Moore v. Calderon, s. 95-99009

Citation56 F.3d 39
Decision Date26 May 1995
Docket NumberNos. 95-99009,95-99013,s. 95-99009
PartiesCharles Edward MOORE, Jr., Petitioner-Appellee/Cross-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Peggy S. Ruffra, Deputy Atty. Gen., San Francisco, CA, for respondent-appellant.

Brian Pass, Irell & Manella, Los Angeles, and Marianne D. Bachers, San Francisco, CA for petitioner-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FERGUSON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

Respondent-Appellant's motion for stay pending appeal is DENIED. 1

This case is expedited, and a briefing schedule will be issued shortly.

Judge O'SCANNLAIN would grant the motion for stay.

O'SCANNLAIN, Circuit Judge, dissenting:

I respectfully disagree that we should order the release pending appeal of a double murderer who was sentenced to death by a jury of his peers and whose conviction was affirmed in a lengthy decision by the California Supreme Court.

I have no doubt that Moore's habeas corpus petition raises substantial constitutional questions, as identified in the district court's opinion. Nor can I condone the state's failure to file this motion for stay until almost the last minute before Moore's scheduled release date. Nonetheless, I believe that principles of comity and federalism require us to afford the state the opportunity for full appellate consideration of the district court's decision. Thus, instead of rushing to judgment, the appropriate course would be to permit full briefing and oral argument on the merits before taking further action. I am convinced that we can expedite the process sufficiently to minimize any prejudice to Moore while still providing the state the careful appellate review properly due it.

However, the majority has determined that a stay is inappropriate because the state has not made a sufficiently strong showing that it is likely to succeed on the merits pursuant to Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987). Although it is very possible that Moore's reliance on Fritz v. Spalding, 682 F.2d 782 (9th Cir.1982), is well-placed, I am not willing effectively to decide that California violated Moore's constitutional rights based on only the most cursory review in this court, without the benefit of appropriate briefing, let alone oral argument. The California courts which examined and upheld Moore's conviction are entitled to a more considered treatment. Indeed, the fact that the district court proceedings consumed almost three-and-one-half years indicates that the issues are deserving of careful analysis by this court.

In addition, by focusing solely on the state's likelihood of success on the merits, the majority ignores the other factors that the Hilton Court deemed worthy of consideration in deciding a motion for a stay. For instance, the Court explicitly stated that a court may take into account the "possibility of flight" and "the risk that the prisoner will pose a danger to the public if released." Id. at 777, 107 S.Ct. at 2119. Further, we may consider the state's interest in continuing custody over the defendant. That interest "will be strongest where the remaining portion of the sentence to be served is long." Id. Here, these factors weigh strongly in favor of granting the stay.

Moore has been convicted of two cold-blooded murders. A jury determined that Moore and two cohorts bound and gagged Mr. and Mrs. Robert Crumb of Long Beach, California, robbed them, and then brutally beat and stabbed them to death. Moore has also been identified...

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4 cases
  • U.S. v. Patterson
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 16 Mayo 2002
  • Moore v. Calderon
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Marzo 1997
    ...of his other claims. California promptly moved the district court for a stay pending appeal, which it denied. Our court, Moore v. Calderon, 56 F.3d 39 (9th Cir.1995), and Justice O'Connor in her capacity as Circuit Justice for the Ninth Circuit, Calderon v. Moore, No. A-910 (June 9, 1995) (......
  • Vance v. Scutt, CASE NO. 2:09-CV-11368
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 5 Abril 2012
    ...to succeed on appeal, petitioner is entitled to release, even though the public's interest may weigh against it. See Moore v. Calderon, 56 F. 3d 39, 40 (9th Cir. 1995); rev'd on other grds 518 U.S. 149 (1996). Most importantly, petitioner would suffer irreparable harm each day that he would......
  • Calderon v. Moore
    • United States
    • U.S. Supreme Court
    • 17 Junio 1996
    ...Court's order pending appeal, but its various stay applications were respectively denied by the District Court, the Ninth Circuit, 56 F. 3d 39 (1995), and by Justice O'Connor, in her capacity as Circuit Justice for the Ninth Circuit. The State accordingly set Moore for retrial, and simultan......

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