Illarramendi v. United States of America 1 In the 2

18‐35
Illarramendi v. United States of America
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2018 7
8
S UBMITTED: O CTOBER 10, 2018 9
D ECIDED: O CTOBER 16, 2018 10
11
No. 18‐35 12
F RANCISCO ILLARRAMENDI , 13
Petitioner‐Appellant, 14
15
v. 16
17
U NITED S TATES OF AMERICA, 18
Respondent‐Appellee. 19
________ 20
21
Appeal from the United States District Court 22
for the District of Connecticut 23
No. 16‐cv‐1853 – Stefan R. Underhill, Judge. 24
________ 25
26
Before: WALKER , C ALABRESI, and L IVINGSTON, Circuit Judges. 27
________ 28
29
Francisco Illarramendi appeals from the order of the District 30
Court of the District of Connecticut (Underhill, J.) denying his 31
motions for supervised release or bail pending resolution of his 32
motion to vacate his sentence under 28 U.S.C. § 2255. The United 33

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States now moves for summary affirmance of the district court’s order 1
on the grounds that neither supervised release nor bail is warranted 2
under the circumstances and, regardless of the merits, Illarramendi 3
failed to obtain a certificate of appealability as required by 28 U.S.C. 4
§ 2253(c)(1). We agree with the United States that neither supervised 5
release nor bail is warranted here and therefore GRANT the motion 6
for summary affirmance. A certificate of appealability from the 7
district court’s order is not necessary, however, because a denial of 8
supervised release or bail is not a “final order[] that dispose[s] of the 9
merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180, 10
183 (2009). 11
________ 12
13
F RANCISCO ILLARRAMENDI , pro se, for Petitioner‐ 14
Appellant. 15
MICHAEL J. G USTAFSON (John T. Pierpont, Jr., on the 16
brief), United States Attorney’s Office for the 17
District of Connecticut, New Haven, CT, for 18
Respondent‐Appellee. 19
________ 20
21
PER C URIAM : 22
Francisco Illarramendi appeals from the order of the District 23
Court of the District of Connecticut (Underhill, J.) denying his 24

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3 No. 18‐35
motions for supervised release or bail 1 pending resolution of his 1
motion to vacate his sentence under 28 U.S.C. § 2255. The United 2
States now moves for summary affirmance of the district court’s order 3
on the grounds that neither supervised release nor bail is warranted 4
under the circumstances and, regardless of the merits, Illarramendi 5
failed to obtain a certificate of appealability as required by 28 U.S.C. 6
§ 2253(c)(1). We agree with the United States that neither supervised 7
release nor bail is warranted here and therefore GRANT the motion 8
for summary affirmance. A certificate of appealability from the 9
district court’s order is not necessary, however, because a denial of 10
supervised release or bail is not a “final order[] that dispose[s] of the 11
merits of a habeas corpus proceeding.” Harbison v. Bell, 556 U.S. 180, 12
183 (2009). 13
BACKGROUND 14
On March 7, 2011, Petitioner‐Appellant Illarramendi pleaded 15
guilty to two counts of wire fraud, and one count each of securities 16
fraud, investor fraud, and conspiracy to obstruct justice. Plea Hearing 17
Tr., United States v. Illarramendi, No. 11‐cv‐0041 (D. Conn. March 21, 18
2011), ECF No. 9. The district court imposed a sentence of 156 19
months’ imprisonment and approximately $370 million in restitution, 20
1 Although Illarramendi’s motion was for supervised release, we liberally construe his pro
se motion as seeking release on bail. The government accepts this interpretation in its
memorandum in support of its motion to summarily affirm. Mem in Supp. of Mot. for
Summ. Affirmance 6, ECF No. 33.

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4 No. 18‐35
which we affirmed on appeal. See United States v. Illarramendi, 642 F. 1
App’x 64 (2d Cir. 2016) (summary order) (affirming sentence); United 2
States v. Illarramendi, 677 F. App’x 30 (2d Cir. 2017) (summary order) 3
(affirming restitution). 4
On November 14, 2016, Illarramendi filed a habeas corpus 5
petition under 28 U.S.C. § 2255 to vacate his sentence on the grounds 6
that (1) he was denied counsel of choice because his assets were frozen 7
in a related SEC civil proceeding; and (2) his attorneys provided 8
ineffective assistance during the plea negotiations and at sentencing. 9
Mot. to Vacate Sentence at vii, Illarramendi v. United States, No. 16‐cv‐ 10
1853 (D. Conn. Nov. 14, 2016), ECF No. 1.2 The § 2255 petition is 11
pending before the district court. 12
On August 28 and 29, 2017, Illarramendi filed two motions in 13
the district court seeking “supervised release pending habeas 14
proceedings.” No. 16‐cv‐1853, ECF Nos. 18, 19. The district court 15
denied the motions, stating that it “has no authority to grant 16
supervised release to a sentenced inmate.” No. 16‐cv‐1853, ECF No. 17
23. Illarramendi then filed a notice of appeal with the district court 18
from the denial of supervised release and moved for leave to proceed 19
in forma pauperis. No. 16‐cv‐1853, ECF Nos. 24, 25. The district court 20
granted the motion for leave to proceed in forma pauperis. No. 16‐cv‐ 21
1853, ECF No. 27. 22
2 The § 2255 action in the district court is hereinafter referred to as No. 16‐cv‐1853.

