Jordan v. Lamanna

• Decision Date: 12 November 2020
• Docket Number: CIVIL ACTION NO.: 18 Civ. 10868 (SLC)
• Citation: Jordan v. Lamanna, CIVIL ACTION NO.: 18 Civ. 10868 (SLC) (S.D. N.Y. Nov 12, 2020)
• Parties: GIGI JORDAN, Petitioner, v. AMY LAMANNA, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE BEDFORD HILLS CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Southern District of New York

GIGI JORDAN, Petitioner, v. AMY LAMANNA, IN HER OFFICIAL CAPACITY AS SUPERINTENDENTOF THE BEDFORD HILLS CORRECTIONAL FACILITY, Respondent.

CIVIL ACTION NO.: 18 Civ. 10868 (SLC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 12, 2020

OPINION & ORDER

SARAH L. CAVE, United States Magistrate Judge.

I. INTRODUCTION

On November 20, 2020 Petitioner Gigi Jordan ("Jordan"), who is serving an 18-year prison sentence following her conviction for first degree manslaughter in New York State Supreme Court, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). The Petition asserted that the New York State Supreme Court, Appellate Division, First Department (the "Appellate Division") unreasonably applied clearly established federal law in holding that Jordan's Sixth Amendment right to a public trial was not violated when the trial court closed the courtroom to the public midway through her nine-week trial to conduct a hearing that involved legal arguments by the parties, evidentiary issues, and proposed instructions to the jury. (ECF Nos. 3 at 2-3; 6 at 5; 29 at 1). Respondent Amy Lamanna, Superintendent of the Bedford Hills Correctional Facility ("Respondent"), where Jordan is serving her sentence, is represented by the New York County District Attorney (the "DA"), and opposed the Petition on the ground that the closure of the courtroom for a conference that was "akin to a discussion in chambers" did not violate clearly established precedent of the United States Supreme Court. (ECF No. 14 at 9).

On September 25, 2020, the Court granted the Petition, holding that the Appellate Division's decision rejecting Jordan's Sixth Amendment claim constituted an unreasonable application of the public trial right clearly established by Waller v. Georgia, 467 U.S. 39 (1984) and Presley v. Georgia, 558 U.S. 209 (2010). (ECF No. 34) (the "September 25 Order"). Having granted the Petition, the Court ordered Respondent to "release Jordan from custody unless the DA inform[ed] the Court of its decision to re-try her within the next 90 days." (Id. at 42).

On September 28, 2020, the DA appealed the September 25 Order to the Second Circuit. (ECF No. 37). Now before the Court is the DA's motion to stay the September 25 Order, (the "Stay Motion") (ECF No. 38), and Jordan's cross-motion for release pending appeal (the "Release Motion") (ECF No. 41). After receiving full briefing from the parties, hearing oral argument, and receiving post-argument supplemental submissions (ECF Nos. 38, 40-41, 47-48, 50), the Court GRANTS IN PART and DENIES IN PART the Stay Motion, and GRANTS IN PART and DENIES IN PART the Release Motion.

II. BACKGROUND

A. Factual Background

The Court assumes familiarity with the facts, a full recitation of which is included in the September 25 Order. (ECF No. 34). Jordan is incarcerated at Bedford Hills Correctional Facility, having been convicted on November 5, 2014 of first-degree manslaughter in connection with the death of her son and sentenced to 18 years' imprisonment. (ECF No. 34 at 8, 10; ECF No. 41-1 at 4). Jordan has served ten years and eight months, and, due to good time served, has beengiven a provisional release date of July 5, 2025, at which time she would have served fifteen years and five months. (ECF No. 41-4 at 5; ECF No. 50 at 10). Thus, at present, Jordan has served over 70% of her reduced sentence. (ECF No. 50 at 10).

Jordan will turn 60 years old in December 2020, and has chronic respiratory asthma, which puts her at a higher risk of morbidity and mortality were she to be infected with COVID-19. (ECF Nos. 41 at 7, 41-1 at 8-20). At Bedford, one prisoner is known to have died from COVID-19, and others have tested positive, although as of November 12, 2020, there were no positive cases. (ECF Nos. 41 at 7; 44 ¶ 5).

B. Procedural History

On October 9, 2020, the DA filed the Stay Motion. (ECF No. 38). On October 19, 2020, Jordan filed the Release Motion in which she opposed the Stay Motion and cross-moved for release. (ECF No. 40). On October 26, 2020, the DA filed its reply in support of the Stay Motion and opposed the Release Motion. (ECF No. 44). On October 28, 2020, Jordan filed her reply in support of the Release Motion. (ECF No. 45). On November 2, 2020 the Court heard oral argument on the Stay Motion and the Release Motion. (ECF No. 50).

