United States District Court, E.D. California
LAWRENCE K. KARLTON, District Judge.
By order filed June 27, 2014 (ECF No. 114), this court granted petitioner's amended application for writ of habeas corpus and directed respondent to release petitioner from custody until within sixty days from the date of the order unless the State of California elected to retry him. Judgment was entered on the same day (ECF No. 115). On July 21, 2014, respondent filed a notice of appeal (ECF 117) and a motion for stay pending appeal or, in the alternative, for a temporary stay, of the June 27, 2014 order (ECF No. 116). Petitioner opposes the motion and respondent has filed a reply. The parties have agreed to submit the motion for stay on the papers. On August 27, 2014, petitioner filed a motion for release, which has not been fully briefed.
In reply to the motion for stay, respondent represents that prosecutors have determined that petitioner will be retried if the appeal is unsuccessful and that they are ready to begin the retrial if necessary. Thus, two separate questions are presented by respondent's motion: first, whether petitioner's retrial should take place during the pendency of his appeal; and second, whether petitioner should be released from custody while the appeal is pending. The latter issue is also tendered by petitioner's motion for release.
It is presumed that a successful habeas petitioner will be released from custody pending appeal. See Hilton v. Braunskill , 481 U.S. 770, 774 (1987); see also Fed.R.Civ.P. 23(c). The presumption "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 , 481 U.S. at 777). The court considers the following factors:
(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. "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 934-45 (citing Hilton , 481 U.S. at 778).
Respondent advances both legal and factual arguments in support of her motion for stay. The court finds that respondent has not made a strong showing that she is likely to succeed on the merits of her legal argument that petitioner's Batson claim should be governed by the deferential standard of review under the Antiterrorism and Effective Death Penalty Act (AEDPA), rather than the de novo review required by the United States Court of Appeals for the Ninth Circuit and applied by this court. The factual questions on appeal are vigorously contested by the parties, and this court cannot find that respondent has made a "strong showing" that she is likely to prevail on the merits of her factual arguments on appeal.
Petitioner, who filed his opposition apparently before respondent decided that petitioner would be retried if the appeal was unsuccessful, has not argued that a delay of the retrial will cause him substantial harm. It appears to this court that the interest of the parties and the public interest are all served by delaying any retrial until the conclusion of respondent's appeal. Accordingly, respondent's motion to stay will be granted as to the requirement that retrial proceedings be commenced within sixty days.
The question of whether petitioner should be released pending appeal is a closer question. In addition to the traditional factors outlined above, the court should consider whether petitioner poses a possible flight risk or danger to the public. Hilton , 481 U.S. at 777. In addition, "[t]he 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." Id.
Petitioner, who is now thirty-six years old, has been in prison on the commitment offenses for eighteen years. He was, however, sentenced to life in prison without the possibility of parole for a special circumstance murder and life with the possibility of parole on two counts of attempted murder. While this factor, without more, might weigh in favor of staying petitioner's release, with his opposition to the motion for stay petitioner has presented substantial evidence that might favor supervised release pending appeal.
After review of the record, and good cause appearing, this matter will be referred to the Pretrial Services Department of this court for a report and recommendation on whether petitioner is an appropriate candidate for supervised release pending appeal and conditions of such release, if appropriate. Petitioner's release will be stayed pending the filing of that report.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent's July 21, 2014 motion for a stay is granted in part;
2. Retrial of petitioner is stayed during the pendency of respondent's appeal from the judgment entered in this action. If the appeal is unsuccessful, the State of California shall have thirty (30) days from the date the appellate ...