Grim v. Epps et al

Filing 19

ORDER denying 15 Motion to Stay Execution of Judgment. Signed by District Judge Debra M. Brown on 11/10/15. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
FREDERICK DENELL GRIM

PETITIONER

V.

NO. 3:14-CV-00134-DMB-DAS

CHRISTOPHER EPPS, et al.

RESPONDENTS

ORDER
Before the Court is Respondents’ motion to stay execution of the Court’s judgment
granting habeas corpus relief to Frederick Denell Grim under 28 U.S.C. § 2254. Doc. #15.
I
Rule 23(c) of the Federal Rules of Appellate Procedure creates a presumption that a
successful habeas petitioner should be released from custody, but also permits a district court to
stay its judgment. This court has broad discretion to grant or deny a stay. See Hilton v.
Braunskill, 481 U.S. 770, 774–75 (1987).
In addition to the language of Rule 23, the decision whether to grant a stay is also guided
by the general rules governing civil stays, specifically, Federal Rule of Civil Procedure 62 and
Federal Rule of Appellate Procedure 8, regulated by the following four factors:
(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). These four factors are supplemented by several
considerations, including “the possibility of flight; the risk that a prisoner will pose a danger to

the public if released, if the State establishes such a risk;1 and the state’s interest in continuing
custody and rehabilitation pending a final determination of the case on appeal.” Burbank v.
Cain, No. CIV.A. 06-2121, 2007 WL 2809996, at *1 (E.D. La. Sept. 24, 2007) (citing Hilton,
481 U.S. at 777) (footnote added).
A
Likelihood of Success on the Merits
The likelihood of Respondents’ success on the merits of their appeal depends on the
argument that this Court wrongly decided to grant habeas relief. Although this Court disagrees
with the proposition that the petition was wrongly decided, it nonetheless acknowledges the
possibility that the Fifth Circuit could find differently on the issue of whether the Confrontation
Clause was violated in this case.
In Hilton, the Supreme Court observed:
Where the State establishes that it has a strong likelihood of success on appeal, or
where, failing that, it can nonetheless demonstrate a substantial case on the merits,
continued custody is permissible if the second and fourth factors in the traditional
stay analysis militate against release.
Id. at 778 (citations omitted).

While Respondents’ likelihood of success is questionable,

Respondents arguably have “a substantial case on the merits.” This factor therefore weighs
slightly in favor of granting the stay.
B
Irreparable Injury to Respondents
Regarding irreparable injury, Respondents, without elaboration or argument, first
contend:

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Respondents have not argued or presented any evidence indicating that Grim will pose a danger to the public if he
is ultimately released. Accordingly, the Court need not consider this factor. See Burbank, 2007 WL 2809996, at *4
(citing Hilton, 481 U.S. at 777) (“But for the Court to consider the dangerousness to the public, the state must
establish such a risk.”).

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This Court’s Order requires the State to commence a new prosecution of Grim
within 120 days or release him from custody. However, the next available term of
court in the Tunica County Circuit Court does not begin until the fourth Monday
in March of 2016, which is beyond the 120 days provided for in this Court’s
order.
Doc. #15 at 4. This contention is factually flawed insofar as the Court’s final judgment does not
require that Grim be re-tried within 120 days. Rather, the final judgment provides in pertinent
part:
The State shall have 120 days from the date of this order to commence a new
prosecution and/or trial of Petitioner. If such prosecution is not commenced
within 120 days, Petitioner shall be released.
Doc. #13 (emphases added). In other words, Respondents need only initiate proceedings by
which Grim will be provided a new trial within 120 days to prevent his release. Respondents
have not provided any evidence or offered any argument concerning their inability or
unwillingness to timely commence such proceedings.

