Owens v. Acevedo et al

Filing 178

MEMORANDUM Opinion and Order: For the foregoing reasons, Respondent's Motion to Recall Writ of Habeas Corpus 176 is denied. Signed by the Honorable Thomas M. Durkin on 10/13/2015:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.
LAWRENCE OWENS,
Petitioner,
v.
STEPHEN DUNCAN, Warden,
Lawrence Correctional Center
Respondent.

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No. 08 C 7159
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
The Seventh Circuit issued a writ of habeas corpus for Petitioner Lawrence
Owens, and required the state court to retry or release Petitioner within 120 days of
the date on which the writ was issued. Respondent sought an extension of that
deadline from this Court, which was denied. See R. 175. Respondent seeks relief
from that judgment pursuant to Federal Rule of Civil Procedure 60(b), and asks the
Court to “recall the writ of habeas corpus and order that petitioner be returned to
the custody of respondent pending resolution of respondent’s appeal in the United
States Supreme Court.” R. 176, ¶ 4. For the following reasons, Respondent’s motion
is denied.
BACKGROUND
In November 2000, Petitioner was convicted in state court of first degree
murder and sentenced to twenty-five years in prison. Petitioner sought relief
through state appellate and postconviction proceedings, and filed a habeas petition

in federal court. Petitioner’s habeas petition alleged a denial of due process based on
improper extrajudicial findings as well as ineffective assistance of counsel. On May
29, 2012, Judge Pallmeyer denied Petitioner’s habeas petition with respect to the
due process claim but granted Petitioner an evidentiary hearing with respect to his
ineffective assistance of counsel claim. United States ex rel. Owens v. Acedevo, 2012
WL 1416432 (N.D. Ill. May 29, 2012). Thereafter, Petitioner’s habeas petition was
reassigned to this Court. After holding an evidentiary hearing, this Court denied
Petitioner’s habeas petition with respect to his ineffective assistance of counsel
claim. Owens v. Hodge, 2014 WL 539125 (N.D. Ill. Feb. 11, 2014). This Court also
denied Petitioner’s certificate of appealability.
On May 12, 2014, the Seventh Circuit allowed Petitioner a limited certificate
of appealability on the due process issue of extrajudicial findings only. On March
23, 2015, the Seventh Circuit reversed the order denying Petitioner habeas relief
based on his due process claim of extrajudicial findings. The Seventh Circuit’s
ruling “g[a]ve the state 120 days in which to decide whether to retry” Petitioner,
and, if the state did not “decide within that period to retry him,” the Seventh Circuit
ordered that Petitioner “be released from prison.” Owens v. Duncan, 781 F.3d 360,
366 (7th Cir. 2015).
On March 26, 2015, Respondent filed a motion in the Seventh Circuit to stay
that court’s mandate pending Respondent’s filing of a petition for writ of certiorari
in the United States Supreme Court. On March 30, 2015, the Seventh Circuit

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denied Respondent’s stay motion. On April 14, 2015, the Seventh Circuit issued its
mandate to this Court.
On April 21, 2015, Respondent filed an application in the Supreme Court to
recall and stay the Seventh Circuit’s writ of habeas corpus pending Respondent’s
filing and disposition of a petition for writ of certiorari. On May 11, 2015,
Respondent’s recall and stay application in the Supreme Court was denied by
Justice Kagan.
Respondent filed his petition for writ of certiorari on June 22, 2015.
Respondent then filed a status report in this Court asking this Court to extend the
Seventh Circuit’s deadline until such time as the Supreme Court ruled on
Respondent’s pending petition for writ of certiorari. On July 29, 2015, the Court
denied this request. R. 175. 1
Also on July 29, 2015, Respondent filed another application in the Supreme
Court asking that Court to recall and stay the Seventh Circuit’s writ pending
disposition in the Supreme Court. Justice Kagan once again denied Respondent’s
Respondent also asked this Court, in the alternative, to construe the Seventh
Circuit’s mandate narrowly by focusing on the language in the Seventh Circuit’s
opinion directing Respondent only to “decide within [120 days] [whether] to retry”
Petitioner. In furtherance of this narrow construction, Respondent submitted an
affidavit of Assistant Cook County State’s Attorney Michael Golden stating that “it
is the intention of the Cook County State’s Attorney’s Office to retry Lawrence
Owens for the first degree murder of Ramon Nelson if and when the case is
remanded to the Circuit Court of Cook County, Illinois.” R. 166-1. Construing the
Seventh Circuit’s mandate as requiring the state not to actually initiate retrial
proceedings within 120 days but only “to decide” to retry Petitioner within that time
period would contravene the spirit of the Seventh Circuit’s mandate if not the letter,
and would set a precedent that would allow the state in future cases to make a
“decision” and then delay implementing that decision for an indefinite period of
time. For these reasons, the Court rejected this request as well.

