Elizabeth Holmes loses final bid to delay imprisonment

Theranos founder Elizabeth Holmes on Tuesday afternoon lost her final bid to stay out of prison while she appeals her fraud conviction and sentence.

The U.S. Court of Appeals for the Ninth Circuit in a one-page ruling denied Holmes’ attempt to overturn her trial judge’s decision on her incarceration date.

Late last month, two days before she was to surrender herself for imprisonment, Holmes asked the appeals court to reverse U.S. District Court Judge Edward Davila’s order that she surrender herself for imprisonment April 27, arguing that Davila made “numerous, inexplicable errors” when he denied her attempt in district court to delay her incarceration.

That request bought her some extra time, but the Ninth Circuit, which is hearing her appeal, said in its ruling Tuesday denying her motion to stay free on appeal that Holmes had failed to show that her appeal of her conviction and sentence raises a substantial question of law or fact. It remains unclear when she must begin serving her sentence of more than 11 years.

Holmes was convicted by a jury in U.S. District Court in San Jose in January 2022 after a four-month trial of defrauding investors in her now-defunct Palo Alto blood-testing startup out of more than $144 million. In November, Davila sentenced her to prison but allowed a pregnant Holmes to defer incarceration until April 27 in a decision legal experts said was likely to allow her to give birth to her second child.

However, Holmes in December, shortly after notifying the court she would appeal her conviction and sentence, asked Davila to let her remain free until the appeal is finished, which could take a year or more. Davila in April shot down that attempt at deferred imprisonment, but Holmes in asking the Ninth Circuit to overturn Davila’s decision succeeded in delaying her incarceration under the appeals court’s rules.