Consequently, the Court finds this

argument unpersuasive.
Respondents next argue that if they
are required to commence a new prosecution pursuant to this Court’s Order, and
later obtain a favorable ruling from the Fifth Circuit in this case finding that
Grim’s conviction and sentence are constitutional and should be affirmed, the
expense of a re-trial, both in terms of money and resources, would be premature
and unnecessary.
Doc. #15 at 4. This argument is also unpersuasive. Respondents have not attempted to quantify
the financial burden that a re-trial might impose.

Rather, they offer nothing more than a

conclusory allegation of expected financial burden; and “[a] conclusory allegation about burden
with no estimate of its extent is insufficient to show irreparable injury.” Campbell v. Warden,
London Corr. Inst., No. 1:14-CV-13, 2015 WL 422255, at *2 (S.D. Ohio Feb. 2, 2015); see U.S.
ex rel. Newman v. Rednour, 917 F. Supp. 2d 765, 791 (N.D. Ill. 2012) (quoting Crist v. Miller,

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846 F.2d 1143, 1144 (7th Cir. 1988)) (“The ordinary incidents of litigation—the time and other
resources consumed—do not constitute irreparable harm.”); see also Conkright v. Frommert, 556
U.S. 1401, 1403 (2009) (Ginsburg, J., in chambers) (quoting Sampson v. Murray, 415 U.S. 61,
90 (1974), for proposition that “[m]ere injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay, are not enough”). Moreover, as succinctly
explained by one district court, arguments concerning
the effort and expense of another trial … can be made as a matter of course in any
case where habeas corpus relief has been granted and the state is appealing, the
only circumstance where a stay governed by Hilton would be requested, yet
Hilton clearly recognized the presumption in favor of release in this circumstance.
Burbank, 2007 WL 2809996, at *3 (citing Hilton, 481 U.S. at 774). Like the Burbank court, this
Court does not find that the “conclusory, matter-of-course argument[]” presented here “weigh[s]
in favor of the state in this case.” Id; see Jones v. Jones, No. CIV.A. 96-2448, 1998 WL 175895,
at *1 (E.D. La. Apr. 13, 1998) (noting weakness of “argument [that] can be made as a matter of
course in cases where habeas corpus relief has been granted”); see also Duran v. Cate, No.
08CV430-WQH-RBB, 2011 WL 1584894, at *2 (S.D. Cal. Apr. 27, 2011) (considering similar
argument and finding irreparable injury factor “does not weigh strongly in favor of” stay).
Lastly, Respondents argue they will be irreparably injured “if Grim is released from
custody pursuant to this Court’s order, and the Fifth Circuit finds that habeas relief was
improperly granted” because “it may prove difficult to locate petitioner in order to return him to
custody to serve out a constitutionally imposed sentence.”2 Doc. #15 at 4. The risk of flight is
an appropriate consideration in determining whether a stay of judgment should be granted.
Hilton, 481 U.S. at 777. However, Respondents have provided no evidence suggesting that Grim
2

It is unclear whether Respondents have abandoned this argument. In their reply, Respondents argue that “[t]he
question of whether Grim represents a flight risk is not a factor in the determination of whether a stay of this Court’s
judgment is warranted.” Doc. #17 at 4 n.4.

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is likely to flee if he is ultimately released. The Court finds Respondents’ conclusory risk-offlight argument unconvincing. See Cowans v. Marshall, No. CV 05-6276-RSWL OP, 2009 WL
4929406, at *5 (C.D. Cal. Dec. 10, 2009) (rejecting risk of flight argument because Respondent
provided “no evidence, let alone credible evidence, that Petitioner … is a significant flight risk if
released”) (citation omitted); Franklin v. Duncan, 891 F. Supp. 516, 521 (N.D. Cal. 1995)
(rejecting State’s argument that release of successful habeas petitioner from custody pending
appeal would pose risk of flight, where State “presented no evidence that [the petitioner] poses a
particularized flight risk”); Burbank, 2007 WL 2809996, at *4 (“The state has offered nothing
beyond its conclusory statements that would show defendant poses a risk to the public or
witnesses.”).
In sum, the Court finds that enforcement of the judgment will not result in irreparable
injury to Respondents.
C
Substantial Injury to Grim
Respondents, in a conclusory manner, contend that “no substantial harm to other persons
will accrue by the granting of a stay.” Doc. #15 at 4–5. This argument simply ignores the
Supreme Court’s clear pronouncement that “the interest of a habeas prisoner in release pending
appeal is ‘always substantial.’” Jones v. Cain, No. CIVA 06-939, 2009 WL 1565946, at *2
(E.D. La. May 29, 2009) (citing Hilton, 481 U.S. at 778). As Respondents have presented no
evidence or argument to rebut this presumption, the Court finds that Grim faces significant harm
if a stay is granted.3

