Rukes v. State of Montana et al

Filing 47

ORDER granting 41 motion for stay pending appeal, recharacterized as a motion under Fed. R. Civ. P. 62 to suspend the injunction issued on May 23, 2014. Paragraph 1 of the Order of May 23, 2014 37 is SUSPENDED for a period of 30 days. For the period of the suspension, the State is not required by this Court to renew or to continue with renewed proceedings in the trial court. Signed by Magistrate Judge Jeremiah C. Lynch on 7/9/2014. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV 13-116-M-JCL

JACK NORMAN RUKES,
Petitioner,

ORDER re: STATE’S MOTION FOR
STAY PENDING APPEAL

vs.
MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

This matter came before the Court on Petitioner Rukes’s application for writ
of habeas corpus under 28 U.S.C. § 2254. On March 11, 2014, based on the
parties’ written consent, see Consents (Doc. 27-1, 27-2), the case was assigned to
the undersigned for all purposes, including entry of judgment and post-judgment
proceedings, 28 U.S.C. § 636(c).
The parties’ briefs have brought to the Court’s attention a jurisdictional
problem. A federal court has an ongoing obligation to ensure, sua sponte, its own
jurisdiction. Chicago, Burlington and Quincy Ry. Co. v. Willard, 220 U.S. 413,
418-22 (1911); see also, e.g., Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam).
Procedural Background
On May 8, 2014, the Court granted one of Rukes’s claims for relief, alleging
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misconduct by the bailiff, and denied two other claims that might, if granted, have
precluded retrial. Following resolution of other outstanding claims, the Court
entered a final order in the matter on May 23, 2014, conditionally granting Rukes’s
petition on the bailiff misconduct claim, dismissing all other claims, and denying a
certificate of appealability. The order directed Respondents (“the State”) to file a
notice and documentation showing either that it had renewed proceedings in the
trial court or that the criminal judgment had been amended to reflect dismissal of
the aggravated assault charge and that no further proceedings would ensue. Order
(Doc. 37) at 3 ¶ 1. Judgment was entered the same day, May 23, 2014.
The State filed a notice of appeal on June 6, 2014. On June 23, 2014, the
State moved for a stay pending appeal, “pursuant to Fed. R. App. P. 81 and 23.” Br.
in Supp. of Mot. for Stay (Doc. 42) at 3. Rukes responded on June 26, 2014, and
the State replied on June 27.
On June 30, 2014, the State complied with the deadline set in the Court’s
May 23 order. It filed notice that it had renewed proceedings in the trial court. The
attached documentation showed that, earlier that same day, the trial court ordered
Rukes released without bond under standard conditions of supervision, evidently in
Michigan, although the same conditions apparently would apply were he to return

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Fed. R. App. P. 8(a)(1)(C) provides that party must ordinarily first move in the district
court for “an order suspending, modifying, restoring, or granting an injunction while an appeal is
pending.”

