Fellows v. Hartley

Filing 26

ORDER DENYING Respondent's Request for Stay OR in the Alternative Temporary Stay 21 , signed by Judge Oliver W. Wanger on 11/24/10. (Hellings, J)

(HC) Fellows v. Hartley

Doc. 26

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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1:08-cv-1556-OWW-JMD-HC GERALD FELLOWS, Petitioner, v. J.D. HARTLEY, Respondent. I. INTRODUCTION. On October 25, 2010, the Court adopted in part and revised in part the Magistrate Judge's Findings and Recommendation and granted Petitioner's writ of habeas corpus. (Doc. 19). The order granting the petition for writ of habeas corpus directed the California Board of Parole Hearings ("Board") to conduct a new parole hearing consistent with applicable California law within 30 days of the finality of the Court's October 25, 2010 order. (Id.). On October 27, 2010, Respondent filed a notice of appeal and a request to stay the court's order in order to allow time for Respondent to seek a stay in the Ninth Circuit. /// (Docs. 21, 22).1 ORDER DENYING RESPONDENT'S REQUEST FOR STAY OR IN THE ALTERNATIVE TEMPORARY STAY (Doc. 21)

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Respondent requested an expedited ruling in the body of its motion but failed t o comply with the applicable local rules. See E.D. Cal. R. 144.

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Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Fed. R. Civ. P. 62(c). 17

II. LEGAL STANDARD. Pursuant to Federal Rule of Civil Procedure 62(c), a district court "retains jurisdiction during the pendency of an appeal to act to preserve the status quo." Natural Resources Defense Council,

Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). "Rule 62(c) does not restore jurisdiction to the district

court to adjudicate anew the merits of the case," and the "district court's exercise of jurisdiction should not materially alter the status of the case on appeal." Mayweathers v. Newland, 258 F.3d Rule

930, 935 (9th Cir. 2001); Southwest Marine, 242 F.3d at 1166. 62(c) provides, in pertinent part: (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. . . .

"A party seeking a stay of a lower court's order bears a 18 difficult burden." 19 Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1994). 20 District courts consider four factors in ruling on Rule 62(c) 21 motions: "(1) whether the stay applicant has made a strong showing 22 that he is likely to succeed on the merits; (2) whether the 23 applicant will be irreparably injured absent a stay; (3) whether 24 issuance of the stay will substantially injure the other parties 25 interested in the proceeding; and (4) where the public interest 26 lies." 27 States v. 1020 Elect. Gambling Mach., 38 F. Supp. 2d 1219, 1220 28 2 Hilton v. Braunskill, 481 U.S. 770, 776 (1987); United United States v. Private Sanitation Indus.

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(E.D. Wash. 1999); Overstreet ex rel. NLRB v. Thomas Davis Medical Ctrs., P.C., 978 F. Supp. 1313, 1314 (D. Ariz. 1997); Texaco Ref. & Mktg. v. Davis, 819 F.Supp. 1485, 1486 (D. Or. 1993); Miller v. Carlson, 768 F.Supp. 1341, 1342 (C.D. Cal. 1991). "This standard

for evaluating the desirability of a stay pending appeal is quite similar to that which the Court employ[s] in deciding to grant [a] preliminary injunction." Miller, 768 F.Supp. at 1342 (citing Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)). irreparable injury, speculative injury does With respect to not constitute

irreparable injury.

See Goldie's Bookstore v. Superior Ct., 739

F.2d 466, 472 (9th Cir. 1984). Rather, a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary

injunctive relief. See Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). In evaluating the harm that

will occur depending upon whether the stay is granted, a court may consider: "(1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided." Michigan Coalition of Radioactive Material Users, Inc.

v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). III. DISCUSSION. Respondent has not carried its burden of establishing

entitlement to a stay.

First, Respondent fails to establish "a See Hilton, 481 U.S. at

strong likelihood of success on appeal."

778. Respondent's argument that no clearly established federal law requires parole denials in California to be supported by "some evidence" has been rejected repeatedly by the Ninth Circuit. See,

e.g., Pearson v. Muntz, 606 F.3d 606, 610 (9th Cir. 2010) (granting petitioner relief under AEDPA review where parole denial was not 3

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supported by some evidence); see also Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). Second, Respondent fails to demonstrate it will suffer

irreparable injury absent a stay.

Respondent argues that it faces

a risk of irreparable injury because (1) if the Board complies with the court's order and finds petitioner suitable for parole,

Respondent's appeal will become moot, and (2) the court's order is unclear as to whether Petitioner must be released without affording the Governor an opportunity to conduct his review of the Board's decision. (Motion at 6-7). With respect to Respondent's first

argument, Respondent's conclusory supposition that a finding of suitability "may" render Respondent's appeal moot is insufficient to warrant a stay. With respect to Respondent's second argument,

the order granting the petition for writ of habeas corpus does not implicate speculative the Governor's of review authority.2 injury are Respondent's insufficient to

claims

irreparable

justify a stay.

Goldie's, 739 F.2d 466 at 472.

Third, Respondent has not sufficiently shown that Petitioner will not be harmed. While Respondent is correct that Petitioner is serving an indeterminate life term, "for which he is seeking early release on parole," (see Doc. No. 21 at 8), delaying vindication of Petitioner's constitutional rights after a successful habeas

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The relevant portion of the order provides: "The California Board of Parole H e a r i n g s shall, within 30 days of the finality of this decision, conduct a new p a r o l e hearing consistent with Lawrence and Prather to determine if Petitioner c u r r e n t l y poses an unreasonable risk of danger to society if released on parole. In the absence of any such evidence and in accordance with California law, the B o a r d shall grant Petitioner parole and calculate a release date for Petitioner. Within 10 days of Petitioner's hearing, Respondent must file a notice with the C l e r k of Court updating the Court on outcome of the hearing and submitting t r a n s c r i p t of the hearing for the Court's review." (Doc. 19 at 9-10).

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petition

would

not

only

constitute

a

substantial

injury

to

Petitioner, but also extend the constitutional violation Petitioner has suffered. See Mezhbein v. Salazar, 2008 WL 1908533, *3 (C.D.

Cal. April 27, 2008) (stating, "[a] stay pending appeal will substantially harm Petitioner . . . if the stay is granted

Petitioner will face a prolonged period of continued incarceration when the Court has already determined that the denial of parole was not supported by the evidence. There can be no doubt that a stay

will substantially injure Petitioner"). Finally, Respondent has not sufficiently shown that the public interest clearly lies in favor of a stay. As the Ninth Circuit

noted in Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003), "the public has an interest in rewarding an inmate's rehabilitation and positive conduct." Accordingly, Respondent has not adequately

met its "difficult burden" of showing that a stay of this Court's order is necessary. See Hilton, 481 U.S. at 776; Private

Sanitation, 44 F.3d at 1084. ORDER For the reasons stated, IT IS HEREBY ORDERED that: (1) (2) Respondent's request for stay is DENIED; and Respondent's request for a temporary stay is DENIED.

IT IS SO ORDERED. Dated: November 24, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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