Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981). · Go Syfert
Search
Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981). Cases Citing This Book View Copy Cite
G Cite
cited 4× by 4 distinct cases, 2020–2026 · 2 courts · …virtually all habeas corpus petitioners argue that their confinement is unlawful at p. 162 ✓ Topic ↗
110 citation events (51 in the last 25 years) across 21 distinct courts.
Strongest positive: John Roe v. Leonard Oddo, Warden, Moshannon Valley ICE Processing Center, et al. (pawd, 2025-10-30)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) John Roe v. Leonard Oddo, Warden, Moshannon Valley ICE Processing Center, et al.
W.D. Pa. · 2025 · confidence medium
In doing so, the Third Circuit noted that “[o]ther courts that have been faced with requests for bail prior to ruling on a habeas petition have developed standards requiring that a habeas petitioner (1) make out a clear case for habeas relief on the law and facts, or (2) establish that exceptional circumstances exist warranting special treatment, or both.” Id. (emphasis added) (citing Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974)).
discussed Cited as authority (rule) York v. King
E.D.N.Y · 2025 · confidence medium
(Id. at ECF 1– 3.) While the Court is certainly sympathetic to Petitioner’s circumstances, “the standard for bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that ‘the habeas petition raise[s] substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.’” Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
discussed Cited as authority (rule) U. v. Freden
W.D.N.Y. · 2025 · confidence medium
In assessing such claims for bail, the Second Circuit explained, courts “must inquire into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (alterations in original) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)). prolonged detention claim without further briefing and defer both further briefing and a decision on the second claim “until [K.U.’s] prolonged detention claim is adjudicated and any bond hearing ordered . . . is…
cited Cited as authority (rule) Mahdawi v. Trump
2d Cir. · 2025 · confidence medium
Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
discussed Cited as authority (rule) Watson v. Mlodzik
E.D. Wis. · 2024 · confidence medium
Wis. 1994), and usually that there is some other exceptional circumstance such as a likelihood that he will complete his sentence before the federal court will be able to resolve his petition, see Marino v. Vasquez, 812 F.2d 499, 509 (9th Cir. 1987); Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981).
discussed Cited as authority (rule) Azeez v. John/Jane Doe
S.D.N.Y. · 2023 · confidence medium
Since “[v]ritually all habeas corpus petitioners argue that their confinement is unlawful,” Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981), the “fact that [P]etitioner is incarcerated in alleged violation of his constitutional rights does not constitute an extraordinary circumstance” warranting a stay of his conviction and release from the state’s custody.
discussed Cited as authority (rule) Blanks v. United States
E.D. Mo. · 2023 · confidence medium
Further, release on bail is not favored in federal habeas corpus proceedings because it “supplies the sought-after remedy before the merits of petitioner’s application are determined.” Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
discussed Cited as authority (rule) Laufer v. Annucci
E.D.N.Y · 2022 · confidence medium
“The standard for bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that ‘the habeas petition raises substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.’” Hayon v, 2021 WL 25365 , at *4 (quoting Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) and Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
discussed Cited as authority (rule) Kates v. Superintendent of Attica Correctional Facility
W.D.N.Y. · 2022 · confidence medium
May 11, 2020) (citing Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981) (reversing order granting bail and finding “nothing unusual” about petitioner’s argument that his confinement is unlawful).
discussed Cited as authority (rule) Ward v. Piccolo (2×)
S.D.N.Y. · 2022 · confidence medium
The Court cited generally to the case of Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981), in which the Second Circuit reversed an order granting bail and found “nothing unusual” about the petitioner’s argument that, “if the habeas writ is granted, it will mean that his incarceration . . . would have been without basis,” given that “[v]irtually all habeas corpus petitioners argue that their confinement is unlawful.” Bail Decision at 2-3.
cited Cited as authority (rule) Jessamy v. Lamanna
S.D.N.Y. · 2022 · confidence medium
Sept. 16, 2021)1 (quoting Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981); Moore v. Vann, 9: 20- CV-0012 (DNH), 2020 WL 2315694 , at *1 (N.D.N.Y.
discussed Cited as authority (rule) Malone v. United States of America (INMATE 3)
