MARK OSTER v. UNITED STATES OF AMERICA (2025)

ORDER GRANTING MOTION TO DISMISS FIRST 28 U.S.C. § 2241 PETITION; DISMISSING SECOND § 2241 PETITION; AND DENYING PENDING MOTIONS AS MOOT

I.

INTRODUCTION

Petitioner is a federal criminal detainee who was charged with child pornography offenses in the summer of 2021. Three years later, he pled guilty to those crimes while preserving his right to appeal the denial of his motion to suppress evidence found on his computers. As a result, he should be awaiting sentencing in his criminal case as a post-trial detainee. (United States v. Oster, CR No. 21-147). A few weeks before his plea, however, petitioner filed the first of two pro se petitions under 28 U.S.C. § 2241, seeking release from detention based on the alleged unconstitutionality of the same computer search challenged in his failed suppression motion. (Oster v. United States, SACV No. 24-1818). Then, some weeks after his plea, he filed a second petition claiming ineffectiveness of counsel as the basis for habeas relief from his criminal prosecution—to include release from detention. (Oster v. United States, SACV No. 24-2359). By then, petitioner had tried to withdraw his guilty plea too, also claiming ineffective pre-plea assistance of counsel. As a result, the district court eventually appointed new counsel who is soon expected to move to withdraw petitioner's guilty plea.

In this tangled posture, respondent United States moves to dismiss the first habeas petition here on two related grounds. First, if petitioner seeks release pending trial or sentencing, the government argues that the Bail Reform Act—not 28 U.S.C. § 2241—is the proper (if not exclusive) avenue for him to seek such release. Second, the government maintains that petitioner's criminal case—not a parallel civil action under § 2241—is the proper forum to enforce his criminal rights or contest the merits of his criminal charges, including on direct appeal or collateral review. As it turns out, those arguments apply just as much to the second petition, which likewise implicates the common legal question briefed by the parties on the motion to dismiss: whether federal detainees awaiting trial or sentencing can collaterally attack their criminal proceedings and concurrently seek release from detention through a habeas petition under § 2241. The answer is the same for both petitions, too.

By history and tradition, the writ of habeas corpus is an extraordinary remedy that may—not must—be granted and, even then, only as law and justice require. For more than 100 years, federal habeas courts have thus retained the equitable discretion to deny the writ if the balancing of prudential considerations demanded judicial restraint. Under that historical practice long reinforced by Supreme Court precedent, federal courts may not grant § 2241 release to federal detainees awaiting trial or sentencing absent exceedingly rare circumstances not presented here. So long as such detainees can adequately and effectively vindicate their rights and adjudicate the merits of their charges in their criminal proceedings, they cannot short-circuit those proceedings by simultaneously petitioning for release under § 2241. Not only would that disrupt the orderly administration of criminal justice, it would encourage forum-shopping, create perverse litigation incentives, and needlessly tax scarce judicial resources. When the costs of granting the writ are that high with no benefits not already available with established criminal practices or procedures—including statutory remedies for pretrial release and postconviction relief—federal courts must not grant the equitable writ under § 2241 amid ongoing criminal matters.

Thus, with the related § 2241 petitions now consolidated for decision because they share a common legal question with the same dispositive answer, see Fed. R. Civ. P. 42(a)(2), the court grants respondent's motion to dismiss the first habeas petition, sua sponte dismisses the second petition for the same reason, and denies all pending motions as moot.¹

II.

BACKGROUND

Based on an investigation of petitioner's suspected online activities involving child pornography, the FBI executed search warrants at his home in the spring and summer of 2021. He was arrested in July 2021 and indicted shortly after on several counts of production, possession, and distribution of child pornography. Pursuant to the Bail Reform Act, petitioner was ordered detained pending trial at his initial appearance. See 18 U.S.C. § 3142(a), (e)-(g). He was also appointed counsel who eventually, with his agreement, stipulated four times to continue the trial initially set for October 2021 to February 2024.

