18‐35

Illarramendi v. United States of America

1 

2 In the 

3 United States Court of Appeals 

4 For the Second Circuit 

5 ________

6 

7 AUGUST TERM, 2018

8 

9 SUBMITTED: OCTOBER 10, 2018

10 DECIDED: OCTOBER 16, 2018

11 

12 No. 18‐35

13 FRANCISCO ILLARRAMENDI,

14 Petitioner‐Appellant,

15 

16 v.

17 

18 UNITED STATES OF AMERICA,

19 Respondent‐Appellee.

20 ________

21 

22 Appeal from the United States District Court

23 for the District of Connecticut

24 No. 16‐cv‐1853 – Stefan R. Underhill, Judge.

25 ________

26 

27 Before: WALKER, CALABRESI, and LIVINGSTON, Circuit Judges.

28 ________

29 

30 Francisco Illarramendi appeals from the order of the District

31 Court of the District of Connecticut (Underhill, J.) denying his

32 motions for supervised release or bail pending resolution of his

33 motion to vacate his sentence under 28 U.S.C. § 2255.   The United
2 No. 18‐35

1 States now moves for summary affirmance of the district court’s order

2 on the grounds that neither supervised release nor bail is warranted

3 under the circumstances and, regardless of the merits, Illarramendi

4 failed to obtain a certificate of appealability as required by 28 U.S.C.

5 § 2253(c)(1).  We agree with the United States that neither supervised

6 release nor bail is warranted here and therefore GRANT the motion

7 for summary affirmance.    A certificate of appealability from the

8 district court’s order is not necessary, however, because a denial of

9 supervised release or bail is not a “final order[] that dispose[s] of the

10 merits of a habeas corpus proceeding.”  Harbison v. Bell, 556 U.S. 180,

11 183 (2009).

12 ________

13 

14 FRANCISCO ILLARRAMENDI, pro se, for Petitioner‐

15 Appellant.

16 MICHAEL J. GUSTAFSON (John T. Pierpont, Jr., on the

17 brief), United States Attorney’s Office for the

18 District of Connecticut, New Haven, CT, for

19 Respondent‐Appellee.

20 ________

21 

22 PER CURIAM:

23 Francisco Illarramendi appeals from the order of the District

24 Court of the District of Connecticut (Underhill, J.) denying his
3 No. 18‐35

motions for supervised release or bail 1 1 pending resolution of his

2 motion to vacate his sentence under 28 U.S.C. § 2255.   The United

3 States now moves for summary affirmance of the district court’s order

4 on the grounds that neither supervised release nor bail is warranted

5 under the circumstances and, regardless of the merits, Illarramendi

6 failed to obtain a certificate of appealability as required by 28 U.S.C.

7 § 2253(c)(1).  We agree with the United States that neither supervised

8 release nor bail is warranted here and therefore GRANT the motion

9 for summary affirmance.    A certificate of appealability from the

10 district court’s order is not necessary, however, because a denial of

11 supervised release or bail is not a “final order[] that dispose[s] of the

12 merits of a habeas corpus proceeding.”  Harbison v. Bell, 556 U.S. 180,

13 183 (2009).

14 BACKGROUND

15 On March 7, 2011, Petitioner‐Appellant Illarramendi pleaded

16 guilty to two counts of wire fraud, and one count each of securities

17 fraud, investorfraud, and conspiracy to obstruct justice.  Plea Hearing

18 Tr., United States v. Illarramendi, No. 11‐cv‐0041 (D. Conn. March 21,

19 2011), ECF No. 9.    The district court imposed a sentence of 156

20 months’ imprisonment and approximately $370 million in restitution,

 

1 Although Illarramendi’s motion was for supervised release, we liberally construe his pro

se motion as seeking release on bail.   The government accepts this interpretation in its

memorandum in support of its motion to summarily affirm.  Mem in Supp. of Mot. for

Summ. Affirmance 6, ECF No. 33.
4 No. 18‐35

1 which we affirmed on appeal.  See United States v. Illarramendi, 642 F.

2 App’x 64 (2d Cir. 2016) (summary order) (affirming sentence); United

3 States v. Illarramendi, 677 F. App’x 30 (2d Cir. 2017) (summary order)

4 (affirming restitution).

5 On November 14, 2016, Illarramendi filed a habeas corpus

6 petition under 28 U.S.C. § 2255 to vacate his sentence on the grounds

7 that (1) he was denied counsel of choice because his assets were frozen

8 in a related SEC civil proceeding; and (2) his attorneys provided

9 ineffective assistance during the plea negotiations and at sentencing.  

10 Mot. to Vacate Sentence at vii, Illarramendi v. United States, No. 16‐cv‐

1853 (D. Conn. Nov. 14, 2016), ECF No. 1.2 11    The § 2255 petition is

12 pending before the district court.

13 On August 28 and 29, 2017, Illarramendi filed two motions in

14 the district court seeking “supervised release pending habeas

15 proceedings.”   No. 16‐cv‐1853, ECF Nos. 18, 19.   The district court

16 denied the motions, stating that it “has no authority to grant

17 supervised release to a sentenced inmate.”  No. 16‐cv‐1853, ECF No.

18 23.  Illarramendi then filed a notice of appeal with the district court

19 from the denial of supervised release and moved for leave to proceed

20 in forma pauperis.  No. 16‐cv‐1853, ECF Nos. 24, 25.  The district court

21 granted the motion for leave to proceed in forma pauperis.  No. 16‐cv‐

22 1853, ECF No. 27.

