The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER GRANTING RESPONDENT'S APPLICATION FOR STAY PENDING APPEAL [Dkt. No. 24.]
On April 29, 2011, the Court issued an Order Granting in Part and Denying in Part Petition for Writ of Habeas Corpus. (Dkt. No. 20.) In the order, the Court denied the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment at the initial arraignment. (Id.) The Court granted the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment at his subsequent arraignments after the initial arraignment. (Id.) The Court directed Respondent to dismiss the counts added after the initial arraignment (counts 38-43 and 46-48) and resentence Petitioner, or initiate proceedings to retry Petitioner. (Id.)
On May 9, 2011, Respondent filed a notice of appeal. On May 13, 2011, Respondent filed an application for stay pending appeal in this Court. On May 25, 2011, Petitioner filed an opposition. Having reviewed the moving papers, the opposition and the applicable law, the Court GRANTS Respondent's application for stay pending appeal.
The factors to consider in determining whether to issue a stay of release pending appeal are set forth in Hilton v. Braunskill, 481 U.S. 770 (1987) (involving a state's motion for stay pending appeal of an order releasing a prisoner in connection with a successful petition for habeas corpus). The Supreme Court indicated that "general standards governing stays of civil judgments" should guide courts in considering such a request for a stay. Id. at 776. Thus, the court must consider the following factors in reaching its decision on a motion for stay 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." Id. "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." Franklin v. Duncan, 891 F. Supp. 516, 519 & n. 4 (N.D. Cal. 1995).
1. Likely to Succeed on the Merits
Respondent maintains that it will likely succeed on appeal because this Court granted relief in the absence of a finding that the state court had unreasonably applied precedent of the United States Supreme Court as required by § 2254(d)(1). Specifically, Respondent cites to a recent United States Supreme Court case, Harrington v. Richter, 131 S. Ct. 770 (Jan. 19, 2011), and argues that this Court relied on circuit court precedent and not United States Supreme Court precedent in making its determination. He argues that since Faretta v. California, 422 U.S. 806, 807 (1975)*fn1 is the clearly established Supreme Court precedent, the state court's decision was not an unreasonable application of Faretta.
Petitioner argues that Respondent's analysis incorrectly requires an exactly similar fact pattern as Petitioner's case. Petitioner contends that Supreme Court precedent allows for a conclusion that the Court reached.
Harrington discussed an analysis and application of 28 U.S.C. § 2254(d)(1) regarding whether a state court's decision was an "unreasonable application" of federal law. Harrington, 1331 S. Ct. at 785-87. It did not discuss the issue that Respondent raises, to what extent circuit authority may determine what is "clearly established" Supreme Court precedent. While Faretta is the Supreme Court authority on the Sixth Amendment right to counsel and the right to waive counsel so long as the waiver is knowing and intelligent, it and no other Supreme Court case has not addressed whether a waiver at an initial arraignment is valid at subsequent arraignments where charges are added. The Court concludes there are valid issues as to what extent circuit authority may determine what is "clearly established" Supreme Court precedent. Respondent has not shown a likelihood of success on the merits. However, the Court concludes that this factor favors neither party.
2. Irreparable Injury to the State
Respondent argues that there will be irreparable injury to the State if the stay is denied. He argues that if the stay is denied, the prosecution will be required to expend substantial effort and use of public resources to locate witnesses and exhibits since the crime was committed more than seven years ago. If the appeal is decided in its favor, then the prosecution will be released from the burden of a new trial. Petitioner contends that there is no irreparable injury to the state because a stay will only further lengthen the time elapsed since the crime.
One district court reasoned that "[i]t makes little sense for the States to be required to immediately conduct a murder trial if there is any possibility the trial could be mooted by a reversal of this Court's order on appeal." Franklin, 891 F. Supp. at 520. The Court concludes that Respondent will be irreparably injured if the stay is not granted. If a retrial is to occur, the state's scarce resources may unnecessarily be expended to locate witnesses and evidence regarding a crime that occurred about seven years ago. Therefore, this factor weighs in favor of granting a stay.
3. Substantial Injury to Petitioner
Respondent contends that the stay will not substantially injure Petitioner as he would remain in custody pending retrial in light of a high bail. Petitioner argues that Respondent's arguments apply if they "win" on appeal and the statement that Petitioner will be in custody anyhow is mere speculation by Respondent. He claims that he had witnesses and ...