Opinion
Civil No. 00-CV-72292-DT
August 2, 2001
OPINION AND ORDER DENYING RESPONDENT'S MOTION FOR A STAY PENDING APPEAL
This matter is before the Court on respondent's motion for a stay pending the appeal of the Court's decision to grant habeas relief to the petitioner. For the reasons stated below, the motion for a stay is DENIED.
I. BACKGROUND
On May 31, 2001, this Court granted petitioner a writ of habeas corpus, finding that the state trial court deprived petitioner of a fair trial by refusing to instruct the jury on petitioner's theories of self-defense and imperfect self-defense. Taylor v. Withrow, ___ F. Supp.2d ___, 2001 WL 589666 (E.D. Mich. May 31, 2001). The state trial and appellate courts had indicated that instructions on the theories of self-defense and imperfect self-defense were improper, because there had been no evidence or testimony that petitioner acted in self-defense. This Court found the state court rulings to be an unreasonable determination of the facts in the record. In so ruling, the Court noted that petitioner testified that he intentionally pulled out his weapon during a confrontation with the murder victim, when he observed the murder victim reach for his waist. Knowing that the murder victim had carried a gun in the past, petitioner testified that he pulled out his gun in self-defense. Although petitioner also testified that the gun discharged accidentally during an ensuing struggle, this Court noted that a jury could infer that by simply pulling out the gun and pointing it, petitioner was acting in wanton and wilful disregard that the likely consequence of his action was to cause death or great bodily harm, and thus could have found that petitioner acted with the requisite malice aforethought needed to sustain a second degree murder conviction. See People v. Dykhouse, 418 Mich. 488, 494; 345 N.W.2d 150 (1984). This Court concluded that the jury should have been instructed on the theory of self-defense not only to determine why the victim was shot, but also to determine whether petitioner was justified in pulling the gun in the first place. The Court also held that petitioner was entitled to an instruction on the theory of imperfect self-defense, on the ground that even if the jury determined that petitioner was the initial aggressor, the jury could nonetheless have concluded that the second degree murder charge should be reduced to voluntary manslaughter on the basis of this theory.
Additionally, in light of the evidence presented at trial, this Court was unable to state with certainty that the trial court's refusal to instruct the jury on the defenses of self-defense and imperfect self-defense had little or no impact on the jury verdict. The evidence from trial shows that the victim was shot only one time in the left flank and this did not appear to be a close range gunshot wound. After the victim was shot, petitioner did not flee the scene but attempted to save the victim's life by performing CPR. Petitioner was still performing CPR on the victim when the police arrived on the scene. When the police arrived, petitioner asked the police to perform CPR on the victim. Petitioner also asked Edgar Campbell to take him to the hospital to check on the victim's condition after the shooting. Petitioner voluntarily turned himself into the police several days after this incident. This evidence raised a grave doubt in this Court's mind about whether the circumstances of this case show that petitioner acted with malice aforethought in this case.
The Court also noted that the jury deliberated in this case for over three days and indicated twice that it was hopelessly deadlocked. On the second day of deliberations, the jury sent three notes to the trial court which indicated that they were focused on choosing between finding petitioner guilty of second degree murder or voluntary manslaughter.
This Court concluded that because petitioner testified that he acted in self-defense, and the evidence of malice in this case was not overwhelming, the trial court's failure to instruct the jury on the defenses of self-defense and imperfect self-defense had a substantial and injurious effect or influence on the verdict and deprived petitioner of his rights to due process and a fair trial. The Court further found that the Michigan Court of Appeals' failure to reverse petitioner's conviction because of the state trial court's failure to give these instructions to the jury was based upon an unreasonable application of clearly established federal law and an unreasonable determination of the facts in this case.
On June 22, 2001, respondent filed a notice of appeal in this case. Respondent has now requested that this Court issue a stay of the proceedings pending their appeal.
II. DISCUSSION
The factors regulating the issuance of a stay are:
(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 the issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Workman v. Tate, 958 F.2d 164, 166 (6th Cir. 1992).
In determining whether to stay an order granting relief to a habeas petitioner, pending the state's appeal, federal courts are authorized to consider traditional stay factors, including the likelihood of the state's success on the merits of the appeal. Hilton v. Braunskill, 481 U.S. at 777.
Although this Court normally grants a respondent's motion for stay of proceedings pending the appeal of an order granting a writ of habeas corpus, the Court declines to do so in this case. The respondent is not entitled to a stay of proceedings pending appeal, because he has failed to show either a strong likelihood of success on appeal or that he has a substantial case on the merits. Franklin v. Duncan, 891 F. Supp. 516, 519-520 (N.D. Cal. 1995); Dhine v. District Director, 822 F. Supp. 1030, 1031-1032 (S.D.N.Y. 1993). In claiming that this Court erred in granting the writ of habeas corpus, respondent argues that this Court's reliance on the United States Supreme Court's ruling in Matthews v. United States, 585 U.S. 58 (1988) was misplaced because Matthews is a direct review case which has "no constitutional dimension." As petitioner points out in his response to the motion for stay pending appeal, this Court did not rely solely on the Matthews decision in granting petitioner a writ of habeas corpus. This Court found the state courts' decision that petitioner was not entitled to instructions on self-defense and imperfect self-defense to be an unreasonable determination of the facts from the record, where petitioner testified that he intentionally pulled out his gun in self-defense when he thought that the victim was reaching for a weapon. 28 U.S.C. § 2254 (d)(2). The Court further found that in light of the evidence presented at trial, the failure to instruct the jury on the theories of self-defense and imperfect self-defense deprived petitioner of due process of law and had a substantial and injurious effect or influence on the verdict. Thus, the Court did not rely solely on Matthews in granting petitioner habeas relief.
Based on the foregoing, respondent is unable to show a serious likelihood of success on appeal on the legal issues presented in the habeas petition. Moreover, petitioner would suffer irreparable harm each day that he would remain imprisoned in violation of the U.S. Constitution. Because "remedying such harm is the very essence of the writ of habeas corpus", Burdine v. Johnson, 87 F. Supp.2d 711, 717 (S.D. Tex. 2000), respondent is not entitled to the issuance of a stay pending appeal.
III. ORDER
IT IS HEREBY ORDERED THAT RESPONDENT'S MOTION FOR A STAY PENDING APPEAL IS DENIED.