M.D. Ala. · 2021 · confidence medium
Release on bail is not favored in habeas proceedings because it “supplies the sought-after remedy before the merits of petitioner’s application are determined.” Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
discussed Cited as authority (rule) Hayon v. Reardon (2×) also: Cited "see, e.g."
E.D.N.Y · 2021 · confidence medium
(Id.) (2d Cir. 1990) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)); accord Mapp, 241 F.3d at 226 ; see also Morrow v. Capra, No. 18-CV-5765 (AMD) (LB), 2020 WL 3316017 , at *2 (E.D.N.Y.
discussed Cited as authority (rule) Daum v. Eckert
E.D.N.Y · 2020 · confidence medium
To satisfy the “difficult” “standard for bail pending habeas litigation,” a “petitioner must demonstrate that ‘the habeas petition raises substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.’” Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
discussed Cited as authority (rule) Barbecho v. Decker
S.D.N.Y. · 2020 · confidence medium
To determine a petitioner’s “fitness for bail” pending adjudication of a habeas petition, the Court “must inquire into whether ‘the habeas petition raises substantial claims and [whether] extraordinary circumstances exist[] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (alterations in original) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
discussed Cited as authority (rule) Macaluso v. Keyser
E.D.N.Y · 2020 · confidence medium
A habeas petitioner’s bail request “must demonstrate that ‘the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’” Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)). “[C]ourts in this district have reasoned that ‘there must be a demonstrated likelihood that the petition will prevail, based upon claims of a substantial nature upon which the petitioner has a high probability of success, and demonstrating mer…
discussed Cited as authority (rule) Graham v. Decker
S.D.N.Y. · 2020 · confidence medium
To determine a petitioner’s “fitness for bail” pending adjudication of a habeas petition, the Court “must inquire into whether ‘the habeas petition raises substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)) (alterations in original).
discussed Cited as authority (rule) Savino v. Hodgson
D. Mass. · 2020 · confidence medium
A court considering bail for a habeas petitioner “must inquire into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (alterations in original) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
discussed Cited as authority (rule) Avendano Hernandez v. Decker
S.D.N.Y. · 2020 · confidence medium
Extraordinary Circumstances Release under Mapp is appropriate only if “extraordinary circumstances . . . make [immediately release] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981).
cited Cited as authority (rule) Ahad v. Lowe
M.D. Penn. · 2017 · confidence medium
See, e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir. 1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).
discussed Cited as authority (rule) United States v. Julius Nesbitt
4th Cir. · 2015 · confidence medium
See, e.g., Pagan v. United States, 353 F.3d 1343, 1346 (11th Cir.2003); Dotson v. Clark, 900 F.2d 77, 78 (6th Cir.1990); United States v. Smith, 835 F.2d 1048, 1049 (3d Cir.1987); Martin v. Solem, 801 F.2d 324, 328 (8th Cir.1986); Guerra v. Meese, 786 F.2d 414, 418 (D.C.Cir.1986); Cherek v. United States, 767 F.2d 335, 337 (7th Cir.1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981).
cited Cited as authority (rule) Leslie v. Holder
M.D. Penn. · 2012 · confidence medium
Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974).
discussed Cited as authority (rule) Elliott v. Quintana
5th Cir. · 2009 · confidence medium
Cf. Schiselman v. United States Parole Comm’n, 858 F.2d 1232 , 1238-39 (7th Cir.1988) (holding that information in existence but not considered at an initial parole hearing may nevertheless may be used at a special reconsideration hearing as “new” information to retard an inmate’s parole date); Fardella v. Garrison, 698 F.2d 208, 211 (4th Cir.1982) (same); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981) (holding that while the substance of the sentencing hearing was presented to the Commission at the parole hearing, the sentencing transcript and the summary report prepared by the pr…
discussed Cited as authority (rule) Vega v. United States (2×) also: Cited "see, e.g."
W.D. Pa. · 2007 · confidence medium
See, e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974).
discussed Cited as authority (rule) Caesar v. Ashcroft
S.D.N.Y. · 2005 · confidence medium
The Second Circuit has instructed that “a court considering a habeas petitioner’s fitness for bail must inquire into whether' ‘the habeas petition raises substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’ ” Mapp v. Reno, 241 F.3d 221, 230 (2d Cir.2001) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981)).
discussed Cited as authority (rule) United States v. Dorsey
4th Cir. · 2004 · confidence medium
