Gillispie v. Warden, London Correctional Institution

Filing 73

DECISION AND ORDER GRANTING PETITIONER'S MOTION FOR BOND AND RESPONDENT'S MOTION FOR STAY PENDING APPEAL - It is accordingly ORDERED that: 1. The effectiveness of the Order Granting Conditional Writ of Habeas Corpus is stayed pending the ou tcome of the Respondent's pending appeal to the Sixth Circuit Court of Appeals and any subsequent appellate review by the United States Supreme Court. 2. Petitioner shall be delivered by Respondent into the custody of United States Pretrial Offi cer Melanie Furry at the prison at 7:30 p.m. on the date of this Order and shall thereafter be under the supervision of this Court's Pretrial Office on the conditions set by separate order. Signed by Magistrate Judge Michael R Merz on 12/22/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,
:
Petitioner,

Case No. 3:09-cv-471
:

-vs-

Magistrate Judge Michael R. Merz

DEB TIMMERMAN-COOPER, Warden,
:
Respondent.

DECISION AND ORDER GRANTING PETITIONER’S MOTION FOR BOND AND
RESPONDENT’S MOTION FOR STAY PENDING APPEAL

This habeas corpus case is before the Court on Petitioner’s Motion for Bond (Doc. No. 64)
and Respondent’s Motion to Stay and Opposition to Petitioner’s Motion for Bond (Doc. No. 67).

Motion for Stay

Respondent seeks a stay of this Court’s Decision and Order granting a conditional writ of
habeas corpus pending appeal to the Sixth Circuit. Both parties recognize that whether to grant a
stay is within the sound discretion of the district court and that the controlling Supreme Court
authority is Hilton v. Braunskill, 481 U.S. 770 (1987). There the Court recognized that Fed. R. App.
P. 23(c) creates a presumption in favor of release pending appeal of a successful application for the
writ, but that the presumption must be balanced against “the factors traditionally considered in
deciding whether to stay a judgment in a civil case.” Id. at 777. Those factors are

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(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.
Id. at 776, citing, inter alia, 11 C. Wright & A. Miller, Federal Practice and Procedure § 2904
(1973).
Most of the argument of the parties on the stay question is devoted to the strength of
Respondent’s case on appeal. (See Doc. Nos. 67, 68). The Court has already stated at length its
opinion on the respective strengths of the parties’ positions in the Decision and Order Granting
Conditional Writ of Habeas Corpus (Doc. No. 63) and will leave further evaluation to the Court of
Appeals.
One point in Respondent’s Motion, however, requires further comment. Respondent asserts
that this Court has relied on evidence introduced at the evidentiary hearing in this Court. Although
an evidentiary hearing was held on March 10, 2011 (See Minutes, Doc. No. 44), the Court expressly
held that the evidence taken could not be considered in light of Cullen v. Pinholster, 131 S. Ct. 1388,
1400-01, 179 L. Ed. 2d 557 (2011):
Cullen precludes this Court from considering, in deciding the §
2254(d)(1) question, evidence introduced at the evidentiary hearing
conducted in this Court in March, 2011, before Cullen was decided.
In Cullen, the Supreme Court expressly held “that review under §
2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” 131 S. Ct. at 1398.
That means that any evidence which this Court took at the
evidentiary hearing or that offered in Petitioner’s Motion to Expand
the Record is immaterial to a decision on whether the Ohio courts’
decisions on Gillispie’s Brady claim was contrary to or an
unreasonable application of United States Supreme Court precedent
on ineffective assistance of counsel.
(Decision and Order, Doc. No. 62, PageID 4507.) As it did in the quoted decision, the Court again
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expressly denies any reliance on the evidence presented in the March hearing or, indeed, any other
material not before the state court which decided the Brady claim before this Court.
As to the second factor, the State will not be irreparably injured without a stay. Indeed, the
State, which seeks the stay, is more likely to be injured by delay than the Petitioner since the case
against Petitioner, already over twenty years old, is likely to be several years older after appellate
review. Nevertheless, for the State to vacate the judgment and retry the case means it would be
effectively giving up its right to appellate review and the State has considerable investment in the
case as it stands.
Staying the judgment pending appeal would cause very substantial injury to Petitioner.
Assuming he is innocent, as he has consistently claimed, staying the case without bond would cause
him the irreparable injury of deprivation of his liberty for at least as long as the appellate review
takes. If he is guilty, as two juries have unanimously found, he has nonetheless been severely
punished up to this point in time.
The public interest weighs in favor of a stay. The Sixth Circuit has held
District courts rightly favor conditional grants, which provide states
with an opportunity to cure their constitutional errors, out of a proper
concern for comity among the co-equal sovereigns. "[C]ourts may
delay the release of a successful habeas petitioner in order to provide
the State an opportunity to correct the constitutional violation found
by the court."
Gentry v. Deuth, 456 F.3d 687, ___ (6th Cir. 2006), quoting Hilton v. Braunskill, 481 U.S. 770, 775
(1987). The same respect for the Ohio courts – and particularly for the Montgomery County
Common Pleas Court and the Montgomery County Court of Appeals – which led this Court to make
the writ conditional weighs in favor of having this Court’s judgment tested by the Court of Appeals
before it becomes final. To the extent the public has an interest in imposing more punishment on

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Mr. Gillispie if this Court’s judgment is overturned, that interest can be protected by appropriate
conditions of release.
The Court has had Mr. Gillispie’s appropriateness for release evaluated by its Pretrial
Services Office and has discussed the report and suggested conditions of release with counsel for
Petitioner and Respondent, neither of whom raised any objections. The victims have been given an
opportunity, through the Montgomery County Prosecutor’s Office, to be heard regarding release and
the Victim Advocate has filed a statement (Doc. No. 72) which the Court has considered. The Court
believes the conditions of release it will impose adequately addresses the victim’s safety concerns.
Those conditions include remaining within the Southern District of Ohio on electronically monitored
home detention.
It is accordingly ORDERED that:
1.

The effectiveness of the Order Granting Conditional Writ of Habeas Corpus is stayed
pending the outcome of the Respondent’s pending appeal to the Sixth Circuit Court of
Appeals and any subsequent appellate review by the United States Supreme Court.

2.

Petitioner shall be delivered by Respondent into the custody of United States Pretrial Officer
Melanie Furry at the prison at 7:30 p.m. on the date of this Order and shall thereafter be
under the supervision of this Court’s Pretrial Office on the conditions set by separate order.

December 22, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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