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to Montana. Notice (Doc. 46) at 2; Order (Doc. 46-4) at 1-2.
Fed. R. App. P. 23
Fed. R. App. P. 23, titled “Custody or Release of a Prisoner in a Habeas
Corpus Proceeding,” recognizes the authority of “the court or judge rendering the
decision, or the court of appeals, or the Supreme Court, or a judge or justice of
either court,” to set the terms of a habeas petitioner’s custody or release following
adjudication in the district court of a petition for writ of habeas corpus. A federal
court’s authority to set those terms arises from the general habeas statute, 28
U.S.C. § 2241(c)(3).
While the Court would have decided the terms of Rukes’s custody had it
issued a writ of habeas corpus, this Court did not issue the writ. Throughout this
action, Rukes has remained in custody under terms and conditions established by
the state trial court.
The terms of Rule 23 are simply inapposite. They do not fit the current state
of this litigation. Likely as a result, the State’s motion for a stay does not identify
exactly what the State wants this Court to stay. Moreover, it has already complied
with the Order of May 23 by filing the notice that was required. What is there to be
stayed? In attempting to answer that question, see, e.g., Younger v. Harris, 401
U.S. 37, 45 (1971), the Court realized a more fundamental problem ought to be
addressed. Had the appropriate remedy been granted in the May 23 Order,
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Appellate Rule 23 would apply, and the Court could simply rule on the motion as
fully briefed. But the remedy granted was not the appropriate one.
Scope of Federal Court’s Authority and Appropriate Remedy
The Court’s Order of May 23 was intended to interfere to the least possible
extent with the State’s jurisdiction over Rukes’s custody by giving the State a clear
choice between either retrying Rukes or dismissing the judgment against him. The
Court believed it did not have the authority literally to vacate the criminal
judgment and so left that matter to the State or the state court.
On reflection, however, the order was flawed. The Court may not have
authority to vacate the judgment, but it certainly has the equitable power to declare
that judgment void and to direct Rukes’s release from custody, 28 U.S.C. §§
2241(c), 2254; Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994). As
explained below, that remedy should have been extended to Rukes, albeit
conditionally, in the Order of May 23. Rukes did not receive the remedy to which
the Order of May 8, 2014, entitled him.
As set forth in 28 U.S.C. § 2241(c)(3), and as the terms of Appellate Rule 23
make clear, a federal court sitting in habeas is essentially deciding whether it will,
pursuant to 28 U.S.C. § 2254, direct the terms and conditions of a state prisoner’s
custody. If, as in this case, the Court finds the petitioner meets the prerequisites for
relief, the traditional remedy is issuance of the writ: that is, a federal order directs
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the petitioner’s release from custody. The modern form of remedy recognizes
federal courts’ authority to condition a grant of the writ. “Conditional orders are
essentially accommodations accorded to the State” because they “give States time
to replace an invalid judgment with a valid one.” Harvest v. Castro, 531 F.3d 737,
742 (9th Cir. 2008) (internal quotation marks omitted). But “[t]he consequence
when the State fails to replace an invalid judgment with a valid one is always
release,” id. (internal quotation marks omitted), unless the federal court modifies
its order, id. at 744.
Thus, the Court did not err in giving the State a choice on May 23, but it
erred in the choice it gave. An appropriate order would permit the State to
implement a remedy for the unconstitutional conviction or sentence, viz., a new
trial; but, if the State failed to implement the remedy in a timely manner, then the
condition would be met for granting the writ, and the writ would issue, declaring
the state’s criminal judgment void and ordering the petitioner’s release. See, e.g.,
Pitchess v. Davis, 421 U.S. 482, 485 n.3 ¶¶ 1-4 (1975) (per curiam); see also id. at
490 (abrogating ¶ 5 of the order set forth in n.3 because district court could not
“maintain a continuing supervision over a retrial conducted pursuant to a
conditional writ granted by the habeas court.”).
Once the conditional writ is issued, if either party appeals, Fed. R. App. P.
23 controls. It provides that, where there is an appeal by either party, the federal
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courts determine both the fact and the terms of the petitioner’s custody. Fed. R.
App. P. 23(b), (c). In short, where federal habeas relief is warranted, either the
State implements a remedy, or the federal court assumes authority over the custody
of the prisoner, which may amount to unconditional discharge or anything less.
This choice may appear to force the State to choose between appeal, if the
writ is issued, or concession of the criminal judgment’s unconstitutionality, if the
State implements a remedy and forestalls issuance of the writ. But it does not.
Issuance of the writ releases the petitioner from custody on the unconstitutional
judgment. It does not prevent the State from re-arresting and retrying the
petitioner, provided the terms of the federal court’s order do not prohibit it. See,
e.g., Irvin v. Dowd, 366 U.S. 717, 728 (1961); Fisher v. Rose, 757 F.2d 789, 791
(6th Cir. 1985) (citing cases).
Consequently, the Order of May 23 did not give either Rukes or the State the
proper remedy. It gave the State a choice between providing a new trial or vacating
the judgment and discharging Rukes altogether. This formulation, though intended
