FILED

NOT FOR PUBLICATION

APR 23 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: MICHAEL STEVEN WRIGHT, No. 18-72952 ______________________________ D.C. No. MICHAEL STEVEN WRIGHT, 1:15-cr-00171-DKW-1

Petitioner,

MEMORANDUM*

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII,

Respondent,

UNITED STATES OF AMERICA,

Real Party in Interest.

Petition for Writ of Mandamus to the United States District Court for the District of Hawaii

Submitted April 19, 2019** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: BEA and SMITH, Circuit Judges, and MARQUEZ,*** District Judge.

Michael Wright (Wright”) was convicted of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. §841(a)(1) and (b)(1)(C) and

received a sentence of 24 months in prison. Prior to his self-surrender date, Wright

filed a 28 U.S.C. § 2255 motion in district court to set aside his sentence, and he

also moved to remain released on bail pending a decision on his § 2255 motion.

The district court denied Wright’s bail motion and stated it “lacked clear legal

authority” to grant bail while a § 2255 motion is pending.

Wright then petitioned this court for a writ of mandamus, asking this court to

direct the district court to reach the merits of his bail motion. The district court has

since denied Wright’s § 2255 motion. Because the district court has denied his §

2255 motion, it is no longer possible for this court to grant Wright the relief he

requests.

Wright asserts his petition for a writ of mandamus is moot. Nevertheless, the

Government argues the petition is not moot, as this issue is capable of repetition

while evading review. For this issue to affect Wright in the future, he would have

to complete his sentence, be released, be re-arrested and allowed bail, be convicted,

*** The Honorable Rosemary Marquez, United States District Judge for the District of Arizona, sitting by designation. 2 identify grounds for § 2255 relief and file a motion, and move to be allowed to

remain on bail pending review of his § 2255 motion. This is too speculative.

In Alvarez v. Smith, 558 U.S. 87, 130 S. Ct. 576, 175 L. Ed. 2d 447 (2009),

the Court held six plaintiffs claiming Illinois had insufficient procedures for

contesting warrantless property seizures no longer had an actual case or

controversy because all six settled their property disputes with the state prior to

oral argument and nothing suggested the same plaintiffs would likely be subject to

the Illinois seizure procedures again. Id. at 93. In City of Los Angeles v. Lyons, 461

U.S. 95, 109 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), the Court held the plaintiff did

not meet the case or controversy requirement for equitable relief because the risk

he would be subjected to the same injury in the future was too speculative and “the

capable-of-repetition doctrine applies only in exceptional situations, and generally

only where the named plaintiff can make a reasonable showing that he will again

be subjected to the alleged illegality.” Id. at 109. Here, the likelihood Wright

would be subject again to this same issue is too speculative. The Government is

merely seeking an advisory opinion.

PETITION FOR WRIT OF MANDAMUS DENIED AS MOOT.

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