 

2000) (per curiam). Here, the district court’s order denying Daum’s motion to lift the stay did not 

end the litigation on the merits. 

Nor does any exception to the final judgment rule apply to that order. The district court 

did not direct entry of judgment pursuant to Rule 54(b) or certify the order for immediate appeal 

under 28 U.S.C. § 1292(b), and this case does not fall into an exception listed in 28 U.S.C. 

§ 1292(a). Neither does the order fall under the collateral order doctrine, which permits 

interlocutory appeals of orders that resolve important issues completely separate from the merits 

of the action and are effectively unreviewable after final judgment. See Schwartz v. City of New 

York, 57 F.3d 236, 237 (2d Cir. 1995). An order staying a federal habeas proceeding while state 

court remedies are being exhausted is not a collateral order subject to interlocutory appeal. See, 

e.g., Kell v. Bazon, 925 F.3d 448, 467 (10th Cir. 2019); Grace v. Vannoy, 826 F.3d 813, 821 (5th 

Cir. 2016); Stanley v. Chappell, 764 F.3d 990, 995–96 (9th Cir. 2014); Howard v. Norris, 616 F.3d 
4

799, 803 (8th Cir. 2010); see also Gacho v. Butler, 792 F.3d 732, 733 (7th Cir. 2015) (concluding 

that dismissal of federal habeas action without prejudice was not an appealable final order when 

the order granted leave to refile after state remedies were exhausted).

Here, the district court stayed proceedings until Daum had exhausted his state court 

remedies. Its order denying Daum’s motion merely continued the existing stay. That order is 

non-final and did not end the litigation on the merits. Accordingly, we dismiss the appeal to the 

extent Daum seeks review of the order denying his motion to lift the stay. 

II. Bail

We review a district court’s decision to deny bail for clear error and “will not reverse . . . 

unless on the entire evidence [this Court is] left with the definite and firm conviction that a mistake 

has been committed.” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal 

quotation marks omitted). When considering “a habeas petitioner’s fitness for bail, [a court] must 

inquire into whether the habeas petition raises substantial claims and whether extraordinary 

circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” 

Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001) (alterations and internal quotation marks omitted). 

Daum argues that he offered evidence to support his habeas claim and that the district court 

erred by concluding that the record was too sparse to determine if he raised a “substantial claim.” 

He further argues that he presented extraordinary circumstances because of the COVID-19 

pandemic. We conclude that even if Daum’s habeas claim was sufficiently developed, the district 

court did not err in determining on this record that the COVID-19 pandemic did not constitute an 

extraordinary circumstance warranting bail.

As an initial matter, Daum did not show that he is particularly at risk of contracting a severe 
5

case of COVID-19. His medical records show that he had a few pre-existing medical conditions, 

but none constituted a condition that increased his risk of severe illness from COVID-19. 1

 

Although Daum had uncomplicated hypertension, the guidance set forth by the Center for Disease 

Control and Prevention’s (“CDC”) states that hypertension only “possibly” increases the risk one

faces from COVID-19.

2

 Further, asthma must be moderate or severe to increase one’s risk of 

severe illness, and Daum had only mild asthma.3 Moreover, the district court found that the 

facility in which Daum was housed “appears to have implemented measures that are modeled on 

CDC’s guidance for correctional facilities on combatting COVID-19 even when social distancing 

is impossible,” and that “no inmate at the facility had succumbed to the virus” at the time of the 

district court’s decision. Daum v. Eckert, 2020 WL 5040596, at *4 (E.D.N.Y. Aug. 26, 2020).

Thus, the district court determined that “Daum has not demonstrated that the facility in which he 

is housed is ill-equipped to counteract the spread of COVID-19, or that he would be at an elevated 

risk of severe illness if he contracted the virus.” Id. Daum points to no evidence contradicting 

these findings. Accordingly, the district court did not clearly err in concluding that Daum had not 

shown extraordinary circumstances warranting bail, and thereby denying his motion.

We have considered all of Daum’s remaining arguments and find them to be without merit. 

1 People at higher risk of developing severe cases of COVID-19 include people over the age of 65 

and people with certain pre-existing medical conditions that include cancer, sickle-cell disease, and obesity. 

Centers for Disease Control and Prevention, “People with Certain Medical Conditions,” (last updated May 

13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html. 

2 Id.

3 Id.
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Accordingly, we DISMISS the appeal for lack of appellate jurisdiction to the extent that Daum 

challenges the district court’s denial of his motion to lift the stay, and we AFFIRM the district 

court’s order in remaining part.

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court