On Motion to Vacate Release and to Direct Psychiatric Examination from the United States District Court for the District of New Jersey (D.C. Nos. 85-0745 and 85-1007)
BEFORE: HUNTER, GARTH, and MANSMANN, Circuit Judges.
Rubin Carter was indicted and convicted of murder by New Jersey in 1976. His petition for a writ of habeas corpus was granted by the United States District Court for the District of New Jersey (Sarokin, J.) on November 7, 1985.*fn1 On the following day, November 8, 1985, Carter executed a recognizance bond assuring his appearance on the order of the United States District Court and was released from custody.
The State of New Jersey has moved in this court to revoke Carter's enlargement and seeks an order that Carter be placed in custody pending the State's appeal of the District Court's order granting the writ. The State, asserting that Carter is a danger to the community, seeks in the alternative an order compelling him to undergo psychiatric examination so that the State may establish his dangerous propensities. In support of its application, the State has submitted various records of prison incidents and has reported, as well, an incident which occurred in 1976 during the period of Carter's enlargement after the reversal of his first conviction and prior to his second conviction. The State further asserts that Carter has steadfastly refused to undergo psychiatric examination during the past fifteen years. In light of the analysis that follows, we do not find it necessary to make reference to Carter's responses to these assertions.
Our review of the enlargement of a victorious habeas petitioner is necessarily controlled by Fed. R. App. P. 23(c) and (d). These provisions, which by their terms prescribe our plenary review, read:
(c) Release of Prisoner Pending Review of Decision Ordering Release. Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.
(d) Modification of Initial Order Respecting Custody. An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.
Relatively little has been written with respect to the interpretation of Rule 23, but the available authority does provide some general principles:
First and foremost, a petitioner who has established that his confinement is based on an unconstitutional trial is presumptively entitled to release immediately or, more commonly, after an appropriately circumscribed period to allow the state time to retry the accused. United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 743 (3d Cir. 1973); United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 769, 770 (3d Cir. 1972).*fn2
Second, the federal court has a strong interest in assuring the appearance of the petitioner in subsequent proceedings in the federal court or, if the granting of the writ is overturned on appeal, for the purpose of restoring the petitioner to state custody. Thomas, 472 F.2d at 743. Therefore, "any recognizance with or without surety must in a habeas case run to and be filed with the federal court." Id.
Third, it is clear that federal statutory bail standards relating to federal prisoners, see 18 U.S.C. 3141 et seq. (West Supp. 1985), do not govern release of state prisoners under Rule 23(c) and (d).*fn3 A fortiori, state bail rules and procedures have no role in federal habeas proceedings. Indeed, Rule 23 itself does not provide any standards, factors, or conditions to be considered by the court with respect to release, other than those connected with the imposition of surety and ...