* This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
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This matter is before us for consideration of petitioner’s appeal from a

decision of the United States District Court for the Western District of Oklahoma,

denying his application for release pending an appeal by the state of a conditional

grant of habeas corpus. Pursuant to our earlier remand, the district court has

furnished adequate reasons underlying the decision to deny release. 

Although the general tenor of petitioner’s arguments 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 determination pursuant to Rule 23(d)

must accord a presumption of correctness to the initial custody determination

made pursuant to Rule 23(c), whether that order directs release or continues

custody. . . .” Hilton v. Braunskill , 481 U.S. 770, 777 (1987). The State’s

interest in continuing custody will be the strongest 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 held 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 for writ of habeas corpus, a

defendant must demonstrate special circumstances or a high probability of

success. See generally Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981) (for
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release pending appeal of order denying habeas corpus relief, “a showing of

exceptional circumstances must be made for such relief, 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 probability of success.’” (citations

omitted)); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) (in habeas proceeding,

to receive bail pending decision on merits, petitioner must show not only

substantial claim of law but also existence of “‘some circumstance making [the

motion for bail] exceptional and deserving of special 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. July

20, 1994) (court would review district court’s denial of bail pending district

court’s determination of habeas petition under 28 U.S.C. § 2241 “under a

deferential standard, deciding whether petitioner has raised a substantial issue on

which he is likely to prevail, and whether exceptional circumstances exist which

warrant granting bail”). 

Here, petitioner does not allege any special or extraordinary 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
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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 correctly denied release

pending appeal.

AFFIRMED. The mandate shall issue forthwith. 

ENTERED FOR THE COURT

PER CURIAM