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application. On August 4, 2015, Respondent re-filed his second application to recall
and stay the Seventh Circuit’s writ, and submitted his re-filed application to Justice
Scalia. Justice Scalia submitted Respondent’s re-filed second application to the
entire Court, which then issued a ruling denying that application on August 13,
2015.
The Supreme Court granted Respondent’s petition for writ of certiorari on
October 1, 2015. Shortly thereafter, Respondent filed the instant motion.
ANALYSIS
The Seventh Circuit’s ruling directing the state to either decide within 120
days that it would retry Petitioner or else release him was a “conditional” writ of
habeas corpus. The Ninth Circuit explained what a conditional writ is in Harvest v.
Castro:
When a court issues a writ of habeas corpus, it declares in
essence that the petitioner is being held in custody in
violation of his constitutional (or other federal) rights.
Given that function of the writ, courts originally confined
habeas relief to orders requiring the petitioner’s
unconditional release from custody. In modern practice,
however, courts employ a conditional order of release in
appropriate circumstances, which orders the State to
release the petitioner unless the State takes some
remedial action, such as to retry (or resentence) the
petitioner. Such [c]onditional orders are essentially
accommodations accorded to the state, in that conditional
writs enable habeas courts to give States time to replace
an invalid judgment with a valid one[.] The consequence
when the State fails to replace an invalid judgment with a
valid one is always release.
531 F.3d 737, 741-42 (9th Cir. 2008) (internal quotation marks and citations
omitted).

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The issues raised by Respondent’s motion are (1) whether the state has to
initiate a retrial against Petitioner while the appeal is pending before the Supreme
Court, and, if so, (2) whether Respondent has to release Petitioner if the state fails
to meet the deadline imposed by the Seventh Circuit. The issue of Petitioner’s
release is governed by Federal Rule of Appellate Procedure 23, which applies to
“Custody or Release of a Prisoner in a Habeas Corpus Proceeding,” and specifically,
Rule 23(c), which applies to “Release Pending Review of Decision Ordering Release.”
Rule 23(c) states as follows:
While a decision ordering the release of a prisoner is
under review, the 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.
Federal Rule of Appellate Procedure 23(d) also may speak to the issue before the
Court. It relates to “Modification of the Initial Order on Custody” and states that:
An initial order governing the prisoner’s custody or
release, including any recognizance or surety, continues
in effect pending review unless for special reasons shown
to the court of appeals or the Supreme Court, or to a judge
or justice of either court, the order is modified or an
independent order regarding custody, release, or surety is
issued.
In Hilton v. Braunskill, the Supreme Court decided what factors Rule 23
allows “a court to consider in determining whether to release a state prisoner
pending appeal of a district court order granting habeas relief.” 481 U.S. 770, 772
(1987). The factors the Supreme Court said should be considered are: (1) whether
the movant has made a strong showing that he is likely to succeed on the merits;

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(2) whether the movant will be irreparably injured absent a stay; (3) whether
issuance of a stay will substantially injure the other parties in the proceeding; and
(4) where the public interest lies. Id. at 776.
The immediate question here, however, is not how to apply the Hilton factors
but which court is permitted to apply them and ultimately make the decision
required by the rule. Rule 23(c) states that the decision on whether to release a
state prisoner while an appeal is pending from an order granting a writ is to be
made by one of the following: (1) the court or judge rendering the decision, (2) the
court of appeals, (3) the Supreme Court, or (4) a judge or justice of either the court
of appeals or the Supreme Court. Since this Court was not the “court or judge
rendering the decision,” i.e., the court that granted the conditional writ of habeas
corpus, this Court does not fit under any of the categories in Rule 23(c) of
authorized courts, judges, or justices who may issue an order authorizing
Respondent to retain custody over Petitioner rather than release him pending
Supreme Court review. Nor does this Court fall within the category of decisionmakers given the power under Rule 23(d) to modify the original order governing
Petitioner’s custody or release, i.e., the decision of the Seventh Circuit. That
category includes only “the court of appeals or the Supreme Court, or [ ] a judge or
justice of either court.”
Despite the indication in Rule 23 that this Court does not have the authority
to alter Petitioner’s custodial status, Respondent contends that the Court retains
the authority to modify its July 29 order denying an extension of the Seventh

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Circuit deadline. Respondent’s current motion, unlike his request for an order in his
previous status report to this Court, focuses less on the issue of Respondent’s
custodial status and more on the issue of whether the writ should be “recalled”
pending appeal in the Supreme Court. Respondent states that Petitioner remains in
state custody, but that his conviction has been vacated by the state court as a result
of the Seventh Circuit’s ruling. Respondent therefore seeks an order recalling the
writ so that the state can file a motion in state court to reinstate Petitioner’s
conviction pending a Supreme Court decision on Respondent’s appeal from the
Seventh Circuit’s issuance of the writ. Respondent cites to Rule 60(b), Sup. Ct. R.
36.3(b) and Sup. Ct. R. 36.4 as the sources of this Court’s power to issue an order
recalling the writ. Respondent also cites to case law discussing a district court’s
inherent power to issue orders regarding custody of a prisoner. See, e.g., Gilmore v.
Bertrand, 301 F.3d 581, 583 (7th Cir. 2002) (“Logically, the equitable power of the
district court in deciding a habeas corpus petition includes the ability to grant the
state additional time beyond the period prescribed in a conditional writ to cure a
constitutional deficiency.”) (citations omitted).
This Court’s inherent power as well as the rules cited by Respondent are
circumscribed by Rule 23. In interpreting Rule 23, the Supreme Court has
explained that “a court’s denial of enlargement [release] to a successful habeas
petitioner pending review of the order granting habeas relief has the same effect as
the court’s issuance of a stay of that order.” Hilton, 481 U.S. at 775-76. For this
reason, the Supreme Court said, courts must look to “the traditional standards

