Opinion
Civil No. 98-CV-74520-DT
December 6, 2002
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR IMMEDIATE RELEASE FROM CUSTODY
This matter is before the Court on Petitioner's motion for immediate release from custody. For the reasons stated below, the motion is DENIED.
I. BACKGROUND
The Court originally granted petitioner a writ of habeas corpus, on the basis that the state trial court gave the jury a supplemental instruction while petitioner's counsel was absent. French v. Jones, 41 F. Supp.2d 726 (E.D.Mich. 1999). On appeal, the United States Court of Appeals for the Sixth Circuit agreed with this Court's conclusions of law but remanded the matter back to this Court for an evidentiary hearing for the purpose of making a factual determination of the precise role that Mr. Ty Jones, the man present when the supplemental jury instruction was read to the jury, played in petitioner's defense. French v. Jones, 225 F.3d 658; 2000 WL 1033021 (6th Cir. July 18, 2000).At the evidentiary hearing, Mr. Jones testified that he was not a lawyer, a fact not contested by respondent. Petitioner's two attorneys of record acknowledged that they were absent when the trial court gave the jury the supplemental jury instruction. In light of the record presented from the state trial court concerning the re-instruction of the jury by the trial court, as well as the testimony presented at the evidentiary hearing, there was no evidence to show that petitioner was represented by counsel during this critical stage in the proceedings. Because counsel was absent from this critical stage of the proceedings, reversal of petitioner's conviction was automatic. This Court granted a conditional writ of habeas corpus to petitioner and further ordered that if the State of Michigan did not retry petitioner within ninety days, petitioner could move for immediate release. French v. Jones, 114 F. Supp.2d 638 (E.D.Mich. 2000).
Respondent appealed this Court's decision to the United States Court of Appeals for the Sixth Circuit and obtained a stay from that Court pending appeal. The Sixth Circuit ultimately affirmed this Court's order granting the petition for writ of habeas corpus on appeal. French v. Jones, 282 F.3d 893 (6th Cir. 2002). On June 3, 2002, the United States Supreme Court granted respondent's petition for writ of certiorari and remanded the matter to the Sixth Circuit for further proceedings in light of their decision in Bell v. Cone, 122 S.Ct. 1843 (2002). Jones v. French, 122 S.Ct. 2324 (2002). The case currently remains pending before the Sixth Circuit.
II. DISCUSSION
In the present case, petitioner is not entitled to immediate release, because he has failed to show that the respondent failed to comply with the Court's order. After this Court issued the conditional writ, Respondent filed a notice of appeal and obtained a stay of the writ from the Sixth Circuit. Because a stay was sought by respondent and granted within the 90 days, the respondent was "temporarily absolved of its duty to act pending resolution of its timely filed appeal", and the conditions which triggered the issuance of the writ by this Court were suspended. Burdine v. Johnson, 87 F. Supp.2d 711, 716 (S.D.Tex. 2000). In light of the stay issued by the Sixth Circuit Court of Appeals, it was implicit in this Court's order which conditionally granted the writ of habeas corpus that the 90-day time limit for retrying petitioner would not commence to run until the filing of the Court of Appeals' mandate. United States ex. rel. Oliver v. Vincent, 498 F.2d 340, 346, fn. 13 (2nd Cir. 1974). Moreover, after the Sixth Circuit affirmed this Court's decision, respondent filed a petition for writ of certiorari with the United States Supreme Court. It would be unreasonable for this Court to release petitioner, or to require the State of Michigan to try him again, before the United States Supreme Court had acted on the State's petition. See In Re Stumes, 681 F.2d 524, 525 (8th Cir. 1982). The U.S. Supreme Court granted respondent's petition for writ of certiorari and remanded the matter back to the Sixth Circuit for further review, where respondent's appeal remains pending. This Court concludes that any ninety day time limit for retrying petitioner would not commence until the Sixth Circuit issues its mandate in this case on remand.
III. ORDER
IT IS HEREBY ORDERED that the motion for immediate release from custody is DENIED.