Martorana v. Mendoza-Powers

Filing 23

ORDER denying 18 Motion to Stay pending Appeal and granting Temporary Stay signed by Chief Judge Irma E. Gonzalez on 7/14/2010. (Lundstrom, T)

(HC) Martorana v. Mendoza-Powers

Doc. 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH MARTORANA, vs. Petitioner, CASE NO. 1:07cv1203-IEG Order Denying Motion for Stay Pending Appeal; Granting Temporary Stay

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

K. MENDOZA-POWERS, Warden, Respondent.

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging Governor Arnold Schwarzenegger's August 25, 2006 decision reversing the Board of Parole Hearing's 2006 grant of parole to Petitioner. On June 17, 2010, the Court granted the petition and ordered Respondent to release Petitioner within thirty (30) days on such terms and conditions that the Board determined appropriate. Respondent has filed a notice of appeal and a motion to stay the decision pending appeal. Alternatively, Respondent asks the Court to issue a temporary stay to allow him to seek relief from the Ninth Circuit Court of Appeals. Petitioner has filed an opposition to the motion to stay. Legal Standard Rule 62(c) of the Federal Rules of Civil Procedure provides: "While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights." More particularly applicable to this case, Fed. R. App. Proc. 23(c) provides that "[w]hile a decision ordering the release of a prisoner is under review, the -11:07cv1203

Dockets.Justia.com

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prisoner must ­ 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 ­ be released on personal recognizance, with or without surety." In determining whether to release a successful habeas corpus petitioner from custody pending appeal, the court must apply the same factors traditionally considered in deciding whether to stay judgment in a civil case. Hilton v. Braunskill, 481 U.S. 770, 775 (1987). The traditional standard applied by district courts to determine whether to grant a stay in a civil action is akin to the one used to decide whether a preliminary injunction should be issued. Winter v. Nat. Res. Def. Council, Inc., -- U.S. --, 129 S.Ct. 365, 376 (2008). The Court may issue a stay upon consideration of four factors: "(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." Nken v. Holder, ­ U.S. ­, 129 S.Ct. 1749, 1761 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors are the most critical. Nken, 129 S.Ct. at 1761. 1. Likelihood of success on the merits Respondent has failed to make a strong showing of likelihood of success on the merits of his appeal. In support of his motion, Respondent argues that the district court erred in applying the "some evidence" standard as a matter of federal due process, that there is no federal due process right implicated by the review of parole decisions, and that Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) is not clearly established federal law. The Ninth Circuit has squarely rejected these arguments. Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (finding that application of the "some evidence" standard to parole determinations is mandated by clearly established federal law); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010) (same). 2. Irreparable injury Respondent argues the order requiring Petitioner to be released would cause irreparable injury because it usurps the Governor's authority to determine parole suitability. Even assuming the Governor's unsuitability finding violated Petitioner's right to due process, Respondent argues -2-

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the proper remedy is not release. Instead, Respondent argues the matter should be remanded for a new gubernatorial review. Again, however, the Ninth Circuit has held that where the Board or Governor's determination of parole unsuitability was unsupported by any evidence in the record, immediate release may be the appropriate remedy. Cooke, 606 F.3d at 1216 (reversing and remanding with instructions to grant the writ); Pearson, 606 F.3d at 612 (declining to further stay district court's order requiring Respondent to release Petitioner within thirty days); McQuillion v. Duncan, 342 F.3d 1012, 1016 (9th Cir. 2003) (district court did not err in ordering Warden to immediately release Petitioner, rather than hold new rescission hearing). 3. Substantial injury to Petitioner

Respondent argues Petitioner is serving an indeterminate life term, such that his continued incarceration is not a significant hardship. However, the Board in March of 2006 determined Petitioner was eligible for immediate release. Each day of Petitioner's continuing confinement thereafter, which is unsupported by any evidence that he poses a danger to society, constitutes a significant constitutional injury. 4. Public Interest

Finally, Respondent argues public safety militates in favor of a stay, citing the Governor's findings that Petitioner was unsuitable for parole based upon his commitment offense, his history of substance abuse, and his prison disciplinary record. Respondent has not, however, come forward with any evidence not apparent in the record, which would demonstrate Petitioner poses a current risk of danger to society.1 Conclusion Respondent has failed to demonstrate that the relevant factors support a stay of the Court's order granting the writ and ordering Petitioner to be released. Therefore, the Court DENIES Respondent's motion for a stay pending appeal. /// /// In Petitioner's opposition to the motion to stay, filed on July 13, 2010, Petitioner indicates the Board once again found Petitioner suitable for parole in 2009, a decision which the Governor once again reversed. -31:07cv1203
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Nonetheless, because Respondent presents substantial questions for review on appeal, the Court GRANTS a temporary stay, for fourteen (14) days, to allow Respondent time to seek a stay pending appeal from the Ninth Circuit pursuant to Fed. R. App. Proc. 8(a)(2)(A)(ii). IT IS SO ORDERED. DATED: July 14, 2010 IRMA E. GONZALEZ, Chief Judge United States District Court

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