Glover v. Palmer

Filing 30

ORDER denying 28 Motion to Dissolve Stay Pending Appeal. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SANDY RUSSELL GLOVER,
Case No. 07-cv-11912
Petitioner,
HONORABLE NANCY G. EDMUNDS
v.
THOMAS M. BIRKETT,
Respondent.
/

ORDER DENYING PETITIONER'S MOTION
TO DISSOLVE STAY PENDING APPEAL [DKT. 28]
This matter comes before the Court on petitioner's motion to dissolve the stay pending
appeal of this Court's earlier order conditionally granting habeas relief. Respondent opposes
lifting the stay. For the reasons set forth below, petitioner's motion is DENIED.
I.

Background
Petitioner Sandy Russell Glover, a Michigan Department of Corrections inmate

currently incarcerated at the Central Michigan Correctional Facility in St. Louis, Michigan,
filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petition challenged Glover's conviction and sentence for assault with intent to cause great
bodily injury. The petition asserted, inter alia, that petitioner was denied the effective
assistance of appellate counsel when his counsel failed to timely file an appeal as of right
with the Michigan Court of Appeals. On April 25, 2011, the Court granted a conditional writ
of habeas corpus on petitioner's claim of ineffective assistance of appellate counsel, and
dismissed his other claims without prejudice. The conditional writ required the state to

afford the petitioner a new appeal of right within 60 days or release the petitioner from
custody under the sentence at issue here. On May 16, 2011, this Court granted respondent's
motion for a stay pending appeal of that decision, holding that a stay pending appeal was
appropriate in light of the factors set forth in Hilton v. Braunskill, 481 U.S. 770, 774 (1987).
Petitioner's sentence in the present case of 10 to 15 years imprisonment was imposed
to run consecutively to a sentence of 6 to 15 years imprisonment imposed in another case.
The earlier conviction was the subject of another habeas petition, Glover v. Palmer, Case No.
07-11305, before the Honorable Patrick J. Duggan of this court. Judge Duggan denied the
petition in Case No. 07-11305 on March 29, 2010.
When this Court issued its order staying its conditional grant of habeas relief, the appeal
of Case No. 07-11305 was still pending. On February 29, 2012, however, the United States
Court of Appeals for the Sixth Circuit reversed the district court's order denying relief in
Case No. 07-11305, holding in an unpublished opinion that appellate counsel's failure to
perfect an appeal of right was per se prejudicial error under Strickland v. Washington, 466
U.S. 668 (1984). The mandate in that case has not yet issued. On March 27, 2012,
Respondent filed a petition for rehearing en banc in Case No. 07-11305 (court of appeals
Case No. 10-1577), arguing that the decision of the panel cannot be reconciled with existing
United States Supreme Court precedent, and that it is factually distinguishable from
Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011).1

1

The Court takes judicial notice of the Sixth Circuit Court of Appeal's publicly available dockets
in Glover v. Palmer, No. 10-1577, and Glover v. Birkett, No. 11-1614, found at
www.ca6.uscourts.gov.
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Respondent in the present action filed a timely notice of appeal of this Court's order
granting conditional habeas relief. Oral argument is scheduled for June 7, 2012.
II.

Analysis
Petitioner moves for an order dissolving the stay imposed by this Court in its May 16,

2011 order. In his motion, petitioner argues that the decision reversing the lower court in
Case No. 07-11305 renders the continuation of the stay inappropriate. Petitioner argues that
in light of that reversal, respondent no longer can demonstrate a substantial case on the merits
in the present action, and that lifting the stay would not waste scarce judicial resources.
Respondent opposes lifting the stay. Respondent argues that the decision in petitioner's
other habeas case was an unpublished opinion, and therefore not binding on a subsequent
panel deciding an appeal of this action, that the mandate has not yet issued in the other
habeas case, and that a motion for rehearing en banc is in the process of being considered.
Respondent also argues that because the mandate has not yet issued in petitioner's other
habeas action, the lower court order denying relief in that action remains in effect, petitioner
is still lawfully imprisoned for that prior conviction for assault with intent to commit great
bodily harm less than murder, and petitioner will not even begin serving his sentence for the
present conviction until that sentence is fully served. In light of these facts, respondent
argues that petitioner's motion to dissolve the stay is premature.
The Court agrees with respondent, both that the motion is premature and that the
decision of the court of appeals reversing the denial of relief in petitioner's other habeas case
is insufficient to require lifting the stay at this time. A decision of a court of appeals is not
final until the mandate issues. See Youghiogheny and Ohio Coal Co. v. Milliken, 200 F.3d

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942, 951 (6th Cir. 1999) (court of appeals directs district courts through mandate, not through
orders); Bianchi v. Perry, 154 F.3d 1023, 1024 (9th Cir. 1998) (judgment of court of appeals
is not final until the mandate issues to the district court). The lower court order denying
petitioner habeas relief in his other action remains in effect, and he remains lawfully
imprisoned under that conviction. Respondent still has a substantial case on the merits, even
given the unpublished order of the court of appeals reversing petitioner's other habeas action.
The Hilton factors, discussed in detail in this Court's May 16, 2011 order, remain in favor of
continuing the stay at this time.
III. Conclusion
Petitioner's motion to dissolve the stay [Dkt. 28] is DENIED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: April 9, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
April 9, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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