Apelt, et al v. Schriro, et al

Filing 384

ORDER granting Respondents' motion for a stay (Doc. 375 ). IT IS FURTHER ORDERED that the Court's judgment is stayed pending conclusion of appellate review. Signed by Senior Judge Roslyn O Silver on 1/13/2016.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Apelt,

No. CV-98-00882-PHX-ROS
Petitioner,

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v.

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Charles L. Ryan, et al.,

DEATH PENALTY CASE

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ORDER

Respondents.

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On December 1, 2015, this Court issued an order and judgment granting habeas

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relief on Apelt’s claim of ineffective assistance of counsel at sentencing. (Docs. 373,

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374.) Respondents move for a stay pending final resolution of their appeal to the Ninth

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Circuit. (Doc. 375.) Apelt opposes a stay. (Doc. 382.)

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The determination whether to permit a stay pending the appeal of a decision

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granting habeas relief is governed by the standard set forth in Hilton v. Braunskill, 481

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U.S. 770 (1987). In Hilton, the Supreme Court articulated four factors the district court

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should consider in determining whether to grant a stay: (1) whether the stay applicant has

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made a strong showing that he is likely to succeed on the merits or has a substantial case

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on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)

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whether issuance of the stay will substantially injure the other parties interested in the

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proceedings; and (4) where the public interest lies. Id. at 776, 778. These factors militate

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in favor of staying execution of the writ of habeas corpus pending appellate review.

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Likelihood of success on the merits

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The likelihood of Respondents’ success on the merits of their appeal depends on

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the argument that the Court wrongly granted relief on Apelt’s claim of ineffective

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assistance of sentencing counsel. Of course, the Court disagrees that Claim 12 was

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wrongly decided. Nonetheless, the Court is persuaded that Respondents have

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demonstrated a “substantial case on the merits.” Hilton, 481 U.S. at 778. The Court

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acknowledges an apparent tension between the Ninth Circuit’s recent decision in

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Clabourne v. Ryan, 745 F.3d 362, 382 (2014), which held that a state court’s alternative

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merits ruling was entitled to deference under 28 U.S.C. § 2254(d), and the principle that

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an alternative merits ruling does not vitiate the procedural bar. See Harris v. Reed, 489

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U.S. 255, 264 n.10 (1989). This factor slightly favors Respondents.

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Respondents’ irreparable injury

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The Court further agrees Respondents will suffer injury absent a stay. Respondents

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appeal this Court’s decision that Apelt received constitutionally ineffective assistance of

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counsel during sentencing. If the Court does not stay the writ, and the State of Arizona is

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forced to conduct a new sentencing hearing, Respondents’ appeal might be rendered

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moot. Further, absent a stay, the State will be forced to expend considerable time and

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resources preparing for a new mitigation hearing that might not be necessary if the Ninth

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Circuit were to reverse this Court’s decision. This factor favors Respondents. See

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Johnson v. Bagley, No. 1:02-cv-220, 2006 WL 2165685, at *2 (S.D.Ohio July 31, 2006).

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Apelt’s irreparable injury

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Issuance of the stay will not substantially injure Apelt. The Court granted relief

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only as to Apelt’s death sentence. If the stay is granted, Apelt will remain in prison while

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the appeal is resolved. Apelt asserts that if the stay is granted he will face the “extreme

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hardship” of remaining on death row, while if the stay is denied he will be housed in less

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onerous conditions. (Doc. 382 at 6.) The Court, having no facts by which it can make a

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judgment concerning the conditions in which Apelt will be housed, finds that this factor

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is “essentially neutral.” Crittenden v. Chappell, No. 2:95-cv-1957-KJM-GGH, 2013 WL

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6840451, at *10 (E.D.Cal. December 14, 2013).

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Public interest

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Finally, the Court concludes that the public interest strongly supports granting the

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stay. The Court is mindful of the substantial hardship and cost to the State in preparing

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for and conducting a new sentencing hearing and must balance the interests of the State

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in avoiding that hardship and cost against the possibility that this Court’s judgment could

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be reversed on appeal. But more importantly, Apelt has cross-appealed the Court’s denial

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of his habeas conviction-related claims. (See Doc. 379.) It would be unwise to require the

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State conduct a new sentencing hearing when the constitutional validity of Apelt’s

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underlying convictions are still subject to appellate review. This factor favors granting

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the stay. See Johnson, 2006 WL 2165685, at *3.

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For the foregoing reasons, the factors support granting a stay.

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Accordingly,

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IT IS ORDERED granting Respondents’ motion for a stay (Doc. 375).

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IT IS FURTHER ORDERED that the Court’s judgment is stayed pending

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conclusion of appellate review.
Dated this 13th day of January, 2016.

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Honorable Roslyn O. Silver
Senior United States District Judge

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