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FRANKLIN v. DUNCAN

June 15, 1995

GEORGE THOMAS FRANKLIN, Petitioner,
v.
WILLIAM DUNCAN, Warden, Respondent.



The opinion of the court was delivered by: D. LOWELL JENSEN

 On May 3, 1995, the Court heard arguments on respondent's ("the State's) motion for a stay pending appeal and petitioner George Thomas Franklin's motion for release pending appeal. Dennis P. Riordan of Riordan & Rosenthal appeared on behalf of petitioner. Deputy Attorney General Bruce Ortega appeared on behalf of respondent. Having considered the arguments of counsel, the papers submitted, the applicable law, and the entire record herein, the Court GRANTS a stay pending appeal. During the pendency of appeal, however, the Court ORDERS Franklin released upon his posting surety in the amount of $ 1,000,000 and agreeing to follow the Court's conditions of release.

 I. BACKGROUND

 On April 4, 1995, this Court issued an order granting Franklin's petition for a writ of habeas corpus, and ordering his retrial or release within 90 days. The Court held that three federal constitutional violations had a substantial and injurious effect on the jury's verdict, and that therefore the verdict was the product of a trial that was not fundamentally fair. The state has now filed a notice of appeal and seeks a stay of the Court's order to permit Ninth Circuit review. Pursuant to Federal Rule of Appellate Procedure 23(c), petitioner moves for release on his own recognizance or on a signature bond during the pendency of appeal.

 II. DISCUSSION

 A. Legal Standard

 Federal Rule of Appellate Procedure 23(c) provides that

 
Pending review of a decision ordering the release of a prisoner in such a [habeas corpus] proceeding, the prisoner shall be enlarged upon the prisoner's 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. *fn1"

 The district court retains jurisdiction to issue orders regarding the custody or enlargement of a petitioner even after an appeal has been taken from the order granting or denying habeas corpus relief. Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). Rule 23(c) specifically refers the decision whether to release a successful habeas petitioner pending appeal to either the district court granting the petition, the court of appeals, or the Supreme Court.

 As the State concedes, Rule 23(c) creates a presumption of release from custody. That presumption, however, may be overcome if the judge rendering the decision "otherwise orders." Hilton v. Braunskill, 481 U.S. 770, 774, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987) quoting Rule 23(c)). The Supreme Court has indicated that a district court has broad discretion in conditioning a judgment granting habeas relief, including whether or not to release the prisoner pending appeal. Id. at 775. Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters "as law and justice require."

 In Hilton, the Supreme Court sets forth the factors for a district court to consider in determining whether or not to stay its decision or release a successful habeas petitioner pending appeal. The Court portrays the questions whether to stay the decision granting habeas corpus and whether to release the prisoner pending appeal as mirror images of each other. See id. at 775-76 ("[A] court's denial of enlargement to a successful habeas petitioner pending review of the order granting habeas relief has the same effect as the court's issuance of a stay of that order."). *fn2" Accordingly, the Court concludes that the general standards governing stays of civil judgments, as well as the language of Rule 23(c) itself, should guide courts when they must decide whether to release a habeas petitioner pending the State's appeal. Id. at 776-77. These factors are (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. Id. at 776. *fn3"

 As part of this analysis, the Supreme Court has indicated that it is appropriate to consider danger to the public, risk of flight, and the state's interest in continuing custody and rehabilitation in determining whether to release a successful habeas petitioner pending appeal. Id. at 777. *fn4"

 B. Analysis

 1. Likelihood of Success on ...


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