The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Request to Stay Order Granting Writ of Habeas Corpus Pending Resolution of Appeal, filed by Respondent. (ECF No. 59).
On March 9, 2011, the Court issued an Order which stated:
[T]he First Amended Petition for Writ of Habeas Corpus (ECF No. 15) is conditionally GRANTED as to the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment and Faretta [v. California, 422 U.S. 806 (1975)]. No later than sixty (60) days from the date this Order is filed, Respondent shall dismiss the charges against Petitioner and release Petitioner from custody, or initiate proceedings to retry Petitioner. (ECF No.53).
On April 15, 2011, Respondent filed the Request to Stay Order Granting Writ of Habeas Corpus Pending Resolution of Appeal. (ECF No. 59). Respondent states: "Pursuant to Rule 8(a) of the Federal Rules of Appellate Procedure, Respondent (State) hereby requests that this Court stay the Order Granting in Part Petition for Writ of Habeas Corpus pending the resolution of the State's appeal to the United States Court of Appeals for the Ninth Circuit." Id. at 1.
DISCUSSION "[A] district court retains jurisdiction to issue orders regarding the custody or enlargement of a [habeas corpus] petitioner even after an appeal has been taken." Stein v. Wood, 127 F.3d 1187, 1190 (9th Cir. 1997) (citation omitted). "This is not a case where the district court would be deciding the same issues before the appeals court. The district court is merely deciding whether a condition placed on a habeas petitioner's custody has been met." Id. "[C]onditional orders are essentially accommodations accorded to the state, in that conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one. The consequence when the State fails to replace an invalid judgment with a valid one is always release." Harvest v. Castro, 531 F.3d 737, 742 (9th Cir. 2008) (quotations omitted). "[W]hen the State fails to cure the constitutional error, i.e., when it fails to comply with the order's conditions, and it has not demonstrated that it deserves relief from the judgment under [Federal] Rule [of Civil Procedure] 60 or the other mechanisms provided for in the Rules, the conditional grant of habeas corpus requires the petitioner's release from custody." Id. at 750; see also Fed. R. App. P 23(c) ("While a decision ordering the release of a prisoner is under review, the prisoner must--unless the court or judge rendering 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.").
Federal Rule of Appellate Procedure 8 provides: "A party must ordinarily move first in the district court for ... a stay of the judgment or order of a district court pending appeal...." Fed. R. App. P. 8(a)(1); see also Fed. R. Civ. P. 62(c) ("While an appeal is pending from a ... final judgment that grants ... an injunction, the court may suspend, modify ... or grant an injunction on terms for bond or other terms that secure the opposing party's rights."). "Although there is a 'presumption of release from custody' of a successful habeas petitioner pending appeal, 'it may be overcome if the traditional stay factors tip the balance against it.'" Haggard v. Curry, 631 F.3d 931, 934 (9th Cir. 2010) (quoting Hilton v. Braunskill, 481 U.S. 770, 774, 777 (1987); citing Fed. R. App. P. 23(c)). Under both Federal Rule of Appellate Procedure 8(a) and Federal Rule of Civil Procedure 62(c), "the factors regulating the issuance of a stay are generally the same":
(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, 481 U.S. at 776 (citations omitted). "The most important factor is the first, that is, whether the state has made a strong showing of likely success on the merits of its appeal of the district court's decision." Haggard, 631 F.3d at 935 (citing Hilton, 481 U.S.778).
Respondent contends that each of the four factors weighs in favor of staying this Court's March 9, 2011 Order requiring Respondent to release Petitioner or initiate proceedings to retry Petitioner within sixty days. Respondent contends that "[t]he State is likely to succeed on appeal because ... the United States Supreme Court has never [held] that misinformation as to the maximum possible penalty invalidates a waiver of counsel." (ECF No. 59 at 3). Respondent contends: "[T]he prosecution will be irreparably injured if it is forced to retry the case at this point, when the original state court judgment is likely to be vindicated on appeal"; "there is no prejudice to [Petitioner] from delaying a retrial in order to resolve the State's appeal of this Court's order" because "[t]he evidence against petitioner is overwhelming"; and "[t]he public clearly has a strong interest in permitting the appeal to be resolved before commencing a costly expenditure of finite State resources on a retrial that may prove to be unwarranted if the state prevails on appeal." Id. at 6.
The Court has considered the Hilton factors as applied to this case. For the reasons stated in the Report and Recommendation (ECF No. 48) and the March 9, 2011 Order (ECF No. 53), the Court does not find that there is "substantial likelihood of success on appeal," although Respondent has demonstrated a "substantial case on the merits." Hilton, 481 U.S. at 778 ("Where the State establishes 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."). Respondent has a substantial interest in "continuing custody and rehabilitation pending a final determination of the case on appeal" given the remaining portion of the sentence to be served by Petitioner is lengthy. Id. at 777 ("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.").
Respondent's showing of "irreparable injury"-i.e., that the State will be "forced to retry the case at this point, when the original state court judgment is likely to be vindicated on appeal" (ECF No. 59 at 6)-could be argued in any habeas proceeding when a district court's decision ordering release or a new trial is appealed. The Court finds that this factor does not weigh strongly in favor of overcoming the "'presumption of release from custody' of a successful habeas petitioner pending appeal." Haggard, 631 F.3d at 934 (quoting Hilton, 481 U.S. at 774; citing Fed. R. App. P. 23(c)). Petitioner's "interest ... in release pending appeal" is "always substantial." Hilton, 481 U.S. at 777. The public interest in preserving State resources on a retrial which may prove unnecessary weighs in favor of a stay.
After weighing the relevant factors, the Court finds that Respondent has failed to overcome the "presumption of release from custody" by showing that "the traditional stay factors tip the balance against [the presumption of release]." Haggard, 623 F.3d at 1039 (quotations omitted). Accordingly, the request to stay the March 9, 2011 Order for the entire duration of the appeal is denied. However, Respondent has made a sufficient showing as to the Hilton factors to warrant granting Respondent a stay of sixty days to ...