A federal court has the power to release a convicted state prisoner on bail pending a habeas corpus proceeding. In Dalton v. United States, 2009 U.S. Dist. LEXIS 8563 (N.D. Cal. Jan. 26, 2009), the court cited that “the Bail Reform Act does not apply to federal prisoners seeking post-conviction relief”. Instead, Fed. R. App. P. 23 governs the issue of the release or detention of a prisoner, state or federal, who is collaterally attacking his or her criminal conviction. In the habeas context, this court has reserved bail for “extraordinary cases involving special circumstances or a high probability of success.”
In McCormick v. Six, 2008 U.S. Dist. LEXIS 43565 (D. Kan. May 30, 2008), the court stated that the court’s right to offer bail to habeas petitioners is a limited one and should be exercised only in special cases upon a showing of exceptional circumstances. In order to receive bail pending a decision on the merits in a federal habeas action, a prisoner should prove not only a substantial claim of law based on facts, but also the existence of some circumstance making the motion for bail exceptional and deserving of special treatment in the interests of justice. There might be only few occasions where such standards shall be met. The inherent power of federal court judges in habeas corpus proceedings to admit applicants to bail pending decision of their cases is to be exercised very sparingly and in exceptional circumstances.
However, in extradition cases unlike criminal cases, there is a presumption against bail. The burden is on the extraditee to prove that he/she is neither a flight risk nor a danger to the community and special circumstances warrant pre-hearing release. In re Huerta, 2008 U.S. Dist. LEXIS 48524 (S.D. Tex. June 23, 2008), the court stated that “special circumstances can arise under a variety of conditions, or by virtue of a combination of conditions that in the aggregate create a compelling case for release on bail. Examples of such circumstances include the raising of substantial claims upon which the appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process. The determination of special circumstances is left to the sound discretion of the trial judge.”