Hernandez v. Dugger

• Decision Date: 08 December 1993
• Docket Number: No. 88-287-CIV-T-15A.,88-287-CIV-T-15A.
• Citation: 839 F. Supp. 849
• Parties: Herbert HERNANDEZ, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

839 F. Supp. 849

Herbert HERNANDEZ, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.

No. 88-287-CIV-T-15A.

United States District Court, M.D. Florida, Tampa Division.

December 8, 1993.

James E. Felman and Stuart C. Markman of Kynes & Markman, Tampa, FL, for petitioner.

Carol M. Dittmar, Atty. General's Office, Tampa Crim. Div., Tampa, FL, for respondent.

ORDER GRANTING STAY PENDING APPEAL

MERRYDAY, District Judge.

Hernandez's petition for a writ of habeas corpus was conditionally granted and reconsideration was denied. Hernandez v. Dugger, 829 F.Supp. 372 (M.D.Fla.1992). The state seeks a stay pending appeal. For the reasons now explained, the stay is GRANTED.

Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), addresses discursively the right to manumission of a successful petitioner for the writ of habeas corpus. Hilton treats both the presumption favoring release in Rule 23(c), Federal Rules of Appellate Procedure, and the potentially countervailing factors routinely considered by a district court in resolving a motion for a stay in a civil appeal. As stated in Hilton:

Our decisions have consistently recognized that habeas corpus proceedings are civil in nature. See, e.g., Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 269, 98 S.Ct. 556, 563, 54 L.Ed.2d 521 (1978). It is therefore logical to conclude that the general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State's appeal; and such conclusion is quite consistent with the general language contained in Rules 23(c) and (d).

Different rules of procedure govern the power of district courts and courts of appeals to stay an order pending appeal. See Fed.Rule Civ.Proc. 62(c); Fed.Rule App. Proc. 8(a). Under both Rules, however, the factors regulating the issuance of a stay are generally the same: (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.

481 U.S. at 776, 107 S.Ct. at 2119, 95 L.Ed.2d at 732.

With these factors iterated, Hilton features both a useful elaboration and a crystallizing presumption or two, all of which inform a district court in helpful detail whether to enlarge a successful habeas corpus petitioner pending resort by the state to the court of appeals.¹

Hilton first dismissively regards the notion in Carter v. Rafferty, 781 F.2d 993 (3d Cir.1986), that "danger to the public" is an inadmissible consideration. Without deciding that every case is governed by perceived public danger, Hilton confirms that the district court's appraisal of evidence portraying the petitioner as a public menace, with either a history of, or a proclivity to commit, iniquitous crimes, is pertinent to a district court's consideration of release. This conforms peaceably with common sense, especially in a case presenting a "structural defect" within the meaning of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). For example, in this case, the writ issues because the state trial court refused Hernandez's request to testify. That refusal is a "structural defect," which, in turn, results in issuance of the writ of habeas corpus without the necessity of an evaluation by this court of Hernandez's actual guilt. The writ of habeas corpus in this case issues, as explained in the antecedent orders, not because the federal court finds Hernandez either innocent or guilty, but because no person is subject to criminal conviction in this country absent a fair and reasonable opportunity to testify and to press a claim of innocence to the jury. That aside, the state convicted Hernandez beyond a reasonable doubt of capital sexual offenses, for which he may well be accountable. The evidence was both vivid and ample to sustain the conviction; the evidence, in fact, was compelling.² For that reason, an admitted tension exists between the adjudication of guilt and issuance of the writ.

The evidence adduced at trial, considered both qualitatively and quantitatively, impels the mind to the conclusion that Hernandez, his right to testify notwithstanding, bears the evidentiary marks of a threat to the community. Hernandez has suffered a conviction for sexual crimes against children. The evidence at trial, admittedly considered without the benefit of Hernandez's unconstitutionally excluded testimony, is sufficient to justify resolving adversely to Hernandez the issue of whether he poses a threat to the public. Hilton states that "if the State establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration in determining whether or not to enlarge him." 481 U.S. at 777, 107 S.Ct. at 2120, 95 L.Ed.2d at 733. This court resolves that factor adversely to Hernandez.

The next consideration commended by Hilton is "the state's interest in continuing custody and rehabilitation . . .," a consideration which, stripped of euphemism, equates to whether a convicted, criminal defendant is best left in jail until everyone knows finally what is to happen to him. 481 U.S. at 77, 107 S.Ct. at 2120, 95 L.Ed.2d at 734. Presumably, the district court should evaluate the remaining term of imprisonment over against the state's likelihood of success on appeal. All agree that the remaining term of Hernandez's sentence is formidable — two consecutive terms of life imprisonment. To the extent that Florida is understood by the Supreme Court to enjoy an "interest" in the unserved terms, this factor is resolved adversely to Hernandez. Hilton expounds the matter in this way:

The 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.

The interest of the habeas petitioner in release pending appeal, always substantial, will be strongest where the factors mentioned in the preceding paragraph are weakest. The balance may depend to a large extent upon determination of the State's prospects of success in its appeal. 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. cites omitted Where the State's showing on the merits falls below this level, the preference for release should control.

481 U.S. at 777, 107 S.Ct. at 2120, 95 L.Ed.2d at 734.

The likelihood of success on appeal, a calculation that requires disinterested analysis and frank self-criticism by the district court, seems inevitably to gravitate toward immediate release. The right of a defendant to testify is indigenous to the mechanism of trial by jury as conceived by the citizenry, the lawyers and judges, and those who propounded our constitutional system. The right to testify is within the legitimate expectation of every person who has contemplated our constitutional scheme. Because the right to testify is so basic and so widely assumed and because the court's have issued opinions consistent with that widespread assumption, the Eleventh Circuit Court of Appeals is unlikely to utter an opinion that the right to testify is nonexistent or that the right evaporates irreparably upon the utterance by an attorney (who has no power to waive the right to testify) of the words, "The defense rests."

In Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), both Justice Scalia's opinion for the Court and Chief Justice Rehnquist's concurrence reinforce the view that the state is unlikely to prevail on appeal. Justice Scalia notes that:

In Fulminante, we distinguished between, on the one hand, "structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards," and, on the other hand, trial errors which occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented." Fulminante, supra, 499 U.S. at 286-87, 289-90, 111 S.Ct. at 1252, 1254. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a "basic protection" whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, Rose, supra, 478 U.S. at 577, 106 S.Ct. at 3105. The right to trial by jury reflects, we have said, "a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145 at 155, 88 S.Ct. 1444 at 1451 20 L.Ed.2d 491 (1968). The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error."

___ U.S. at ___, 113 S.Ct. at 2082-83, 124 L.Ed.2d at 190-91.

The error committed by the judge in Hernandez's trial impinges the integrity of the trial mechanism and serves to deprive the jury of an opportunity to appraise Hernandez's version of the facts. The right of a defendant to contend for his innocence — as well as a defendant's right to a jury, a lawyer, a judge, and a decent explanation of the law by the judge to the jury — comprises the trial mechanism that constitutional principles extend to everyone, whether demonstrably innocent or shamefully guilty.

Writing separately in concurrence, the Chief Justice says much the same thing,...