Sanchez #290235 v. Ryan et al

Filing 100

ORDERED that Petitioner's Motion to Supplement Response (Doc. 99 ) is granted. IT IS FURTHER ORDERED that the Motion to Stay Judgment (Doc. 92 ) is denied. Signed by Judge Rosemary Marquez on 5/25/21. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Isidoro Sanchez,

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Petitioner,

No. CV-17-00224-TUC-RM
ORDER

v.
Attorney General of the State of Arizona, et
al.,
Respondents.

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Pending before the Court is Respondents’ Motion to Stay Judgment. (Doc. 92.)

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Petitioner filed a response (Doc. 93) and Respondents replied (Doc. 98). The Motion to

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Stay will be denied.

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I.

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On March 30, 2021, the Court issued an Order partially sustaining and partially

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overruling Petitioner’s Objection to Magistrate Judge D. Thomas Ferraro’s Report and

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Recommendation (“R&R”), which the Court partially rejected and partially accepted.

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(Doc. 86.) The Court conditionally granted Petitioner’s Amended Petition for Writ of

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Habeas Corpus (Doc. 41) as to the Anders claim in Ground One, and otherwise denied

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the Petition. (Id.) The Court then ordered Petitioner released from custody unless, within

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ninety (90) days, Petitioner was permitted to file a new of-right Rule 33 Post-Conviction

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Relief (“PCR”) proceeding, including the filing of either a merits brief by counsel or a

Background

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substantive brief consistent with Anders v. California, 386 U.S. 738 (1967), and an

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independent review of the record by the court. (Id.) On April 9, 2021, Respondents filed a

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notice of appeal to the Ninth Circuit Court of Appeals. (Doc. 89.)

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II.

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Respondents seek a stay of the Court’s March 30, 2021 Order pending resolution

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of their appeal of the Order to the Ninth Circuit Court of Appeals and, if necessary, the

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Supreme Court of the United States, pursuant to Federal Rule of Appellate Procedure

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8(a)(1)(A). (Doc. 92.) Respondents argue that (1) they are likely to succeed on the merits

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of their appeal; (2) the balance of hardships tips in their favor; (3) the State will suffer

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irreparable injury if a stay is not granted; and (4) the public interest favors a stay. (Id.) In

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response, Petitioner argues that Respondents are not likely to succeed on the merits of

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their appeal and the request for a stay should therefore be denied. (Doc. 93; see also Doc.

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99.)1

Motion to Stay

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III.

Applicable Law

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Federal Rule of Appellate Procedure 8(a)(1)(A) provides that a party must first

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move in the district court for a stay of a judgment or order of a district court pending

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appeal.

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“A stay is not a matter of right, even if irreparable injury might otherwise result.”

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Nken v. Holder, 556 U.S. 418, 433–34 (2009) (internal citation omitted). “It is instead an

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exercise of judicial discretion, and the propriety of its issue is dependent upon the

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circumstances of the particular case.” Id. “The party requesting a stay bears the burden of

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showing that the circumstances justify an exercise of that discretion.” Id.

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The test for whether a stay should be granted pending appeal of an order requires

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the Court to consider four factors: “(1) whether the stay applicant has made a strong

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showing that he is likely to succeed on the merits; (2) whether the applicant will be

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irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure

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the other parties interested in the proceeding; and (4) where the public interest lies.” Id.;

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The Court will grant Petitioner’s Motion to Supplement Response. (Doc. 99.)
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see also Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The balance among the factors

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“may depend to a large extent upon determination of the State’s prospects of success in

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its appeal. Where the State establishes that it has a strong likelihood of success on appeal,

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or where, failing that, it can nonetheless demonstrate a substantial case on the merits,

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continued custody is permissible if the second and fourth factors in the traditional stay

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analysis militate against release.” Hilton, 481 U.S. at 778 (discussing stay of release

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pending appeal in habeas corpus context).

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In ruling on a motion for stay pending an appeal, courts employ “‘two interrelated

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legal tests’ that ‘represent the outer reaches of a single continuum.’” Golden Gate Rest.

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Ass’n v. City and Cty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting

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Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)). “At one end of the continuum,

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the moving party is required to show both a probability of success on the merits and the

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possibility of irreparable injury” if a stay is not granted. Id. (internal citation and

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quotation omitted). “At the other end of the continuum, the moving party must

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demonstrate that serious legal questions are raised and that the balance of hardships tips

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sharply in its favor.” Id. “These two formulations represent two points on a sliding scale

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in which the required degree of irreparable harm increases as the probability of success

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decreases.” Id. (citing Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th

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Cir. 2007)). Further, courts “consider where the public interest lies separately from and in

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addition to” whether irreparable injury will result absent a stay. Id.

