Souliotes v. Tilton
Filing
194
ORDER Denying 190 Respondent's Amended Motion to Stay, signed by District Judge Anthony W. Ishii on 5/21/13. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE SOULIOTES,
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Petitioner,
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v.
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RANDY GROUNDS, Warden,
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Respondent.
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1:06-cv-00667 AWI MJS HC
ORDER DENYING RESPONDENT'S
AMENDED MOTION TO STAY
[Doc. 190]
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I.
INTRODUCTION
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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254. On April 12, 2013, this Court granted relief with respect to claims two, three
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and seven of the amended petition and ordered that "Petitioner shall be released unless the State of
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California both (1) notifies this Court within thirty days of the filing of this order that it intends to
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retry Petitioner and that it has taken concrete and substantial steps to do so; and (2) actually
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commences Petitioner’s retrial within 90 days." (ECF No. 183.) On May 6, 2013, Respondent
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informed the Court of the State's intent to retry Petitioner and to appeal the decisions of this Court
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to the United States District Court of Appeals for the Ninth Circuit. (ECF Nos. 184, 186.)
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Additionally, Respondent filed a motion for stay of Petitioner's release pending appeal and,
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alternatively, a motion for temporary stay.1 (Mot. to Stay, Am. Mot. to Stay, ECF Nos. 185, 190.)
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On May 13, 2013, Petitioner filed an opposition to the motion to stay, and on May 20, 2013,
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Respondent filed a reply. The motion stands ready for adjudication.
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The next day, Respondent filed an amended motion to stay. The amended motion appears to be
substantially similar to the original motion to stay.
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Respondent has failed to clearly describe the relief sought in the motion to stay. From the
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motion, it appears that Respondent may, in the alternative, be requesting one or more of the
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following forms of relief from the judgment: (1) a stay of the proceedings and enforcement of the
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judgment while Respondent pursues his appeal with the United States Court of Appeals for the
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Ninth Circuit, (2) a modification of the conditional grant of the writ of habeas corpus, seeking to
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postpone the retrial and release of Petitioner until the adjudication of the appeal is resolved, or (3)
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a stay of the release of Petitioner provided by Federal Rule of Appellate Procedure 23 and Hilton
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v. Braunskill, 481 U.S. 770, 772, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987). The Court shall address
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each in turn.
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II.
ANALYSIS
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A.
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To the extent that Respondent seeks a stay of the proceeding, it is denied for the same
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reasons as set forth in this Court's March 15, 2013 order denying Respondent's prior motion to stay
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(ECF No. 179.). See INS v. Yong, 208 F.3d 1116, 1120-21 (9th Cir. 2000). Respondent has not
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provided any evidence that the circumstances and equities discussed in the Court's earlier order
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denying a stay have changed. If anything, the issuance of the order granting Petitioner habeas corpus
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relief has further tilted the equities in Petitioner's favor. Petitioner has been incarcerated for over
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16 years and is of advanced age. The prompt resolution of this proceeding is required to ensure that
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Petitioner receives meaningful relief. Yong, 208 F.3d at 1120-21.
Motion To Stay
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B.
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If Respondent seeks to modify the judgment granting a conditional writ of habeas corpus,
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his motion shall be considered a motion for reconsideration under Federal Rule of Civil Procedure
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60(b). See Harvest v. Castro, 531 F.3d 737, 745-46 (9th Cir. 2008). Even though filed as a motion
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to stay, the Court may consider it as a motion for reconsideration. Id. ("Nomenclature is not
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important. The label or description that a party puts on its motion does not control whether the party
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should be granted or denied relief.") (citations omitted.). To the extent that Respondent requests
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modification of the grant of conditional release to either postpone Petitioner's trial until after appeal
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or to keep Petitioner in custody during his federal appeal, the motion seeks modification of the
Motion for Modification of the Grant of Conditional Relief
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Court's order. Id. ("[T]he district court has the authority to modify a conditional writ in order to give
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the State more time to cure the constitutional deficiency, but that such modifications are governed
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by the Habeas Rules and, by incorporation, the Rules of Civil Procedure, including Rule 60.")