Meanwhile, without his permission, petitioner's wife evidently gave access to his business computers to a private party who found more suspected child pornography and reported his findings to the FBI. (SACV No. 24-1818, ECF 1 at 3-7, 9-19). Afterward, the FBI seized the business computers and obtained a warrant to search them in August 2021. (Id. at 13). After the FBI found more child pornography evidence on those computers, petitioner—through counsel—moved to suppress that evidence. The district court denied the motion, which led the government to supersede the indictment with more charges based on the evidence found in the August 2021 search. The district court then continued trial two more times to November 2024, again at the parties' request with petitioner's assent.

Later, petitioner tried to have the evidence found during the first two searches of his home suppressed. But before those new motions could be decided, petitioner agreed with the government to withdraw them and plead guilty instead to charges in the first superseding indictment on the condition that he could appeal the denial of his first suppression motion. Pursuant to that agreement, the district court accepted petitioner's conditional guilty plea to child pornography crimes in September 2024, vacated the November trial date, and scheduled petitioner's sentencing for December 2024. Thus, in the ordinary course of his criminal proceedings, petitioner should have been sentenced by now with the right to appeal his conviction and sentence on grounds preserved (or not waived) in his plea agreement.

That process has been complicated by the two petitions filed here under § 2241—and petitioner's apparent second thoughts about his guilty plea. In the first petition, filed a few weeks before his plea, petitioner seeks release from detention by challenging the same August 2021 computer search that was the subject of his unsuccessful motion to suppress. (SACV No. 24-1818, ECF 1, 4, 10-11, 16). In the second petition, filed some weeks after his plea, petitioner claims ineffective assistance of counsel as the basis for collateral habeas relief from his ongoing criminal prosecution. (SACV No. 24-2359, ECF 1, 6-7). Based on many of the same allegations about counsel's performance, though, petitioner already asked to relieve his appointed counsel and to withdraw his guilty plea based on alleged deficient pre-plea legal advice. Since then, the district court appointed new counsel for petitioner who has until February 2025 to file a formal motion for withdrawal of his conditional guilty plea.

Against that procedural backdrop, the government moves to dismiss the first petition for lack of an available legal remedy under § 2241. (SACV No. 24-1818, ECF 18). The government argues that if petitioner seeks release—pending trial, sentencing, or even appeal—he must do so through the procedures provided in the Bail Reform Act, not through an intervening federal habeas action. (Id. at 9). Relatedly, and in any event, the government contends that petitioner can—and therefore must—channel any pretrial criminal motions or other challenges to the merits of his prosecution in the pending criminal case, not through a simultaneous § 2241 action. (Id. at 9-10). Besides, the government maintains, even if petitioner is adjudged guilty (by a sustained guilty plea or a jury verdict after a withdrawn plea), he has adequate and effective remedies for any trial errors on direct criminal appeal or with collateral postconviction relief under 28 U.S.C. § 2255. (See id., ECF 18, 37). Those arguments, now briefed and opposed by petitioner on the merits, apply just as much to his second petition—and they raise a pure question of law dispositive of both petitions. (Id., ECF 33-34, 37-38). As a result, the related petitions were consolidated for decision under Rule 42(a)(2). See Hall v. Hall, 584 U.S. 59, 77 (2018) (district courts retain wide discretion to consolidate related cases for “all purposes”).

III.

DISCUSSION

A. Habeas Corpus Relief Cannot Supplant Criminal Proceedings that Are Adequate and Effective to Enforce a Defendant's Rights and Adjudicate the Merits of the Criminal Charges

“From the founding, Congress authorized federal courts to issue habeas writs to federal custodians” (and later extended that authority to “state custodians as well”). Brown v. Davenport, 596 U.S. 118, 127-28 (2022). “That same structure lives on in contemporary statutes”—including 28 U.S.C. § 2241—“which provide that federal courts ‘may’ grant habeas relief ‘as law and justice require.’ ” Id. at 128 (quoting 28 U.S.C. §§ 2241, 2243). In other words, “Congress invested federal courts with discretion when it comes to supplying habeas relief—providing that they ‘may’ (not must) grant writs of habeas corpus, and that they should do so only as ‘law and justice require.’ ” Id. at 132. So while § 2241 confers seemingly unconditional authority on federal courts to grant writs of habeas corpus to those claiming to be “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3), more than 100 years of practice and precedent establish that “a habeas court ‘is not bound in every case’ to issue the writ.” Munaf v. Geren, 553 U.S. 674, 693 (2008) (quoting Ex parte Royall, 117 U.S. 241, 251 (1886)). Nothing in § 2241 (or later federal statutes) disturbed that “equitable discretion traditionally invested in federal courts” to grant or deny the “Great Writ.” Brown, 596 U.S. at 134.

To say that equitable discretion remains at the core of traditional habeas corpus relief is to recognize that the decision whether to grant the writ can—and often must—rest on “prudential concerns.” Withrow v. Williams, 507 U.S. 680, 686 (1993). As the Supreme Court has explained, “the Great Writ entails significant costs.” Engle v. Isaac, 456 U.S. 107, 126 (1982). “[T]hese costs, as well as the countervailing benefits, must be taken into consideration in defining the scope of the writ.” Wright v. West, 505 U.S. 277, 293 (1992) (plurality opinion). In undertaking that cost-benefit analysis, habeas courts must be especially sensitive to “the orderly administration of criminal justice,” which may “require a federal court to forgo the exercise of its habeas corpus power.” Munaf, 553 U.S. at 693 (quoting Francis v. Henderson, 425 U.S. 536, 539 (1976)). “A criminal trial concentrates society's resources at one ‘time and place in order to decide ․ the question of guilt or innocence.’ ” Engle, 456 U.S. at 127 (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977)). “Liberal allowance of the writ” during a criminal trial “degrades the prominence of the trial itself.” Id. Because the “Constitution and laws surround the trial with a multitude of protections for the accused, ․ ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself.” Id.

The primacy of criminal proceedings is reflected in the rule that a defendant's opportunity for full and fair litigation of his claims—at the trial level and then on appeal—normally forecloses those claims if later raised again on collateral habeas review. See McCleskey v. Zant, 499 U.S. 467, 481 (1991); Stone v. Powell, 428 U.S. 465, 485-86 (1976); Kaufman v. United States, 394 U.S. 217, 227 n.8 (1969); see also Withrow, 507 U.S. at 721 (In federal postconviction review, “a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim.”) (Scalia, J., concurring and dissenting in part). This longstanding rule underscores that “the nature and function of the writ” is as a “collateral remedy”—not “a substitute for direct review” of a criminal judgment. Wright, 505 U.S. at 292 (cleaned up). So if “the writ of habeas corpus should not do service for an appeal” even after a defendant has been convicted and sentenced, Adams v. United States ex rel. McCann, 317 U.S. 269, 274 (1942), then “for still stronger reasons, it is not available to a defendant before trial, except in rare and exceptional cases,” Johnson v. Hoy, 227 U.S. 245, 247 (1913). Unsurprisingly, what “rare and exceptional” circumstances could permit a federal detainee to be released under § 2241 during an ongoing criminal case “are so rare that they have apparently not yet arisen.” Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir. 2017); see, e.g., Cunningham v. United States, 2023 WL 6172011, at *1 (9th Cir. Sept. 22, 2023) (affirming dismissal of federal pretrial detainee's § 2241 petition without deciding whether § 2241 is available for pretrial release).