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governing stays of civil judgments in [federal] courts” to “illuminat[e] the generality
of the[ ] terms of Rules 23(c) and (d).” Id. at 774.
Under the normal rules regarding stays of appellate decisions, “a district
court has no jurisdiction to stay a circuit court‘s mandate simply to await the
outcome of a certiorari petition seeking review of the circuit court‘s decision on
appeal.” United States v. Lentz, 352 F. Supp. 2d 718, 728 (E.D. Va. 2005) (citing 28
U.S.C. § 2101(f), Fed. R. App. P. 41(d)(2) and Sup. Ct. R. 23 for the proposition that
“only an appellate court or a justice of the Supreme Court has jurisdiction to stay an
appellate court‘s final judgment pending Supreme Court review of a certiorari
petition”). “Moreover, there is no authority to issue such a stay where, as here, the
circuit court has already denied [Respondent’s] motion for a stay pursuant to
[Federal] Rule [of Appellate Procedure] 41(d)(2). . . . In these circumstances, a
district court‘s issuance of a stay would countermand the spirit of the circuit court's
mandate remanding the case for further proceedings.” Id. (quoting United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993) (“few legal precepts are as firmly established as
the doctrine that the mandate of a higher court is controlling as to matters within
its compass”) (internal quotation marks omitted)). “‘The fact that the writ has been
called an ‘equitable’ remedy does not authorize a court to ignore . . . statutes, rules
and precedents. . . . Rather, courts of equity must be governed by rules and
precedents no less than the courts of law.’” Harvest, 531 F.3d at 744 (quoting
Lonchar v. Thomas, 517 U.S. 314, 323 (1996)).

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Respondent states that, under the Rules that govern proceedings in the
United States Supreme Court, the proper place to start seeking a stay is in the
district court. But the Supreme Court rules relating to release of a prisoner pending
that Court’s review of the grant of habeas petition parallel Federal Rules of
Appellate Procedure 23(c) and 23(d), and therefore would require Respondent to
seek a stay from the Seventh Circuit as the court that issued the original release
order. 2 Moreover, the Supreme Court rule regarding stays in general pending
appeal in the Supreme Court, Sup. Ct. R. 23, also points to the Seventh Circuit as
the “appropriate court” in which Respondent should first seek a stay. See Sup. Ct. R.
23.3 (“Except in the most extraordinary circumstances, an application for a stay will
not be entertained unless the relief requested was first sought in the appropriate
court or courts below or from a judge or judges thereof.”).
The procedural history of this case includes multiple motions for a stay that
have all been denied — one in the Seventh Circuit and two in the Supreme Court.
But Respondent’s previous unsuccessful motions were all filed prior to the date on
which the Supreme Court granted certiorari. This Court is the first to consider the
stay issue after the Supreme Court’s grant of certiorari. The Supreme Court’s grant

See Sup. Ct. Rule 36.3(b) (“Pending review of a decision ordering release, the
prisoner shall be enlarged on personal recognizance or bail, unless the court,
Justice, or judge who entered the decision, or the court of appeals, this Court, or a
judge or Justice of either court, orders otherwise.”); Sup. Ct. R. 36.4 (“An initial
order respecting the custody or enlargement of the prisoner, and any recognizance
or surety taken, shall continue in effect pending review in the court of appeals and
in this Court unless for reasons shown to the court of appeals, this Court, or a judge
or Justice of either court, the order is Rule modified or an independent order
respecting custody, enlargement, or surety is entered.”).
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of Respondent’s petition for writ of certiorari very well might constitute grounds to
re-evaluate the previous orders denying Respondent’s request for a stay,
particularly as to the effect of the Supreme Court’s grant of certiorari on the first
factor under Hilton regarding Respondent’s ability to show likelihood of success on
the merits. However, this Court does not have the authority to make this
determination. Respondent contends that, given the grant of certiorari, a stay is
necessary here to preserve the state’s right to seek a retrial should Petitioner’s
conviction ultimately be upheld by the Supreme Court, while at the same time
relieve the state of the burden of having to retry Petitioner before the necessity of a
retrial is actually known. Nevertheless, this Court cannot avoid the dictates of Rule
23 as well as the normal rules that apply to stays of appellate decisions and
jurisdiction of a district court to enter orders that deviate from the appellate court’s
mandate. These rules require Respondent to present his motion to the Seventh
Circuit, the Supreme Court, or a judge or justice of either of those two courts.
CONCLUSION
For the foregoing reasons, Respondent’s Motion To Recall Writ of Habeas
Corpus [R. 176] is denied.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: October 13, 2015

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