GARY L. SHARPE, U.S. Magistrate Judge.
INTRODUCTION
This matter has been referred to the undersigned for a Report-Recommendation by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). This is an application for bail pending determination of a petition for habeas corpus relief. For the following reasons, the court finds that this motion should be denied.
BACKGROUND
The petitioner, Erwin Jackson, was convicted and sentenced to 20 to 40 years imprisonment after two trials concerning separate offenses. Specifically, on March 4, 1985, petitioner was found guilty of First Degree robbery and criminal use of a firearm. On April 18, 1985, he was sentenced to two concurrent prison terms of 10 to 20 years. On February 15, 1984, while awaiting trial for the first crimes, he was charged with robbery in the First Degree for a separate robbery. On May 31, 1985, he was found guilty of this new crime and sentenced to another 10 to 20 year term to run consecutively to the April 18, 1985, sentence. Petitioner now attacks this sentence claiming that the New York State's Department of Corrections (DOCS) impermissibly lengthened his overall sentence to 20 to 40 years in violation of the double jeopardy clause.
DISCUSSION
In certain circumstances a district court may grant a state prisoner bail pending the determination of a habeas corpus petition. Yet, in this circuit the standard to be applied when considering bail is very high. In Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981), the Second Circuit implicitly adopted the test set forth in Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir. 1978). Consequently, bail may be granted only in unusual cases, or where extraordinary or exceptional circumstances make bail necessary to effect proper habeas relief. Ostrer, 584 F.2d at 596 n. 1. In order to obtain bail, there must be a "demonstrated likelihood that the petition will prevail based upon claims of a substantial nature upon which the petitioner has a high probability of success, and demonstrating merits that are more than slightly in the petitioner's favor, so that victory for the petitioner can be predicted with confidence." Harris v. United States, 1997 WL 272398, *1 (S.D.N.Y. May 21, 1997) (quoting Richard v. Abrams, 732 F. Supp. 24, 25 (S.D.N.Y. 1990) (internal quotation marks omitted)).
In this case, the petitioner argues that the respondent increased the 10 to 20 year sentence he received for his May 31, 1985, conviction. Specifically, this second sentence was to be served consecutively to the sentence "presently being served". According to the petitioner, he was not serving a state sentence at that time because he was not in state custody. Under New York Penal Law § 70.30, he claims his April sentence could not begin until he was placed in state custody, which did not technically occur until imposition of his second sentence. Therefore, he contends that the second sentence is technically void and must be deemed a concurrent sentence under Penal Law § 70.25(1)(a). If this proves to be true, he maintains that: (1) he is currently serving a double sentence for the same conviction in violation of the double jeopardy clause; and, (2) he has substantially fulfilled his concurrent sentence of 10 to 20 years and is eligible for parole.
While petitioner certainly feels, like so many others, that his petition will ultimately succeed, the court is required to make that determination under a very high standard. The affect of a habeas petition is to free an innocent from unlawful confinement; if bail is granted the petitioner will realize his ultimate goal of freedom. For this reason, it must be very clear that victory is nearly a certainty — this is not the case here. After reviewing the petitioner's claims but without fully addressing the merits, the court is unable to confidently predict victory for the petitioner. Despite the fact that the petitioner's April sentence had not technically begun, the sentencing court's intent was for the second sentence to be consecutive to the April sentence. It is unlikely that this simple mistake will prove sufficient to alter what seems to be an otherwise proper sentence.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that petitioner's bail application be denied.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
It is further ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.