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finding that the petitioner's continued confinement weighed in favor of the state because at a minimum, she had 50 years left to serve in custody
Summary of this case from Avery v. PrelesnikOpinion
05 Civ. 698 (SAS).
November 13, 2006
For Petitioner: Leon Friedman, Esq., Sharon Grobman, Esq. New York, New York.
Lawrence Lederman, Esq., Michael L. Hirschfeld, Esq., Milbank, Tweed, Hadley McCloy LLP, New York, New York.
For Respondents: Eliot Spitzer, Attorney General for the State of New York New York, New York.
Michael E. Bongiorno, District Attorney of Rockland County, New City, New York.
OPINION AND ORDER
I. INTRODUCTION
By a judgment entered September 22, 2006, this Court granted Judith Clark's petition for a writ of habeas corpus, thereby vacating her conviction pursuant to section 2254 of title 28 of the United States Code. Ada Perez and Elliot Spitzer (hereinafter "the State") now move to stay enforcement of the writ pending the State's appeal. Alternately, the State moves to amend the provision of the judgment providing for Clark's conditional release from custody by striking language ordering the State to "conduct a new trial" within ninety days of the Opinion and Order, and substituting it with language ordering the State to "retry" Clark within ninety days of the Opinion and Order. This seemingly minor alteration would allow the State to keep Clark imprisoned as long as her case remains on the trial calendar. For the reasons set forth below, the State's request for a stay is granted — on the condition that all parties agree to an expedited appeal — and the State's motion to amend the judgment is denied.
Clark v. Perez, No. 05 Civ. 698, 2006 WL 2708412 (S.D.N.Y. Sept. 21, 2006) (hereinafter "Opinion and Order").
Respondents' Memorandum of Law in Support of Motion to Stay the Judgment and Alternately to Amend the Judgment ("Resp. Mem.") at 13-14.
II. APPLICABLE LAW
Where a prisoner has successfully petitioned for a writ of habeas corpus and appellate review of her petition is pending, there is a strong presumption in favor of releasing her from confinement. This presumption "may be overcome" if a request to stay the decision is made and "`stay factors' tip the balance against it." The Supreme Court laid out these factors in Hilton v. Braunskill; they include the "traditional" stay factors that apply to all civil cases, as well as factors that are unique to the habeas context.
See Fed.R.App.P. 23(c) ("Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his own recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order."); Hilton v. Braunskill, 481 U.S. 770, 774 (1987) ("Rule 23(c) undoubtedly creates a presumption of release from custody in [habeas] cases.").
Hilton, 481 U.S. at 777.
Id. at 776-77.
The traditional criteria regulating whether a stay of a district court decision should be granted pending appeal are: (1) likelihood of appellant's success on the merits; (2) irreparable injury to the party requesting a stay if one is not issued; (3) substantial injury to the party opposing the stay if one is issued; and (4) the public interests that may be affected.
See Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir. 2002) (citing Hilton, 481 U.S. at 776).
The Hilton Court acknowledged the chameleon-like quality of these factors, noting that they will necessarily vary from case to case: "Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a rigid set of rules." For example, where a request is made to stay the granting of habeas relief, the following considerations should be taken into account:
the possibility of flight should be taken into consideration. . . . [I]f the State establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may [also] take that factor into consideration in determining whether or not to enlarge h[er]. The State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered; it will be strongest where the remaining portion of the sentence to be served is long, and weakest where there is little of the sentence remaining to be served.
Hilton, 481 U.S. at 777.
Finally, the Second Circuit has endorsed a sliding scale approach to weighing the first traditional factor. In considering whether a party requesting a stay is likely to succeed on the merits, "[t]he necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other [stay] factors." In other words, if enough factors weigh in favor of a stay, one may be appropriate even where the party requesting it has failed to demonstrate a likelihood of success on the merits. "Simply stated, more of one excuses less of the other."
See Mohammed, 309 F.3d at 101.
Id. (finding "considerable merit" in how this method has been used by the District of Columbia Circuit) (citation and quotation marks omitted). Accord Washington Metro. Area Transit Comm'n v. Holiday Tours Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
Mohammed, 309 F.3d at 101 (citation and quotation marks omitted).
