Wansley v. Miss. Dept. of Correction

Filing 62

ORDER denying 58 Motion to Stay Proceedings. Signed by District Judge Carlton W. Reeves on 6/20/2013. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JEFFERY WAYNE WANSLEY

PETITIONER

v.

CAUSE NO. 4:10-CV-149-CWR-FKB

MISSISSIPPI DEPARTMENT OF
CORRECTIONS; EMMITT L.
SPARKMAN

RESPONDENTS

ORDER
Before the Court is respondents’ motion to stay. Docket No. 58. Petitioner Jeffery Wayne
Wansley has responded in opposition. Docket No. 60. Respondents have not filed a rebuttal.
I.

Background
On April 30, 2013, this Court entered an Order in this habeas proceeding which affirmed

Wansley’s conviction, affirmed his 30-year sentence, and found that under well-established
Mississippi law, he was entitled to a parole hearing. Docket No. 56. The next day, a Final Judgment
was entered directing respondents to “allow Wansley to seek a vote on parole from the Mississippi
Parole Board in a timely fashion, pursuant to the same procedure afforded other inmates with
non-enhanced sentences.” Docket No. 57. Respondents’ motion to stay followed shortly thereafter.
II.

Present Arguments
Respondents argue that the parole hearing should be stayed because they “will present a

substantial case on the merits of a legal issue, which . . . will have a likelihood of success on appeal.
That is, the claim to be raised on appeal by respondent is such that reasonable jurists can differ, as
evidenced by the fact that the Magistrate Judge and this Court disagreed as to the disposition of the
issue raised herein.” Docket No. 58, at 2. They contend that Wansley’s parole hearing would
constitute irreparable injury, then assert that if Wansley is granted parole, reversal by the Fifth
Circuit would force the State to reincarcerate Wansley, “thereby potentially implicating possible due
process questions.” Id. at 3 & n.1.
III.

Legal Standard
In determining whether a stay pending appeal is warranted, a district court is required to

consider:

(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.
Nken v. Holder, 556 U.S. 418, 426 (2009) (quotation marks and citation omitted). “A stay is an
intrusion into the ordinary processes of administration and judicial review, and accordingly is not
a matter of right, even if irreparable injury might otherwise result to the appellant.” Id. at 427
(quotation marks and citations omitted). “The party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion.” Id. at 433-34.
IV.

Discussion
As to the first factor, respondents have not made a strong showing that they are likely to

succeed on the merits. Their motion, in fact, does not present any argument or cite any case, statute,
or other authority on the merits of this case. While respondents have stated their intent to “present
a substantial case on the merits of a legal issue,” they have not stated which of several potential
issues they believe they will succeed on, much less explained in a sentence why they believe they
will prevail.
Further, respondents’ claim that “reasonable jurists can differ” simply parrots the standard
for obtaining a certificate of appealability – a procedure which is inapplicable here – and is no
substitute for making some argument on the merits, however brief. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (reciting standard for a petitioner to receive a certificate of appealability).
On the second factor, respondents may be correct that a hearing before the Mississippi Parole
Board would require an expenditure of time and resources. But they have made no argument and
cited no law that such an expenditure would constitute irreparable injury. For all we know, the
incremental cost to the Mississippi Parole Board of considering one additional request for parole is
as likely to be de minimis as it is to be irreparable. That is not enough to justify a stay pending
appeal, since “simply showing some possibility of irreparable injury fails to satisfy the second
factor.” Nken, 556 U.S. at 434-35 (quotation marks and citation omitted).
In addition, respondents have not considered the other side of the resources equation: the past
and present expense of continuing to incarcerate a person who was entitled to a parole hearing years
ago. Respondents have not met their burden on this element. See Belcher v. Birmingham Trust Nat’l
2

