Myers v. Superintendent, Ind. State Prison
| Decision Date | 29 May 2020 |
| Docket Number | No. 1:16-cv-02023-JRS-DML,1:16-cv-02023-JRS-DML |
| Parties | JOHN MYERS, Petitioner, v. SUPERINTENDENT, Indiana State Prison, Respondent. |
| Court | U.S. District Court — Southern District of Indiana |
Mr. Myers's conviction has been vacated, and he has now, for the first time, requested release pending appeal. Under such circumstances, the law affords Mr. Myers the presumption that he should be released, and the State has failed to offer anything of substance to overcome that presumption.
After this Court granted Mr. Myers's petition for writ of habeas corpus and ordered the respondent to either release or retry Mr. Myers within 120 days of final judgment, the respondent moved to extend the time to comply with the writ to within 60 days of issuance of the appellate mandate. Dkt. 68. Mr. Myers did not oppose the motion. Dkt. 69. Because granting the motion would have required this Court to reissue final judgment, the Court instead construed the respondent's motion as a motion to stay the Court's decision pending appeal and granted the motion. Dkt. 70. Because the motion was unopposed, and the parties had not briefed the factors governing whether a stay was appropriate, the Court did not analyze them.
On April 7, 2020, Mr. Myers filed a motion to reconsider the Court's Order staying its decision. Dkt. 72. Mr. Myers suffers from psoriasis and is prescribed Methotrexate to treat it. Dkt. 73-1. He argues that the medication suppresses his immune system making him more vulnerable to complications from Covid-19 and that the current pandemic warrants reconsideration of the Court's prior Order. He requests release pending his appeal.1
The respondent argues that this Court cannot modify its prior custody order while the case is on appeal. This argument is based on Rule 23(d) of the Federal Rules of Appellate Procedure which states that:
An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.
(emphasis supplied).
Both parties argue that the plain language of the rule supports their position. The Rule indicates that only the Court of Appeals or Supreme Court can review or modify an initial custody order, but it is unclear whether a district court can issue an independent order altering its initial custody decision.
When ruling on Mr. Myers's petition, this Court granted a conditional writ. That initial ruling—that the government must either release or retry Mr. Myers within 120 days of final judgment—was not an initial determination on the merits of Mr. Meyers's custody on appeal.
The respondent's motion to extend the deadline for releasing or retrying Mr. Myers focused on the retrial aspects of the conditional writ, rather than on the question of whether Mr. Myers should be released pending appeal. The respondent's motion argued that it would waste state resources to initiate new trial proceedings while on appeal before the Seventh Circuit because, if the Seventh Circuit reversed this Court, then no retrial would be needed. The respondent alsoargued that if the state initiated new state proceedings against Mr. Myers, he would need separate defense counsel for the state proceedings and conflicts of interest could develop between his state criminal defense attorneys and his federal appellate attorneys. These concerns were abated by staying implementation of the Court's judgment, but they would still be abated if Mr. Myers were released pending appeal. In other words, the question of when the state must initiate new trial proceedings can be separated from the issue of whether Mr. Myers should be released pending appeal. See Hampton v. Leibach, 2001 WL 1618737, *2 (N.D. Ill. Dec. 18, 2001) (). Because the parties never briefed the question of release on appeal, the Court explicitly did not analyze the factors to make that determination in its prior Order. Furthermore, this new motion from Mr. Myers is his first request for release pending appeal. Therefore, it is fair to say that the Court has not made an initial determination on the merits regarding Mr. Myers's custody on appeal.
Nevertheless, even if the Court's prior Order staying its judgment is construed as an initial custody order, the Court has authority to issue a new Order.
The Seventh Circuit has not addressed this exact question. But other circuits have concluded that the district court retains the power to "issue orders respecting custody or enlargement of the petitioner at least until a party seeks a modification or change of such an order by motion in the court of appeals." Jago v. U.S.Dist.Ct., N.Dist. of Ohio, 570 F.2d 618, 626 (6th Cir. 1978); accord United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 742-43 (3d Cir.1973); Stein v. Wood, 127 F.3d 1187, 1190 (9th Cir. 1997).2 In Jago, the district court first denied the petitioner's motion for bail after granting his habeas petition. It then granted a second motion for bail after the respondent had appealed the district court's grant of the writ.
The Sixth Circuit reiterated its position in 1992:
In the context of habeas proceedings, specifically, we have recognized that, even after an appeal has been taken from the district court's order granting or denying a habeas petition, the district court retains some jurisdiction to issue orders regarding the custody or enlargement of the defendant pending review. Jago v. U.S. Dist. Ct., N. Dist. of Ohio, 570 F.2d 618, 623 (1978). The district court retains such jurisdiction because "the question concerning the physical custody of the defendant pending further review does not affect the matters involved in the appeal itself." Id. at 622. (emphasis added).
Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992).
The Seventh Circuit has cited Jago approvingly for the proposition that "federal courts have inherent authority to allow petitioners for federal habeas corpus to be released on bail." Bolante v. Keisler, 506 F.3d 618, 619-20 (7th Cir. 2007); see also Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985). But the Seventh Circuit has not ruled on the question of whether the district court can issue a second order on custody under Rule 23(d).
An Eastern District of Wisconsin case also cited Jago approvingly and held that a district court can issue multiple orders regarding custody while the case is on appeal. The court also noted that the district court's first order granting a stay pending appeal was pursuant to Rule 8 rather than Rule 23:
No such "initial order" has been entered in this matter; the court's stay order of March 26, 1985, was entered pursuant to Rule 8, Federal Rules of Appellate Procedure, concerning stays pending appeal, not Rule 23, concerning the custody of prisoners in habeas corpus proceedings. In any case, during the pendency of the appeal process the district court retains power to issue more than one order respecting the custody or enlargement of the successful habeas petitioner.
Woods v. Clusen, 637 F. Supp. 1195, 1197 (E.D. Wis. 1986) (citing Jago).
In Dassey v. Dittmann, No. 14-CV-1310, 2016 WL 6684214, at *2 (E.D. Wis. Nov. 14, 2016), the district court considered a request for release pending appeal even though it had previously stayed its judgment pending appeal. The district court explained:
Dassey, 2016 WL 6684214, at *2.
The respondent cites Woodfox v. Cain, 789 F.3d 565, 568 & n.5 (5th Cir. 2015), for the proposition that this Court lacks authority to rule on the pending motion. Although the Fifth Circuit stated in Woodfox that "Rule 23(d) plainly limits the entities that can modify an initial order or issue an independent order regarding custody to 'the court of appeals or the Supreme Court, or to a judge or justice of either court,'" the court declined to decide the issue because it had not been briefed by the parties. The court then assumed that the district court had a "vehicle" for ordering the petitioner's release. Id.
Although it is an open question in our circuit, the weight of authority supports the district court's authority to decide the pending motion. Other district courts in our circuit have agreed with this position. Furthermore, it seems inconsistent for the respondent to argue that this Court had the power to modify its conditional writ when asked by the respondent to extend Mr. Myers's custody,but no longer has that power when asked to modify its order...
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