The opinion of the court was delivered by: Bartle, District Judge.
Presently before the court is the motion of Allen W. Stewart
("Stewart") for bail or enlargement pending disposition of his motion
under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence.
Stewart was convicted by a jury in December, 1997 of 135 counts of
violating the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1961, et seq., as well as federal mail fraud,
wire fraud, and money laundering statutes. His bail was revoked on
December 18, 1997 after the jury's guilty verdict. On August 13, 1998
Stewart was sentenced to 15 years imprisonment, and an order of
restitution in the amount of $60.1 million was entered against him. His
conviction and sentence were subsequently affirmed by the Court of
Appeals, see United States v. Stewart, 185 F.3d 112 (3d Cir. 1999), and
the Supreme Court thereafter denied certiorari. See Stewart v. United
States, 528 U.S. 1063, 120 S.Ct. 618, 145 L.Ed.2d 512 (1999).
On December 12, 2000 Stewart filed his timely collateral attack on his
conviction. Three days later he filed the motion for bail presently
before us. As a threshold matter, we note that we have the authority to
grant bail pending the disposition of a habeas petition. See Lucas v.
Hadden, 790 F.2d 365, 366-67 (3d Cir. 1986); Johnston v. Marsh,
227 F.2d 528 (3d Cir. 1955). However, this power is very narrow. See
Lucas, 790 F.2d at 367.
The Court of Appeals' most recent discussion of the issue before us was
in Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992). The court announced
that "bail pending post-conviction habeas corpus review [is] available
`only when the petitioner has raised substantial constitutional claims
upon which he has a high probability of success, and also when
extraordinary or exceptional circumstances exist which make the grant of
bail necessary to make the habeas remedy effective.'" Id. at 1239
(quoting Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974)). The
court observed that "[v]ery few cases have presented extraordinary
circumstances, and those that have seem to be limited to situations
involving poor health or the impending completion of the prisoner's
sentence." Id. of the two cases cited by the court where the
circumstances were extraordinary, one involved a petitioner who was an
advanced diabetic and in poor health. See Marsh, 227 F.2d at 529. The
second concerned a petitioner whose sentence was 120 days—a
sentence which was likely to expire before the habeas petition could be
decided. See Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968).
Stewart argues that he should be granted bail prior to the disposition
of his § 2255 motion because he has made a "strong showing that he is
likely to succeed on the merits." Hilton v. Braunskill, 481 U.S. 770,
776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). He relies on the Supreme
Court's decision in Hilton. It held that likelihood of success on the
merits was one of a number of factors to be considered when a federal
appeals court determines whether to stay a district court order granting
enlargement to a habeas petitioner pending appeal.*fn1 See id. Unlike
Landano and the matter now before us, Hilton concerned a situation where
the habeas petition had already been adjudicated on the merits.
In this circuit, in order to grant Stewart bail, we must find not only
that he has "a high probability of success" on the merits but also that
"extraordinary or exceptional circumstances exist which make the grant of
bail necessary to make the habeas remedy effective." Landano, 970 F.2d at
1239 (quoting Calley, 496 F.2d at 702). Without making any final
conclusions on the matter, we cannot say at this time that Stewart has a
high probability of success. Many of the legal arguments he makes are
both novel and complex, based on very recent Supreme Court decisions.
While his lengthy petition and supporting brief are before us, the
government has not yet had a fair opportunity to respond. We simply do
not know what the outcome of Stewart's motion will be. Moreover, even if
it turns out he has a high probability of success on the merits, he must
also demonstrate that extraordinary circumstances exist that warrant
bail. Thus far, as discussed above, extraordinary circumstances have been
found only in cases of ill health or the near-term completion of a
sentence. Stewart qualifies for neither of these.
Finally, we note two additional factors which weigh against granting
his motion for release pending a decision on the merits of his § 2255
motion. First, there is a presumption of correctness and finality that
attaches to convictions such as Stewart's which have been affirmed on
direct appeal. See Cherek v. United States, 767 F.2d 335, 337 (7th Cir.
1985). Second, there is the risk of flight. At various times throughout
this protracted action concerns were raised that Stewart would flee.
See, e.g., United States v. Stewart, Crim. A. No. 96-583, 1997 WL 325784
(E.D.Pa. June 6, 1997); United States v. Stewart, 185 F.3d 112 (E.D.Pa.
1997). This was not simply a figment of the government's imagination.
Prior to the issuance of the indictment against him, but after he became
aware of its likelihood, Stewart made inquiries regarding a second
passport, off shore accounts, and citizenship in other countries. See
State v. Stewart, 148 Or. App. 450, 939 P.2d 174, 1997 WL 325890, at
*2-*3 (1997). After the jury verdict, we revoked his bail because he did
not establish by clear and convincing evidence that he was not likely to
flee. See 18 U.S.C. § 3143(a). Stewart appealed the revocation of his
ball. By an order dated January 14, 1998, the Court of Appeals denied his
motion for bail pending sentencing. There is nothing now of record that
changes the situation. See Hilton, 481 U.S. at 777, 107 S.Ct. 2113.
For all of the above reasons we will deny Stewart's motion for ball or
enlargement pending disposition of his motion under 28 U.S.C. § 2255