Walberg v. Israel, 84-2435
| Decision Date | 23 October 1985 |
| Docket Number | No. 84-2435,84-2435 |
| Parties | Robert WALBERG, Petitioner-Appellant, v. Thomas ISRAEL, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William J. Tyroler, Wis. State Public Defender, Milwaukee, Wis., for petitioner-appellant.
Christopher G. Wren, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for respondent-appellee.
Before CUDAHY and POSNER, Circuit Judges.
This is an application for bail by a state prisoner who prevailed in a federal habeas corpus proceeding, and who wants us to grant bail pending action by the Supreme Court on the state's petition for certiorari. The application raises somewhat novel issues, but ones capable of recurring, so we have decided to rule on it in a published opinion.
Walberg was convicted of burglary and given a long prison sentence after a trial in which--we held earlier this year on appeal from the denial of his petition for federal habeas corpus--his constitutional right to the effective assistance of counsel had been violated. Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985). We ordered the state to release him unless it gave him a new trial within 120 days, but we stayed our mandate to allow the state to petition the Supreme Court for certiorari, and it has done so.
Rule 23(c) of the Federal Rules of Appellate Procedure provides that "pending review of a decision ordering the release of a prisoner in [a habeas corpus proceeding] the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court shall otherwise order." This language has been interpreted to create a presumption in favor of bail pending review, since Rule 23(b), which governs bail pending review of a decision refusing to release the prisoner, provides that the prisoner may be admitted to bail, or not, "as may appear fitting to the court or justice or judge," etc.
The state argues, contrary to the position taken by Justice Harlan in United States ex rel. Cerullo v. Follette, 396 U.S. 1232, 90 S.Ct. 146, 24 L.Ed.2d 56 (1969) (in chambers), that exclusive jurisdiction to enforce Rule 23 lies in the Supreme Court when as in this case that is the court in which review of the decision to release the prisoner is being sought. The state argues that the Supreme Court knows better than we do how long its own review will take and with what likely results; and these are important factors in deciding whether to admit the applicant to bail. However, the usual rule with stays, and it applies with equal force to bail, is that the lower court is asked first, and the higher court afterward if necessary. That is the practice for example with regard to bail pending appeal from a federal criminal conviction. See Fed.R.App.P. 9(b). We do not know as much about the Supreme Court's timetable or the likely outcome of its consideration of the state's petition for certiorari as the Court does, true, but we know enough about the facts and issues to make an informed if not necessarily final decision on the application for bail, and nothing in the rules suggests that we lack the power to decide. The Supreme Court has heavier responsibilities than we do and if we can lighten its load by giving at least preliminary consideration to the application for bail, we should. Any doubt about our power is dispelled by Rule 41 of the Supreme Court's Rules. The rule provides explicitly that pending review in the Supreme Court of a federal habeas corpus decision, the prisoner may be released on bail "as may appear fitting to the court, Justice, or judge rendering the decision, or to the court of appeals or to this Court or to a judge or Justice of either court," if the decision was not to release the applicant for habeas corpus, Rule 41.2; and if the decision was to release the applicant, he shall be...
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Scott v. Jones
...be given much weight in a case such as this case in which an order of unconditional release has been entered. See Walberg v. Israel, 776 F.2d 134, 136 (7th Cir. 1985), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985) ("If a determination is made that ... the applicant ... i......
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Bauberger v. Haynes, No. 1:08cv15.
...First, the presence of overwhelming evidence for retrial has been considered when making a release determination. See Walberg v. Israel, 776 F.2d 134, 136 (7th Cir.1985) (noting that “there is no reason to suppose that the state cannot retry him in an error-free trial and convict him, since......
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U.S. ex rel. Barnard v. Lane
...an unconditional release; his request to be released on bail pending the outcome of the new trial is therefore denied. See Walberg v. Israel, 776 F.2d 134 (7th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 546, 88 L.Ed.2d 475 AFFIRMED. * The Honorable Hubert L. Will, Senior District Judge o......
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Forney v. Ballard
...case upon which the petitioner relies does not stand for the proposition that he should be unconditionally released. See Walberg v. Israel, 776 F.2d 134 (7th Cir. 1985). The case dealt with a Federal Rule of Appellate Procedure Rule 23(c) issue of the release of a petitioner pending review ......