Taylor v. Friel

Filing 442

ORDER AND MEMORANDUM DECISION denying 415 Motion for Rule 23(c) Release; granting 419 Motion to Stay the decision pending resolution on appeal. Signed by Judge Tena Campbell on 4/6/20 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

VON LESTER TAYLOR,

Petitioner,

ORDER AND MEMORANDUM DECISION
DENYING RULE 23(C) MOTION FOR
RELEASE AND
GRANTING MOTION TO STAY

vs.
Case No. 2:07-CV-194-TC
SCOTT CROWTHER, Warden, Utah State
Prison,
Respondent.

On March 10, 2020, the court issued an order granting Petitioner Von Lester Taylor’s
habeas petition. (See Order Granting Second Amended Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254, ECF No. 414 (finding guilty plea unconstitutional and vacating
sentence based on that guilty plea).) Although Respondent (the State) has appealed the decision,
Mr. Taylor, citing to his successful petition, moves for release under Rule 23(c) of the Federal
Rules of Appellate Procedure. The State opposes the request for release and has simultaneously
filed a motion to stay the order granting Mr. Taylor’s petition. For the reasons set forth below,
the court denies Mr. Taylor’s motion for release and grants the State’s request to stay the
decision pending resolution on appeal.
APPLICABLE STANDARD
Rule 23 of the Federal Rules of Appellate Procedure governs custody or release of a

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prisoner in a habeas corpus proceeding when the court’s decision granting the petition has been
appealed. Mr. Taylor relies on subsection (c) of the rule, which addresses “Release Pending
Review of Decision Ordering Release.” That subsection reads,
[w]hile a decision ordering the release of a prisoner is under review, the prisoner
must—unless the court or judge rendering the decision, or the court of appeals, or
the Supreme Court, or a judge or justice of either court orders otherwise—be
released on personal recognizance, with or without surety.
Fed. R. App. P. 23(c).
The rule creates a presumption that a successful habeas prisoner must be released. Hilton
v. Braunskill, 481 U.S. 770, 777 (1987). But the State, to avoid Mr. Taylor’s release, may
challenge the Rule 23(c) request and avoid release by rebutting the presumption.
Hilton sets forth the standard for rebutting the presumption. There, the United States
Supreme Court directed courts, when deciding whether to grant a motion for release under Rule
23(c), to apply “the general standards for staying a civil judgment.” Id. at 775. That requires the
court to balance a series of factors, including the following: “(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. To
rebut the presumption, the State must show that those “traditional stay factors tip the balance
against” release of Mr. Taylor. Id. at 777. In that balancing, the court may also consider
whether the prisoner poses a flight risk and a danger to the public if released. Id. Nevertheless,
“[s]ince the traditional stay factors contemplate individualized judgments in each case, the
formula cannot be reduced to a set of rigid rules.” Id.
Because those factors also apply to the court’s evaluation of the State’s Motion to Stay,
see id. at 776, denying Mr. Taylor’s request for release “has the same effect as the court’s
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issuance of a stay of that order.” Id. at 775–76. Accordingly, the court analysis below applies
equally to Mr. Taylor’s motion and the State’s motion.
Mr. Taylor’s Request for Rule 23(c) Release
In his motion, Mr. Taylor argues that his health issues strengthen the presumption. First
he discusses, in a sealed portion of his motion, the health problems “that have been plaguing him
for a long time, issues that have not been diligently addressed by the Utah Department of
Corrections.” (Taylor’s Motion for Rule 23(c) Release at 3–4, ECF No. 417 (“Rule 23(c)
Motion”).) He says his release would allow him to seek proper medical care. He also says that
the COVID-19 outbreak “adds urgency to his request.” (Id. at 5.)
At the time he drafted his motion and supporting brief, he acknowledged that the Utah
State Prison had no confirmed COVID-19 cases. But he cites to statistics about the disease’s
spread throughout the world, in the general population in Utah, and in the Federal Bureau of
Prisons system, where, at that time, two staff members had tested positive. He also points to
situations where local correctional facilities have begun releasing certain inmates to reduce the
impact of the virus on prisoners. Given this information, Mr. Taylor says it is inevitable the
virus will make its way into the prison and that he faces the very real risk of contracting the
virus, particularly because of “his inability to practice ‘social distancing’ once [the virus] hits the
prison” and his vulnerable physical state. (Id.) If he contracts the virus, he “believes that [that]
deadly disease can substantially and permanently injure him.” (Taylor Reply Supp. Rule 23(c)
Motion at 10, ECF No. 434.)
He suggests ways to minimize the risk of flight while his case is pending. Two of his
siblings “have invited Mr. Taylor to live with them if he is released on bond, and have vowed to
take responsibility for supervising him and aiding his compliance with whatever restrictions the