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On appeal, the government now moves for us to summarily 1
affirm the district court’s order denying Illarramendi’s motions for 2
supervised release pending the outcome of his habeas proceeding 3
under 28 U.S.C. § 2255. Mem. in Supp. of Mot. for Summ. Affirmance 4
6, ECF No. 33. The government argues that (1) supervised release is 5
not available to Appellant pending a decision on his habeas petition 6
because supervised release can only be imposed as part of a criminal 7
sentence; (2) even if Illarramendi’s motion is construed as one seeking 8
release on bail, it is not warranted because his § 2255 motion does not 9
present substantial claims and there are no extraordinary 10
circumstances; and (3) Illarramendi failed to obtain a certificate of 11
appeal (COA) as required by 28 U.S.C. § 2253(c)(1). Id. at 3, 6. 12
DISCUSSION 13
We write here to address the question of whether a COA is 14
required to appeal from a denial of bail pending the disposition of a 15
petition for habeas corpus relief. 16
I. Certificate of Appealability 17
28 U.S.C. § 2253(c)(1) states that 18
[u]nless a circuit justice or judge issues a certificate of 19
appealability, an appeal may not be taken to the court of 20
appeals from the final order in a habeas corpus 21
proceeding in which the detention complained of arises 22
out of process issued by a State court; or the final order 23
in a proceeding under section 2255. 24

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In Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990), we held that 1
§ 2253’s COA3 requirement applied “not only to the final 2
determination of the merits [of the habeas proceeding] but also to an 3
order denying bail” during the habeas proceeding. We reasoned that 4
the interest served by requiring such a certificate—namely, relieving 5
“the court system of the burdens resulting from litigation of 6
insubstantial appeals—is equally served whether the order appealed 7
is a final disposition of the merits or a collateral order.” Id. 8
Almost two decades later, the Supreme Court decided Harbison 9
v. Bell, 556 U.S. 180 (2009). In Harbison, the district court denied 10
appellant’s motion to authorize his federally appointed counsel in his 11
habeas proceeding to represent him in a related state clemency 12
proceeding. Id. at 182. Appellant appealed, but failed to obtain a 13
COA under § 2253(c)(1). Id. at 183. The Court held that because 14
§ 2253(c)(1) “governs final orders that dispose of the merits of a 15
habeas corpus proceeding—a proceeding challenging the lawfulness 16
of the petitioner’s detention[,] . . . [a]n order that merely denies a 17
motion to enlarge the authority of appointed counsel . . . is not such 18
an order and is therefore not subject to the COA requirement.” Id. 19
3 In 1990, when Grune was decided, § 2253 required a certificate of probable cause before a
party could appeal from a habeas proceeding. In 1996, Congress passed the Antiterrorism
and Effective Death Penalty Act (AEDPA) and amended § 2253 to, inter alia, change the
name of a certificate of probable cause to a certificate of appealability. Pub. L. No. 104‐132,
§ 102 110 Stat. 1214, 1217 (1996). There is no substantial difference between the two
certificates.

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We have never addressed Harbison’s effect on Grune in a 1
published decision, but two motions panels in unpublished orders 2
denied as unnecessary COA motions in appeals from the denial of 3
bail, with one order specifically citing Harbison for support. See Mot. 4
Order, United States v. Riccio (Lasher), No. 17‐1629 (2d Cir. Nov. 6, 5
2017), ECF No. 135; Mot. Order, Fan v. United States, No. 17‐1619 (2d 6
Cir. Aug 29, 2017), ECF No. 32. We agree with the two decisions. In 7
Grune, we acknowledged that “the denial of bail . . . is a collateral and 8
conclusive determination of the issue presented,” but never 9
pretended that it was somehow a final disposition of the habeas 10
proceeding. Grune, 913 F.2d at 44. Therefore, consistent with 11
Harbison, we hold that a COA is not required when appealing from 12
orders in a habeas proceeding that are collateral to the merits of the 13
habeas claim itself, including the denial of bail. Thus, in this case, the 14
absence of a COA was not a bar to Illarramendi’s appeal from the 15
district court’s order denying his motion for supervised release or bail 16
pending resolution of his habeas petition. 17
II. Appellant’s Remaining Arguments 18
After review of the record and Appellant’s arguments, we 19
conclude that his motion for supervised release or bail pending 20
review of his 28 U.S.C. § 2255 motion lacked merit because the 21
motion does not present substantial questions and Appellant has not 22
demonstrated that “extraordinary circumstances exist that make the 23

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8 No. 18‐35
grant of bail necessary to make the habeas relief effective.” Mapp v. 1
Reno, 241 F.3d 221, 226 (2d Cir. 2001) (internal citation, quotations, 2
and alteration omitted). We therefore grant summary affirmance of 3
the district court’s order. See United States v. Bonilla, 618 F.3d 102, 4
107–08 (2d Cir. 2010). 5
CONCLUSION 6
For the reasons stated above, the government’s motion for 7
summary affirmance of the district court’s order denying supervised 8
release is GRANTED. 9

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