Opinion
Case Number: 04-72365.
November 19, 2007
ORDER GRANTING RESPONDENT'S MOTION FOR STAY PENDING APPEAL [27]
Petitioner, Stephen Fleming, is a state inmate currently incarcerated by the State of Michigan, pursuant to a conviction for second-degree murder and felony firearm. On September 28, 2007, this Court issued an opinion and order granting Petitioner's request for a writ of habeas corpus. The Court directed Respondent to release Petitioner from custody or institute proceedings to retry him within ninety days of the date of the order. Respondent has filed a motion to stay the order pending appeal. Petitioner has responded.
Federal Rule of Appellate Procedure 23(c) provides that, while a decision ordering the release of a prisoner is on appeal, "the prisoner must — unless the court or judge ordering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise — be released on personal recognizance, with or without surety." The United States Supreme Court has held that a federal court should consider the following factors in deciding whether to stay an order granting habeas corpus relief pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
A federal court may also consider "[t]he State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal . . .; 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." Id. at 777. Petitioner's sentence is life years imprisonment for the second-degree murder conviction, to be served consecutively to two years imprisonment for the felony-firearm conviction, and much of it remains to be served.
With respect to the remaining Hilton factors, the Court notes that Petitioner may be injured by his continued confinement pursuant to a conviction this Court has found to be constitutionally infirm. On the other hand, it would be a waste of judicial resources for the appeal to proceed in the Sixth Circuit Court of Appeals, while simultaneously requiring the State to retry Petitioner.
Considering the factors enumerated in Hilton, the Court holds that a stay pending appeal is appropriate in this case.
Accordingly, IT IS ORDERED that Respondent's Motion for Stay Pending Appeal is GRANTED and this Court's Opinion and Order Granting Petitioner's Request for Habeas Corpus Relief is STAYED PENDING DISPOSITION OF THE APPEAL pending in the United States Court of Appeals for the Sixth Circuit. The Court grants the stay without prejudice to Petitioner's right to request reconsideration at a later date or to file a motion for bond pending appeal.
IT IS FURTHER ORDERED that, unless a new trial is scheduled within SIXTY (60) DAYS of the issuance of the mandate by the Sixth Circuit Court of Appeals, Petitioner must be unconditionally released.