United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel, presently on appeal to the United States Court of Appeals for the Ninth Circuit. By order filed December 5, 2013, this Court conditionally granted habeas relief as to Ground 8 of the second amended habeas petition. (ECF No. 100). Before the Court is petitioner's motion for release pending resolution on appeal. (ECF No. 105).
I. Procedural Background
Following a jury trial in October 1996, petitioner Peter Quinn Elvik was convicted of firstdegree murder with the use of a deadly weapon (Count I) and robbery with the use of a deadly weapon (Count II). On Count I, petitioner was sentenced to life imprisonment with the possibility of parole for first degree murder, and a consecutive sentence of life with the possibility of parole for use of a deadly weapon. On Count II, petitioner was sentenced to 48-150 months incarceration for robbery, with an equal and consecutive sentence for use of a deadly weapon. (Exhibit 78). Petitioner appealed his conviction to the Nevada Supreme Court and litigated a state habeas petition without success. (Exhibits 109 & 176). On August 31, 2004, petitioner filed a federal habeas petition in this Court. (ECF No. 2). Petitioner was appointed counsel and subsequently filed first and second amended petitions in December 2004 and January 2006. (ECF Nos. 8 & 42). On September 27, 2007, this Court dismissed the second amended petition as untimely. (ECF No. 60).
Petitioner successfully appealed the dismissal of his second amended petition to the Ninth Circuit Court of Appeals. (ECF No. 65). A second round of litigation concerning procedural defense followed. On January 4, 2011, this Court determined that Grounds 3 and 4 were unexhausted and directed respondents to answer the remaining claims. (ECF Nos. 84 & 90). Respondents filed an answer (ECF No. 91) and petitioner, through counsel, filed a reply (ECF No. 96). On December 5, 2013, this Court conditionally granted habeas relief to petitioner on Ground 8 of the second amended petition. (ECF No. 100). Respondents filed a notice of appeal on December 12, 2013. (ECF No. 102). On January 22, 2014, petitioner filed a notice of cross-appeal. (ECF No. 107).
On January 6, 2014, petitioner filed a motion for release of petitioner pending the Court of Appeals' review of this Court's order granting habeas relief. (ECF No. 105). On January 16, 2014, respondents filed an opposition to the motion for release. (ECF No. 106). Petitioner filed a reply on January 22, 2014. (ECF No. 113).
A. FRAP 23(c) is Not Applicable
Petitioner asserts that he is entitled to release pending appellate review of this Court's decision granting habeas relief. In support of this assertion, petitioner relies on Federal Rule of Appellate Procedure (FRAP) 23 and Hilton v. Braunskill, 481 U.S. 770 (1987). Specifically, petitioner argues that he is entitled to a presumption of release under FRAP 23(c) and that respondents have the burden of rebutting this presumption. FRAP 23(c) provides as follows:
While 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.
FRAP 23(c) is applicable where a federal court must determine the custody status of a prisoner who has been granted habeas relief, but no initial custody determination has been made by the district court. However, where an initial custody order has been made, such order "continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified...." FRAP 23(d). In the instant case, this Court has already made an initial custody determination in its order resolving the merits of the habeas petition. The Court's order granting habeas relief provides as follows:
IT IS FURTHER ORDERED that the state court Judgment of Conviction is hereby VACATED and petitioner shall be released from custody within thirty (30) days of the later of the conclusion of any proceedings seeking appellate or certiorari review of the Court's judgment, if affirmed, or the expiration of the periods for seeking such appeal or review, unless the State files in this matter a written notice of election to retry petitioner within the thirty-day period to retry petitioner and thereafter commences jury selection in the re-trial within one hundred twenty (120) days following the filing of the notice of election to retry petitioner, subject to request for reasonable modification of the time periods in the judgment by either party pursuant to Rules 59 or 60 of the Federal Rules of Civil Procedure.
(ECF No. 100, at pp. 44-45). As such, the presumption of release under FRAP 23(c) does not come into effect, because this Court has made an initial custody decision in its order granting habeas relief. Additionally, FRAP 23(d) provides:
An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified ...