Case 9:08-cv-81283-JAL Document 267 Entered on FLSD Docket 05/04/2012 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. 08cv81283-Lenard Magistrate Judge White ELROY A. PHILLIPS, Movant, vs. UNITED STATES, Respondent. _________________________________/

AGREED MOTION FOR RELEASE OF MOVANT ON HIS OWN RECOGNIZANCE Movant ELROY PHILLIPS moves, with agreement by the government, for release on his own recognizance in the underlying criminal proceeding (Case No. 01cr8084), and states in support thereof: 1. Contemporaneously filed with this motion is the parties Joint Motion to

Vacate Defendants Convictions on Counts 1, 9, 14, and 17 and to Dismiss with Prejudice Counts 1, 9, 14, and 17 And Parties Stipulated Motion to Dismiss With Prejudice 28 U.S.C. 2255 Proceeding. Upon the granting of the joint motion, as regards the underlying criminal case, only Count 11 will remain. The sentence on that count was two years incarceration to be followed by one year of supervised released, both to be served concurrently with the other counts, and a $100 special assessment. The defendant has been in custody since the time of his arrest on June 8, 2001, and thus he is entitled to be release from custody immediately upon the granting of the joint motion.

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2.

There is a reasonable possibility that, even with diligent efforts by the clerks

office, the U.S. Marshal Service, and the Bureau of Prisons, there will be some delay in effectuating the defendants release following the granting of the joint motion as to the underlying criminal case.1 To avoid injustice that would necessarily result should such delay become unreasonable, the defendant should be released upon his own recognizance. The Court has jurisdiction in a 2255 case to enter such order, and it is appropriate to do so in this instance. Calley v. Callaway, 496 F.2d 701, 702 (5 th Cir.1974) (release on pending habeas proceeding appropriate where success on the merits is likely and extraordinary and exceptional circumstances exist such that bail is necessary to assure effective relief); Gomez v. United States, 899 F.2d 1124 (11 th Cir. 1990) (applying Calley to 2255 proceeding). 3. Accordingly, to maintain jurisdiction to enter a 2255 release order for the

underlying case, it is necessary for the Court to defer ruling on that portion of the joint motion which seeks dismissal of this proceeding with prejudice. When the movants release in the underlying criminal case is effectuated, counsel will promptly notify this Court and then dismissal of this 2255 proceeding with prejudice is appropriate.2

Although the conclusion is obvious that movant has completed the incarceration portion of the sentence which remains after the granting of the joint motion, movant has determined that the Bureau of Prisons must still compute movants new release date, and such computation will not be undertaken until there is notification of the granting of relief through official channels. Further, if the movant is promptly released pursuant to the granting of relief for the underlying criminal case, this motion is moot and counsel will immediately notify the Court.
2

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LOCAL RULE 88.9 CERTIFICATE The movant and government have conferred pursuant to Local Rule 88.9; the government agrees with the relief sought by this motion.

CERTIFICATE OF SERVICE I certify that on May 4, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, for uploading and service by electronic notice to counsel and parties authorized to receive electronically Notices of Electronic Filing. Respectfully Submitted, Michael Zelman Counsel for Movant Phillips 19 W. Flagler Street, Suite 407 Miami, Florida 33130 Tel. Number: (305) 358-1600

S/ Michael Zelman Michael Zelman (Fla. Bar No. 241733)