Floyd v. Cain

Filing 130

ORDER AND REASONS - Respondent's motion to stay the Court's May 8th Order, and Floyd's motion for release are GRANTED. IT IS FURTHER ORDERED that Floyd be released upon the perfection of his personal recognizance bond with theconditio ns. 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 Floyd. With the consent of the United States District Court for the Western District of Louisiana, the Probation Office for the Eastern District of Louisiana shall transfer jurisdiction over Floyd'ssupervision to the Probation Office for the Western District of Louisiana.. Signed by Judge Sarah S. Vance on 6/22/17. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN D. FLOYD

CIVIL ACTION

VERSUS

NO. 11-2819

DARREL VANNOY, WARDEN

SECTION “R” (3)

ORDER AND REASONS
Before the Court are respondent’s motion to stay the Court’s May 8,
2017 Judgment and Order,1 and petitioner John D. Floyd’s motion for release
pending appeal pursuant to Rule 23(c) of the Federal Rules of Appellate
Procedure.2 For the following reasons, the Court grants both motions.

I.

BACKGROUND
The Court has already provided a full procedural and factual

background to this case.3 For the purposes of these motions, it is sufficient
to recall that Floyd was convicted of second-degree murder in Louisiana state
court in 1982. See State v. Floyd, 435 So. 2d 992, 992 (La. 1983). Floyd filed
an application for habeas corpus relief in state court on March 2, 2006,

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2
3

R. Doc. 112.
R. Doc. 114.
R. Doc. 78; R. Doc. 109.

twenty-three years after the Louisiana Supreme Court finalized his
conviction.4 The Criminal District Court for the Parish of Orleans denied
Floyd’s petition from the bench.5 Without assigning additional reasons, the
Louisiana Supreme Court denied Floyd’s writ application. Floyd v. Cain, 62
So. 3d 57 (La. 2011).
At the conclusion of his post-conviction proceedings in state court,
Floyd petitioned this Court for habeas corpus relief under 28 U.S.C. § 2254.6
To overcome the untimeliness of his petition, Floyd argued that he was
actually innocent of the murder of William Hines, and therefore his untimely
petition could proceed under McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
See id. at 1928 (“[A]ctual innocence, if proved, serves as a gateway through
which a petitioner may pass whether the impediment is a procedural bar . . .
or, as in this case, expiration of the statute of limitations.”).
On September 14, 2016, this Court—considering both old and new
evidence—found that Floyd had preponderantly established that no
reasonable juror would find him guilty beyond a reasonable doubt of the
murder of William Hines.7 Floyd v. Cain, No. 11-2819, 2016 WL 4799093,

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5
6
7

R. Doc. 1 at 16.
Floyd Ex. 47 at 181.
R. Doc. 1.
For a summary of the Court’s reasoning, see R. Doc. 109 at 5-6.
2

at *2-3 (E.D. La. Sept. 14, 2016). Because the Court found that Floyd met the
standard necessary to overcome the untimeliness of his habeas petition, the
Court remanded his petition to the Magistrate Judge for an evaluation on the
merits. Id. at 3.
Floyd’s original habeas petition asserted three bases for relief: (1) the
State suppressed material, favorable evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963); (2) the State destroyed evidence in violation
of Arizona v. Youngblood, 488 U.S. 51 (1988); and (3) Floyd is entitled to
habeas relief because he is actually innocent.

In his Report and

Recommendation, the Magistrate Judge recommended that Floyd’s Brady
claim be granted.8 On May 8, 2017, the Court rejected the State’s objections
to the Magistrate Judge’s Report and Recommendation and adopted the
Recommendation as its opinion.9 Floyd v. Vannoy, No. 11-2819, 2017 WL
1837676, at *1 (E.D. La. May 8, 2017). Accordingly, the Court granted Floyd’s
petition for habeas corpus relief and ordered the State of Louisiana to either
retry Floyd or release him within 120 days of the Court’s order. Id. at *16.

