United States District Court, E.D. Louisiana
JOHN D. FLOYD
DARREL VANNOY, WARDEN
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court are respondent's motion to stay the Court's
May 8, 2017 Judgment and Order,  and petitioner John D.
Floyd's motion for release pending appeal pursuant to
Rule 23(c) of the Federal Rules of Appellate
Procedure. For the following reasons, the Court
grants both motions.
Court has already provided a full procedural and factual
background to this case. For the purposes of these motions, it
is sufficient to recall that Floyd was convicted of
second-degree murder in Louisiana state court in 1982.
See State v. Floyd, 435 So.2d 992, 992 (La. 1983).
Floyd filed an application for habeas corpus relief in state
court on March 2, 2006, twenty-three years after the
Louisiana Supreme Court finalized his
conviction. The Criminal District Court for the Parish
of Orleans denied Floyd's petition from the
bench. Without assigning additional reasons, the
Louisiana Supreme Court denied Floyd's writ application.
Floyd v. Cain, 62 So.3d 57 (La. 2011).
conclusion of his post-conviction proceedings in state court,
Floyd petitioned this Court for habeas corpus relief under 28
U.S.C. § 2254.To overcome the untimeliness of his
petition, Floyd argued that he was actually innocent of the
murder of William Hines, and therefore his untimely petition
could proceed under McQuiggin v. Perkins, 133 S.Ct.
1924 (2013). See Id. at 1928 (“[A]ctual
innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural
bar . . . or, as in this case, expiration of the statute of
September 14, 2016, this Court-considering both old and new
evidence-found that Floyd had preponderantly established that
no reasonable juror would find him guilty beyond a reasonable
doubt of the murder of William Hines. Floyd v. Cain, No.
11-2819, 2016 WL 4799093, at *2-3 (E.D. La. Sept. 14, 2016).
Because the Court found that Floyd met the standard necessary
to overcome the untimeliness of his habeas petition, the
Court remanded his petition to the Magistrate Judge for an
evaluation on the merits. Id. at 3.
original habeas petition asserted three bases for relief: (1)
the State suppressed material, favorable evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963);
(2) the State destroyed evidence in violation of Arizona
v. Youngblood, 488 U.S. 51 (1988); and (3) Floyd is
entitled to habeas relief because he is actually innocent. In
his Report and Recommendation, the Magistrate Judge
recommended that Floyd's Brady claim be
granted. On May 8, 2017, the Court rejected the
State's objections to the Magistrate Judge's Report
and Recommendation and adopted the Recommendation as its
opinion. Floyd v. Vannoy, No. 11-2819,
2017 WL 1837676, at *1 (E.D. La. May 8, 2017). Accordingly,
the Court granted Floyd's petition for habeas corpus
relief and ordered the State of Louisiana to either retry
Floyd or release him within 120 days of the Court's
order. Id. at *16.
18, 2017, respondent Warden Vannoy, through the Orleans
Parish District Attorney (“the State”), filed a
notice of appeal of the Court's May 8 Order and
Judgment. Five days later, the State filed a
motion to stay the Court's May 8 Order and Judgment
pending the resolution of Vannoy's appeal. On the same
day, Floyd filed a motion to be released on his own
recognizance while the State's appeal is pending under
Federal Rule of Appellate Procedure 23(c).
State initially opposed Floyd's motion for release, and
Floyd opposed the State's motion for a stay pending
appeal. On June 9, 2017, the State and Floyd notified the
Court that they had reached an agreement.More
specifically, the State no longer opposes Floyd's
release, provided that Floyd agrees to abide by certain
conditions of supervision. In exchange, Floyd no longer
opposes the State's motion to stay the Court's
judgment pending appeal. Thus, the parties agree that the
Court's May 8 Order should be stayed pending the
State's appeal, and that Floyd should be conditionally
released on a personal recognizance bond while the
State's appeal is pending.
Rule of Appellate Procedure 23 establishes that
“[w]hile a decision ordering the release of a prisoner
[in a habeas corpus proceeding] 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.” As the Supreme
Court has recognized, “Rule 23(c) undoubtedly creates a
presumption of release from custody” in cases, such as
here, where a federal court has granted a state prisoner
habeas relief and ordered the state to either retry or
release the petitioner. Hilton v. Braunskill, 481
U.S. 770, 774 (1987). But Rule 23 acknowledges that this
presumption may be overcome, id., and the Court in
Hilton instructed reviewing courts to follow the
“general standards for staying a civil judgment.”
Id. at 775 (citations omitted). Accordingly, the
relevant factors in considering both Floyd's and
respondent's motions are the same. See, e.g.,
U.S. ex rel. Newman v. Rednour, 917 F.Supp.2d 765,
787 (N.D. Ill. 2012) (“Consideration of whether to
grant a stay and whether to grant a successful habeas
petitioner's motion for release on bond are both
controlled by Federal Rule of Appellate Procedure 23(c) as
well as the U.S. Supreme Court's decision in
Hilton.”); Pouncy v. Palmer, 168
F.Supp.3d 954, 958 (E.D. Mich. 2016) (noting that
petitioner's motion for release and State's motion to
stay are governed by same standards); Dassey v.
Dittmann, No. 14-1310, 2016 WL 6684214, at *2 (E.D. Wis.
Nov. 14, 2016). These factors 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 issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.
Hilton, 481 U.S. at 776 (citations omitted).
Hilton also added that in reviewing these factors,
courts should consider the possibility that the petitioner is
a flight risk, the potential danger to the public if the
petitioner is released, and the State's “interest
in continuing custody and rehabilitation pending ...