Opinion
CIVIL NO. 95-0446-S-EJL,
May 4, 2000
ORDER ON MOTION FOR STAY OF JUDGEMENT
On March 14, 2000, the Court entered an order and judgment granting the petitioner's Petition for Writ of Habeas Corpus on the claim of the prosecution's violation of Brady v. Maryland, 373 U.S. 83 (1963), pursuant to a remand from the Ninth Circuit Court of Appeals. The Court held that the petitioner had prevailed on his Brady claim; and found that, but for the prosecution's failure to provide material evidence to the petitioner, there was a reasonable probability that the result of the proceeding would have been different. The Court then ordered the respondents to initiate trial proceedings against the petitioner within 120 days or release him. The respondent has filed a Motion for Stay seeking the Court stay the March 14 order pending resolution of the appeal. The respondent filed a notice of appeal on April 10, 2000.
DISCUSSION
Federal Rule of Appellate Procedure 23(c) provides that, when the State appeals a decision granting a writ of habeas corpus, the habeas petitioner shall be released from custody "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." Rule 23(d) creates a presumption of correctness for a district court's order regarding custody, but the presumption may be overcome in the appellate court "for special reasons shown." The district court retains jurisdiction to issue orders regarding the custody or release of a petitioner even after an appeal has been taken. Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992); Franklin v. Duncan, 891 F. Supp. 516, 518 (N.D. Cal. 1995).
In Hilton v. Braunskill, 481 U.S. 770 (1987), the United States Supreme Court discussed the factors which a district court should consider in determining whether to stay its decision or release the state prisoner pending appeal of the order granting habeas relief. The general standards governing stays of civil judgments are the guide: 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; and 4) where the public interest lies. Id. at 776. The Supreme Court explained the balancing process:
[T]he possibility of flight should be taken into consideration. . . . We also think that, if the State established that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration. . . . 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.
The interest of the habeas petitioner in release pending appeal, always substantial, will be strongest where the factors mentioned in the preceding paragraph are weakest. The balance may depend to a large extent upon determination of the State's prospects of success in its appeal. Where the State established that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. [citations omitted] Where the State's showing on the merits falls below this level, the preference for release should control.Hilton, 481 U.S. at 777-78. The Supreme Court also noted that "a court has broad discretion in conditioning a judgment granting habeas relief." Id. at 775.
ANALYSIS 1. Likelihood of Success on the Merits
As stated in Hilton, where the State can demonstrate a strong likelihood of success on appeal, or a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. In the present case, the second and fourth factors favor continued custody and a stay of the order. The respondents allege there is a strong likelihood of success on the merits because the Court minimized the petitioner's burden of proving a Brady violation, and because a different conclusion regarding the prosecutor's notes was reached by the District Court in the co-defendant's case, Gibson v. Arave, 86-CV-123-S-BLW, Memorandum Decision and Order, pp. 29-30. In addition, the respondent alleges that the Court relied on the respondent to show that the notes were not material, in violation of the standard. Finally, the respondent states that the Court found that the notes, although material, were inadmissible but then failed to state how they would have benefitted the petitioner.
The petitioner alleges that the court of appeals has already found the petitioner had a colorable claim of actual innocence, has shown cause for not bringing the claim earlier and actual prejudice from the non-disclosure of the notes. In addition, the petitioner alleges that the court of appeals found that the medical evidence did not support the petitioner's conviction. Lastly, the petitioner argues that the court of appeals has already decided many of the issues of the case, and the Court properly complied with the narrow remand.
Following a lengthy evidentiary hearing, and briefing on this matter, this Court determined that the notes were material because there was a reasonable probability that had they been disclosed to the defense, the result of the proceeding would have been different. As such, the Court cannot say that the respondent has made "a strong showing that [it] is likely to succeed on the merits." However, this Court is aware that its initial conclusion concerning the notes, as well as the decision in Gibson v. Arave found there was no Brady violation. Based on these opposite conclusions, this Court finds that the respondent has met the lower standard of demonstrating "a substantial case on the merits."
2. Irreparable Injury to the respondents and the Public Interest
The petitioner argues that denying him release pending appeal will substantially injure him because he is being imprisoned under an unconstitutional conviction. Although the petitioner has a substantial interest in release, that interest is counter-balanced in this case by the risk of flight, danger to the public, and the State's interest in continuing custody. See Hilton, 481 U.S. at 777-78. The United States Supreme Court has stated:
[A] successful habeas petitioner is in a considerably less favorable position than a pretrial arrestee . . . to challenge his continued detention pending appeal. Unlike a pretrial arrestee, a state habeas petitioner has been adjudged guilty beyond a reasonable doubt by a judge or jury, and this adjudication of guilt has been upheld by the appellate courts of the State. Although the decision of a district court granting habeas relief will have held that the judgment of conviction is constitutionally infirm, that determination itself may be overturned on appeal before the State must retry the petitioner.Id. at 779. In the present case, the petitioner has a lengthy record, and is currently serving a life sentence without the possibility of parole. As a result, he could pose a substantial risk of flight because he has very little to lose, and everything to gain by fleeing. Prior to his incarceration, the petitioner had no ties to the community, which adds to the risk of flight. Moreover, because the petitioner's sentence is so severe, the respondent has a substantial interest in continuing to confine him. In addition, the petitioner admits involvement in disposing of the victim's body, and the respondent correctly argues that the State of Washington may have an interest in charging him in the death of the victim. In addition, the Court specifically held that it could not conclude that "the circumstantial evidence given at trial and/or the weight to be given to the credibility of witnesses is conclusively contradicted by the notes or the testimony given at the evidentiary hearing, or that a reasonable juror would necessarily find the petitioner not guilty of having killed Palmer in Idaho." Memorandum Decision and Order, filed March 14, 2000, p. 31. Therefore, the petitioner may face another guilty verdict upon retrial.
The Court concludes that the petitioner poses a danger to the public, and that the respondent would suffer irreparable injury absent a stay. The Court notes that a retrial will be extremely costly and time consuming for the State, and presents substantial difficulties due to the passage of time. "It makes little sense for the State to be required to immediately conduct a murder trial if there is any possibility that trial could be mooted by a reversal of this Court's order on appeal." Franklin, 891 F. Supp. at 520. "The public interest [also] favors a stay of retrial in that a possibly unnecessary retrial, with two verdicts, could contribute to a burden on the participants in the trial and lack of public confidence in the judicial system." Id. at 521.
While the respondent has not met the more stringent standard of "likelihood of success on the merits" it has met the lower standard of demonstrating "a substantial case on the merits" and that is all that is required. Weighing all the factors, the scales tip strongly in favor of continued custody and a stay of the order for release or retrial. See also Hernandez v. Dugger, 839 F. Supp. 849 (M.D. Fla. 1993) (granting stay of habeas relief pending appeal); Hakeem v. Beyer, 774 F. Supp. 276, 297 (D.N.J. 1991); Sailor v. Scully, 666 F. Supp. 50 (S.D.N.Y. 1987).
IT IS ORDERED
The respondent's Motion for Stay Pending Appeal (dkt. # 112) is GRANTED. The petitioner shall remain in custody and the respondent need not retry petitioner during the pendency of its appeal of the Court's March 14, 2000, order and judgment. If the appeal is unsuccessful, the respondent shall have 60 days after the issuance of the Ninth Circuit's mandate to initiate trial proceedings in state court or release the petitioner.