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“The Fifth Circuit has found it unnecessary to consider the third factor in cases such as this, ‘since it comes into
play only when there has been a showing by the movants of probable success and irreparable injury.’” Wansley v.
Mississippi Dep’t of Corr., No. 4:10-CV-00149, 2013 WL 3168261, at *2 (S.D. Miss. June 20, 2013) (quoting
Belcher v. Birmingham Trust Nat’l Bank, 395 F.2d 685, 686 (5th Cir .1968)). The Court nonetheless addresses this
factor to highlight the deficiency in Respondents’ motion.

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D
Public Interest
Respondents argue that “the granting of the stay will serve the public interest” because “it
is in the best interest of the public to require constitutional convictions handed down by juries in
this State to be fully carried out.” Doc. #15 at 4. This argument is predicated on “the Fifth
Circuit find[ing] on appeal that Grim’s conviction and sentence are indeed constitutional.” Id at
4–5. At this time, however, the Court has found Grim’s conviction constitutionally infirm. This
fact weighs against granting the stay because “[t]he public has a significant interest in ensuring
that individuals are not imprisoned in violation of the Constitution.” U.S. ex rel. Newman, 917 F.
Supp. 2d at 789 (emphasis added); see Burbank, 2007 WL 2809996, at *4 (“The public has a
significant interest in the release of a petitioner a court has found to be incarcerated because of
significant failures in a state’s criminal justice system.”) (emphasis added).
The public also has an “interest in continuing custody and rehabilitation pending a final
determination of the case on appeal,” which is at its “strongest where the remaining portion of
the sentence to be served is long.” Hilton, 481 U.S. at 777. Because Grim was sentenced to life
imprisonment, the public’s interest in continuing custody and rehabilitation tips in favor of a
stay.
Balancing these two strong public interests, the Court finds that the public’s interest in
continuing custody and rehabilitation is outweighed by the public’s interest in ensuring that
individuals are not imprisoned in violation of the Constitution. See Douglas v. Singh, No. C-115370 EMC, 2013 WL 2645175, at *5 (N.D. Cal. June 12, 2013) (explaining “interest in
continuing custody and rehabilitation … is attenuated in light of the Court’s conclusion that the
murder conviction is unconstitutional”) (internal citation omitted). Accordingly, the Court finds
that the public interest in this case does not weigh in favor of keeping Grim imprisoned.
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II
In sum, the Court finds that the only factor in favor of Respondents and against the
presumption of release is that Respondents arguably have a substantial case on the merits. With
this and no more, Respondents have not sufficiently shown that the presumption favoring release
is overcome in this case. See Hilton, 481 U.S. at 778 (explaining that “preference for release
should control” where State demonstrates only substantial case on merits) (internal citations
omitted and emphasis added); see also Ruiz v. Estelle, 650 F.2d 555, 565–66 (5th Cir. 1981)
(explaining stay based on substantial case on merits appropriate only “if the balance of equities
(i.e. consideration of the other three factors) is ... heavily tilted in the movant’s favor”) (emphasis
added).
III
For the reasons above, Respondents’ motion [15] to stay execution of the Court’s
judgment is DENIED.
SO ORDERED, this 10th day of November, 2015.

/s/Debra M. Brown
.
UNITED STATES DISTRICT JUDGE

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