See, e.g., Lee v. Jabe, 989 F.2d 869, 870 (6th Cir.1993); Dotson v. Clark, 900 F.2d 77, 78 (6th Cir. 1990); United States v. Smith, 835 F.2d 1048, 1049 (3d Cir.1987); Martin v. Solem, 801 F.2d 324, 328 (8th Cir.1986); Guerra v. Meese, 786 F.2d 414, 418 (D.C.Cir.1986); Cherek v. United States, 767 F.2d 335, 337 (7th Cir.1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981).
discussed Cited as authority (rule) United States v. Perkins
4th Cir. · 2002 · confidence medium
See, e.g., Lee v. Jabe, 989 F.2d 869, 870 (6th Cir.1993); Dotson v. Clark, 900 F.2d 77, 78 (6th Cir.1990); United States v. Smith, 835 F.2d 1048, 1049 (3d Cir.1987); Martin v. Solem, 801 F.2d 324, 328 (8th Cir.1986); Guerra v. Meese, 786 F.2d 414, 418 (D.C.Cir.1986); Cherek v. United States, 767 F.2d 335, 337 (7th Cir.1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981).
discussed Cited as authority (rule) Mapp v. Reno
2d Cir. · 2001 · confidence medium
See, e.g., Grune v. Coughlin, 913 F.2d 41, 43-44 (2d Cir.1990); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Starzecpyzel v. Reno, No. 97 Civ. 1349, 1997 WL 289568 , at *1 (S.D.N.Y.1997); Harris v. United States, No. 97 Civ.1904, 1997 WL 272398 , at *1 (S.D.N.Y.1997).
discussed Cited as authority (rule) Mapp v. Reno
2d Cir. · 2001 · confidence medium
See, e.g., Grune v. Coughlin, 913 F.2d 41, 43-44 (2d Cir. 1990); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981); Starzecpyzel v. Reno, No. 97 Civ. 1349, 1997 WL 289568 , at *1 (S.D.N.Y. 1997); Harris v. United States, No. 97 Civ. 1904, 1997 WL 272398 , at *1 (S.D.N.Y. 1997).
discussed Cited as authority (rule) McGann v. Kelly
S.D.N.Y. · 1995 · confidence medium
A petitioner “must demonstrate that ‘the habeas petition raise[s] substantial claims and that extraordinary circumstances exist [ ] that make the grant of bail necessary to make the habeas remedy effective.’ ” Id. (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981)).
discussed Cited as authority (rule) United States v. Jesus Loya
9th Cir. · 1994 · confidence medium
See Stack v. Boyle, 342 U.S. 1, 6 , 72 S.Ct. 1, 4 , 96 L.Ed. 3 (1951) (“The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of hail and appeal to the Court of Appeals from an order denying such motion.”); Grune v. Coughlin, 913 F.2d 41, 43-44 (2d Cir.1990) (order denying bail pending appeal of a judgment denying a writ of habeas corpus is appealable); Marino v. Vasquez, 812 F.2d 499 , 507 n. 10 (9th Cir.1987) (order granting bail pending appeal of judgment granting writ of habeas corpus is appealable); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981) …
discussed Cited as authority (rule) Jeffrey Grune v. Thomas A. Coughlin (2×)
2d Cir. · 1990 · confidence medium
In Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981), we held that the state may appeal from an order granting bail pending habeas litigation under the collateral order doctrine.
discussed Cited as authority (rule) Frederick Leon Dotson v. J.J. Clark, Warden, Memphis Federal Correctional Institution
6th Cir. · 1990 · confidence medium
In order to receive bail pending a decision on the merits, prisoners must be able to show not only a substantial claim of law based on the facts surrounding the petition but also the existence of “some circumstance making [the motion for bail] exceptional and deserving of special treatment in the interests of justice.” Aronson v. May, 85 S.Ct. 3 , 5, 13 L.Ed.2d 6 , 9 (1964) (Douglas, J., in chambers); see Martin v. Solem, 801 F.2d at 329-330 ; Iuteri v. Nardoza, 662 F.2d at 161.
discussed Cited as authority (rule) Schiselman v. United States Parole Commission
7th Cir. · 1988 · confidence medium
In defining “new” information the courts have made it clear that the purpose of the special reconsideration hearing is to reconsider the parole “in light of the new information.” Iuteri, 662 F.2d at 161 (emphasis added).
discussed Cited as authority (rule) Schiselman v. United States Parole Commission
7th Cir. · 1988 · confidence medium
In defining "new" information the courts have made it clear that the purpose of the special reconsideration hearing is to reconsider the parole "in light of the new information." Iuteri, 662 F.2d at 161 (emphasis added).
discussed Cited as authority (rule) Escalera v. Coombe
E.D.N.Y · 1988 · confidence medium
The court has the authority to grant bail if “the habeas petition raised substantial claims and ... extraordinary circumstances existed that make the grant of bail necessary to make the habeas remedy effective.” Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981).
cited Cited as authority (rule) In Re Monroe Crawford Parker
4th Cir. · 1987 · confidence medium
See Stack v. Boyle, 342 U.S. 1, 6 (1951) (bail ruling appealable under collateral order doctrine); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981) (same); see also Fed.
discussed Cited as authority (rule) Salvatore Joseph Marino v. Dan Vasquez, Warden
9th Cir. · 1987 · confidence medium
