United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART REQUEST
FOR STAY RE: ECF NO. 38
TIGAR United States District Judge.
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.
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
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.
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).
Likelihood of Success on the Merits
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.
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
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 ...