WM. FREMMING NIELSEN, United States District Judge.
Before the Court are two post-judgment Motions: Respondent's Motion for Stay of Writ Pending Appeal, filed January 27, 2003 (Ct. Rec. 164 by Assistant Attorney Generals Paul Weisser and John Sampson; and Petitioner's Motion for Publication filed January 27, 2003 (Ct. Rec. 159 by Patricia Arthur and Nancy Tenney. A Response (Ct. Rec. 172) and a Reply (Ct. Rec. 174) were filed to the Motion for Stay. Respondent did not file a response to the Motion for publication.
The Court has reviewed the file and the briefing on the Motions and is fully informed. For the reasons stated below, both Motions are granted.
DISCUSSION
This Court granted Petitioner's 28 U.S.C. § 2254 Petition for Habeas Corpus on January 17, 2003. See Order (Ct. Rec. 155); Judgment (Ct. Rec. 157); and Writ of Habeas Corpus (Ct. Rec. 158). The Writ requires that Mr. Lambert be released from custody or that a trial be schedule within 90 days of January 17, 2003. Respondent filed a Notice of Appeal on January 27, 2003 (Ct. Rec. 163) and a Motion for Stay of Writ Pending Appeal. On the same date Petitioner filed a Motion for Publication Petitioner has also filed a Cross Appeal (Ct. 170).
Motion for Stay. Rule 23(c) of the Federal Rules of Appellate Procedure governs this Court's decision on whether to grant a stay pending the appeal of a decision granting a writ of habeas corpus. The rule provides:
[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 person recognizance, with or without surety.
FED. R. APP. P. 23(c) (West 2002).
The presumption of release from custody established by this rule may be overcome by a consideration of the following factors:
(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 a 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). The Court may also consider the possibility of flight; any risk posed to the public by the prisoner's release; and the state's interest in continuing custody and rehabilitation when the remaining sentence is long.
Id. at 777. These last three factors regarding flight risk, risk to the public and the state's interest in custody are appropriately considered as part of the second and fourth factors delineated by the
Hilton court.
Franklin v. Duncan, 891 F. Supp. 516, 519 n. 4 (N.D. Cal. 1995).
As to the first factor, the Respondent's likely success on the merits is limited; it is arguable whether Respondent has even demonstrated a substantial showing on the merits. This factor does not weigh in favor of a stay of the retrial and release of the Petitioner.
If a stay is not granted, however, both parties will be forced to proceed simultaneously at retrial and on appeal which is a waste of resources. Id. at 520. The state also has an interest in continuing custody and rehabilitation that would be impacted should Mr. Lambert, who is serving a life sentence, be released. Id. at 520-21. This second factor weighs in favor of the request to stay.
The third factor requires the Court to assess whether a stay and denial of release will substantially injure other parties. The stay will not injure Mr. Lambert based upon the facts of the case and the nature of the constitutional violations. Mr. Lambert was in pretrial custody he made statements regarding his involvement in the two charged murders he received ineffective assistance of counsel and his due process right were violated at the entry of his guilty plea. The Constitution require that Mr. Lambert be returned to his pre-plea position and receive effective assistance of counsel. He does not have a strong interest in release pending further proceedings in his case. Thus this factor also weighs in favor of Respondent's Motion to Stay.
The final factor is where the public interest lies. The public interest favors a stay of retrial in that a possibly unnecessary retrial is avoided. Id. at 521. The public interest also favors a stay of release as a risk of flight exists for Mr. Lambert given his age criminal history, lack of community/family ties, and the seriousness of the two aggravated murder charges. He also presents a danger to the community based upon his own admissions as to his conduct. The Court concludes that the balance of factors weigh in favor of a stay of the retrial and release of Mr. Lambert.
Motion for Publication. Petitioner seeks publication of this Court's Order, asserting it will be helpful to other courts and counsel faced with conflict issues raised in other Grant County post-conviction cases and in the area of the constitutionality of plea agreements and the quality of representation of children tried as adults.
The Court's Order was written to provide as complete a factual and legal basis as possible to explain the Court's ruling to the parties and to provide the same for the appellate court should an appeal be taken Notices of an Appeal and Cross Appeal have been filed. Although the outcome of the appeal is necessarily uncertain, the Court will grant the request to publish the Court's Order. A great deal of consideration was given to the issues and the Court accepts Petitioner's representation that the Order may be of assistance to other courts or counsel facing similar issues. Accordingly,
IT IS ORDERED that:
1. Respondent's Motion for Stay of Writ Pending Appeal, Ct. Rec. 164, is GRANTED.
2. The Writ of Habeas Corpus, filed January 17, 2003, Ct. Rec. 158 is STAYED PENDING APPEAL.
3. Petitioner's Motion for Publication, Ct. Rec. 159, is GRANTED.
The District Court Executive is directed to file this Order; provide copies to counsel AND TO the Ninth Circuit Court of Appeals.