See Cherek v. United States, 767 F.2d 335, 336-37 (7th Cir. 1985); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981) (bail order giving relief collateral to the underlying proceeding, and not subject to meaningful review on appeal from the habeas corpus determination, may be treated as final).
cited Cited as authority (rule) In Re Vernon Martin
4th Cir. · 1986 · confidence medium
See Stack v. Boyle, 342 U.S. 1, 6 (1951); Eaton v. Holbrook, 671 F.2d 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981).
examined Cited as authority (rule) Darrell Martin v. Herman Solem, Warden, South Dakota State Penitentiary, and Mark v. Meierhenry, Attorney General, State of South Dakota (5×) also: Cited "see, e.g."
8th Cir. · 1986 · confidence medium
Iuteri v. Nardoza, 662 F.2d at 161 (citation omitted). 3 The second jurisdictional problem is that of mootness.
cited Cited as authority (rule) Lucas v. Hadden
3rd Cir. · 1986 · confidence medium
See, e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974).
discussed Cited as authority (rule) Lucas v. Hadden
3rd Cir. · 1986 · confidence medium
See, e.g., Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974). 12 We doubt that it is appropriate to grant bail prior to ruling on a state habeas petition solely on the ground that there is a high likelihood of success on the merits, especially absent exhaustion of state remedies.
cited Cited as authority (rule) Leonard R. Cherek v. United States
7th Cir. · 1985 · confidence medium
Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981), answers “yes,” and there is also support for this position in our decision in Luther v. Molina, 627 F.2d 71 , 73 and n. 1 (7th Cir.1980) (dictum).
discussed Cited as authority (rule) Gary Robert Williams v. United States Parole Commission (2×)
9th Cir. · 1983 · confidence medium
See Fardella v. Garrison, 698 F.2d 208, 211 (4th Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980).
discussed Cited as authority (rule) Iuteri v. Nardoza (2×) also: Cited "see"
D. Conn. · 1983 · confidence medium
Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981) (dictum ); see also Jago v. Van Curen, 454 U.S. 14 , 102 S.Ct. 31 , 70 L.Ed.2d 13 (1981) (per curiam) (under Ohio law, no hearing required to rescind parole); Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 9 , 99 S.Ct. 2100, 2104 , 60 L.Ed.2d 668 (1979) (distinction between liberty on parole and mere expectation of release).
discussed Cited as authority (rule) Vincent Fardella v. William L. Garrison, Warden Cecil C. McCall Chairman, U.S. Parole Commission
4th Cir. · 1982 · confidence medium
Fox v. United States Parole Commission, 517 F.Supp. 855 (D.Kan.), aff’d, No. 81-1432 (10th Cir. Nov. 23, 1981); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980).
discussed Cited "see" United States of America v. Oluwaseun Adelekan
S.D.N.Y. · 2025 · signal: see · confidence high
See Iuteri v. Nardoza, 662 F.2d 159 , 162 (2d Cir. 1981) (holding that an alleged a legal defect in a petitioner’s confinement is not an extraordinary circumstance because “[v]irtually all habeas corpus petitioners argue that their confinement is unlawful.”).
discussed Cited "see" Ward v. Piccolo
S.D.N.Y. · 2021 · signal: see · confidence high
Without deciding whether Petitioner has raised substantial claims in his Petition, the Court concludes that Petitioner has not established the existence of extraordinary circumstances that warrant the relief he seeks.3 “The fact that petitioner is incarcerated in alleged violation of his constitutional rights does not constitute an extraordinary circumstance.” Id.; see generally Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981) (reversing order granting bail and finding “nothing unusual” about petitioner’s argument that, “if the habeas writ is granted, it will 2 In accordance wit…
discussed Cited "see" Moore v. Thomas
N.D.N.Y. · 2020 · signal: see · confidence high
See generally Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981) (reversing order granting bail and finding "nothing unusual" about petitioner's argument that, "if the habeas writ is granted, it will mean that his incarceration . . . would have been without basis," given that "[v]irtually all habeas corpus petitioners argue that their confinement is unlawful").
discussed Cited "see" Montes v. James
N.D.N.Y. · 2020 · signal: see · confidence high
See generally Iuteri v. Nardoza, 662 F.2d 159, 162 (2d Cir. 1981) (reversing order granting bail and finding "nothing unusual" about petitioner's argument that, "if the habeas writ is granted, it will mean that his incarceration . . . would have been without basis," given that "[v]irtually all habeas corpus petitioners argue that their confinement is unlawful").
Retrieving the full opinion text from the archive…
Mark Iuteri
v.
Joseph A. Nardoza, Parole Commissioner Northeast Region, United States Parole Commission, Victor Liburdi, Warden, New Haven Community Correction Center
277.
Court of Appeals for the Second Circuit.
Oct 19, 1981.
662 F.2d 159
Cited by 26 opinions  |  Published

