Stevens v. Carlin

Filing 44

ORDER DENYING STAY PENDING APPEAL - IT IS ORDERED: 1. Respondents Motion to Stay Pending Appeal (Dkt. 33 ) is DENIED without prejudice. 2. Because Petitioners Request for Bond was framed in the alternative, seeking such bond only if the Court granted Respondents Motion to Stay, the Request for Bond (Dkt. 38 ) is MOOT. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EDWARD STEVENS,
Case No. 3:14-cv-00403-REB
Petitioner,
ORDER DENYING STAY PENDING
APPEAL

v.
TEREMA CARLIN,
Respondent.

On February 7, 2018, this Court granted Claim 1 of Petitioner Edward Stevens’s
Petition for Writ of Habeas Corpus pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
The Court’s decision requires the State of Idaho to release Petitioner or to institute new
trial proceedings against him within 120 days of the date of that Order—that is, by June
7, 2018. (Dkt. 30.) Respondent has filed a Notice of Appeal and a Motion for Stay
Pending Appeal. (Dkt. 32, 33.) Petitioner has opposed the Motion to Stay and filed an
alternative Request for Bond, arguing that if the Court issues a stay pending appeal, it
should allow Petitioner to be released on bond. (Dkt. 36, 38.) The motions are fully
briefed. (Dkt. 33, 36, 38, 39, 40, 42.)
1.

Standard of Law
If a federal court grants habeas corpus relief, the petitioner must be released from

custody “on personal recognizance, with or without surety,” unless “the court or judge
ORDER DENYING STAY PENDING APPEAL - 1

rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice
of either court orders otherwise.” Fed. R. App. P. 23(c). The United States Supreme
Court has held that Rule 23(c) “undoubtedly creates a presumption of release from
custody in such cases.” Hilton v. Braunskill, 481 U.S. 770, 774 (1987). In Hilton, the
Court identified four factors for a court to consider in determining whether release
pending appeal is appropriate:
(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.
Id. at 776.
2.

Discussion
For the reasons that follow, the Court concludes that Respondent has not rebutted

the Rule 23(c) presumption and that a stay pending appeal is inappropriate in this case.
First, Respondent has not made a strong showing that he is likely to succeed on the
merits of his appeal. Respondent mostly rehashes the same arguments that this Court has
already found to be unpersuasive with respect to Petitioner’s Brady claim. (Dkt. 33-1 at
5-7.) Further, though Respondent has included some additional speculation as to the
evidence of post-embalming removal of the victim’s eyes (see id. at 7), there is nothing in
the record to support such speculation.
This Court has already determined that the Idaho Supreme Court’s rejection of
Petitioner’s Brady claim was objectively unreasonable under § 2254(d)(1). That is, no
fairminded jurist could agree with that court’s treatment of the Brady claim. See
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Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court also found that the state postconviction court’s factual finding of pre-embalming removal of the eyes was
unreasonable under § 2254(d)(2) and that Petitioner rebutted the presumption of
correctness under § 2254(e)(1) by clear and convincing evidence. Given that no
fairminded jurist would agree with the state court’s resolution of Petitioner’s Brady
claim, Respondent does not have a substantial likelihood of prevailing on appeal.
Second, Respondent has failed to satisfy his burden of showing irreparable injury
if a stay is denied. The Court agrees that witnesses’ memories fade over time (Dkt. 33-1
at 10), but such is the case with all retrials. Respondent’s other arguments as to
irreparable injury will be discussed below in the context of the public-interest factor.
Third, although the State likely would not suffer substantial injury if the Court
rejects his arguments, Petitioner unquestionably would. He has already been incarcerated
for nearly 21 years, and the Court will not extend that period absent extraordinary
circumstances, which are simply not present here. See Grube v. Blades, Case No. 1:01cv-00357-BLW, Dkt. 121 at 2 (Feb. 28, 2006) (finding that a stay pending appeal would
substantially injure the petitioner, “who has already been imprisoned for 15 years”). In
addition, Petitioner has an especially strong interest in release—his mother has been
diagnosed with Stage IV uterine cancer, she has no other relatives in Idaho, and may
“pass away before the appeal can be completed.” (Stevens Aff., Dkt. 36-2, at ¶ 12.) Thus,
Petitioner will suffer substantial injury if a stay is granted.

