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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Darryl D. Johnson,

Petitioner,

v. 

Charles L Ryan, et al.,

Respondents.

No. CV-17-04473-PHX-GMS (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT 

COURT JUDGE:

In December 2017, Arizona state prisoner Darryl D. Johnson (“Petitioner”) filed a 

“Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus” (Doc. 1) (the “Petition”).

1

 

On February 23, 2018, Petitioner filed a “Motion for Release of a Prisoner in a Habeas 

Corpus Proceedings” (Doc. 14). Respondents oppose the Motion. (Doc. 16). For the

reasons explained below, the undersigned recommends that the Court deny Petitioner’s 

Motion (Doc. 14).

I. DISCUSSION

The Ninth Circuit has not resolved whether a federal district court has the 

authority to release a state prisoner pending the resolution of a habeas proceeding. See In 

re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (declining to resolve the issue as to whether 

 

1 The Petition became fully briefed on February 26, 2018. (Docs. 1, 11, 15). 
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a district court has the authority to release a state prisoner on bail pending resolution of 

habeas proceedings in extraordinary cases). Yet even if a district court does have the 

authority to release a state prisoner while a habeas proceeding is pending, such authority 

is “reserved for extraordinary cases involving special circumstances or a high probability 

of success.” Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989). “Special circumstances” 

include a habeas petitioner’s “serious deterioration of health while incarcerated, and 

unusual delay in the appeal process,” Salerno v. United States, 878 F.2d 317 (9th Cir. 

1987), or situations where “the sentence was so short that if bail were denied and the 

habeas petition were eventually granted, the defendant would already have served the 

sentence,” Landano v. Rafferty, 970 F.2d 1230, 1239 (3rd Cir. 1992).

In support of his Motion (Doc. 14), Petitioner states that (i) he “is in need of 

counsel”; (ii) “does not have access to law library or any form of legal assistance”; (iii) 

“has a better chance to be granted a fair and impartial trial by being released from 

custody”; and (iv) “has a stable home environment that is crime free,” including an 

employed spouse with a stable income. (Id. at 2). Petitioner also asserts that he will have 

a stable income upon his release. (Id. at 2-3). It is noted that the Court previously denied 

Petitioner’s request for the appointment of counsel. (Docs. 8, 13). It is also noted that

Petitioner’s Reply (Doc. 15) to Respondents’ Limited Answer (Doc. 11) contains legal 

arguments and citation to legal authority. Finally, Petitioner is not scheduled to be 

released from prison until 2021; he is serving an eight-year flat time sentence that was 

imposed in 2013.2

 (Doc. 1 at 1-2). The undersigned finds that even if the Court does 

have authority to release Petitioner pending resolution of the Petition, Petitioner has not 

shown that his is an extraordinary case involving special circumstances or a high 

probability of success. It is therefore recommended that the Court deny Petitioner’s 

Motion (Doc. 14).

 

2 The Arizona Department of Corrections’ online inmate database, https://corrections.az.gov/public-resources/inmate-datasearch, indicates that Petitioner’s 

release date is April 8, 2021.
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II. CONCLUSION

Based on the foregoing, 

IT IS RECOMMENDED that the Court deny Petitioner’s “Motion for Release of 

a Prisoner in a Habeas Corpus Proceedings” (Doc. 14). 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the district court’s judgment. 

However, pursuant to Rule 72(b), Fed. R. Civ. P., the parties shall have fourteen days 

from the date of service of a copy of this recommendation within which to file specific 

written objections with the Court. Thereafter, the parties have fourteen days within 

which to file a response to the objections. Failure to file timely objections to any factual 

determinations of the Magistrate Judge may be considered a waiver of a party’s right to 

appellate review of the findings of fact in an order or judgment entered pursuant to the 

Magistrate Judge’s recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 

Dated this 26th day of April, 2018.