662 F.2d 159

Mark IUTERI, Petitioner-Appellee,
v.
Joseph A. NARDOZA, Parole Commissioner Northeast Region,
United States Parole Commission, Victor Liburdi,
Warden, New Haven Community Correction
Center, Respondents-Appellants.

Cal. No. 277, Docket 81-2254.

United States Court of Appeals,
Second Circuit.

Argued Sept. 11, 1981.
Decided Oct. 19, 1981.

Barry K. Stevens, Asst. U. S. Atty., New Haven, Conn., (Richard Blumenthal, U. S. Atty. for the D. of Conn., New Haven, Conn., of counsel), for respondents-appellants.

Ira P. Grudberg, New Haven, Conn. (Karen Fox Tross, Jacobs, Jacobs & Grudberg, New Haven, Conn., of counsel), for petitioner-appellee.

Before LUMBARD, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the District of Connecticut, Eginton, J., granting Mark Iuteri's motion for release on bail pending a decision on Iuteri's petition for a writ of habeas corpus. We reverse.

[*~159]1

On July 8, 1980, in the United States District Court for the District of Hawaii, petitioner was convicted of conspiracy to commit wire fraud and interstate travel in furtherance of a scheme to defraud, aiding and abetting the use of interstate travel in furtherance of a scheme to defraud, and interstate transportation of fraudulently obtained money. Following a two-day sentencing hearing, petitioner was sentenced to consecutive terms totaling fifteen years. During the hearing, the Government introduced testimony that petitioner had a history of serious criminal behavior, including homicide, assault, fraud, kidnapping, narcotics, and extortion. Petitioner's attorney cross-examined the Government's witnesses but petitioner did not testify. However, in support of his motion for bail below, petitioner submitted affidavits to refute the testimony of the Government's witnesses.

2

Petitioner received his initial parole hearing in April 1981, and was given an effective parole date of July 2, 1981. When fixing this date, the hearing examiners did not have before them the incriminating biographical data submitted at the sentencing hearing. The parties disagree as to whether the probation department in Hawaii or the Special Strike Force Attorney who prosecuted the case was responsible for this oversight, but agree that the Parole Commission did not have the transcript.

