Appellant was released on parole in 1964 after serving over eight years of a four-to-thirteen-year sentence for house-breaking and larceny. Appellant failed to report to his parole officer upon release, and a warrant immediately issued for his arrest as a parole violator. The warrant was not executed until 1968 when appellant was extradited from California. The conditional release was revoked following a hearing before the Board of Parole, and appellant was reincarcerated. An application for writ of injunction and for declaratory relief, challenging the proceedings before the Board of Parole, was dismissed by the District Court, and an appeal was taken to this court under 28 U.S.C. § 1291 (1964).
The main claims of error urged on appeal are that the Board of Parole did not explain the terms of release to appellant in 1964, that he was denied counsel at the parole revocation hearing, and that he was unlawfully taken into custody as a parole violator because he was not subject to the jurisdiction of the parole board since the thirteen years maximum sentence imposed on him in 1954 had expired by 1968. By the motion now before the court, appellant seeks release on personal recognizance pending the determination of these issues on appeal.
We hold that a request for release pending appeal from the dismissal of appellant's action for declaratory relief should ordinarily be raised first in the District Court where there exists the judicial machinery necessary to marshal the facts typically relevant to the release inquiry. Appellant's failure to initiate his request for release in the court below requires that his motion be denied without prejudice to renewal in the District Court.
This proposition is self-evident. However, appellee raises some question as to this court's jurisdiction to entertain a request for bail in this type of case. Appellee argues that the Bail Reform Act of 1966, 18 U.S.C. §§ 3146-3152 (Supp. II, 1965-1966), authorizes release pending a direct appeal from a criminal conviction or a petition for a writ of certiorari, and that rules of court make provision for release pending appeal of a denial of a writ of habeas corpus, Fed. R.App.P. 23(b); Sup.Ct.R. 49(2). Yet there is no statutory authorization for release pending appeal from the dismissal of an action attacking parole or probation revocation.
When an action pending in a United States court seeks release from what is claimed to be illegal detention, the court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits.
Release is available in a habeas corpus action, which is a civil collateral attack,
However, when the attack is collateral, the release request ordinarily must be measured against a heightened standard requiring a showing of exceptional circumstances. A forceful special circumstance is the likelihood of success
Motion denied without prejudice.