To the contrary, federal “[c]ourts have consistently refused to exercise their habeas authority in cases where federal prisoners have sought relief before standing trial.” Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246 (3d Cir. 2018) (collecting cases). Such restraint is all but obligatory when Congress has provided an adequate and effective alternative remedy. Take pretrial release. It is hard to imagine when a federal detainee would need an equitable collateral remedy to secure release given the statutory scheme that Congress comprehensively enacted with the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-50. The Act provides an exhaustive remedy by which defendants charged with federal crimes can be released pending trial, sentencing, and appeal. See 18 U.S.C. §§ 3141-43; see also Fed. R. Crim. P. 46. All defendants (except those charged with certain types of crimes) are presumptively entitled to pretrial release at their initial appearances. 18 U.S.C. §§ 3141(a), 3142(a), (e). Defendants may be detained only if the government meets its burden to prove that no conditions of release can reasonably assure their appearance in court or the protection of the public. Id. § 3142(f)-(g). If detained, defendants can seek judicial reconsideration and lateral review in the district court. Id. §§ 3142(f), 3145(b). If unsuccessful there, they can seek an expedited interlocutory appeal. Id. § 3145(c). The Act even permits release pending sentencing or appeal, though the burden is higher and shifts to the defendants. Id. §§ 3141(b), 3143; Fed. R. Crim. P. 46(c). Even so, denial of post-trial release may also be challenged in the appellate courts. See 18 U.S.C. § 3145(c); e.g., United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003) (post-trial release pending appeal); United States v. Ruiz-Casas, 2020 WL 4873757, at *1 (9th Cir. June 24, 2020) (post-trial release pending sentencing).

In short, through the Bail Reform Act, Congress covered every practical situation for a federal detainee's release before his conviction and sentence become final. Federal courts have thus recognized that the Bail Reform Act is the de facto exclusive basis by which federal detainees may seek release pending trial, sentencing, or appeal. See, e.g., Reese, 904 F.3d at 247; United States v. Pipito, 861 F. 2d 1006, 1009 (7th Cir. 1987); see also 18 U.S.C. § 3142(i) (permitting “temporary release” of a defendant “in the custody of a United States marshal” if such release is determined “to be necessary for the preparation of the person's defense or for another compelling reason”). No cases cited by petitioner—nor any the court has seen—hint that § 2241 is needed in any real-world scenario to fill gaps left exposed in the Bail Reform Act.

If Congress effectively rendered § 2241 all but obsolete for pretrial and post-trial detainees seeking release before their convictions become final, it aimed to do something similar for postconviction relief under 28 U.S.C. § 2255. “Since 1948, Congress has provided that a federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241.” Jones v. Hendrix, 599 U.S. 465, 469 (2023). To that end, Congress divested federal courts of jurisdiction to entertain § 2241 petitions after a defendant's conviction has become final, unless “the remedy by motion” under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Section 2255 is considered inadequate or ineffective only “where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court.” Jones, 599 U.S. at 478. This so-called escape-hatch exception in § 2255(e) is thus exceedingly “narrow.” United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). And that is so by design.² Congress intended “that the extraordinary remedy of habeas corpus be withheld pending resort to established procedures providing the same relief” under § 2255. United States v. Hayman, 342 U.S. 205, 223 n.40 (1952). Thus, if the collateral remedy Congress designed for postconviction proceedings severely restricts habeas relief under § 2241, there is no cause to think that Congress intended § 2241 to be indiscriminately available during ongoing pre-conviction proceedings.

Finally, and not least, requiring that federal detainees “pursue the remedies available within the criminal action” not only “encourages an orderly, efficient resolution of the issues, maintains respect for the appellate process,” and heeds Congress' intent behind preexisting statutory remedies, it also “prevents duplication of judicial work and judge-shopping.” Reese, 904 F.3d at 246-47. One of the reasons animating the passage of § 2255, for instance, was the need “to avoid the unseemly practice of having attacks upon the regularity of trials made before another judge.” Farrow v. United States, 580 F.2d 1339, 1349 (9th Cir. 1978) (en banc) (cleaned up). That concern is no less legitimate when a concurrent § 2241 petition is filed in the same district where a criminal case is pending. If anything, “the intrusion of the habeas process on trial proceedings” in that posture “would be disruptive” several times over because it would allow “a second judge to, in essence, act as an appellate tribunal to review a possible error by the trial judge.” Medina, 875 F.3d at 1029. Even in the best-case scenario, it could lead to inconsistent rulings on the same claims by two judges in the same district. All the while, it not only “places a heavy burden on scarce federal judicial resources” but gives “litigants incentives to withhold claims for manipulative purposes and ․ disincentives to present claims when evidence is fresh.” McCleskey, 499 U.S. at 491-92 (citations omitted). Courts faced with this untenable situation thus agree that “a federal pretrial detainee cannot use § 2241 to preempt the judge presiding over the criminal case.” Williams v. Hackman, 364 F. App'x 268, 268 (7th Cir. 2010).

