Moore v. Keller, 5:11-HC-2148-F

• Decision Date: 27 June 2012
• Docket Number: NO. 5:11-HC-2148-F,5:11-HC-2148-F
• Parties: THOMAS MOORE, Jr., Petitioner, v. ALVIN W. KELLER, Secretary of N.C. Department of Correction, and MICHAEL HARDEE, Administrator of Hyde Correctional Institution, Respondents.
• Court: U.S. District Court — Eastern District of North Carolina

THOMAS MOORE, Jr., Petitioner,

v. ALVIN W. KELLER, Secretary of N.C. Department of Correction, andMICHAEL HARDEE, Administrator of Hyde Correctional Institution, Respondents.

NO. 5:11-HC-2148-F

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Dated: June 27, 2012

ORDER

Before the court is respondents' motion to stay [D.E. #21] this court's March 30, 2012, judgment [D.E. #18] granting-in-part and denying-in-part the parties' motions for summary judgment and ordering that petitioner be released from the custody of the State of North Carolina unless he is afforded a new trial within one hundred-eighty days of the date of the order. Respondents seek a stay pending appeal of the judgment. Petitioner has responded to the motion to stay [D.E. # 32] and has filed a separate motion [D.E. #31] requesting his release or bond pending respondents' appeal. Respondents have filed a response [D.E. # 34] to petitioner's motion for release. These matters are now ripe for adjudication.

The standard of review to be applied by this court was recently and aptly set out by the Honorable Thomas D. Schroeder, of this court's sister court in the Middle District of North Carolina, as follows:

Federal Rule of Appellate Procedure 23(c) provides that, when the State appeals a decision granting habeas corpus, the habeas petitioner "must" be released from custody "unless the court or judge rendering the decision... orders otherwise." Fed. R. App. P. 23(c). In making the decision, the court is to be guided by 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.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Additional factors include the defendant's risk of flight, any danger to the community if he is released, and the State's interest in continuing custody and rehabilitation pending final determination of the case on appeal where the remaining time of incarceration remains lengthy. Id. at 777-78.

The Supreme Court has made clear that Rule 23(c) "undoubtedly creates a presumption of release," but it can be overcome if "the traditional stay factors tip the balance against it" and thus "the judge rendering he decision, or an appellate court or judge, 'otherwise orders.'" Id, at 774, 777. "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 stay analysis militate against release." Id at 778. The same factors that govern this court's inquiry as to the custody determination also guide it as to the separate issue whether to grant a stay, id. at 777, though they are independent determinations.

Bauberger v. Haynes, 702 F. Supp.2d 588, 591-92 (M.D.N.C. 2010). As recognized by Judge Schroeder, although respondents' motion for stay and petitioner's motion for release are "independent" matters, the two motions require the court to weigh essentially the same equitable considerations. Indeed, the Supreme Court's seminal case on this issue, Hilton v. Braunskill, appears to blend the two inquiries in that decision, as it often employs the terms "stay" and "release" interchangeably in adjudicating the motion to stay judgment at issue in that case. See 481 U.S. at 775-779. See also id. at 775-776 (describing it as a "common sense notion that a court's denial ofenlargement to a successful habeas petitioner pending review of the order granting habeas relief has the same effect as the court's issuance of a stay of that order"). Hence, the court's analysis of the factors set out in Hilton shall represent its consideration of those factors as to both motions before the court.