3

Upon being informed that the Parole Commission had not considered the sentencing hearing material, the Strike Force prosecutor in Hawaii, on June 17, 1981, prepared and forwarded to the Commission a summary report of the proceedings. On July 1, 1981, Joseph A. Nardoza, Parole Commissioner, Northeast Region, voted pursuant to 28 C.F.R. § 2.28(f) to retard petitioner's parole so that the Commission could determine whether it would reconsider its initial parole decision. On July 10, 1981, the Commission voted to reconsider. A special reconsideration hearing was scheduled for August 17, 1981, but was postponed at petitioner's request.

4

On July 9, 1981, Iuteri filed a petition for a writ of habeas corpus. In a separate motion, he requested release on bail pending the district court's decision on the habeas corpus application. The district court reserved decision on the habeas corpus petition but granted petitioner's bail application. This appeal followed.

5

Petitioner's initial contention is that bail decisions are nonfinal orders and, therefore, not appealable by the Government. We disagree. There are compelling reasons to entertain appeals by the Government from orders granting bail in habeas corpus proceedings where, as here, incarceration has resulted from a conviction. Because of the conviction, the Government has a justified interest in petitioner's continued incarceration, and petitioner has the burden of showing special reasons why bail is warranted. See Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978).

6

The object of habeas corpus proceedings is freedom from incarceration. Release on bail supplies the sought-after remedy before the merits of petitioner's application are determined. If review of the grant of bail must await the district court's decision on the habeas corpus application, the review will be substantially meaningless. In determining appealability, the finality rule is given a "practical rather than a technical construction". Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)). Because the district court's bail order gave petitioner relief which was collateral to the underlying proceeding and not subject to meaningful review on an appeal from the habeas corpus determination, its order may be treated as final. See, Luther v. Molina, 627 F.2d 71, 73 n.1 (7th Cir. 1980).

[*~160]7

The merits of petitioner's habeas corpus application are not before us on this appeal because the district court has twice refrained from granting the requested writ. What is before us in the district court's determination that the test set out in Ostrer v. United States, supra, 584 F.2d at 596 n.1, was met, namely, that the habeas petition raised substantial claims and that extraordinary circumstances existed that make the grant of bail necessary to make the habeas remedy effective. Petitioner claimed that the Commission improperly classified as new the information it received three days before his scheduled release, and that the automatic retardation provision of 28 C.F.R. § 2.28(f) was a denial of due process. The district court viewed both to be substantial claims with a "likelihood of success." We disagree.

8

While petitioner's counsel maintained that the substance of the Hawaii sentencing hearing was presented to the Parole Commission at the parole hearing, no transcript of the parole hearing is available and it is undisputed that the actual sentencing transcript and the summary report prepared by the Hawaii prosecutor had not been considered by the Commission. We therefore defer to the determination of Commissioner Nardoza that the materials constituted new information. We similarly find insubstantial petitioner's claim that the failure to provide a hearing prior to retarding his scheduled release is unconstitutional. The pertinent regulation, 28 C.F.R. § 2.28(f), conditions a petitioner's release date on the absence of new information that might warrant retarding the release. Moreover, since a hearing prior to the arrest of a parolee for alleged parole violations is not required as a matter of due process, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a fortiori a prior hearing is not required to retard the scheduled release of someone still under confinement. We also note that 28 C.F.R. § 2.28(f) does expressly provide for a subsequent hearing to reconsider the parole in light of the new information and that such a hearing was scheduled in this case.

9

Iuteri contends further that his case is extraordinary because, if the habeas writ is granted, it will mean that his incarceration after July 2, 1981, would have been without basis. However, there is nothing unusual about this. Virtually all habeas corpus petitioners argue that their confinement is unlawful. Petitioner's final contention that the Parole Commission and prosecuting attorneys acted in bad faith to delay his release and thus hamper his ability to defend himself at his murder trial in Connecticut Superior Court is without support in the record.

10

In short, this case is totally devoid of facts which distinguish it in any way from typical habeas corpus proceedings. The district court's grant of petitioner's bail application, based on the court's finding that danger to the community could be minimized "by ordering petitioner not to make any threats or intimidating remarks to any person while released on bond" constituted an abuse of discretion.

[*~161]11

The order granting bail is reversed. Mandate shall issue forthwith.