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Court imposes.” (Rule 23(c) Motion at 9.) He also suggests that the court “may impose
restrictions on his freedom, including electronic monitoring, telephone-reporting requirements,
drug and alcohol prohibitions, and/or house arrest. He pledges to comply with any such
restrictions.” (Id.)
Mr. Taylor’s argument, in light of other factors discussed below, is not sufficient to
obtain release.
Rebuttal of Rule 23(c) Presumption and the State’s Motion to Stay
Likelihood of Success on Appeal
The State articulates a series of reasons why it has a likelihood of success on appeal.
Those reasons are all based on its overall assertion that “at the very least, [Mr. Taylor] is guilty
as an accomplice.” (State Mot. Stay at 5, ECF No. 419; State Reply Supp. Mot. Stay at 4, ECF
No. 440.) The State argues that because Mr. Taylor is liable as an accomplice, he was not
entitled to a Schlup hearing, which requires a showing of factual innocence. It also contends
that, contrary to the court’s finding, Mr. Taylor did plead guilty to accomplice liability. And
finally, according to the State, Mr. Taylor’s trial counsel did not provide ineffective assistance of
counsel because he rightly assumed that Mr. Taylor “was guilty of both murders, whether as a
principal or as an accomplice.” (State’s Reply Supp. Mot. Stay at 4.)
The State raised its accomplice liability theory throughout the proceedings. The court
addressed and rejected various iterations of that theory in the court’s decisions leading to the
order granting Mr. Taylor’s habeas petition. (See Order & Mem. Decision Granting Evid. Hr’g
at 20–24, ECF No. 264; Findings of Fact & Conclusions of Law Regarding Claim of Actual
Innocence at p. 5 n.3, ECF No. 399.) The State’s motion simply repeats arguments the court has
already dismissed.

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Additionally, the State’s assertion that it has a strong likelihood of success at trial is not
something the court will consider. The court’s habeas order addressed Mr. Taylor’s ineffectiveassistance-of-counsel claim in connection with his guilty plea. Mr. Taylor never went to trial.
Whether the State would prevail at a new trial is not the issue on appeal.
For the foregoing reasons, the court finds that the State has not shown that it has a strong
likelihood of success on the merits.
Harm to the State
The State insists that if a stay is not granted it will be irreparably harmed “because it will
be forced to proceed with trial instead of appeal or while an appeal is pending.” (State’s Opp’n
Rule 23(c) Motion at 9, ECF No. 428.) That, argues the State, may moot its appeal because the
length of time to conclude an appeal may be longer than the time it would take to try Mr. Taylor.
In support of its argument, the State cites cases that concern habeas court orders to
correct the constitutional defect at trial. (See Mot. to Stay at 7–8; State’s Opp’n to Rule 23(c)
Motion at 9.) In those cases, the court’s orders to correct the defect forced the state, as a
practical matter, into a Catch-22 situation: by following the court’s mandate to fix the problem,
the state’s right to obtain a ruling on appeal could potentially be eliminated because the time to
re-try the defendant could be less than the time the appellate court would take to issue a decision.
The State cites, as an example supporting its position, the decision in Bauberger v. Haynes, 702
F. Supp. 2d 588 (M.D.N.C. 2010). The Bauberger court described the state’s “Catch-22”
situation and concluded that
absent a stay, [the State] will suffer irreparable harm, because it is highly unlikely
that an appeal could be completed by the time it would have to retry the case [as
the habeas order mandated]. If it loses on retrial, the State will lose a conviction it
may otherwise have sustained on appeal.
Id. at 595–96.
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But here the court has not ordered the State to retry Mr. Taylor. Mr. Taylor never went to
trial, so there is no trial defect to correct. Because the nature of this court’s order is different
than the orders discussed in the cases cited by the State, the irreparable harm analysis in those
cases is not applicable. If the State chooses to recharge and then negotiate a plea or go forward
with a trial on Mr. Taylor’s guilt, that is its prerogative. But by doing so, the State is not losing
its right to appeal. In short, the State would not be irreparably harmed absent a stay.
Harm to Mr. Taylor
As described above, Mr. Taylor contends that he will be substantially injured if he is not
released. As a prisoner, he says, he faces an increased risk of contracting the COVID-19 virus in
the Utah State Prison and, given his poor health, such an infection would be life threatening,
worsened by what he believes is the prison’s inability to provide the medical care necessary to
treat a life-threatening situation. He then contends that if he is released to the care and custody
of his family, he will be in a safer environment.
The court finds that the risk of infection clearly exists (despite the State’s effort to
downplay that risk1). But the information provided by Mr. Taylor and the chain of events he
envisions is too speculative at this time to provide a basis for release under Rule 23(c).
Mr. Taylor also argues that the court has vacated his sentence, and, as a consequence, he
is being wrongfully detained. (See Rule 23(c) Motion at 8.) If there were no appeal, his point
would be compelling. But the legal process is not over. The State has appealed the decision to

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The State presents the Utah Department of Corrections’ “policies and procedures [created] to
attempt to keep the virus out of the prison and away from the prisoners.” (State’s Opp’n to Mot.
for Rule 23(c) Release at 4, ECF No. 428 (citing to “Division of Prison Operations COVID-19
Action Plan, as of 3-23-2020, attached as Addendum A” to the brief).)
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vacate Mr. Taylor’s sentence. If the State prevails, the sentence that resulted in Mr. Taylor’s
custody will remain in place.2 The United States Supreme Court has stated that
[a]lthough the decision of a district court granting habeas relief will have held that
the judgment of conviction is constitutionally infirm, that determination itself may
be overturned on appeal before the State must retry the petitioner. This being the
case, we do not agree that the Due Process Clause prohibits a court from
considering, along with the other factors that we previously described, the
dangerousness of a habeas petitioner as part of its decision whether to release the
petitioner pending appeal.
Hilton, 481 U.S. at 779.
As discussed below, the “other factors” to which the Hilton court refers overcome Mr.
Taylor’s arguments that he will be substantially harmed if he is not released.
The Public’s Interest
The court must consider “where the public interest lies.” Id. at 776. As part of that
analysis, the court can consider whether Mr. Taylor poses a danger to the community and
whether he is a flight risk. Id. at 777. The court concludes that he is both.
Mr. Taylor poses a risk of danger to the community. The court cannot ignore the
seriousness of the crimes in which, to some extent, Mr. Taylor was admittedly involved. Mr.
Taylor’s participation in events surrounding the unprovoked and violent murder of two women
shows his capacity for violence.
As for the risk of flight, the court finds that Mr. Taylor’s suggestion that the court either
require electronic monitoring or order house arrest is simply not sufficient to curb that risk. Mr.
Taylor has fled from authorities before (he absconded from a halfway house before breaking into

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“The State’s interest in continuing custody and rehabilitation pending a final determination of
the case on appeal” is another legitimate consideration. Hilton, 481 U.S. at 777. That interest
“will be strongest where the remaining portion of the sentence to be served is long, and weakest
where there is little of the sentence remaining to be served.” Id. at 777. Because Mr. Taylor’s
death sentence is, in essence, the “longest” sentence a defendant could face, this factor weakens
Mr. Taylor’s argument that he will be substantially harmed if he is held without a conviction.
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the Tiede’s cabin, and he took extreme measures to evade capture after the murders). Even more
compelling is the fact that if the State succeeds on appeal, Mr. Taylor faces execution.
Furthermore, even if he prevails on appeal, he faces new charges of aggravated murder,
accomplice to aggravated murder, attempted murder, and kidnaping. He has an undeniable
motivation to avoid those fates. Finally, if Mr. Taylor flees, the public’s interest in having
substantial legal issues and serious criminal matters fully and finally aired in the trial and
appellate courts would be obstructed.
Balancing the Factors
The court has broad discretion when deciding whether to release a habeas petitioner.
Hilton, 481 U.S. at 775. As the United States Supreme Court said in Hilton, consideration of the
factors governing a Rule 23(c) motion “cannot be reduced to a set of rigid rules.” Id. at 777.
Each case is different and “the traditional stay factors contemplate individualized judgments ….”
Id.
As already stated above, the first three factors do not favor either party. But the public’s
interest in this particular case weighs heavily in favor of continuing Mr. Taylor’s custody and
staying the court’s decision pending resolution of the State’s appeal to the Tenth Circuit. In
short, the presumption of release has been overcome. Accordingly, the court denies his Rule
23(c) Motion. For the same reasons, the court grants the State’s Motion to Stay. See
McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996) (applying the Hilton v.
Braunskill factors to analyze a motion to stay under Federal Rule of Appellate Procedure 8).
ORDER
For the foregoing reasons, Mr. Taylor’s Motion for Rule 23(c) Release (ECF No.415) is

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DENIED, and the State’s Motion to Stay (ECF No. 419) is GRANTED.
SO ORDERED this 6th day of April, 2020.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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