KIMBERLY J. MUELLER, District Judge.
Respondent's motion to stay pending appeal is before the court. (ECF 176.) Respondent requests in the alternative a temporary stay to allow him to seek a stay from the Ninth Circuit. The court has decided the motion without a hearing. For the reasons below, the court DENIES respondent's motion for a stay pending appeal but GRANTS respondent's request for a temporary stay.
In 1989, petitioner was convicted of the following: two counts of first-degree murder, with special findings that the murders were willful and premeditated and committed during the course of a robbery; and one count each of robbery, escape, and kidnapping. A jury imposed the death penalty.
After his conviction, petitioner filed state and federal habeas petitions in which he contended, among other things, that state prosecutor Gerald Flanagan violated petitioner's Fourteenth Amendment rights under Batson v. Kentucky, 476 U.S. 79 (1986), when Flanagan peremptorily struck the sole African-American juror in the venire. The California Supreme Court denied petitioner's state petitions, which included his Batson claim, by affirming the trial court's decision in a "postcard denial." Crittenden v. Ayers, 624 F.3d 943, 946, 949 (9th Cir. 2010). The California Supreme Court held the record supported the trial court's conclusion that petitioner did not establish a prima facie case under Batson. Id. at 952. The magistrate judge assigned to petitioner's federal petition issued the first Findings and Recommendations in this case, in two volumes in 1999 and 2000. ( See 2002 Mem. & Order, ECF 89.) The district judge previously assigned to this case adopted in part and modified in part these Findings and Recommendations and ordered the magistrate judge to hold an evidentiary hearing based on petitioner's claim that the state courts' Batson decisions were erroneous. ( Id. ) At the hearing, Flanagan testified that he could not remember anything, fourteen years later, about jury selection in petitioner's case. Crittenden, 624 F.3d at 952. Flanagan based his answers on his views after reviewing the record, not on his memory. Id. In 2003, after hearing, the magistrate judge issued new Findings and Recommendations. (ECF 128.)
In 2005, the district judge modified some of the magistrate judge's findings but adopted the magistrate judge's recommendations and denied petitioner's Batson claim. (2005 Mem. & Order at 32, ECF 143.) The district judge held that the California Supreme Court's resolution of petitioner's Batson claim was contrary to established federal law under AEDPA, because the California Supreme Court required petitioner to meet a higher prima facie burden - a "strong likelihood" that Flanagan's strike was racially motivated - rather than the lesser burden of "raising an inference" of discriminatory purpose. Crittenden, 624 F.3d at 954. The district judge also considered Batson's three step analysis, and held, under Batson 's first and second steps, that petitioner made a prima facie showing of discrimination and that the state carried its burden of articulating a race-neutral justification for the peremptory strike. Id. However, the district judge denied the petition; engaging in mixed-motives analysis, he determined petitioner did not carry his burden at Batson 's third step because he did not demonstrate that race played a significant role in the prosecutor's strike of juror Casey and that the prosecutor would not have struck Casey had race played no role. Id. at 958.
On appeal, the Ninth Circuit affirmed most of the prior district judge's decision, but vacated his conclusion that petitioner did not prevail at Batson 's third step in light of the Ninth Circuit's decision in Cook v. LaMarque, 593 F.3d 801 (9th Cir. 2010), which had just come down. Id.
On remand, the prior district judge referred the matter back to the magistrate judge, who applied the Cook standard in the new Findings and Recommendations that this court has reviewed. The magistrate judge concluded that Flanagan's peremptory strike was motivated by "significant" but not "substantial" discriminatory intent. (F&R at 48.) On September 30, 2013, this court adopted in part these Findings and Recommendations, but ultimately granted the petition after concluding under Cook 's standard that Flanagan's peremptory strike of Casey was motivated in substantial part by race. (Order, ECF 173.) The court ordered the State to release petitioner unless it reinitiated criminal proceedings against him within 60 days. On October 23, 2013 the court on its own motion extended the deadline to reinitiate proceedings by 45 days. (ECF 179.)
Respondent filed the instant motion to stay pending appeal on October 17, 2013 (ECF 176), petitioner opposed on November 5, 2013 (ECF 180), and respondent replied on November 13, 2013 (ECF 181).
Federal Rule of Appellate Procedure 23(c) creates a presumption of release pending appeal when a petitioner has been granted habeas relief. O'Brien v. O'Laughlin, 557 U.S. 1301, 1301 (2009); see also Herrera v. Collins, 506 U.S. 390, 403 (1993) ("The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence."). This presumption may be overcome if a movant demonstrates that the traditional factors regulating the issuance of a stay weigh in favor of granting a stay. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). 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.
