Williams v. Pliler, et al

Filing 132

ORDER signed by Judge Lawrence K. Karlton on 8/17/14 ORDERING that Respondent's July 21, 2014 motion for a stay is granted in part; Retrial of petitioner is stayed during the pendency of respondent's appeal from the judgment entered in this action. If the appeal is unsuccessful, the State of California shall have thirty (30) days from the date the appellate decision is final to institute trial proceedings in State court; This matter is referred to Pretrial Services for a rep ort and recommendation on whether petitioner is an appropriate candidate for supervised release pending appeal, and conditions of such release, if appropriate; and Respondent's obligation to release petitioner from custody is stayed pending further order of the court. (cc PTS, DAG, USCA) (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ALEX WILLIAMS,

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No.

CIV. S-03-721 LKK/AC (HC)

Petitioner,
v.

ORDER

CHERYL PLILER,
Respondent.

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By order filed June 27, 2014 (ECF No. 114), this court

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granted petitioner’s amended application for writ of habeas

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corpus and directed respondent to release petitioner from custody

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until within sixty days from the date of the order unless the

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State of California elected to retry him.

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on the same day (ECF No. 115).

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filed a notice of appeal (ECF 117) and a motion for stay pending

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appeal or, in the alternative, for a temporary stay, of the June

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27, 2014 order (ECF No. 116).

Petitioner opposes the motion and

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respondent has filed a reply.

The parties have agreed to submit

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the motion for stay on the papers.

Judgment was entered

On July 21, 2014, respondent

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On August 27, 2014,

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petitioner filed a motion for release, which has not been fully

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briefed.

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In reply to the motion for stay, respondent represents that

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prosecutors have determined that petitioner will be retried if

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the appeal is unsuccessful and that they are ready to begin the

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retrial if necessary.1

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presented by respondent’s motion:

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retrial should take place during the pendency of his appeal; and

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second, whether petitioner should be released from custody while

Thus, two separate questions are

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the appeal is pending.2

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first, whether petitioner’s

petitioner’s motion for release.

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The latter issue is also tendered by

It is presumed that a successful habeas petitioner will be

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released from custody pending appeal.

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481 U.S. 770, 774 (1987); see also Fed. R. Civ. P. 23(c).

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presumption “‘may be overcome if the traditional stay factors tip

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the balance against it.’”

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See Hilton v. Braunskill,
The

Haggard v. Curry, 631 F.3d 931, 934

On August 21, 2014, petitioner filed a memorandum in which he suggest that
an evidentiary hearing may be required on this motion to stay because a
factual dispute has arisen over whether the prosecution has in fact located
witnesses and evidence necessary to try the case, or whether most of the
witnesses are “’either almost all gone or dead.’”
Mem. Re: Factual Dispute
(ECF No. 128) at 2. Respondent has filed an opposition to this memorandum
(ECF No. 130) accompanied by a declaration from the deputy district attorney
in which he represents that if a retrial occurs the testimony of any necessary
witness who is unavailable will be presented through their prior testimony
pursuant to California Evidence Code § 1291. This factual dispute is
irrelevant to the matters at bar, as any risks to retrial raised by the
contentions in petitioner’s memorandum fall on respondent, the party seeking
to delay the start of the retrial.

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The grant of habeas corpus relief is a “declar[ation] in essence that the
petitioner is being held in custody in violation of his constitutional . . .
rights.” Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008). Unless this
court’s order is reversed on appeal or petitioner is retried and convicted in
constitutionally sound proceedings, petitioner is in custody in violation of
his federal constitutional rights. For this reason, respondent’s
representation that prosecutors will retry petitioner if the appeal is
unsuccessful does not end the inquiry about whether this court’s order should
be stayed. Respondent is seeking to delay the retrial and petitioner’s
release until the appeal is concluded.

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(9th Cir. 2010) (quoting Hilton, 481 U.S. at 777).

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considers the following factors:

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The court

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(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.

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Hilton, 481 U.S. at 776. “The most important factor is the first,

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that is, whether the state has made a strong showing of likely

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success on the merits of its appeal of the district court's

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decision.”

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at 778).

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Haggard, 631 F.3d at 934-45 (citing Hilton, 481 U.S.

Respondent advances both legal and factual arguments in

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support of her motion for stay.

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has not made a strong showing that she is likely to succeed on

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the merits of her legal argument that petitioner’s Batson claim

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should be governed by the deferential standard of review under

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the Antiterrorism and Effective Death Penalty Act (AEDPA), rather

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than the de novo review required by the United States Court of

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Appeals for the Ninth Circuit and applied by this court.

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factual questions on appeal are vigorously contested by the

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parties, and this court cannot find that respondent has made a

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“strong showing” that she is likely to prevail on the merits of

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her factual arguments on appeal.

The court finds that respondent

The

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Petitioner, who filed his opposition apparently before

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respondent decided that petitioner would be retried if the appeal

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was unsuccessful, has not argued that a delay of the retrial will

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cause him substantial harm.

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interest of the parties and the public interest are all served by

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delaying any retrial until the conclusion of respondent’s appeal.

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Accordingly, respondent’s motion to stay will be granted as to

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the requirement that retrial proceedings be commenced within

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sixty days.

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It appears to this court that the

The question of whether petitioner should be released

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pending appeal is a closer question.

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traditional factors outlined above, the court should consider

In addition to the

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whether petitioner poses a possible flight risk or danger to the

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public.

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interest in continuing custody and rehabilitation pending a final

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determination of the case on appeal is also a factor to be

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considered; it will be strongest where the remaining portion of

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the sentence to be served is long, and weakest where there is

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little of the sentence remaining to be served.”

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Hilton, 481 U.S. at 777.

In addition, “[t]he State’s

Id.

Petitioner, who is now thirty-six years old, has been in

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prison on the commitment offenses for eighteen years.

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however, sentenced to life in prison without the possibility of

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parole for a special circumstance murder and life with the

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possibility of parole on two counts of attempted murder. While

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this factor, without more, might weigh in favor of staying

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petitioner’s release, with his opposition to the motion for stay3

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petitioner has presented substantial evidence that might favor

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supervised release pending appeal.

He was,

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Except to note that it has been filed, the court has not reviewed
petitioner’s August 27, 2014 motion for release, which will remain pending
while the matter is reviewed by Pretrial Services.

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After review of the record, and good cause appearing, this

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matter will be referred to the Pretrial Services Department of

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this court for a report and recommendation on whether petitioner

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is an appropriate candidate for supervised release pending appeal

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and conditions of such release, if appropriate.

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release will be stayed pending the filing of that report.

Petitioner’s

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In accordance with the above, IT IS HEREBY ORDERED that:

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1.

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Respondent’s July 21, 2014 motion for a stay is granted

in part;
2.

Retrial of petitioner is stayed during the pendency of

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respondent’s appeal from the judgment entered in this action.

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the appeal is unsuccessful, the State of California shall have

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thirty (30) days from the date the appellate decision is final to

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institute trial proceedings in State court;

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3.

If

This matter is referred to Pretrial Services for a

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report and recommendation on whether petitioner is an appropriate

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candidate for supervised release pending appeal, and conditions

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of such release, if appropriate; and

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4.

Respondent’s obligation to release petitioner from

custody is stayed pending further order of the court.
DATED:

August 27, 2014.

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