In sum, absent “special circumstances” that could justify “a departure from the regular course of judicial procedure” in criminal proceedings, federal detainees may not supplant those proceedings with an intervening petition for collateral habeas relief under § 2241. Riggins v. United States, 199 U.S. 547, 551 (1905). More than 100 years of common law practice and Supreme Court precedent have cemented the “equitable discretion” of habeas courts to withhold the writ in that situation. Edwards v. Vannoy, 593 U.S. 255, 289 (2021) (Gorsuch, J., concurring). The costs of granting such an extraordinary collateral remedy amid ordinary criminal proceedings far outweigh any benefits that could be attained by entangling a civil habeas action with an active criminal prosecution. Besides, there is no reason to visit such havoc upon the administration of criminal justice when other remedies are “adequate and effective” to vindicate the accused's federal rights and to adjudicate the merits of the criminal charges. Boumediene v. Bush, 553 U.S. 723, 733 (2008). Thus, in the heartland of federal criminal prosecutions, “the regular judicial procedure should be followed, and habeas corpus should not be granted in advance of a trial.” Jones v. Perkins, 245 U.S. 390, 391-92 (1918).³

B. Petitioner Has Presented No Extraordinary Circumstance to Justify an Unprecedented Exercise of Equitable Habeas Jurisdiction to Grant Release During an Ordinary and Ongoing Criminal Prosecution

The “equitable principles” detailed above—derived from more than 100 years of “historical usage, statutory developments, and judicial decisions” around the traditional writ of habeas corpus—dispose of the consolidated § 2241 petitions here. McCleskey, 499 U.S. at 489. For starters, if petitioner seeks release on bail pending trial, sentencing, or even an eventual appeal, he has an adequate and effective remedy in the Bail Reform Act. See, e.g., Reese, 904 F.3d at 247 (“[F]ederal defendants who seek pretrial release should do so through the means authorized by the Bail Reform Act, not through a separate § 2241 action.”); Pipito, 861 F.2d at 1008-09 (same for post-trial detainees awaiting sentencing). Given the comprehensiveness of that statute, if collateral § 2241 relief even remains an available avenue for pretrial release, it could only be granted in such rare circumstances that have not yet practically emerged. See Medina, 875 F.3d at 1029. For his part, petitioner identifies no exceptional reason, nor can the court imagine any here. Besides, his detention “may be reopened ․ at any time before trial” if he has new “material” facts supporting release. 18 U.S.C. § 3142(f). And he can still appeal his detention order to the district judge assigned to his criminal case. Id § 3145(b). It is no answer to blame his counsel for failing to timely (or successfully) seek such reconsideration and review. See, e.g., Frederickson v. Terrill, 957 F.3d 1379, 1380 (7th Cir. 2020) (per curiam) (pretrial release should be addressed through Bail Reform Act even if attorney erred in appeal of detention order).

