* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 20 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LUTHER K. BARNETT, JR.,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 98-6363 (D.C. No. 97-CV-1072) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , TACHA , and EBEL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

This matter is before us for consideration of petit ioner’s appeal from a decision of the United States District Court for th e Western District of Oklahoma, denying his application for release pending an appe al by the state of a conditional grant of habeas corpus. Pursuant to our earlier re mand, the district court has furnished adequate reasons underlying the decision to deny release. Although the general tenor of petitioner’s argument s follows the requirements of the Bail Reform Act, see 18 U.S.C. § 3143(b), release pending appeal of a habeas corpus action is governed by Fed . R. App. P. 23. “A court reviewing an initial custody determinationpursuant to Rule 23(d) must accord a presumption of correctness to the ini tial custody determination made pursuant to Rule 23(c), whether that order dir ects release or continues custody. . . .” Hilton v. Braunskill , 481 U.S. 770, 777 (1987). The State’s interest in continuing custody will be the stronges t where the remaining portion of the sentence to be served is long. See id. Moreover, “[a]lthough the decision of a district court granting habeas relief will have hel d that the judgment of conviction is infirm, that determination itself may be overturned on appeal before the State must retry the petitioner.” Id. at 779. To warrant release pending review of a petition forwrit of habeas corpus, a defendant must demonstrate special circumstances ora high probability of success. See generallyPfaff v. Wells , 648 F.2d 689, 693 (10th Cir. 1981) (for-3-

release pending appeal of order denying habeas corp us relief, “a showing of exceptional circumstances must be made for such rel ief, or a demonstration of a clear case on the merits of the habeas petition”); United States v. Mett , 41 F.3d 1281, 1282 (9th Cir. 1994) (bail in habeas context reserved for “‘extraordinary cases involving special circumstances or a high pro bability of success.’” (citations omitted)); Dotson v. Clark , 900 F.2d 77, 79 (6th Cir. 1990) (in habeas procee ding, to receive bail pending decision on merits, petitio ner must show not only substantial claim of law but also existence of “‘so me circumstance making [the motion for bail] exceptional and deserving of speci al treatment in the interest of justice’”(quoting Aronson v. May , 85 S. Ct. 3 *5 (1964) (Douglas, J., in chambers)); Stow v. Perrill , No. 94-1282, 1994 WL 377629, at **1 (10th Cir. Ju ly 20, 1994) (court would review district court’s deni al of bail pending district court’s determination of habeas petition under 28 U .S.C. § 2241 “under a deferential standard, deciding whether petitioner h as raised a substantial issue on which he is likely to prevail, and whether exceptio nal circumstances exist which warrant granting bail”). Here, petitioner does not allege any special or ext raordinary circumstances beyond his belief that he will prevail on appeal. See Salerno v. United States , 878 F.2d 317 (9th Cir. 1989) (special circumstances include “the raising of-4-

substantial claims upon which appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process”). Accordingly, we conclude the district court correct ly denied release pending appeal. AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT PER CURIAM