R. Doc. 81.
The Court also found that John Rue Clegg’s affidavit, which the
Magistrate Judge did not consider, was additional Brady material. Floyd v.
Vannoy, 2017 WL 1837676, at *5.
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On May 18, 2017, respondent Warden Vannoy, through the Orleans
Parish District Attorney (“the State”), filed a notice of appeal of the Court’s
May 8 Order and Judgment.10 Five days later, the State filed a motion to stay
the Court’s May 8 Order and Judgment pending the resolution of Vannoy’s
appeal.11 On the same day, Floyd filed a motion to be released on his own
recognizance while the State’s appeal is pending under Federal Rule of
Appellate Procedure 23(c).12
The State initially opposed Floyd’s motion for release, and Floyd
opposed the State’s motion for a stay pending appeal. On June 9, 2017, the
State and Floyd notified the Court that they had reached an agreement.13
More specifically, the State no longer opposes Floyd’s release, provided that
Floyd agrees to abide by certain conditions of supervision. In exchange,
Floyd no longer opposes the State’s motion to stay the Court’s judgment
pending appeal.14

Thus, the parties agree that the Court’s May 8 Order

should be stayed pending the State’s appeal, and that Floyd should be
conditionally released on a personal recognizance bond while the State’s
appeal is pending.

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11
12
13
14

R. Doc. 111.
R. Doc. 112.
R. Doc. 114.
R. Doc. 124.
Id. at 1-2.
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II.

DISCUSSION
Federal Rule of Appellate Procedure 23 establishes that “[w]hile a

decision ordering the release of a prisoner [in a habeas corpus proceeding]
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.” As the Supreme Court has recognized, “Rule 23(c)
undoubtedly creates a presumption of release from custody” in cases, such
as here, where a federal court has granted a state prisoner habeas relief and
ordered the state to either retry or release the petitioner.

Hilton v.

Braunskill, 481 U.S. 770, 774 (1987).15 But Rule 23 acknowledges that this
presumption may be overcome, id., and the Court in Hilton instructed
reviewing courts to follow the “general standards for staying a civil
judgment.” Id. at 775 (citations omitted). Accordingly, the relevant factors
in considering both Floyd’s and respondent’s motions are the same. See, e.g.,
U.S. ex rel. Newman v. Rednour, 917 F. Supp. 2d 765, 787 (N.D. Ill. 2012)
(“Consideration of whether to grant a stay and whether to grant a successful

The petitioner in Hilton was a New Jersey state prisoner, and the
United States District Court for the District of New Jersey ordered the state
to either retry the petitioner within 30 days or the court would order his
release. 481 U.S. at 773 (quoting Braunskill v. Hilton, 629 F. Supp. 511, 526
(D.N.J. 1986).
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15

habeas petitioner’s motion for release on bond are both controlled by Federal
Rule of Appellate Procedure 23(c) as well as the U.S. Supreme Court’s
decision in Hilton.”); Pouncy v. Palmer, 168 F. Supp. 3d 954, 958 (E.D. Mich.
2016) (noting that petitioner’s motion for release and State’s motion to stay
are governed by same standards); Dassey v. Dittmann, No. 14-1310, 2016
WL 6684214, at *2 (E.D. Wis. Nov. 14, 2016). These factors are:
(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.
Hilton, 481 U.S. at 776 (citations omitted).

