Jones v. Bell

Filing 22

OPINION AND ORDER GRANTING 17 Respondent's Motion to Stay; STAYING the court's Opinion and Order Granting Petition for Writ of Habeas Corpus and DENYING WITHOUT PREJUDICE 20 Petitioner's Motion to Appoint Counsel. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARRY JONES,
Petitioner,
Case No. 10-14476

v.
THOMAS K. BELL,
Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO STAY, AND
DENYING WITHOUT PREJUDICE PETITIONER’S MOTION TO APPOINT COUNSEL
On December 19, 2013, the court issued an opinion and order conditionally
granting Petitioner Garry Jones’s petition for a writ of habeas corpus. On January 15,
2014, Respondent filed a motion to stay the court’s opinion and order. The court will
grant Respondent’s motion to stay.
The Supreme Court has articulated four factors for courts to consider when
deciding whether to stay an order granting habeas relief pending appeal:
(1) whether [Respondent] has made a strong showing that he is likely to
succeed on the merits; (2) whether [Respondent] 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 v. Braunskill, 481 U.S. 770, 776 (1987). These factors are to be balanced by the
district court. See id.
Regarding the first factor, Respondent argues that it has a substantial chance of
success on the merits because Petitioner’s request for self-representation was untimely
when it was made. The court disagrees. As discussed in the court’s opinion and order

granting habeas relief, the trial court’s failure to consider Petitioner’s request to
represent himself was an unreasonable application of federal law. Moore v. Haviland,
531 F.3d 393, 402–03 (6th Cir. 2008). And because “the right of self-representation is a
right that when exercised usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to ‘harmless error’ analysis,” thus resulting
in actual harm to Respondent. McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8 (1984).
Nevertheless, the remaining three factors weigh in Respondent’s favor. As the
state argues: “There has been no adjudication by this Court that Jones is innocent of
the crime, only a determination that he should have been allowed to represent himself,
a chance he will be given at a retrial should the State not prevail on appeal.” (Pg. ID
# 1007.) In contrast, Jones’s interest in early release is not strong:
[A] successful habeas petitioner is in a considerably less favorable position
than a pretrial arrestee . . . to challenge his continued detention pending
appeal. Unlike a pretrial arrestee, a state habeas petitioner has been
adjudged guilty beyond a reasonable doubt by a judge or jury, and this
adjudication of guilt has been upheld by the appellate courts of the State.
Hilton, 481 U.S. at 779. Petitioner was convicted of violent offenses, and an early
release of Petitioner would be against the public interest and would result in irreparable
injury to the citizens of Michigan. Petitioner also poses a substantial risk of flight given
that he is subject to a lengthy sentence for his crimes, and faces an uncertain prospect
of acquittal upon retrial.1 Thus, Respondent’s motion to stay the court’s December 19,
2013, opinion and order is granted.
1

In his response, Petitioner argues that the court should not consider his behavior
in prison as urged by Respondent. (Pg. ID # 1021–22.) However, as noted in the order
denying Respondent’s motion to seal, consideration of Petitioner’s prison conduct is not
necessary to the resolution of the instant issue.
2

Lastly, Petitioner filed a “Motion to Appoint Counsel” requesting that the court
appoint him counsel for the appeal filed by Respondent. (Pg. ID # 1018.) This issue is
better addressed by the Sixth Circuit. The court therefore denies without prejudice
Petitioner’s request for counsel. Petitioner may re-file his motion in the Sixth Circuit
Court of Appeals. Accordingly,
IT IS ORDERED that Respondent’s “Motion to Stay Memorandum Opinion and
Order,” [Dkt. # 17], is GRANTED.
IT IS FURTHER ORDERED that the court’s “Opinion and Order Granting Petition
for Writ of Habeas Corpus,” [Dkt. # 12], is STAYED pending appeal.
IT IS FURTHER ORDERED that Petitioner’s “Motion to Appoint Counsel” [Dkt.
# 20] is DENIED WITHOUT PREJUDICE.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 14, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 14, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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