Roger Moss, a federal prisoner, was convicted of drug trafficking and firearm offenses and sentenced to 255 months in prison. After his direct appeal resulted in a partial affirmation and vacatur of a forfeiture order, Moss filed a motion under 28 U.S.C. § 2255 raising sixteen grounds for relief. While that motion was pending, Moss filed a motion for release, arguing that his trial counsel was ineffective for failing to challenge the legality of his arrest, which he claimed would have led to the suppression of evidence. The district court denied the motion for release, and Moss appealed, arguing that the denial violated Federal Rule of Appellate Procedure 9.
The Tenth Circuit held that Federal Rule of Appellate Procedure 9 governs release in a criminal case but does not apply to release pending the consideration of a federal prisoner's motion for post-conviction relief. The court noted that while Rule 9(b) permits consideration of a motion for release after a judgment of conviction, the applicable provisions in the Bail Reform Act, referenced by Rule 9(c), speak only to release pending sentencing or pending an appeal of a conviction or sentence. There is no statutory mention of release pending review of a post-conviction motion. Consequently, the district court was not required to comply with Rule 9(a) when denying Moss's motion. Instead, release pending a habeas petition is within the inherent power of a federal district court. To obtain such release, a prisoner must make a showing of exceptional circumstances or demonstrate a clear case on the merits of the habeas petition. The court found that Moss failed to meet this burden. Although Moss argued that ineffective assistance of counsel regarding an illegal arrest claim would have led to the suppression of evidence, he failed to explain how an illegal arrest would have resulted in the suppression of evidence obtained via a valid search warrant. The court noted that the validity of the search warrant had already been litigated and rejected on direct appeal, and Moss provided no link between the arrest claim and the suppression of the warrant-based evidence.
The decision clarifies that the Bail Reform Act and Federal Rule of Appellate Procedure 9 do not govern release for federal prisoners seeking post-conviction relief. Prisoners seeking release pending the resolution of a § 2255 motion must rely on the district court's inherent power and demonstrate either exceptional circumstances or a clear case on the merits of their habeas claim. This ruling limits the procedural arguments available to prisoners challenging detention during post-conviction proceedings and reinforces the high burden required to secure release in this context.