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IV.

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First, Respondents argue that they are likely to succeed on the merits of their

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appeal. (Doc. 92 at 2-6.) Respondents argue that the Court erred by rejecting the R&R’s

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conclusion that Petitioner’s Anders claim was procedurally defaulted because the Arizona

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Court of Appeals found all of Petitioner’s claims, including his Anders claim,

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procedurally barred from review. (Id. at 2-3.) Respondents then argue that the Court also

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erred in determining that the Arizona Court of Appeals’ reliance on State v. Chavez, 407

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P.3d 85 (Ariz. App. 2017), was an unreasonable application of clearly established federal

Analysis

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law because, according to Respondents, the Court of Appeals properly concluded that an

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independent, fundamental-error review by the trial court is not required in of-right post-

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conviction proceedings in order to meet the constitutional requirements of Anders. (Id. at

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3.) Respondents contend that the Court’s conclusion that the State’s procedures were not

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equivalent to Anders procedures and were therefore constitutionally deficient was in error

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because it failed to defer to the Arizona Court of Appeals’ reasonable application of

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federal law as required by the Anti-Terrorism and Effective Death Penalty Act

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(“AEDPA”). (Id. at 4-5.) Respondents argue that because the Supreme Court has not held

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that an independent, fundamental error review is constitutionally required when

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reviewing a pleading defendant’s of-right appeal, the Arizona Court of Appeals’ Chavez

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decision cannot be found to be contrary to or an unreasonable application of clearly

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established federal law. (Id. at 5-6.) Respondents maintain that there is no requirement

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that procedures for a pleading defendant like Sanchez be the same as those for a non-

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pleading defendant like the defendant in Anders. (Id. at 6.)

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Next, Respondents argue that their interests in (1) the finality of convictions that

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have survived direct review in the state court system; (2) crime victims’ entitlement to

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resolution of criminal cases without unreasonable delay; and (3) the resolution of a

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serious legal question with significant consequence would all be irreparably harmed by

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Petitioner’s return to state court absent a stay pending resolution of Respondents’ appeal.

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(Doc. 92 at 6-7.) Respondents further contend that the temporary postponement of

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Petitioner’s filing of a new of-right post-conviction proceeding will not cause Petitioner

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significant hardship because his conviction and sentence remain undisturbed and he will

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therefore remain incarcerated until 2038 regardless. (Id.; Doc. 98.) Thus, Respondents

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contend that the balance of hardships tips in their favor. (Id.)

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Lastly, Respondents argue that the public interest favors a stay. (Id. at 7.)

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Respondents contend that enforcing the Order during the pendency of appeal proceedings

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would harm the public interest, including the victim’ interest, in the finality of criminal

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convictions. (Id.) Respondents further contend that the principles of comity and

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federalism that underlie AEDPA would be served by a stay. (Id. at 7-8.)

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Respondents have not satisfied their burden of showing that the circumstances

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present here justify an exercise of the Court’s discretion to grant the requested stay. The

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Court’s Order permits Petitioner to file a new of-right Rule 33 PCR proceeding consistent

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with Anders and to have that brief and the record independently reviewed by the state

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court. (Doc. 41.) If the stay is granted, then Petitioner will remain incarcerated until both

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the appellate process and the state court review conclude. If, as Respondents contend,

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there is no appealable issue in Petitioner’s criminal proceedings, then no harm will accrue

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to Respondents by permitting Petitioner to file a new Anders brief during the pendency of

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the appeal. If, however, Petitioner prevails on appeal and on review of his Anders brief,

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then he will have been harmed by his unlawfully prolonged incarceration. The Court

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finds that the hardship posed by the possibility of Petitioner’s unlawfully prolonged

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incarceration outweighs any hardship Respondents may sustain by allowing Petitioner to

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file his Anders brief and have it reviewed by the state court while the appeal is ongoing.

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Accordingly, the Court finds that the balance of hardships tips in Petitioner’s favor.

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The remaining factors do not shift the balance in favor of a stay. While

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Respondents have demonstrated “a substantial case on the merits” on appeal, Hilton, 481

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U.S. at 778, they have not made a “strong showing” that they are likely to succeed on the

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merits. Holder, 556 U.S. at 433–34. Nor does the public interest justify granting a stay, as

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Petitioner will remain incarcerated unless and until the state court finds that his new

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Anders brief has merit. Considering the four factors for issuance of a stay, the Court finds

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that a stay is not warranted.

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion to Supplement Response (Doc. 99) is

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granted.

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....

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....

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IT IS FURTHER ORDERED that the Motion to Stay Judgment (Doc. 92) is
denied.
Dated this 25th day of May, 2021.

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