The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge
This is a petition for the writ of habeas corpus under 28 U.S.C. § 2254; the petitioner is presently incarcerated on death row. The court granted in part and denied in part petitioner's motion for summary judgment, and granted petitioner a conditional writ of habeas corpus which would result in the vacation of his conviction and sentence unless the State of Tennessee commenced a new trial against him within 180 days after the judgment became final. The respondent filed a timely notice of appeal together with a motion to stay enforcement of the court's judgment pending appeal.*fn1 Petitioner filed a notice of cross appeal and, in response to the motion for stay, a motion for release from custody pending appeal.
The court conducted a hearing on the pending motions on February 28, 2008, during which the court heard the testimony of witnesses and oral argument by counsel for the parties. The court took the matter under advisement and gave the parties until March 10, 2008 to file simultaneous briefs on the issues discussed during the hearing. The court was also informed during the hearing that the United States Court of Appeals for the Sixth Circuit had granted the respondent's motion for an expedited appeal; the court has recently been informed that oral argument on the respondent's appeal has been scheduled for April 30, 2008. For the following reasons, and on the conditions set forth below, both respondent's motion for stay and petitioner's motion for release from custody pending appeal will be GRANTED.
This court's grant of a conditional writ was consistent with the federal practice to "delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court." Hilton v. Braunskill, 481 U.S. 770, 777 (1987). Nevertheless, Rule 23(c) of the Federal Rules of Appellate Procedure provides that, while a decision ordering the release of a prisoner is on appeal, "the prisoner must -- unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise -- be released on personal recognizance, with or without surety." There is, therefore, a "presumption in favor of enlargement of the petitioner with or without surety, but it may be overcome if the traditional stay factors tip the balance against it." Hilton, 481 U.S. at 777.
In Hilton, the Supreme Court held that a federal court should consider the following factors in deciding whether to stay an order granting habeas corpus relief 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. at 776. The State concedes that it bears the burden of proof on its motion to stay.
A federal court should also take into consideration "the possibility of flight" and may consider the risk that petitioner may "pose a danger to the public if released." Id. at 777. A court may also consider the interest of the State in "continuing custody and rehabilitation pending a final determination of the case on appeal ...; 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.
The ultimate determination "may depend to a large extent upon determination of the State's prospects of success in its appeal." Id. at 778. "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 State will be irreparably injured absent a stay and the public interest counsels in favor of a stay. Id. If the State fails to make such a showing, the stay should be denied. Id.
In its motion to stay, the State contends that there is a reasonable likelihood it will prevail on appeal, given what it considers to be deficiencies in this court's analysis of petitioner's motion for summary judgment. The court disagrees. The court found that petitioner is entitled to a new trial on all the evidence, a decision not inconsistent with the opinion of the Supreme Court. See House v. Bell, 126 S.Ct. 2064, 2086 (2006) ("[T]his is the rare case where - had the jury heard all the conflicting testimony - it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt."). In addition, it appears that the State now concedes as much, as evidenced by the comment of the State's attorney during the hearing on the motions to stay and for release: "So, I guess, our position is that are we able to stand before you and say that there is substantial likelihood that we're going to prevail, probably not, ...." [Court File No. 358, Transcript of Motion Hearing, p. 6].
The State also contends that it risks irreparable harm absent a stay, given the fact that petitioner is facing a death sentence. The State stresses its interest and that of the public in the finality of its criminal judgments. This court is keenly aware that the State of Tennessee and its citizens have a strong interest in enforcing its criminal judgments and in defending the integrity of its judicial system. "Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them." McCleskey v. Zant, 499 U.S. 467, 491 (1991).
Nevertheless, there is a competing interest which the court must consider. While the public has an interest in having the State's judgments enforced, the public also has a compelling interest in the State not continuing to incarcerate individuals who have not been accorded their constitutional right to a fair trial. Citizens will not have confidence in the criminal justice system unless they are convinced that the system is compliant with constitutional norms. The federal writ of habeas corpus monitors the State's compliance with constitutional law; this, in turn, inspires the public's confidence in the criminal justice system.
The State of Tennessee does not have a defensible interest in the continued incarceration of an individual whose conviction was obtained in violation of the U.S. Constitution. The petitioner in this case has been incarcerated for 22 years as the result of a trial which this court, as well as the Supreme ...