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Respondent presents nothing to suggest he has made a sufficient showing of grounds for
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relief from the judgment under Rule 60(b). Respondent's disagreement with the Court's prior
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decisions is not grounds for reconsideration, yet Respondent offers nothing more. He does not
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allege that the judgment was based on "mistake, inadvertence, surprise, or excusable neglect," or
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any other basis for relief from judgment. Fed. R. Civ. P. 60(b)(1). Accordingly, Respondent's
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motion to modify the order granting the conditional writ is denied.
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C.
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A successful habeas petition is provided a presumption in favor of release pending appeal
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unless the respondent presents a sufficient showing of the factors traditionally considered to stay
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a judgment in a civil case. See Hilton v. Braunskill, 481 U.S. at 772; Fed. R. App. P. 23(c).
Motion to Stay Release of Petitioner Pending Appeal
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Here, the Court granted Petitioner's release only if the State does not intend to retry
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Petitioner and does not commence Petitioner's retrial within 90 days. See Harvest v. Castro, 531
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F.3d 737, 741-742 (9th Cir. 2008) ("[A] conditional order of release. . . orders the State to release
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the petitioner unless the State takes some remedial action, such as to retry (or resentence) the
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petitioner."); Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006) ("[T]he sole distinction between
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a conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless
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and until the state fails to perform the established condition, at which time the writ springs to life.")
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(citations omitted.).
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As Respondent has notified the Court that the State intends to retry Petitioner, the conditions
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for granting Petitioner's release have not yet occurred. "[W]hen a state meets the terms of the habeas
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court's condition, thereby avoiding the writ's actual issuance, the habeas court does not retain any
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further jurisdiction over the matter." Gentry, 456 F.3d at 692 (citations omitted); see also Pitchess
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v. Davis, 421 U.S. 482, 490, 95 S. Ct. 1748, 44 L. Ed. 2d 317 (1975) (per curiam) (noting "[n]either
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Rule 60(b), 28 U.S.C. § 2254, nor the two read together, permit a federal habeas court to maintain
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a continuing supervision over a retrial conducted pursuant to a conditional writ granted by the
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habeas court."); D'Ambrosio v. Bagley, 656 F.3d 379, 384 (6th Cir. 2011) ("[A] district court sitting
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in habeas has jurisdiction to consider the circumstances that exist up until either the state complies
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with a conditional writ or the court issues an unconditional writ, but does not have jurisdiction to
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consider circumstances that unfold after the state complies with the writ." (citation omitted.).
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During the period the State pursues retrial of Petitioner, it may invoke the use of State law
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and procedure to effectuate Petitioner's continued confinement. See Carter v. Rafferty, 781 F.2d
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993, 998 n.6 (3d Cir. 1986) (If the district court granted the state 60 to 90 days to retry petitioner,
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"the State would have had full opportunity before [petitioner]'s release from custody to make
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application to the state court invoking state bail procedures. Such an application, we emphasize,
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would not have interfered with federal authority in the habeas proceeding, because any continued
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incarceration of [Petitioner] would have been predicated on standards relating to his status as an
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accused facing a murder indictment and trial -- and not on a conviction that has been held by a
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federal court to be unconstitutional."). "Both the historic nature of the writ and principles of
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federalism preclude a federal court's direct interference with a state court's conduct of state
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litigation." Barry v. Brower, 864 F.2d 294, 300 (3d Cir. 1988).
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Respondent's present motion for a stay of release is premature. The conditions set forth by
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this Court to grant Petitioner relief in the form of release from custody have yet to occur, and may
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not ever occur. Accordingly, Respondent is requesting the Court to stay a grant of relief that has not
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been effectuated. Moreover, as described above, the Court lacks authority to supervise Petitioner's
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retrial, including Petitioner's custody prior to and during the retrial. See Anderson v. Calderon, 232
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F.3d 1053, 1100 (9th Cir. 2000) (citing Younger v. Harris, 401 U.S. 37, 44, 27 L. Ed. 2d 669, 91
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S. Ct. 746 (1971)). Accordingly, Respondent's motion to stay is DENIED.2
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IT IS SO ORDERED.
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Dated:
0m8i78
May 21, 2013
SENIOR DISTRICT JUDGE
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The denial is without prejudice to a renewed motion to stay should the conditions requiring Petitioner's
release occur.
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