Nor has petitioner offered any reason—much less any extraordinary facts—to think that he cannot adequately and effectively enforce his rights and defend himself in his criminal proceedings. If petitioner wants to renew (or file more) pretrial motions—including suppression motions or a motion to dismiss the indictment—he can ask for leave of court to do those things. See, e.g., United States v. Lopez-Cruz, 730 F.3d 803, 811 (9th Cir. 2013) (district courts may reconsider prior suppression rulings); Jenkins v. Noonan, 2020 WL 2745234, at *2 (S.D. Cal. May 27, 2020) (“Where a defendant is awaiting trial, the appropriate vehicle for violations of his constitutional rights are pretrial motions ․ and not a habeas corpus petition.” (quoting Whitmer v. Levi, 276 F. App'x 217, 219 (3d Cir. 2008)); Edwards v. U.S. Att'y Gen., 2024 WL 3292939, at *2 (C.D. Cal. June 13, 2024) (“[H]abeas review is not the appropriate method for addressing [pretrial detainee's] claims concerning the indictment against him.”), appeal dismissed sub nom. Edwards v. Garland, 2024 WL 4483235 (9th Cir. Aug. 27, 2024). And as for his existing guilty plea, which petitioner argues was ill-advised by ineffective counsel, the district court has permitted petitioner to move for withdrawal of that plea with aid of new counsel. See, e.g., Anaya, 2024 WL 2880586, at *2-3 (recommending denial of habeas petition raising issues simultaneously pending before the federal criminal court).

Even if petitioner were not permitted to withdraw his plea and thought that was wrong, the “normal and customary method of correcting errors” at the trial level “is by appeal.” Sunal v. Large, 332 U.S. 174, 177 (1947). And contrary to his claim that he cannot appeal the denial of his first suppression motion, his plea agreement reserved his right to pursue that challenge on appeal as well as any others not waived in the agreement. (CR No. 21-147, ECF 96). If, on the other hand, petitioner is allowed to withdraw his plea but still convicted by jury based on evidence he claims should have been suppressed, there is no bar to raising that challenge for plenary review in the federal court of appeals. See Fed. R. Crim. P. 32(j); Fed. R. App. P. 3, 4(b). The only thing petitioner cannot do is circumvent or override his criminal proceedings with well-timed § 2241 petitions raising the kinds of claims that can adequately and effectively be addressed in those proceedings. More than 100 years of habeas jurisprudence forecloses that gambit. See, e.g., Hoy, 227 U.S. at 247 (precluding use of habeas petitions “to depart from the regular course of criminal proceedings by securing ․ in advance, a decision on an issue of law which the defendant can raise in the district court, with the right, if convicted, to a writ of error on any ruling adverse to his contention” (citing Ex Parte Royall, 117 U.S. at 251)).

Finally, to whatever extent that petitioner's complaints about his prior counsel's performance have merit, any such problems have either been mooted or rendered harmless by appointment of new counsel. Besides, if any valid claims for ineffective assistance of counsel remain, he can pursue them on appeal if the record is adequately developed to permit direct review or the attorney's performance is so deficient that denial of the right to effective assistance of counsel is apparent on the existing record. See United States v. Osorio-Arellanes, 112 F.4th 647, 658 (9th Cir. 2024). Otherwise, the “customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255.” Pirro, 104 F.3d at 299. In no circumstance among the mine run of federal criminal matters, however, does the extraordinary and equitable writ of habeas corpus permit petitioner's attempted end-run around long-established criminal practices, procedures, and statutes that adequately and effectively protect his federal rights in the pending criminal prosecution.

IV.

CONCLUSION

For all these reasons, respondent's motion to dismiss petitioner's first petition under 28 U.S.C. § 2241 is GRANTED, the consolidated second petition under § 2241 is DISMISSED, and all pending motions are DENIED as moot.⁴ Judgment will be entered accordingly dismissing the consolidated habeas petitions without prejudice.

IT IS SO ORDERED.

FOOTNOTES

1.   Strictly speaking, the United States is not a proper respondent, only the warden who has physical custody of petitioner is. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). But because that is a curable jurisdictional defect, see Stanley v. Cal. Supreme Ct., 21 F.3d 359, 360 (9th Cir. 1994), as amended (May 18, 1994), requiring amendment of the petitions for that reason alone would serve no purpose given the merits disposition here.

