Omar Rashad Pouncy v. CARMEN DENISE PALMER, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OMAR RASHAD POUNCY,
Petitioner-Appellant,
v.
CARMEN DENISE PALMER, Warden,
Respondent-Appellee.
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No. 20-1960
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cv-14695—Matthew F. Leitman, District Judge.
Decided and Filed: April 6, 2021
Before: BOGGS, CLAY, and SUTTON, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES,
PLLC, Bingham Farms, Michigan, for Appellant. John S. Pallas, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
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SUTTON, Circuit Judge. Omar Pouncy requested release from state prison while the
district court reviewed his habeas petition. The district court denied the request. Because
Pouncy has not shown that the district court abused its discretion, we affirm.
In 2005, Michigan indicted Pouncy on a slew of offenses connected with a string of
carjackings. Pouncy v. Palmer, 846 F.3d 144, 147–48 (6th Cir. 2017). At trial, Pouncy waived
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his right to counsel, opting to represent himself instead. Id. at 153–54. A jury found him guilty
of four counts of carjacking, four counts of armed robbery, and three firearm counts. Id. at 154.
The state trial court sentenced Pouncy to between 586 and 824 months in prison. Id.
The Michigan Court of Appeals affirmed the conviction, rejecting Pouncy’s argument
that he had not waived his right to counsel in a knowing and voluntary manner. Faretta v.
California, 422 U.S. 806, 807 (1975); see People v. Williams, 683 N.W.2d 597, 601–02 (Mich.
2004). Pouncy’s additional challenges in state court also fell short. See Pouncy, 846 F.3d at
156.
In 2013, Pouncy, by then represented by counsel, filed a petition for a writ of habeas
corpus in federal district court. In his petition, he argued (among other things) that the state
courts erred when they allowed him to represent himself at trial. In 2016, the district court
granted Pouncy a conditional writ, agreeing that he did not properly surrender his right to
counsel before trial. Michigan appealed.
While the State’s appeal proceeded, the district court released Pouncy on bond. See Fed.
R. App. P. 23. We upheld its decision to do so. Among other conditions of release, Pouncy had
to stay in his house, except for approved activities, and he had to avoid committing new crimes.
Pouncy violated his conditions of release. About a month after being let out, he tried to
enter the chambers of the state judge who presided over his criminal trial, prompting a stern
warning from the federal district court. Meanwhile, on August 4, 2016, we heard oral argument
on the State’s appeal, which Pouncy attended. But shortly thereafter, Michigan charged him
with two new crimes: possessing a firearm as a felon and possessing ammunition as a felon.
Warnings done, the district court revoked bail and sent Pouncy back to prison.
In 2017, we reversed the district court’s grant of habeas. Pouncy, 846 F.3d at 163.
Because the district court had addressed only the waiver-of-counsel issue, we remanded the case
to allow the court to consider Pouncy’s other habeas claims. Id.
While the district court considered Pouncy’s arguments, things did not go well in prison.
A guard discovered a cell phone hidden in Pouncy’s prison cell. An intelligence analyst working

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No. 20-1960 Pouncy v. Palmer Page 3
with the Michigan Department of Corrections inspected the phone as well as a phone discovered
on another inmate. The analyst discovered messages between Pouncy and a witness. The
messages suggested that Pouncy had paid $10,000 to secure false testimony at an evidentiary
hearing in his federal habeas proceeding.
The government asked the district court to dismiss Pouncy’s habeas petition in light of
this evidence. The district court declined to dismiss the petition in full, reasoning that the
compromised testimony did not bear on several of Pouncy’s claims.
When the COVID-19 pandemic began, Pouncy asked the district court to release him on
bond while it continued to review his petition. The court declined to do so. When the pandemic
worsened, Pouncy asked for bail again. The district court denied his request again. That last
denial prompted this appeal.
A prisoner seeking bail pending review of his habeas petition must, among other
requirements, convince the district court that exceptional circumstances and the “interests of
justice” warrant relief. Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990). It will be the rare
occasion when an inmate will be able to satisfy this standard. Id. We review a bail ruling for
abuse of discretion. See United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002).
The district court reasonably concluded that the “interests of justice” did not support
Pouncy’s release. Haunting Pouncy’s claim is this looming reality: He failed to comply with his
conditions of release the last time he was out on bail. In particular, he attempted to intimidate
the state trial judge who heard his case and, when that by itself did not land him back in jail, he
committed two felonies. Ending bail on this record is not an abuse of discretion.
Trying to avoid this conclusion, Pouncy maintains that he should be freed given the
length of time it has taken to resolve his petition—four years since we remanded the case and
seven years in total. But most of this delay rests at Pouncy’s feet. Michigan presented
“substantial evidence that Pouncy had conspired with a witness to present false testimony.”
R.311 at 6. That discovery spawned time-consuming collateral litigation. Pouncy also has
inundated the district court with filings unrelated to the merits of his petition, sometimes in