ORDER DENYING STAY PENDING APPEAL - 3

Finally, the public interest weighs against a stay. Respondent argues otherwise,
stating that this Court’s decision to grant relief on Petitioner’s Brady claim “was not
based upon a showing of insufficient evidence at [Petitioner’s] trial.” (Dkt. 33-1 at 10.)
Technically, Respondent is correct. But as Respondent is aware, but does not mention,
and as recognized by the state courts as well as this Court, most of the evidence at
Petitioner’s trial was hotly disputed, and the single most important piece of evidence
against Petitioner was the evidence of injuries in the victim’s eyes—evidence that has
now been called into serious doubt. Further, Petitioner’s first trial ended with a hung jury.
Thus, this is not a case “where there is overwhelming evidence of guilt” of the murder of
the victim. Grube, Case No. 1:01-cv-00357-BLW, Dkt. 121 at 3.
Indeed, the Brady evidence lends support to Petitioner’s claim that the victim was
not shaken prior to his death, which theory was necessary to support the State’s charge of
first-degree murder. Further, though Respondent dismisses the evidence that the victim’s
skull fracture was more than two times smaller at the time of injury than previously
believed (Dkt. 39 at 7), he has not disputed (1) that this evidence “shows whatever caused
[the victim’s] skull fracture required less force than previously thought by either party
because the impact only caused a four-centimeter fracture rather than a nine-centimeter
fracture,” or (2) that the evidence makes the possibility of an accidental fall much more
likely than if the skull fracture had in fact been nine centimeters long at the time of
injury. (State’s Lodging C-11 at 2376; Dkt. 15 at 52-58; Dkt. 39 at 7.)

ORDER DENYING STAY PENDING APPEAL - 4

Relying on the state trial court’s repeated refusals to allow bond in the underlying
criminal case, Respondent also argues that Petitioner must pose a flight risk or a risk to
the public. (Dkt. 33-1 at 8.) However, Respondent has “not provided any specific details
upon which the state courts relied” in denying Petitioner bond. Grube, Case No. 1:01-cv00357-BLW, Dkt. 121 at 3. Moreover, Petitioner had no criminal history prior to his
arrest in this case, and in prison, Petitioner has done very well. He has become “a GED
tutor” and “computer clerk,” as well as “the inmate coordinator for the Inmate Suicide
Prevention program.” (Stevens Aff., Dkt. 36-2 at ¶¶ 9-10.) Throughout the entirety of his
incarceration, Petitioner has received only two Disciplinary Offense Reports, both of
which were dismissed after a hearing. (Id. at ¶ 8.) All in all, Petitioner appears to be
nearly a model inmate. Therefore, on the current record, the Court cannot find that
Petitioner is a risk of flight or is dangerous to the community.
For the foregoing reasons, the Court will deny Respondent’s Motion to Stay
Pending Appeal. This is not to say that the Court would not entertain a motion for a
partial stay—for example, staying only the retrial date—pending appeal, or that the Court
would not consider imposing bond or reasonable conditions of Petitioner’s release
pending appeal. See Grube, Case No. 1:01-cv-00357-BLW, Dkt. 121 at 2-3 (“The Court
has the option of releasing the prisoner but staying the retrial provision of the Order
pending appeal.... The Court believes it can fashion an order that will protect the State’s
right to a retrial if Petitioner prevails on appeal, protect [Petitioner’s] right to be free from
an imprisonment tainted by a constitutional violation, and protect the public.”). However,

ORDER DENYING STAY PENDING APPEAL - 5

absent suggestions on the amount of bond or potential release conditions and briefing
from the parties, the Court does not have sufficient information to issue a partial stay or
to impose such conditions at this time.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion to Stay Pending Appeal (Dkt. 33) is DENIED
without prejudice.

2.

Because Petitioner’s Request for Bond was framed in the alternative,
seeking such bond only if the Court granted Respondent’s Motion to Stay,
the Request for Bond (Dkt. 38) is MOOT.

DATED: April 2, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

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