In response to the Court's request during oral argument, on November 6, 2020, Jordan submitted a supplemental letter describing additional information concerning her residence, were she to be released, and potential bond co-signors. (ECF No. 47). The DA then filed a letter reiterating his opposition to Jordan's release, but suggesting that if the Court were to order release, she be transferred to federal custody "for the securing order and any accompanying conditions to be put in place before [Jordan] is released." (ECF No. 48 at 2). The DA also asksthis Court to stay any order granting Jordan release on bail to permit an application to the Second Circuit. (Id.)

III. DISCUSSION

A. Applicable Legal Standards

Jordan "is subject to federal court jurisdiction during the pendency of [her] petition for a writ of habeas corpus and any appeal from an order granting that writ." Waiters v. Lee, 168 F. Supp. 3d 447, 454 (E.D.N.Y. 2016) (citing Jago v. U.S. Dist. Ct., 570 F.2d 618, 621 (6th Cir. 1978) (explaining that once writ of habeas corpus is granted, "the body of the petitioner came under the lawful control of the district court. In legal contemplation that control continues pending decision whether to free the petitioner or return him to state custody.")); see Rosa v. McCray, No. 03 Civ. 4643 (GEL), 2004 WL 2827638, at *7 (S.D.N.Y. Dec. 8, 2004) (noting that federal district court retains jurisdiction over bail order during appeal of Court of Appeals' order granting petition).

Federal Rule of Appellate Procedure 23(c), which governs the release of a successful habeas corpus petitioner, provides:

While a decision ordering the release of a prisoner is under review, 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.

Fed. R. App. P. 23(c). Rule 23(c) "undoubtedly creates presumption of release from custody" in cases where a district court has granted relief to a habeas petitioner. Hilton v. Braunskill, 481 U.S. 770, 774 (1987).

In Hilton, the Supreme Court directed federal courts to consider the following factors to determine whether to grant a stay pending appeal of an order granting habeas corpus relief: (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. "In addition, a court must consider the possibility of flight, whether there is a risk the petitioner will pose a danger to the public if released, and whether the state has an interest in continuing custody and rehabilitation pending a final determination of the case on appeal." Brown v. Ercole, No. 07 Civ. 11609 (NRB), 2009 WL 1390854, at *2 (S.D.N.Y. May 13, 2009) (citing Hilton, 481 U.S. at 777); see Waiters, 168 F. Supp. 3d at 451 (same).

B. Analysis

1. Likelihood of the DA's success on the merits of the appeal

With respect to the first Hilton factor, the Supreme Court explained:

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. Where the State's showing on the merits falls below this level, the preference for release should control.

481 U.S. at 778 (internal citations omitted). "Courts have described the likelihood of success on appeal as 'a calculation that requires disinterested analysis and frank self-criticism by the district court, [which] seems inevitably to gravitate toward immediate release.'" Waiters, 168 F. Supp. 3d at 452 (quoting Hernandez v. Dugger, 839 F. Supp. 849, 852 (M.D. Fla. 1993)).

After "reviewing the circumstances of the case with all the disinterest I can muster, I conclude that the [DA's] likelihood of success on appeal is low." Waiters, 168 F. Supp. 3d at 452. I reach this conclusion for four reasons.

First, the DA acknowledges that the September 25 Order was "substantial" and "careful" (ECF No. 38 at 5; ECF No. 50 at 3), but does not attempt to demonstrate that the Court misinterpreted any material facts, misapplied any controlling law, or overlooked any analogous decision ruling the opposite way. The DA simply states that he "will not attempt to relitigate the Court's rejection of [his] arguments by claiming that success on the merits is likely." (ECF No. 38 at 5). To be certain, "rehash[ing]" the same arguments that the Court "has already found to be unpersuasive with respect to" Jordan's Petition would be insufficient to satisfy the first Hilton factor in any event, so the DA's decision not to repeat arguments that the Court has already rejected is prudent. Stevens v. Carlin, No. 14 Civ. 403 (REB), 2018 WL 1596872, at *1 (D. Idaho Apr. 2, 2018). In the absence of any showing of an error in the September 25 Order, I am compelled to conclude that the DA is not likely to succeed on the merits of his appeal.

Second, because the DA has not raised any new arguments on the merits, it is reasonable to infer that he will make the same arguments on appeal as he raised in opposition to Jordan's petition. Had the Court concluded that those arguments were correct, however, it would not have granted Jordan's Petition in the first place. See Waiters, 168 F....