Spencer v. Scutt

Filing 35

ORDER denying 32 Motion to Stay; granting 31 Motion for Immediate Consideration. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FREDERICK TED SPENCER,
Petitioner,

Case No. 09-13362

v.

Honorable Patrick J. Duggan

DEBRA SCUTT,
Respondent.
/
ORDER (1) GRANTING RESPONDENT’S MOTION FOR IMMEDIATE
CONSIDERATION (ECF NO. 31) AND (2) DENYING RESPONDENT’S
EMERGENCY MOTION TO STAY ORDER GRANTING PETITIONER’S
MOTION TO SET BAIL (ECF NO. 32)
On February 6, 2013, this Court conditionally granted Petitioner Frederick
Spencer’s (“Petitioner”) petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. Soon thereafter, Respondent appealed this Court’s decision to the
United States Court of Appeals for the Sixth Circuit. On March 22, 2013, this
Court granted Respondent’s motion for immediate consideration and motion to
stay enforcement of the habeas judgment pending appeal in part. Specifically, the
Court granted a stay with respect to its order that Petitioner be released from
custody unless the State initiated a new trial within 180 days. Although
Respondent made arguments pertaining to whether Petitioner should remain
confined pending appeal, the Court deemed it prudent to refrain from addressing

any arguments pertaining to Petitioner’s release unless and until Petitioner sought
such relief. On April 22, 2013, Petitioner filed a motion to set bail. Respondent
declined to respond to this motion.
After thoughtful consideration, this Court concluded that Petitioner was
indeed entitled to be released pending appeal and issued an Opinion and a separate
Order to this effect on September 25, 2013. The same day that the Court issued its
Opinion and Order, Respondent filed a motion for immediate consideration (ECF
No. 31) as well as an emergency motion to stay the Court’s order granting
Petitioner’s motion to set bail (ECF No. 32). These motions are presently before
the Court. For the reasons stated herein, the Court grants Respondent’s Motion for
Immediate Consideration but denies Respondent’s Motion to Stay Order Granting
Petitioner’s Motion to Set Bail.
Without citation to a single legal authority, Respondent argues that this
Court should stay execution of its Order granting Petitioner’s release on bail
because a Sixth Circuit panel is scheduled to hear oral argument on the habeas
appeal on October 8, 2013, which is less than two weeks away, and “[a]n opinion
is expected to issue not long thereafter.” (Resp’t’s Mot. 2.) This argument is not
well taken. Not only is the proximity of oral argument irrelevant to whether
Petitioner is entitled to release, Respondent’s prediction regarding when a decision
will issue is just that: a prediction. Moreover, and as Petitioner points out in
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responding to the pending motions, Respondent’s motion to stay essentially asks
this Court to revisit its analysis of the propriety of releasing Petitioner pending
appeal. (Pet.’s Br. 1, ECF No. 33.) The Court will do no such thing. Not only did
Respondent decline to respond to Petitioner’s motion seeking release but
Respondent has not argued that the decision granting Petitioner bail was an
erroneous one.
Accordingly,
IT IS ORDERED that Respondent’s Motion for Immediate Consideration
(ECF No. 31) is GRANTED;
IT IS FURTHER ORDERED that Respondent’s Emergency Motion to
Stay Order Granting Petitioner’s Motion to Set Bail is DENIED.

Date: September 30, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
David A. Moran
Imran J. Syed
Sarah C. Zearfoss
Linus R. Banghart-Linn

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