United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the United States'
Emergency Motion for Stay and Motion to Vacate Order
for Lack of Jurisdiction [#14] (the
“Motion”). The District Judge construed the
Motion as a motion for reconsideration of my order of release
of Defendant Jose Luis Rodriguez-Palacios “because it
contains arguments pursuant to 18 U.S.C. § 3142 that had
not been previously raised” before me, and therefore
she referred the Motion [#14] to me for adjudication.
Order Referring Motion [#15]. Defendant subsequently
filed a Response [#19] in opposition to the Motion [#14]. No.
reply was permitted. See [#16].
is charged by indictment with one count of illegal re-entry
after a felony conviction in violation of 8 U.S.C. §
1326(a) and (b)(1). See [#1]. The indictment was
filed on January 8, 2019, and an arrest warrant issued the
same day. See [#1, #3]. Because Defendant was in
state custody at Cheyenne Mountain Reentry Center in Colorado
Springs, Colorado, the government requested a writ of habeas
corpus ad prosequendum on September 10. See [#4].
The Writ was issued by the Court on September 12, directing
that Defendant be held “at all times in custody as an
agent of the United States of America until final disposition
of the defendant's case, and immediately thereafter to
return the defendant to the institution where he was
confined.” See [#5, #6].
September 19, Defendant's arrest was noted on the docket
and he appeared before me later that day for an Initial
Appearance, Arraignment, Discovery and Detention Hearing.
See [#7, #8]. At the hearing, the government
requested: “Although the defendant is currently
detained at the state level, . . . what the government would
like to do would be able to preserve it[s] right to seek
detention [at] the point at which the defendant would be
released from state custody.” Hearing Tr.
[#19-1] at 5. Defendant's release date from state
custody is indefinite but could be anywhere between “a
couple months, ” see id., and September 29,
2020, Defendant's mandatory release date from state
prison, see Id. at 24. Defendant objected to the
government's request, arguing that he was subject to the
Bail Reform Act's presumption of release and that the
government had failed to justify a detention hearing. See
Id. at 6-8. Ultimately, the Court concluded under the
Bail Reform Act that there was no risk of flight because
Defendant would be released into state custody, and then
ordered probation to interview him as part of the pretrial
release process. See 18 U.S.C. §3142(c).
present Motion, the government argues that the release order
should be vacated on three separate grounds. Motion
[#14] at 3-8. First, the government argues that the Writ
independently mandates federal detention. Id. at
3-4. Second, the government argues that the Bail Reform Act
does not apply to a defendant appearing on a writ.
Id. at 5-7. Third, the government argues that, even
if the Bail Reform Act does apply, the Court should analyze
the risk of flight without reference to state custody.
Id. at 8. The Court begins with the second argument.
Legal Standard: Motion for Reconsideration
the Federal Rules of Criminal Procedure do not authorize a
motion for reconsideration, motions to reconsider in criminal
prosecutions are proper.” United States v.
Randall, 666 F.3d 1238, 1241 (10th Cir. 2011) (internal
quotation marks omitted). “Grounds warranting a motion
to reconsider” are the same as those in civil cases,
including “(1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest
injustice.” United States v. Koerber, 966
F.Supp.2d 1207, 1211-12 (D. Utah 2013) (quoting Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000)); accord United States v. Alvarez, No.
10-CR-203-SWS, 2015 WL 11202687, at *1 (D. Wyo. June 22,
2015). The government's Motion [#14] appears to rest on
the third ground, i.e., the need to correct clear error or
prevent manifest injustice.
Whether the Bail Reform Act Applies to a Defendant Appearing
on a Writ
government argues that the Bail Reform Act does not apply to
a defendant appearing on a writ of habeas corpus ad
prosequendum. Motion [#14] at 5-7. “A writ of
habeas corpus ad prosequendum is an order issued by
a federal district court requiring the state to produce a
state prisoner for trial on federal criminal charges.”
United States v. Ray, 899 F.3d 852, 858 n.2 (10th
Cir. 2018) (citing United States v. Mauro, 436 U.S.
340, 357-58 (1978)); see also 28 U.S.C. §
2241(c)(5) (stating that the writ of habeas corpus shall
extent to a prisoner if “[i]t is necessary to bring him
into court to testify or for trial”).
Bail Reform Act provides that “[a] judicial officer
authorized to order the arrest of a person under section 3041
of this title before whom an arrested person is
brought shall order that such person be released or detained,
pending judicial proceedings, under this chapter.” 18
U.S.C. § 3141(a) (emphasis added). Thus, under the plain
terms of the Act, it applies only to “arrested
Tenth Circuit Court of Appeals does not appear to have
directly addressed whether the Bail Reform Act applies to a
person appearing before the Court under a writ of habeas
corpus ad prosequendum. Thus, the Court begins by examining a
similar case in which the First Circuit Court of Appeals
determined whether a writ of habeas corpus ad prosequendum
was an “arrest” for purposes of the Speedy Trial
Act. United States v. Kelly, 661 F.3d 682, 687 (1st
Cir. 2011). In relevant part, the Speedy Trial Act provides
that “[a]ny information or indictment charging an
individual with the commission of an offense shall be filed
within thirty days from the date on which such individual was
arrested or served with a summons in connection with such
charges.” 18 U.S.C. § 3161(b). The First Circuit
noted that “[t]he question presented here is whether an
appearance under a writ of habeas corpus ad
prosequendum constitutes an ‘arrest' or a
‘summons' under” the Speedy Trial Act.
Kelly, 661 F.3d at 687. The Speedy Trial Act,
“by its terms, applies only where there is an
‘arrest' or service of a ‘summons' in
connection with the relevant federal charges.”
Id. (citing 18 U.S.C. § 3161(b)).
First Circuit held that “[i]ssuance of a writ of habeas
corpus ad prosequendum is neither an arrest nor a
summons.” Kelly, 661 F.3d at 687.
“Unlike an arrest, where an individual is taken into
custody, the writ requires only a temporary physical transfer
of an already detained individual.” Id.
(citing Black's Law Dictionary 124 (9th ed.
2009) (defining arrest as “[t]he taking . . . of a
person in custody by legal authority . . . the apprehension
of someone”). “Full custody remains in the
jurisdiction of detention; at best, custody under the writ is
temporary and limited.” Kelly, 661 F.3d at
687. “Moreover, unlike a summons, the writ is issued
not to the individual, but instead to the custodian,