2.   Indeed, the Ninth Circuit has found § 2255 ineffective or inadequate only when a federal prisoner makes a claim of actual innocence and never had an unobstructed procedural shot at making this claim. See Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020). Neither the prisoner's failure to follow the gatekeeping provisions in § 2255 (like the statute of limitations or the bar on successive motions), nor his inability to secure relief on direct appeal or a first § 2255 motion, makes that remedy ineffective or inadequate. See Pavulak v. Blanckensee, 14 F.4th 895, 897 (9th Cir. 2021) (per curiam); Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003), abrogated on other grounds by Jones, 599 U.S. 465. Federal prisoners may, however, petition under § 2241 to “challenge the manner, location, or conditions of a sentence's execution.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam).

3.   The availability of other remedies for federal defendants before and after criminal judgment has led some courts to dismiss concurrent § 2241 petitions based ostensibly on lack of exhaustion. See, e.g., Medina, 875 F.3d at 1028-29; Anaya v. Campos, 2024 WL 2880586, at *2 (S.D. Cal. May 31, 2024), aff'd sub nom. Rivera-Anaya v. Campos, 2024 WL 4533564 (9th Cir. Aug. 29, 2024). But that doctrine presupposes that if habeas claims are “exhausted” first in the trial court and then on appeal, they can be reasserted later in a § 2241 petition. Yet that is not quite accurate because (as explained), unless legally inadequate and ineffective, postconviction relief for federal inmates now lies in § 2255, not § 2241. Perhaps for that reason, other courts seemingly dismiss concurrent § 2241 petitions during pending criminal matters as just recharacterized but “premature” § 2255 motions. Carasco v. Gatt, 2022 WL 447576, at *2-3 (C.D. Cal. Jan. 10, 2022), adopted by 2022 WL 445756 (C.D. Cal. Feb. 11, 2022). But that notion too is an odd fit because it predicts that the defendant's “premature” claim—before his conviction is even upheld as final on direct review—could mature into a viable § 2255 postconviction claim on collateral review in just a matter of time. Contra, e.g., 28 U.S.C. § 2255(f). But “[i]f the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations.” Withrow, 507 U.S. at 721 (Scalia, J., concurring and dissenting in part). Either way, it is the equitable discretion intrinsic to habeas relief under § 2241, not the timing of any contingent § 2255 motion, that is doing all the work. The more sure-footed basis to reconcile these cases, then, is to recognize (as here) that the courts are prudentially exercising their equitable discretion to withhold the writ during parallel criminal proceedings, given the costs it would exact on the orderly administration of justice with no benefits beyond that available through the usual and customary practices, procedures, and statutes that apply in federal criminal prosecutions.

4.   Those motions include a request for a stay of the first petition until after petitioner's anticipated motion to withdraw his guilty plea is decided. (SACV 24-1818, ECF 32). But there is no outcome there that could retrigger the need to decide either petition here. Either petitioner will be permitted to withdraw his plea, in which case he will go to trial and, if convicted and sentenced, retain his appellate rights and postconviction remedies. Or he will be unable to withdraw his plea, in which case he will be sentenced subject to any appellate or postconviction rights he preserved in his plea agreement. Neither path leads back to these petitions, making the stay request pointless even if it weren't now moot. See Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). Petitioner's motions for release pending a decision on his petitions would also merit no relief even if they too weren't now moot. (SACV 24-1818, ECF 13; SACV 24-CV-2359, ECF 8). The Ninth Circuit has “not yet decided whether district courts have the authority to grant bail pending resolution of a habeas petition.” United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (per curiam). Even if it did, release would be reserved for cases with not only a high probability of success on the merits of the habeas petition but also special circumstances justifying release pending a merits decision. See United States v. Dade, 959 F.3d 1136, 1138 (9th Cir. 2020); Centofanti v. Neven, 820 F. App'x 555, 556 (9th Cir. 2020). But since there are no exceptional facts for habeas relief here on the merits, releasing petitioner while he awaited this order would only have been doubly improper.

STEVE KIM United States Magistrate Judge