Bank, 395 F.2d 685, 686 (5th Cir. 1968) (finding that bare assertions of irreparable injury “will not
suffice”).
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.” Id. For the record, though, other parties will be substantially harmed by
issuance of a stay. Respondents’ incorrect interpretation of a clear Mississippi statute and wellestablished Mississippi case law has already caused Wansley several years of delay in receiving a
parole hearing. Any more delay in Wansley receiving the same process that other inmates with nonenhanced sentences receive would only serve to worsen his constitutional injury.
Finally, respondents’ contention that “the granting of the stay will serve the public interest”
is deficient, as they have not explained how the public interest would be served by staying the
Order.1 Docket No. 58, at 3. It may be arguable that this factor is in equipoise. Certainly the public
has an interest in its state officials and agencies complying with their duties under state law,
regardless of whether that state law grants or denies persons in Wansley’s situation a parole hearing.
In this instance, however, Mississippi’s statutes and cases uniformly point toward permitting
Wansley a parole hearing. And it does not serve the public interest to incur costs of incarceration
to bar an inmate from seeking parole when he is entitled to a parole hearing, since those
expenditures may be unnecessary.
The public also has an interest in having its state’s attorneys consistently interpret and apply
the law to its citizens. As the Court’s earlier Order found, that has not been done here, since the
State’s position with respect to Wansley’s sentence made a complete about-face between 2002 and
the present, for no apparent reason. In addition to the above, therefore, the public interest factor
supports denying a stay of a Court Order drawing attention to a party’s plainly inconsistent
positions.
To sum up the four factors, respondents have not made a merits argument or even attempted
to cite any statute or case supporting their potential merits arguments; have an explanation of
1

In contrast, in a nearly identical motion to stay filed in another habeas case proceeding along a similar
timeline as ours, counsel for respondents wrote that “the granting of the stay will serve the public interest, as the
victims in this case were severely affected by these crimes and deserve the right to have appellate review of this
matter on their behalf.” Hughes v. Epps, No. 1:09-cv-284, Docket No. 18, at 3 (N.D. Miss. Mar. 29, 2013). In our
case, though, counsel has failed to articulate any public interest served by denying Wansley a vote on parole.

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irreparable injury that is unsupported; would continue to deny Wansley the due process other
persons with non-enhanced sentences already receive; and have not explained how the public
interest is served by paying to incarcerate a man who was entitled to a parole hearing years ago.
These factors weigh in favor of denying the motion for stay pending appeal. See Hilton v. Braunskill,
481 U.S. 770, 778 (1987) (“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. Where the State’s showing on the merits falls below this level, the
preference for release [in Federal Rule of Appellate Procedure 23(c)] should control.”) (citations
omitted).2
Respondents have also claimed a risk of mootness if the Order is not stayed. That is not
accurate, in part because this case is “capable of repetition, yet evading review.” See Fed. Election
Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007) (“As the District Court
concluded, however, these cases fit comfortably within the established exception to mootness for
disputes capable of repetition, yet evading review.”). In fact, respondents’ assertion that a legal
memorandum from the Mississippi Attorney General’s Office, which allegedly says that no persons
convicted under Mississippi Code § 41-29-142(1) may ever be paroled, means that Wansley’s
situation is actually happening over and over again to other persons convicted under that statute.
This controversy is not moot.
More to the point, though, it is time to recognize that a parole hearing is probably inevitable
in Wansley’s case. If the Fifth Circuit reverses on a matter of procedure and finds Wansley’s merits
arguments appropriate for resolution by a state court, that state court will have to apply a
straightforward statute and a series of consistent decisions by the Mississippi Supreme Court. Not
a single state law authority contradicts this Court’s conclusion that because Wansley’s sentence was
not enhanced by the sentencing judge, Wansley is entitled to a vote from the Mississippi Parole
Board. Therefore, whatever the outcome of this habeas petition on appeal, Wansley likely will

2

Wansley is not eligible for immediate release. In his context, it is appropriate to substitute the release
mentioned in cases like Hilton for a vote by the Mississippi Parole Board, as that is the ultimate relief he is entitled
to under the law.

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ultimately receive a parole hearing at the conclusion of future state court proceedings.3
The question, then, is whether a parole hearing should be held sooner or later. An earlier
parole hearing complies with Mississippi law right now and provides a pathway for the state to avoid
a continued constitutional violation – and perhaps avoid further costs of incarceration, depending
on the Mississippi Parole Board’s vote. A later parole hearing delays those same prospects, causing
harm to Wansley’s legal rights and incurring certain expense to the taxpayers, who continue to fund
this litigation either way. These circumstances provide further support for the outcome of the fourfactor test: denial of the motion to stay.
V.

Conclusion
Respondents have either failed to make necessary arguments in support of a stay pending

appeal or failed to support their arguments with any authority beyond their own say-so. That is not
enough to satisfy their burden. As a result, the motion for stay is denied.
SO ORDERED, this the 20th day of June, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

3

Contrary to what respondents argue, see Docket No. 58, at 3 & n.1, the greater due process concern here
is maintaining custody over Wansley while depriving him of the right to have a parole hearing. Respondents fail to
acknowledge that just because Wansley receives a hearing does not mean that the Parole Board will grant him the
relief he seeks.

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