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violation of court orders that prohibited the filing. Self-inflicted delays do not create a
cognizable premise for bail.
Pouncy also maintains that, if he succeeds on one of his remaining habeas claims,
Michigan will have to reinstate an earlier plea offer. See Lafler v. Cooper, 566 U.S. 156, 174
(2012); Byrd v. Skipper, 940 F.3d 248 (6th Cir. 2019). The terms of that offer, says Pouncy,
would make him eligible for parole today, a benefit that will go to waste unless we release him
promptly. But Pouncy did not raise this argument as a ground for bail in either of his motions
before the district court. He instead argued that, if the district court denied bail, it should
expedite a ruling on this merits claim. Pouncy later agreed, however, that the court should
decide all of his claims together. The district court’s order memorializing that agreement was
hardly unreasonable and, what follows, hardly an abuse of discretion.
Pouncy insists that, no matter what else is true, the COVID-19 pandemic warrants release
by itself. But he has not provided evidence that the virus poses a particular threat to him. The
district court did not exceed its discretion in finding that the pandemic alone did not amount to
an exceptional circumstance with respect to Pouncy.
Last and least, Pouncy refers to the district court’s decision to release him pending appeal
three years ago. Because we affirmed that ruling, he argues, that must mean he deserves release
now. But both decisions came before Pouncy violated what the district court aptly called a
“fundamental condition[] of release.” R.307 at 7. They also came before we reversed the district
court’s grant of habeas relief, which flipped the presumption in favor of release that Pouncy
enjoyed during Michigan’s appeal, Fed. R. App. P. 23(c), to a presumption against release that
Michigan enjoys while the district court considers Pouncy’s petition, see Dotson, 900 F.2d at 79.
That leaves the question whether our judgment should come in the form of an affirmance
or a dismissal for lack of jurisdiction. The government argues that we should dismiss Pouncy’s
appeal because he never obtained a “certificate of appealability.” 28 U.S.C. § 2253(c)(1). We
appreciate the point, but disagree with its application here. Section 2253(c)(1)(A) requires
prisoners to obtain a certificate before appealing “the final order in a habeas corpus proceeding.”
In applying this requirement, the Supreme Court has explained that only orders that “dispose of

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the merits of a habeas corpus proceeding” count as “the final order.” Harbison v. Bell, 556
U.S. 180, 183 (2009). But denying bail does not dispose of the merits. See Dotson, 900 F.2d at
78–79. As in Harbison, which disclaimed the need to obtain a certificate of appealability to
challenge an order refusing to enlarge the authority of appointed habeas counsel, 556 U.S. at
183, this appeal concerns a “collateral” question: whether the petitioner should be released while
the district court considers the merits. Dotson, 900 F.2d at 78; Illarramendi v. United States,
906 F.3d 268, 269 (2d Cir. 2018) (per curiam). Since Harbison, to our knowledge, every circuit
to take up this question has concluded that a certificate of appealability is not required to appeal
a denial of bail. Illarramendi, 906 F.3d at 269; United States v. Sharpe, 834 F. App’x 823, 824
(4th Cir. 2021); Watson v. Goodwin, 709 F. App’x 311, 312 (5th Cir. 2018); see also United
States v. Taylor, 194 F.3d 175 (D.C. Cir. 1999) (unpublished table decision).
Harbison’s key insight turns on context. Even though some “final decisions” in a habeas
proceeding may be sufficiently complete to justify an appeal under § 1291, that does not mean
they amount to the kind of “final order in a habeas corpus proceeding” that requires a certificate
of appealability under § 2253(c)(1)(A). See Harbison, 556 U.S. at 183. Put another way, even
though the federal courts may treat some habeas interlocutory orders as “final decisions” because
they are “completely separate from the merits of the action,” Henry v. City of Detroit Manpower
Dep’t, 763 F.2d 757, 760, 762 (6th Cir. 1985) (en banc); see, e.g., Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949), that does not mean they “dispose of the merits of a
habeas corpus proceeding,” Harbison, 556 U.S. at 183; see Bracey v. Superintendent Rockview
SCI, 986 F.3d 274, 282 (3d Cir. 2021) (“Harbison used ‘the merits’ to distinguish ‘final orders’
that conclude the habeas proceeding itself from those orders that merely resolve a collateral
issue.”); United States v. Fulton, 780 F.3d 683, 686–88 (5th Cir. 2015). Appeals from denied
bail motions amount to collateral orders that do not require a certificate of appealability.
That has not always been the rule in our circuit. Under the prior version of § 2253 that
predated the passage of AEDPA in 1996, we appreciate, habeas petitioners had to obtain
a “certificate of probable cause” before appealing a denial of bail. Lee v. Jabe, 989 F.2d 869,
870–71 (6th Cir. 1993). And while AEDPA created many material changes to the handling of
habeas petitions, we also appreciate, this is not one of them. As it happens, there is no material

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difference between the certificate of appealability and certificate of probable cause requirements
for today’s purposes. Even so, Harbison makes clear that collateral appeals, separate from
appeals over the merits of a habeas petition, do not require a certificate of appealability. See
Illarramendi, 906 F.3d at 269–71.
We affirm.

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