Hilton also added that in

reviewing these factors, courts should consider the possibility that the
petitioner is a flight risk, the potential danger to the public if the petitioner
is released, and the State’s “interest in continuing custody and rehabilitation
pending a final determination of the case on appeal.” Id. at 777.
The parties’ agreed upon outcome is consistent with the result reached
by a number of federal courts in litigated cases addressing simultaneous
motions to stay pending appeal and a successful habeas petitioner’s motion
for release pending appeal. See, e.g., Pouncy, 168 F. Supp. 3d at 969-71
(granting stay and motion for release); Dassey, 2016 WL 6684214, at *2;
Smith v. Berghuis, No. 03-87, 2009 WL 1309507, at *2 (W.D. Mich. May 11,
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2009) (“[A] number of courts have recognized that . . . a stay does not
preclude a release on bond.”) (collecting cases); Woodfox v. Cain, No. 06789, 2008 WL 5095995, at *4 (M.D. La. Nov.25, 2008) (granting motion for
release pending appeal and granting motion for stay); Smith v. Jones, No.
05-72971, 2007 WL 3408552, at *4 (E.D.Mich. Nov.15, 2007) (same); Grube
v. Blades, No. 01-357, 2006 WL 516753, at *1 (D. Idaho Feb.28, 2006) (“The
Court has the option of releasing the prisoner but staying the retrial
provision of the Order pending appeal.”).
Additionally, the agreed upon outcome satisfies the concerns
underlying the Hilton factors. A stay of the Court’s May 8 Order preserves
the State’s interest in conserving the resources necessary to retry Floyd
within 120 days, as well as the ability to vindicate its interests effectively on
appeal. See Pouncy v. Palmer, 168 F. Supp. 3d at 970 (staying order
requiring State to retry petitioner in part to allow State to conserve
“substantial resources.”); Woodfox v. Cain, No. 06-789, 2008 WL 5095995,
at *2 (M.D. La. Nov. 25, 2008) (same). And by ordering Floyd’s conditional
release, Floyd’s “always substantial” interest in avoiding unconstitutional
detention is secured. Hilton, 481 U.S. at 777; see also Newman, 917 F. Supp.
2d at 789 (“The injury that Petitioner will suffer by continued detention is
undeniably irreparable.”); Dassey, 2016 WL 6684214, at *4-5.
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Finally, the public interest is served by the parties’ agreed upon
resolution. The public has a strong interest in the release of a prisoner that
a court has found to be incarcerated in violation of the Constitution.
Newman, 917 F. Supp. 2d at 789; Burbank v. Cain, No. 06-2121, 2007 WL
2809996, at *4 (E.D. La. Sept. 24, 2007). Further, although the public also
has an interest in its safety from dangerous criminals, here, Floyd has
demonstrated that he is not a danger to the public, nor is he a flight risk. He
submitted evidence that reflects that he has been a model prisoner with a
nearly perfect disciplinary record.16 Floyd provided the affidavit of N. Burl
Cain, the former warden of Angola State Prison and Floyd’s custodian for
over twenty years.17 Cain unequivocally attested to Floyd’s trustworthiness,
that Floyd is “completely rehabilitated,” and expressed full support for
Floyd’s conditional release.18 Further, Cain attested that Floyd was one of
only seven inmates that Cain trusted enough to bring to New Orleans right
after Hurricane Katrina to help rebuild.19 During this trip, there were no
guards, and Floyd could have fled, but instead Floyd “worked very hard to be

Floyd’s only write-up in the last 20 years was for a non-violent,
work-related violation. R. Doc. 114-7 at 1.
17
R. Doc. 114-6 at 1.
18
Id.
19
Id.
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of help.”20 Based on this experience, Cain states that Floyd is not a flight risk
and will comply with whatever requirements the Court imposes on his
release.21 The Fifth Circuit has previously given great weight to Warden
Cain’s opinion, see Woodfox v. Cain, 789 F.3d 565, 572 (5th Cir. 2015), and
the Court finds that Warden Cain’s opinion deserves serious consideration.22
The Court is convinced that Floyd is not a danger to the public and is not a
flight risk. Moreover, the conditions to be imposed on Floyd’s release will
provide an added assurance against any risk to public safety.
For the foregoing reasons, the Court grants the State’s motion to stay
the Court’s May 8 order pending the State’s appeal, and grants Floyd’s
motion for release on a personal recognizance bond. Accordingly, the Court
enters the following order.

Id.
Id.
22
Floyd submitted the letters of others stating their opinion that
Floyd is not a flight risk or a danger to the public. R. Doc. 114-12. One such
letter is from Catherine Fontenot, the former President of the North
American Association of Wardens and Superintendents. Fontenot worked at
Angola for 22 years, and she stated that Floyd was a “most trusted inmate”
who was “always respectful and offered his help when he felt he could be of
assistance.” Id. at 1.
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III. ORDER
Respondent’s motion to stay the Court’s May 8 Order, and Floyd’s
motion for release are GRANTED. IT IS FURTHER ORDERED that Floyd
be released upon the perfection of his personal recognizance bond with the
following conditions: Floyd shall remain within the State of Louisiana absent
permission from the Court to leave; Floyd shall reside at the farm property
located at 2129 Beau Bassin Road, Carencro, Louisiana, 70520; Floyd shall
not be absent from this property for any period of time greater than 18 hours
at a time; Floyd shall not possess a firearm, destructive device, or other
weapon; upon his release Floyd 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 Floyd 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 Floyd. With the consent of the United States District
Court for the Western District of Louisiana, the Probation Office for the
Eastern District of Louisiana shall transfer jurisdiction over Floyd’s
supervision to the Probation Office for the Western District of Louisiana.
Once the transfer of jurisdiction is complete, Floyd shall report as ordered
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herein to the Probation Office for the Western District of Louisiana. Floyd is
authorized to travel to the Eastern District if necessary for the purposes of
attending court proceedings in this case.

22nd
New Orleans, Louisiana, this _____ day of June, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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