 

2 The § 2255 action in the district court is hereinafter referred to as No. 16‐cv‐1853.
5 No. 18‐35

1 On appeal, the government now moves for us to summarily

2 affirm the district court’s order denying Illarramendi’s motions for

3 supervised release pending the outcome of his habeas proceeding

4 under 28 U.S.C. § 2255.  Mem. in Supp. of Mot. for Summ. Affirmance

5 6, ECF No. 33.  The government argues that (1) supervised release is

6 not available to Appellant pending a decision on his habeas petition

7 because supervised release can only be imposed as part of a criminal

8 sentence; (2) even if Illarramendi’s motion is construed as one seeking

9 release on bail, it is not warranted because his § 2255 motion does not

10 present substantial claims and there are no extraordinary

11 circumstances; and (3) Illarramendi failed to obtain a certificate of

12 appeal (COA) as required by 28 U.S.C. § 2253(c)(1).  Id. at 3, 6.

13 DISCUSSION

14 We write here to address the question of whether a COA is

15 required to appeal from a denial of bail pending the disposition of a

16 petition for habeas corpus relief.

17 I. Certificate of Appealability

18 28 U.S.C. § 2253(c)(1) states that

19 [u]nless a circuit justice or judge issues a certificate of

20 appealability, an appeal may not be taken to the court of

21 appeals from the final order in a habeas corpus

22 proceeding in which the detention complained of arises

23 out of process issued by a State court; or the final order

24 in a proceeding under section 2255.
6 No. 18‐35

1 In Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990), we held that

§ 2253’s COA3 2 requirement applied “not only to the final

3 determination of the merits [of the habeas proceeding] but also to an

4 order denying bail” during the habeas proceeding.  We reasoned that

5 the interest served by requiring such a certificate—namely, relieving

6 “the court system of the burdens resulting from litigation of

7 insubstantial appeals—is equally served whether the order appealed

8 is a final disposition of the merits or a collateral order.”  Id.    

9 Almost two decades later, the Supreme Court decided Harbison

10 v. Bell, 556 U.S. 180 (2009).    In Harbison, the district court denied

11 appellant’s motion to authorize his federally appointed counsel in his

12 habeas proceeding to represent him in a related state clemency

13 proceeding.   Id. at 182.   Appellant appealed, but failed to obtain a

14 COA under § 2253(c)(1).   Id. at 183.    The Court held that because  

15 § 2253(c)(1) “governs final orders that dispose of the merits of a

16 habeas corpus proceeding—a proceeding challenging the lawfulness

17 of the petitioner’s detention[,] . . . [a]n order that merely denies a

18 motion to enlarge the authority of appointed counsel . . . is not such

19 an order and is therefore not subject to the COA requirement.”  Id.

 

3 In 1990, when Grune was decided, § 2253 required a certificate of probable cause before a

party could appeal from a habeas proceeding.  In 1996, Congress passed the Antiterrorism

and Effective Death Penalty Act (AEDPA) and amended § 2253 to, inter alia, change the

name of a certificate of probable cause to a certificate of appealability.  Pub. L. No. 104‐132,

§ 102 110 Stat. 1214, 1217 (1996).    There is no substantial difference between the two

certificates.
7 No. 18‐35

1 We have never addressed Harbison’s effect on Grune in a

2 published decision, but two motions panels in unpublished orders

3 denied as unnecessary COA motions in appeals from the denial of

4 bail, with one order specifically citing Harbison for support.  See Mot.

5 Order, United States v. Riccio (Lasher), No. 17‐1629 (2d Cir. Nov. 6,

6 2017), ECF No. 135; Mot. Order, Fan v. United States, No. 17‐1619 (2d

7 Cir. Aug 29, 2017), ECF No. 32.  We agree with the two decisions.  In

8 Grune, we acknowledged that “the denial of bail . . . is a collateral and

9 conclusive determination of the issue presented,” but never

10 pretended that it was somehow a final disposition of the habeas

11 proceeding.    Grune, 913 F.2d at 44.    Therefore, consistent with

12 Harbison, we hold that a COA is not required when appealing from

13 orders in a habeas proceeding that are collateral to the merits of the

14 habeas claim itself, including the denial of bail.  Thus, in this case, the

15 absence of a COA was not a bar to Illarramendi’s appeal from the

16 district court’s order denying his motion for supervised release or bail

17 pending resolution of his habeas petition.   

18 II. Appellant’s Remaining Arguments

19 After review of the record and Appellant’s arguments, we

20 conclude that his motion for supervised release or bail pending

21 review of his 28 U.S.C. § 2255 motion lacked merit because the

22 motion does not present substantial questions and Appellant has not

23 demonstrated that “extraordinary circumstances exist that make the
8 No. 18‐35

1 grant of bail necessary to make the habeas relief effective.”  Mapp v.

2 Reno, 241 F.3d 221, 226 (2d Cir. 2001) (internal citation, quotations,

3 and alteration omitted).  We therefore grant summary affirmance of

4 the district court’s order.  See United States v. Bonilla, 618 F.3d 102,

5 107–08 (2d Cir. 2010).

6 CONCLUSION

7 For the reasons stated above, the government’s motion for

8 summary affirmance of the district court’s order denying supervised

9 release is GRANTED.