The first factor is the most important. Haggard v. Curry, 631 F.3d 931, 934-35 (9th Cir. 2010). However, "[w]here 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." Hilton, 481 U.S. at 778. "Where the State's showing on the merits falls below this level, the preference for release should control." Id.
A. Stay Pending Appeal
1. Success on the Merits
Respondent argues he has a strong likelihood of prevailing on appeal due to four errors this court made in its opinion granting habeas. After considering each argument, the court concludes that, although respondent is unlikely to prevail on appeal to the Ninth Circuit, he has some possibility of success.
a. Nonretroactivity under Teague
Respondent argues that relief in this case is barred by the nonretroactivity principles of Teague v. Lane, 489 U.S. 288 (1989). (ECF 176 at 3.) Respondent asserts that the Ninth Circuit's rejection of mixed-motives analysis was a new rule imposed on the State in violation of this nonretroactivity principle. ( Id. ) The rejection of mixed-motives is a new rule, respondent contends, because at the date of finality in this case the "question whether mixed-motives analysis was applicable in the Batson context was an open question. Indeed, it remained open in this Circuit until 2010 and is still an unresolved matter in the United States Supreme Court." ( Id. ) Respondent argues this court's conclusion that petitioner's requested relief is not barred by Teague, because Cook 's holding is "consistent" with Supreme Court precedent, is an incorrect Teague analysis. ( Id. (citing Butler v. McKellar, 494 U.S. 407, 415 (1990)).) In Butler, respondent asserts, the Supreme Court held the mere fact that a decision is within the "logical compass" of, or is controlled by, an earlier decision is not conclusive for purposes of whether a rule is new under Teague. ( Id. )
Petitioner counters that the Ninth Circuit, when it remanded this case instructing this court to apply the Cook standard, implicitly rejected respondent's Teague argument. Crittenden v. Ayers, 624 F.3d 943, 959 (2010). (ECF 180 at 3.) Petitioner also argues that the Cook court's refusal to adopt a rule never previously applied by the Ninth Circuit or the Supreme Court is not a "new rule." ( Id. at 4.)
This is the first time in this case this court has had the Teague issue directly before it; the assigned magistrate judge did not discuss Teague in the instant F&Rs, to which respondent did not file objections. Under Teague, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310. A rule is new for Teague purposes if it "breaks new ground, " "imposes a new obligation on the States or the Federal Government, " or "was not dictated by precedent existing at the time the defendant's conviction became final." Graham v. Collins, 506 U.S. 461, 467 (1993). "[A] new rule is one of procedure' if it impacts the operation of the criminal trial process, and a new rule is one of substance' if it alters the scope or modifies the applicability of a substantive criminal statute." Webster v. Woodford, 369 F.3d 1062, 1068 (9th Cir. 2004).
Respondent has some likelihood of succeeding on the merits of this argument. The 2010 Cook court's explicit rejection of mixed-motives, while consistent with precedent that existed at the time petitioner's conviction became final in 1995, arguably was not dictated by it. By 1995, neither the Supreme Court nor the Ninth Circuit had held that a court may not apply mixed-motives analysis at Batson 's third step. The Supreme Court recently stated that it is an open question whether mixed-motives analysis has a place in the Batson inquiry. Snyder v. Louisiana, 552 U.S. 472, 485 (2008) (noting the Court had not previously applied the mixed-motives rule in a Batson case, and that it "need not decide here whether that standard governs in this context").
In addition, at the time the Cook decision came down, five other circuit courts had adopted the mixed-motives approach. Cook, 593 F.3d at 814 (citing Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996) (per curiam); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir. 1995); United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir. 1995); Howard v. Senkowski, 986 F.2d 24, 27-30 (2d Cir. 1993)). Given this circuit support, there is a colorable argument that Teague 's "new rule" principle, which validates "reasonable, good-faith interpretations of existing precedents... even though they are shown to be contrary to later decisions, " bars the relief petitioner seeks here. Butler, 494 U.S. at 414.
However, as petitioner points out, the Ninth Circuit previously has implicitly rejected respondent's Teague argument, which respondent raised on appeal, when it remanded this case and instructed this court to consider only the very narrow question of whether petitioner met his burden under the Cook standard at Batson 's third step. See Crittenden, 624 F.3d at 959 ("We therefore leave it to the district court to make a step three determination in the first instance, unconstrained by its prior findings under the pre- Cook standard."). Moreover, the Cook court implicitly concluded that rejection of mixed-motives analysis was in fact dictated by precedent. See 593 F.3d at 814 (mixed-motives analysis was "contrary to the weight of Ninth Circuit and Supreme Court ...