The opinion of the court was delivered by: James L. Graham United States District Judge
Final judgment granting the petition for a writ of habeas corpus on petitioner's sixth ground for relief, and directing the State of Ohio to commute petitioner's sentence of death or grant him a new mitigation hearing within 180 days, was entered on April 24, 2006. (Doc. # 74.) This matter is before the Court on respondent's motion to stay the Court's judgment pending appeal (Doc. # 77), and petitioner's application on cross-appeal for a certificate of appealability on his first, fourth, and fifth grounds for relief, as well as this Court's decision denying his motion for leave to amend his petition (Doc. # 80).
On April 24, 2006, the Court issued judgment denying the petition for a writ of habeas corpus except as to sub-parts B, C, and D of petitioner's sixth ground for relief. Specifically, the Court concluded that petitioner had received constitutionally ineffective assistance of counsel during the mitigation phase of his capital case and directing the State of Ohio "to commute petitioner's death sentence or grant petitioner a new mitigation hearing within one hundred and eighty (180) days of the date of this Opinion and Order." (Doc. # 74, at 137.)
On May 17, 2006, respondent filed a notice of appeal. (Doc. # 76.) On that same day, respondent also filed a motion to stay the execution of the writ of habeas corpus pending appellate review of this Court's judgment. (Doc. # 77.)
On May 30, 2006, petitioner filed a notice of cross-appeal. (Doc. # 79.) On that same day, petitioner also filed an application for a certificate of appealability on his first, fourth, and fifth grounds for relief, and on this Court's denial of his motion for leave to amend his habeas petition. (Doc. # 80.) Respondent filed a memorandum in opposition on June 20, 2006 (Doc. # 81), to which petitioner filed a reply on June 30, 2006 (Doc. # 82).
II. Motion to Stay Execution of Writ of Habeas Corpus
Citing Hilton v. Braunskill, 481 U.S. 770, 776-77 (1987), and Fed. R. App. P. 23(c) and (d), respondent argues that she has satisfied the conditions warranting a stay of this Court's judgment. Respondent argues that she has demonstrated a likelihood of success on the merits, or at least a substantial case on the merits, given the fact that petitioner's claims of ineffective assistance of trial counsel have been rejected by every Ohio court that has reviewed them. Respondent further argues that there will be irreparable harm if the stay is not granted, not only because her appeal would be mooted if no stay is entered but also because the State of Ohio would have to expend considerable time, energy, and resources to prepare for a new sentencing hearing that might not be necessary. Moreover, according to respondent, petitioner would not be substantially injured by a stay because this Court did not order his release and because petitioner still faces the likelihood of life imprisonment. Finally, respondent argues that public interest would be served by a stay because this Court has overturned a state judgment rendered by twelve citizens of Ohio and because the great strain the State would have to endure preparing for a new sentencing hearing militates in favor of a stay, pending appellate review of this Court's decision overturning the original judgment.
Petitioner, who has filed a notice of cross-appeal and request for a certificate of appealability regarding several claims that this Court rejected (Doc. #'s 79, 80), did not file a brief opposing or otherwise responding to respondent's motion to stay execution of the writ of habeas corpus.
District courts have broad discretion to determine whether a petitioner who prevails in habeas corpus should be released pending appellate review of the decision granting habeas relief. See Hilton v. Braunskill, 481 U.S. 770, 775 (1987); Workman v. Tate, 958 F.2d 164, 166 (6th Cir. 1992). The factors to be considered are those governing "the general standards for staying a civil judgment." Hilton, 481 U.S. at 775. Specifically, the Court must balance 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 issuance of the stay will substantially injure the other parties ...