United States District Court, D. Idaho
ORDER DENYING STAY PENDING APPEAL
E. BUSH CHIEF U.S. MAGISTRATE JUDGE
February 7, 2018, this Court granted Claim 1 of Petitioner
Edward Stevens's Petition for Writ of Habeas Corpus
pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
The Court's decision requires the State of Idaho to
release Petitioner or to institute new trial proceedings
against him within 120 days of the date of that Order-that
is, by June 7, 2018. (Dkt. 30.) Respondent has filed a Notice
of Appeal and a Motion for Stay Pending Appeal. (Dkt. 32,
33.) Petitioner has opposed the Motion to Stay and filed an
alternative Request for Bond, arguing that if the Court
issues a stay pending appeal, it should allow Petitioner to
be released on bond. (Dkt. 36, 38.) The motions are fully
briefed. (Dkt. 33, 36, 38, 39, 40, 42.)
Standard of Law
federal court grants habeas corpus relief, the petitioner
must be released from custody “on personal
recognizance, with or without surety, ” 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.” Fed. R. App. P.
23(c). The United States Supreme Court has held that Rule
23(c) “undoubtedly creates a presumption of release
from custody in such cases.” Hilton v.
Braunskill, 481 U.S. 770, 774 (1987). In
Hilton, the Court identified four factors for a
court to consider in determining whether release pending
appeal is appropriate:
(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.
Id. at 776.
reasons that follow, the Court concludes that Respondent has
not rebutted the Rule 23(c) presumption and that a stay
pending appeal is inappropriate in this case.
Respondent has not made a strong showing that he is likely to
succeed on the merits of his appeal. Respondent mostly
rehashes the same arguments that this Court has already found
to be unpersuasive with respect to Petitioner's
Brady claim. (Dkt. 33-1 at 5-7.) Further, though
Respondent has included some additional speculation as to the
evidence of post-embalming removal of the victim's eyes
(see Id. at 7), there is nothing in the record to
support such speculation.
Court has already determined that the Idaho Supreme
Court's rejection of Petitioner's Brady
claim was objectively unreasonable under § 2254(d)(1).
That is, no fairminded jurist could agree with that
court's treatment of the Brady claim.
See Harrington v. Richter, 562 U.S. 86, 102
(2011). The Court also found that the state post-conviction
court's factual finding of pre-embalming removal of the
eyes was unreasonable under § 2254(d)(2) and that
Petitioner rebutted the presumption of correctness under
§ 2254(e)(1) by clear and convincing evidence. Given
that no fairminded jurist would agree with the state
court's resolution of Petitioner's Brady
claim, Respondent does not have a substantial likelihood of
prevailing on appeal.
Respondent has failed to satisfy his burden of showing
irreparable injury if a stay is denied. The Court agrees that
witnesses' memories fade over time (Dkt. 33-1 at 10), but
such is the case with all retrials. Respondent's other
arguments as to irreparable injury will be discussed below in
the context of the public-interest factor.
although the State likely would not suffer substantial injury
if the Court rejects his arguments, Petitioner unquestionably
would. He has already been incarcerated for nearly 21 years,
and the Court will not extend that period absent
extraordinary circumstances, which are simply not present
here. See Grube v. Blades, Case No.
1:01-cv-00357-BLW, Dkt. 121 at 2 (Feb. 28, 2006) (finding
that a stay pending appeal would substantially injure the
petitioner, “who has already been imprisoned for 15
years”). In addition, Petitioner has an especially
strong interest in release-his mother has been diagnosed with
Stage IV uterine cancer, she has no other relatives in Idaho,
and may “pass away before the appeal can be
completed.” (Stevens Aff., Dkt. 36-2, at ¶ 12.)
Thus, Petitioner will suffer substantial injury if a stay is
the public interest weighs against a stay. Respondent argues
otherwise, stating that this Court's decision to grant
relief on Petitioner's Brady claim “was
not based upon a showing of insufficient evidence at
[Petitioner's] trial.” (Dkt. 33-1 at 10.)
Technically, Respondent is correct. But as Respondent is
aware, but does not mention, and as recognized by the state
courts as well as this Court, most of the evidence at
Petitioner's trial was hotly disputed, and the single
most important piece of evidence against Petitioner was the
evidence of injuries in the victim's eyes-evidence that
has now been called into serious doubt. Further,
Petitioner's first trial ended with a hung jury. Thus,
this is not a case “where there is overwhelming
evidence of guilt” of the murder of the victim.
Grube, Case No. 1:01-cv-00357-BLW, Dkt. 121 at 3.
the Brady evidence lends support to Petitioner's
claim that the victim was not shaken prior to his death,
which theory was necessary to support the State's charge
of first-degree murder. Further, though Respondent dismisses
the evidence that the victim's skull fracture was more
than two times smaller at the time of injury than previously
believed (Dkt. 39 at 7), he has not disputed (1) that this
evidence “shows whatever caused [the victim's]
skull fracture required less force than previously thought by
either party because the impact only caused a four-centimeter
fracture rather than a nine-centimeter fracture, ” or
(2) that the evidence makes the possibility of an ...