The Supreme Court has indicated that the court's weighing of the first factor, the applicant's likelihood of success on appeal, is likely to be the most important factor to be considered. See Hilton, 481 U.S. at 778 ("The balance may depend to a large extent upon determination of the State's prospects of success on its appeal"). See also Brady v. National Football League, 640 F.3d 785,789 (8th Cir. 2011) (discussing the Hilton factors and remarking that "[t]he most important factor is the appellant's likelihood of success on the merits."). Respondents assert that the court has erred and that there is therefore a "strong likelihood of success on appeal." Resp.'s Mem. 6. However, in support of this contention, apart from challenging the court's reliance on two thematically related cases from other jurisdictions, respondents mostly offer a restatement of arguments already rejected by the court. See Resps.' Mem. 6-8. Thus, for the reasons stated in the court's order granting-in-part and denying-in-part respondents' motion for summary judgment, the court does not find that respondents have demonstrated a strong likelihood of success on appeal. However, it does not follow that this factor weighs conclusively against respondents' request for a stay. Even if respondents have not demonstrated a "strong" likelihood of success, it is evident that-given the restrictions on the availability of the writ of habeas corpus established by the AEDPA, especially as it applies to ineffective assistance claims like petitioner's¹ -there is at least some likelihood ofsuccess on appeal. At a minimum, it is clear that respondents have a "substantial case on the merits." Hilton, 481 U.S. at 778. See also Bauberger, 702 F. Supp.2d at 595. Thus, petitioner's "continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release." Hilton, 481 U.S. at 778.

The second of the Hilton factors is whether the State will be irreparably injured absent a stay. Respondents contend that the State will suffer irreparable injury because "the federal appellate process will not be completed before the 180-day time period set by this Court for granting a new trial," thus requiring the State to either "grant Petitioner a new trial or set him free." Resps.' Mem. 12. "In other words, if a stay pending appeal is not granted the state will be forced into a 'catch-22' in which it will have to grant Petitioner a new trial within 180 days and thereby moot out its own appeal to the Fourth Circuit." Id at 12-13. Petitioner argues that respondents' assertions about its supposed "Catch 22" are conclusory and that, if they are credited, "no stay request in federal habeas corpus would ever be denied." Pet'r's Mem. 8.

The court finds that this factor weighs in favor of respondents request for a stay and therefore militates against release of petitioner pending appeal. Confronted by similar circumstances andarguments, Judge Schroeder reached the same conclusion in Bauberger:

[A]bsent a stay, [the State] will suffer irreparable harm, because it is highly unlikely that an appeal could be completed by the time it would have to retry the case. If it loses on retrial, the State will lose a conviction it may otherwise have sustained on appeal. For this reason, the court concludes that this factor weighs in favor of the State as to the stay.

702 F. Supp.2d at 596. See also Wolfe v. Clarke, 819 F. Supp.2d 574, 583 (E.D. Va. 2011). In short, respondents have appealed as-of-right this court's decision granting habeas relief, and a successful challenge in that appeal-a result which, even if not believed likely, is plausible-would obviate the need for the retrial contemplated by the court's order. At this point, approximately ninety days into the 180-day period established by the court's conditional grant of habeas corpus, only the opening brief in respondents' appeal has been filed. Briefing deadlines in the consolidated cross-appeal filed by petitioner were recently extended, on petitioner's own motion, to August 27, 2012, barely a month before the 180-day period will expire. See Moore v. Hardee, Case No. 12-6679, Order [D.E. # 23] (4th Cir. June 25, 2012). Thus, it is evident that the appeals in this matter will not be completed before the State would be required to release or retry petitioner. Forcing the State to commence with its retrial of petitioner will require the State to devote valuable resources and time to the retrial, to say nothing of any potentially "mooting" effect that the second trial could have on respondents' pending appeal. The State should not be required to choose between releasing petitioner from a conviction and sentence which respondents reasonably believe will be redeemed on appeal or undertaking the admittedly onerous measures required by this court's order while respondents' good faith appeal of that order remains pending. Accordingly, because the State will be irreparably injured absent a stay, the second factor in the analysis favors respondents.

The fourth factor requires the court to assess where the public interest lies. The Statecontends that the public interest favors a stay of judgment and petitioner's continued incarceration through the appellate process because petitioner is a convicted felon and because the State should not be forced into the "Catch 22" described previously. Resps.' Mem. 14. Petitioner contends that "the public has a strong interest in not requiring a defendant to complete the entirety of his sentence before the State's case against him [h]as undergone a meaningful adversarial testing." Pet'r's Mem. 12.

The court finds that this factor also weighs in favor of the State and therefore militates against the release of petitioner during the appeal. While petitioner is correct that the public interest generally does not favor the continued incarceration of someone whose conviction has been found constitutionally infirm, in a close case predicated on the...