Rhodes v. Cain et al

Filing 109

ORDER AND REASONS granting in part 96 Motion to Stay; granting 99 Motion for Release. The portions of this Court's order requiring the State to set aside Petitioner's conviction and sentence and to retry Petitioner within 120 days are STAYED pending appeal. Further Ordered that Petitioner be released pending appeal by 9:00 a.m. on May 31, 2018 with the following conditions, and any other conditions that the Court may impose in the future. Signed by Judge Jane Triche Milazzo. (NEF: USP) (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY RHODES

CIVIL ACTION

VERSUS

NO: 11-399

N. BURL CAIN

SECTION: “H”

ORDER AND REASONS
Before the Court are Respondent’s Motion to Stay (Doc. 96) and
Petitioner’s Motion for Release (Doc. 99). For the following reasons, the Motion
to Stay is GRANTED IN PART and the Motion for Release is GRANTED.
BACKGROUND
The factual and procedural history of this case is presented in this
Court’s prior orders and need not be repeated in full here. 1 Judge Berrigan
determined that Petitioner received ineffective assistance of counsel during his
trial for attempted murder and armed robbery, violating Petitioner’s Sixth
Amendment rights. 2 On March 8, 2018, this Court found that Petitioner’s

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2

See Doc. 93.
See Doc. 39 at 37.

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procedural default of that claim was excused by the ineffective assistance of
Petitioner’s post-conviction counsel. 3 This Court ordered that the State vacate
Petitioner’s conviction and either release or retry Petitioner by July 6, 2018. 4
Respondent filed a timely notice of appeal on March 15, 2018. 5
Respondent now moves to stay the March 8, 2018 order requiring the
State to vacate Petitioner’s conviction and either release or retry him. 6
Petitioner opposes Respondent’s Motion to Stay and further moves to be
released pending appeal. 7
LAW AND ANALYSIS
Federal Rule of Appellate Procedure 23(c) states that, “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 . . . .” 8 The rule creates a presumption of
release in cases where the state has been ordered to retry or release the
petitioner. 9 That presumption may be overcome by a court applying the general
standards for staying a civil judgment, that is,
(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

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7
8
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Doc. 93.
Doc. 93.
Doc. 95.
Doc. 96.
Doc. 99.
FED. R. APP. P. 23(c).
See Hilton v. Braunskill, 481 U.S. 770, 772–74 (1987).

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will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. 10
Additionally, courts should consider the risk of flight, the state’s interest in
continuing custody and rehabilitation, and the prisoner’s “always substantial”
interest in release. 11 A court may consider the danger posed to the public by
release if the State establishes that such a risk exists. 12 Finally, the State’s
prospects on appeal may be critical. 13 “Where the State establishes that it has
a strong likelihood of success on appeal, or where, failing that, it can
nonetheless demonstrate a substantial case on the merits, continued custody
is permissible if the second and fourth factors in the traditional stay analysis
militate against release.” 14 Although the Supreme Court addressed stay and
release as alternatives, lower federal courts have balanced competing interests
of states and prisoners by staying habeas judgments pending appeal and
ordering that prisoners be conditionally released at the same time. 15
Here, regardless of the State’s likelihood of success on appeal or retrial,
the second and fourth factors do not “militate against release.” With regard to
the second factor, Respondent argues that the State will suffer irreparable
harm in two ways: setting aside Petitioner’s conviction may be irreversible and
it would be a waste of resources to prepare for a new trial while also appealing
this Court’s ruling. 16 Both concerns would be entirely alleviated by staying the
judgment and neither concern would be impacted by Petitioner’s conditional
release pending appeal.

Id. at 776–77; see also Floyd v. Vannoy, No. 11-2819, 2017 WL 2688082, at *2 (E.D. La.
June 22, 2017).
11 Hilton, 481 U.S. at 777.
12 Id.
13 Id. at 778.
14 Id.
15 See Floyd, 2017 WL 2688082, at *3 (collecting cases).
16 See Doc. 96-1 at 8–9.
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With regard to the fourth factor, Respondent argues that the public
interest is best served by the continued imprisonment of a man convicted of
armed robbery and attempted murder and effectively sentenced to life in
prison. However, Respondent makes no specific showing, other than the
conviction, that Petitioner poses a danger to the public or is likely to flee.
Petitioner, on the other hand, presents a detailed plan for a supported reentry
into society, including transitional housing and counseling, arrangements for
employment, and a bond secured by a mortgage on Petitioner’s wife’s home.
Additionally, while imprisoned at Louisiana State Penitentiary, Petitioner
earned a bachelor’s degree and obtained a position of trust with the prison.
Petitioner’s actions while imprisoned and plan for release mitigate the threat
of escape or recidivism. Furthermore, “[t]he public has a strong interest in the
release of a prisoner that a court has found to be incarcerated in violation of
the Constitution.” 17
Because the second and fourth factors do not weigh in favor of continued
custody, Respondent would not be able to overcome the presumption of release
even with a high likelihood of success on appeal or retrial. 18 The State’s interest
in the conservation of resources, however, is significant. That interest can be
protected by a limited stay without impairing Petitioner’s release. Accordingly,
Respondent’s Motion to Stay is granted in part and Petitioner’s Motion for
Release is granted.
CONCLUSION
For the foregoing reasons;

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18

Floyd, 2017 WL 2688082, at *3.
See Hilton, 481 U.S. at 778.

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IT IS ORDERED that Respondent’s Motion to Stay is GRANTED IN
PART and Petitioner’s Motion for Release is GRANTED.
IT IS FURTHER ORDERED that the portions of this Court’s order
requiring the State to set aside Petitioner’s conviction and sentence and to
retry Petitioner within 120 days are STAYED pending appeal.
IT IS FURTHER ORDERED that Petitioner be released pending
appeal by 9:00 a.m. on May 31, 2018 with the following conditions, and any
other conditions that the Court may impose in the future: Petitioner’s
appearance shall be secured by a $50,000 property bond on the house at 4723
Hickerson Drive; Petitioner shall remain within the State of Louisiana absent
permission from the Court to leave; Petitioner shall reside at transitional
housing provided by the First 72+ at 2917 Perdido Street in New Orleans,
Louisiana; Petitioner shall not be absent from that property for any period of
time greater than 12 hours at a time; Petitioner shall submit to location
monitoring by the Probation Office and follow all procedures associated with
that monitoring, unless otherwise recommended by the Probation Office;
Petitioner shall not possess a firearm, destructive device, or other weapon;
immediately upon his release, Petitioner shall meet jointly with the Court, the
Probation Office, and First 72+ to discuss conditions of release; Petitioner shall
report to the Probation Office in person in the district to which he is released
or subsequently transferred at least once per week during business hours; and
Petitioner shall cooperate with and truthfully answer all inquiries by the
Probation Office.
IT IS FURTHER ORDERED that, pursuant to 18 U.S.C. § 3603(10),
the United States Probation Office for the Eastern District of Louisiana is
authorized to supervise Petitioner.

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New Orleans, Louisiana this 30th day of May, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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