III. DISCUSSION
A. Likelihood of Success on the Merits
The State's submissions present the same arguments on the merits that I rejected in my previous Opinion and Order. They are no more convincing now than they were then. Notwithstanding the State's "`less than a likelihood'" of success on the merits, a stay is warranted here because other factors weigh so heavily in its favor.
See Resp. Mem. at 3-6.
Mohammed, 309 F.3d at 101 (quoting Dubose v. Pierce, 761 F.2d 913, 920 (2d Cir. 1985)). See also id. (noting that stays can issue "where the likelihood of success is not high but the balance of hardships favors the applicant," or where "[t]he probability of success is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay") (citations omitted).
The peculiar circumstances of Clark's trial raise an important Sixth Amendment issue that goes to the merits of her habeas petition: whether a pro se defendant's right to counsel is violated where the defendant is not present at the proceedings, either by choice or at the court's direction based on her inappropriate conduct, and there is no one else present in the courtroom to represent her interests ( e.g. standby counsel or court appointed counsel) throughout the prosecution's entire case. The gravity of this constitutional question, together with the fact that it has never been directly addressed by the Second Circuit, tip the scales in favor of staying the judgment. Justice Ruth Bader Ginsburg underscored the significance of these considerations in Doe v. Gonzales, where she declined to vacate a stay of a district court judgment that was pending review by the Second Circuit. In Doe, the district court found a provision of the Patriot Act unconstitutional as applied to the facts of the case. Under those circumstances, "the character of the constitutional issue presented and the expedited [appeals] schedule" favored keeping the stay in effect. Moreover, a stay was appropriate because "[r]espect for the assessment of the Court of Appeals is especially warranted [where an appeal is] proceeding . . . with due expedition." Justice Ginsburg's analysis is certainly applicable here, in light of both the constitutional question Clark raises and the State's declared "inten[tion] to file [its] appeal as expeditiously as possible."
See, i.e., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2002) (holding that certificates of appealability may issue in a habeas case where "the questions themselves are adequate to deserve encouragement to proceed further," even if a petitioner has not shown a likelihood of prevailing on the merits).
See Doe v. Gonzales, 126 S. Ct. 1, 4 (2005).
See id. at 1.
Id. Other factors tilting in favor of a stay in Doe included irreparable harm and injury to the public interest. Id. at 3.
Id. at 4. In Doe, the district court had "stayed its ruling [granting injunctive relief] to give the Government the opportunity to file an expedited appeal," which the Court of Appeals granted. Id. (citation omitted).
Respondents' Reply Memorandum of Law in Support of Motion for a Stay of Proceedings to Enforce the Judgment and, Alternately, to Amend the Judgment ("Resp. Reply Mem.") at 1.
B. Interest in Continued Custody
Another factor weighing in favor of a stay is the State's interest in Clark's continued confinement. The strength of this interest lies not in any danger of additional violence or likelihood of flight, but in the length of her remaining sentence. Clark was sentenced to three consecutive indeterminate terms of twenty-five years to life. Assuming she serves the minimum, Clark still has fifty years left in custody. In itself, the sheer length of her remaining sentence militates against releasing her pending appeal. Nor is there any indication that granting a stay will cause Clark substantial harm. She has already served twenty-five years in custody and has yet to request bail pending appeal. Clark maintains that she will only request bail "if there is an unnecessary delay in bringing her to trial in State court" and that her "chief interest is in expeditious consideration of the appeal" to ensure a prompt return of this matter to state court for retrial.
The State asserts, without any apparent basis, that Clark's release could cause irreparable injury because she may still belong to "notoriously political" groups that advocate violence, such as the Black Liberation Army or the Weathermen. Resp. Mem. at 11-12. The only evidence in the record suggests the opposite. See Petitioner's Memorandum of Law in Opposition to Motion to Stay the Judgment and Alternatively to Amend the Judgment ("Pet. Mem.") at 12-15 (discussing in detail Clark's repudiation of violence and casting doubt on the present-day existence of these groups).
Pet. Mem. at 1-2.
IV. CONCLUSION
For the reasons set forth above, the State's motion to stay this Court's judgment is granted on the condition that the parties agree to an expedited appeal, and the State's motion to amend the judgment is denied. The State must conduct a new trial within ninety days of the final judgment on Clark's petition or release her from confinement. The Clerk of the Court is directed to close this motion [Docket No. 17].
SO ORDERED: