Hewitt-El v. Parish

Filing 18

OPINION AND ORDER Granting 16 MOTION to Stay Pending Appeal, Brief in Support, Attachment, with Certificate of Service filed by Les Parish. Signed by District Judge Sean F. Cox. (JMcC)

Case 2:19-cv-10652-SFC-DRG ECF No. 18, PageID.7191 Filed 05/10/22 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN DAVID HEWITT-EL,
Petitioner,

Case Number: 2:19-10652
HONORABLE SEAN F. COX

v.
LES PARISH,
Respondent.
/
OPINION AND ORDER GRANTING RESPONDENT’S
MOTION FOR STAY PENDING APPEAL (ECF NO. 16)
On February 15, 2022, the Court granted Petitioner Jonathan David Hewitt-El a
conditional writ of habeas corpus on the ground that he received ineffective assistance of
counsel and the state court’s decision to the contrary was an unreasonable application of
clearly established Supreme Court precedent. Hewitt-El v. Parish, No. 2:19-10652, 2022 WL
468950 (E.D. Mich. Feb. 15, 2022). The Court has ordered Petitioner released from state
custody unless the State of Michigan initiates proceedings to retry him within 120 days. Id.
at *11. Respondent has appealed the Court’s decision (ECF No. 11) and moved for a stay
pending appeal (ECF No. 16). Petitioner has moved for bond pending appeal. (ECF No. 14.)
For the reasons that follow, Respondent’s motion is GRANTED. The Court will
separately address Petitioner’s motion for bond after Pretrial Services completes an
investigation.

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MOTION FOR STAY PENDING APPEAL
The Court considers four factors to determine whether a stay should be issued pending
appeal: (1) whether the stay applicant has made a strong showing that the applicant is likely
to succeed on the merits on appeal; (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) whether the public interest is served. Hilton v.
Braunskill, 481 U.S. 770, 776 (1987).
Respondent contends that he is likely to succeed on the merits of the case on appeal.
In support of this argument, Respondent primarily offers a restatement of arguments already
considered by the Court. So for the reasons stated in detail in the opinion granting habeas
relief, the Court concludes that Respondent has not demonstrated a strong likelihood of
success.

Nevertheless, the Court recognizes the standard governing habeas corpus

proceedings is difficult to meet, particularly as it applies to ineffective assistance of counsel
claims. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The standards created by
Strickland and § 2254(d) are both highly deferential ... and when the two apply in tandem,
review is doubly so.”) (quotations omitted). As such, the Court finds this factor favors
neither side.
Second, if the Court’s order is not stayed, the State faces the prospect of having to
expend substantial resources to conduct a second trial while simultaneously appealing the
Court’s decision. The second factor therefore favors granting the stay.
Third, Respondent’s interest in a stay is not necessarily at odds with Petitioner’s
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“always substantial” interest in avoiding unconstitutional detention. Hilton, 481 U.S. at 777.
Petitioner has moved for release on bond pending appeal and, as discussed below, the Court
will separately address the availability of bond after Pretrial Services completes an
investigation.
Finally, the Court finds that the public has a compelling interest in avoiding the waste
of judicial resources that would result from forcing the State to retry the petitioner while an
appeal remains pending. This factor therefore favors granting a stay of the Court’s order.
For these reasons, the factors enumerated in Hilton weigh in favor of staying the
conditional writ pending resolution of the appeal.
MOTION FOR BOND PENDING APPEAL
Petitioner has filed a motion for bond pending appeal. There is a presumption that a
successful habeas petitioner should be released from custody pending the state’s appeal of
a federal-court decision granting habeas relief. Fed. R. App. P. Rule 23(c); Hilton, 481 U.S.
at 774. The presumption favoring release may be overcome if the judge rendering the
decision “otherwise orders.” Hilton, 481 U.S. at 774. In addition to the traditional stay
factors, a court should consider the possibility of flight, possible danger to the public, and the
“state’s interest in continuing custody and rehabilitation pending a final determination of the
case on appeal.” Id. at 777. Respondent argues that Petitioner’s “abysmal” institutional
record weighs heavily against release on bond. (ECF No. 15, PageID.7113.) Petitioner notes
that he has received fewer misconduct tickets than the average MDOC prisoner and has not
been found guilty of any misconduct involving a physical assault. (See ECF No. 17,
3

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PageID.7153.) The Court has requested an investigation by pretrial services and will decide
the motion for bond in a separate decision after the investigation is complete.
ORDER
For the foregoing reasons, the Court GRANTS Respondent’s Motion for Stay Pending
Appeal (ECF No. 16).
SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: May 10, 2022

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