to preserve as much latitude to the State as possible, may actually prevent the State
from re-arresting and retrying Rukes even if this Court’s decision is affirmed on
appeal. There is no justification for prohibiting retrial; a new trial is plainly the
appropriate remedy, whether the State implements it to forestall issuance of the
writ or independently of the habeas action. The Order should instead have given
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the State a choice between retrying Rukes within a specific time period – and thus
essentially conceding the unconstitutionality of the criminal judgment – or seeing
the writ issued, then filing a notice of appeal and moving for a stay under Fed. R.
App. P. 23, with the time and conditions of any retrial left to the State’s
prerogative in compliance with all applicable state and federal law. Likewise,
rather than leaving the matter of Rukes’s custody to the state trial court, the Order
should have made it clear that this Court would order Rukes’s release from custody
if the State did not “replace an invalid judgment with a valid one.”
Jurisdiction
The jurisdictional problem, therefore, is twofold. First, does the Court still
have jurisdiction even though the state trial court has issued its order, prompted by
this Court’s order, setting the terms and conditions of Rukes’s custody (or release
on conditions)? Second, is it possible to rectify the terms of the Order of May 23
despite the State’s filing of a notice of appeal?
A. Fed. R. Civ. P. 62
The parties do not specifically address Fed. R. Civ. P. 62, but “[t]he label or
description that a party puts on its motion does not control whether the party
should be granted or denied relief.” Harvest, 531 F.3d at 746 (quoting 12 James
Wm. Moore, Moore’s Fed. Practice § 60.64 (3d ed. 2006)).
Generally, a party’s timely filing of a notice of appeal divests the district
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court of jurisdiction. But a district court has authority to “suspend, modify, restore,
or grant an injunction during the pendency of the appeal.” Fed. R. Civ. P. 62(c).
The May 23 order did not grant appropriate habeas relief, but it grants injunctive
relief. Rule 62 “grants the district court no broader power than it has always
inherently possessed to preserve the status quo during the pendency of the appeal.”
Nat’l Res. Defense Council, Inc., v. Southwest Marine Inc., 242 F.3d 1163, 1166
(9th Cir. 2001). The “status quo” is the state of affairs existing at the time the
notice of appeal is filed. Id.
In Rukes’s case, relief under Rule 62 would return the parties to the position
they occupied before proceedings were renewed in the trial court. That is
appropriate here. It would recoup the question of Rukes’s custody from the state
court to this Court, where he is entitled to have it as a result of his entitlement to
relief under 28 U.S.C. § 2254. It would also prevent the State’s appeal from
becoming moot. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (1951).
Although Fed. R. App. P. 23 does not apply, the State’s motion,
recharacterized as one under Fed. R. Civ. P. 62 for suspension of the injunction
issued on May 23, 2014, will be granted for a period of 30 days. During that time,
Rukes will remain in custody on the criminal judgment under the terms of his
parole.
B. Fed. R. Civ. P. 60
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The fact remains that the Court’s Order of May 23, 2014, is in error because
it does not grant an appropriate remedy.
A district court may, on its own initiative, grant relief under Fed. R. Civ. P.
60(b), Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 352 (9th Cir.
1999), but not while an appeal is pending. “To seek Rule 60(b) relief during the
pendency of an appeal, the proper procedure is to ask the district court whether it
wishes to entertain the motion, or to grant it, and then move [the appellate] court, if
appropriate, for remand of the case.” Williams v. Woodford, 384 F.3d 567, 586 (9th
Cir. 2004) (internal quotation marks omitted).
Whether either party will move in the court of appeals for remand to this
Court to correct the final order and judgment is up to them. The Court is, however,
willing to grant a Rule 60(b) motion for relief from the judgment so that the
remedy provides as follows:
Rukes’s petition for writ of habeas corpus is CONDITIONALLY
GRANTED. If the State does not retry Rukes within 30 days of the
date of this Order, this Court will issue a writ of habeas corpus
directing his release from custody.
The 30-day time limitation is short, but the parties are well aware of the
issues in the case. Should the parties request and receive a remand from the Court
of Appeals, the Court will also permit the State to renew its motion under Fed. R.
App. P. 8 and 23 and will, if the parties agree, deem their briefs resubmitted and

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issue an expedited ruling.
If neither party moves in the Court of Appeals for remand to this Court to
grant a motion under Fed. R. Civ. P. 60(b), the stay of the Court’s Order of May 23
will be lifted, and the State will be given a short deadline (because it will require
no notice) to comply once again with the Order of May 23.

Based on the foregoing, the Court enters the following:
ORDER
1. The State’s motion for stay pending appeal (Doc. 41), recharacterized as a
motion under Fed. R. Civ. P. 62 to suspend the injunction issued on May 23, 2014,
is GRANTED.
2. Paragraph 1 of the Order of May 23, 2014 (Doc. 37 at 3), is SUSPENDED
for a period of 30 days. For the period of the suspension, the State is not required
by this Court to renew or to continue with renewed proceedings in the trial court.
DATED this 9th day of July, 2014.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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