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United States v. Golomb

United States District Court, M.D. Pennsylvania

January 11, 2017

UNITED STATES OF AMERICA,
v.
KEITH JEFFREY GOLOMB, Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before the Court is the Government's Motion to Stay Proceeding (Doc. 53) and Petitioner Keith Jeffrey Golomb's Motion for Release on Bond Pending Habeas Proceedings (Doc. 55). For the reasons that follow, the Government's Motion to Stay will be granted, and Golomb's Motion for Release on Bond will be denied.

         I. Background

         A. Relevant Factual History

         On November 30, 2006, Golomb pled guilty to an indictment charging him with four counts of bank robbery and one count of attempted bank robbery, in violation of 18 U.S.C. § 2133(a). A Presentence Report was prepared, in which Golomb was determined to be a career offender based on prior convictions under Pennsylvania law for simple assault and escape, with a sentencing guideline range between 151 to 188 months based on a total offense level of 29 and a criminal history category of VI. (See Doc. 48.) On May 3, 2007, the Court adopted the Presentence Report and sentenced Golomb as a career offender to 151 months on each count to be served concurrently. (Doc. 40.)

         The Federal Bureau of Prisons currently projects that Golomb will be released on September 28, 2018. (Doc. 54, at 3.) The parties agree that if Golomb's § 2255 Motion is successful, the new guidelines range without the career offender enhancement would be 130 to 162 months. (Doc. 54, at 3.) And if Golomb was sentenced at the lowest end of that new range, he would be released. (See Doc. 58, at 8.)

         B. Procedural History

         On May 23, 2016, Golomb filed a Motion pursuant to 28 U.S.C. § 2255 based on Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).[1] (Doc. 48.) The Motion argues that Golomb was determined to be a career offender under the residual clause definition of a “crime of violence” used in the United States Sentencing Guidelines, and in light of Johnson, the residual clause is unconstitutional. See U.S.S.G. § 4B1.2(a)(2) (the “residual clause”). The Government filed its response (Doc. 53) on August 10, 2016, in which it moved to stay the case pending the Supreme Court's decision in Beckles v. United States. Golomb filed his reply (Doc. 54) on August 19, 2016, arguing against a stay or, in the alternative, for release on bond pending the Supreme Court's decision in Beckles. Golomb subsequently filed the instant Motion for Release on Bond (Doc. 55) on November 14, 2016. The Government filed its brief in opposition (Doc. 58) on December 6, 2016, and Golomb filed his reply (Doc. 59) on December 9, 2016. The Motions are ripe for disposition.

         II. Discussion

         A. The Government's Motion to Stay Will Be Granted

         The Supreme Court is poised to decide in Beckles v. United States whether the Court's holding in Johnson extends to U.S.S.G. § 4B1.2(a)(2)[2], and whether that holding applies retroactively to collateral challenges of sentences enhanced under the residual clause. See Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-8544). Oral argument was held on November 28, 2016. The Government contends that the Supreme Court's decision in Beckles will likely be dispositive on the issue of whether Golomb may use the Johnson decision to collaterally attack his sentence, and therefore requests this Court to stay proceedings until that decision is issued. (Doc. 53.) The Court agrees that the Beckles decision will likely determine the result in this case. Accordingly, the Court will stay proceedings in this case until the Supreme Court issues its opinion in Beckles. See also United States v. Macon, No. 1:14-CR-71, 2016 WL 7117468, at *5 (M.D. Pa. Dec. 7, 2016) (staying case pending the decision in Beckles, and noting the Sixth and Second Circuits have ordered their district courts to hold such cases in abeyance pending the outcome of Beckles).

         B. Petitioner's Motion for Release on Bond Pending Habeas Proceedings Will Be Denied

         Because the Court will issue a stay of the proceedings pending the Supreme Court's decision in Beckles, Golomb requests this Court to release him on bond pending resolution of his § 2255 Motion.

         “There is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to allow bail to applicants pending the decision of their cases, but it is a power to be exercised very sparingly.” United States v. Kelly, No. CR. 90-485-05, 1993 WL 86447, at *4 (E.D. Pa. Mar. 23, 1993). The Third Circuit has implicitly recognized that when a petitioner requests to be released on bail while his petition is pending in the district court, bail 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.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (quoting Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974)); see also Vega v. United States, 514 F.Supp.2d 767, 769-70 (W.D. Pa. 2007) (concluding that the two-prong Calley standard is the appropriate standard of review for a petitioner seeking bail while awaiting a decision on his petition pending in district court). Both a high probability of success on the merits and a showing of extraordinary circumstances are necessary to warrant release on bail pending resolution of a § 2255 motion. See United States v. Blankenship, Crim. No. 12-00641 HG-01, Civ. No. 16-cv-00229 HG-KSC, 2016 WL 3579077, at *4 (D. Haw. June 28, 2016) (citing Landano, 970 F.2d at 1239)); Vega, 514 F.Supp.2d at 774-75. The ...


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