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Alford v. Lizarraga

United States District Court, N.D. California

August 10, 2016

JOE A. LIZARRAGA, Defendant.


          JON S. TIGAR United States District Judge.

         Before the Court is the state’s request to stay the Court’s order granting Petitioner David Alford’s petition for writ of habeas corpus and requiring the state to either release the Petitioner or reinstate criminal proceedings against him within 90 days. ECF No. 38; see also ECF No. 36. Petitioner has not filed an opposition. For the reasons stated below, the request is granted in part and denied in part. The state’s request to stay the requirement to reinstate criminal proceedings pending its appeal is granted. However, its request to stay the requirement to release Petitioner from custody is denied.

         I. BACKGROUND

         On May 31, 2016, this Court granted Petitioner’s petition for a writ of habeas corpus. ECF No. 33. Petitioner was convicted of second degree murder in March of 2011. Id. at 1. Though the state Court of Appeal acknowledged - and the state has never disputed - that there was a violation of Petitioner’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), the court also found that the error was harmless. Id. This Court concluded that holding was unreasonable, and granted the habeas corpus petition. See id.

         On July 11, 2016, this Court ordered that the state “shall release petitioner from custody, unless the state commences proceedings to retry petitioner within 90 days of the date of entry of this judgment.” ECF No. 36. On July 18, 2016, the state filed an appeal with the United States Court of Appeals for the Ninth Circuit, and on the same day, requested a stay of this Court’s July 11 order pending the proceedings in their appeal. ECF Nos. 37, 38. Petitioner has not filed a response.


         Federal Rule of Appellate Procedure 23(c), which governs release on bail of state prisoners seeking habeas corpus relief, “creates a presumption that a prisoner who has received habeas relief is entitled to release from custody.” Hilton v. Braunskill, 481 U.S. 770, 774 (1987). However, the presumption may be overcome based on application of 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.

Id. at 776. The question of whether to stay the decision granting habeas corpus and whether to release the prisoner pending appeal may be treated as “mirror images of each other.” Franklin v. Duncan, 891 F.Supp. 516, 518 (N.D. Cal 1995).

         III. ANALYSIS

         A. Likelihood of Success on the Merits

         In Hilton, the Supreme Court explained that “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.” Hilton, 481 U.S. at 778.

         The state offers two arguments as to why it is strongly likely to succeed on appeal. First, it contends that this Court has “misunderstood the standard of review for prejudice to be applied by federal courts on habeas review.” ECF No. 38 at 3. As proof, it points to this Court’s failure to cite to Harrington v. Richter, 562 U.S. 86 (2011), but merely failing to cite a particular case does not render a standard of review analysis faulty. Douglas v. Singh, No. C-11-5370 EMC, 2013 WL 2645175, at *2 (N.D. Cal. June 12, 2013) (“[T]he fact that the Court did not specifically cite Harrington v. Richter . . . does not mean that the Court did not properly understand what unreasonableness means for purposes of AEDPA.”). Though the state goes on to cite additional law regarding the proper standard of review for habeas cases, it does not explain why this Court’s recitation of that same standard was inaccurate.

         The state also argues that the Court misunderstood the standard of review concerning its treatment of Chapman v. California, 386 U.S. 18 (1967) and Brecht v. Abrahamson, 507 U.S. 619 (1993). ECF No. 38 at 3. It points to this Court’s reference to the Brecht standard, which is the standard of review for federal habeas review, when referring to the state court decision, and argues that the Court should have been referring to the Chapman standard instead. Id. Once again, however, the state does not engage with the Court’s explanation of this process - namely, that under Davis v. Ayala, 135 S.Ct. 2187, 2197-98 (2015), “the Brecht standard ‘subsumes’ the requirements that § 2254(d) imposes when a federal habeas petitioner contests a state court's determination that a constitutional error was harmless under Chapman.” While the state contends that Ayala stands for the proposition that the court conducts “review first of whether the state court’s Chapman analysis was reasonable, and, if not, a review of ...

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