United States District Court, D. New Jersey
L. WOLFSON, UNITED STATES DISTRICT JUDGE
Louis Pierce (“Pierce” or
“Petitioner”), is a state prisoner incarcerated
at New Jersey State Prison, in Trenton, New Jersey. He
commenced this habeas proceeding in 2011, seeking to vacate
his convictions from 2000 for attempted murder and related
crimes, but the action was stayed for several years while
Pierce exhausted all grounds for relief in state court.
Following the action's restoration to the active docket
and the filing of an Answer by Respondents, Greg Bartkowski
and Paula T. Dow (collectively, “Respondents”),
the Court determined that an evidentiary hearing was needed
to resolve questions concerning Part A of Ground Five in the
Petition, asserting that ineffective assistance of trial
counsel deprived Pierce of an effective right to testify on
his own behalf at trial. The Court appointed counsel to
represent Pierce, held an evidentiary hearing on February 9,
2018, and, thereafter, received supplemental briefing from
September 19, 2018, the Court issued an Opinion and Order
granting Pierce habeas relief on Part A of Ground Five, but
denying relief on the remaining portions of the petition.
This Order vacated Pierce's convictions and directed the
State, within 30 days, to determine whether to release Pierce
or to initiate a new trial. Within that time period,
Respondents appealed my habeas Opinion and Order to the Court
of Appeals for the Third Circuit.
now move to stay the Order for habeas relief pending appeal.
They argue that they make a substantial case for success on
appeal, that the State would suffer irreparable injury if it
is forced to expedite a retrial of Pierce, which could turn
out to be moot if the appeal succeeds, that injury to Pierce
is minimal as he would not likely be released on bail pending
retrial, and that the public interest weighs in favor of a
stay. Respondents also argue that, as Pierce has a
substantial portion remaining of his vacated sentence, the
State's interest in keeping Pierce incarcerated and
preventing potential flight outweighs Pierce's liberty
interest. (See ECF No. 45-1.)
opposition, Pierce disputes the level of the burden that
would be imposed on the State by a denial of the stay. He
contends that he would suffer harm from a stay, as he would
potentially be able to meet bail for release pending a
retrial. Pierce contends that the public interest weighs in
favor of his release, and that the Order granting habeas
relief will not be disturbed on appeal. (See ECF No.
Federal Rule of Appellate Procedure 23(c) creates a
presumption that a petitioner who receives relief on a habeas
petition will be released pending appeal, the Supreme Court
has made clear that a motion to stay an order granting habeas
relief will be assessed using the standard generally
applicable to stays of civil judgments. See Hilton v.
Braunskill, 481 U.S. 770, 775-76 (1987). A stay is
“an exercise of judicial discretion, ” but a
Court considering a stay motion should examine four 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 interested in the proceeding; and (4) where the
public interest lies.
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting
Braunskill, 481 U.S. at 776); see also Chafin v.
Chafin, 568 U.S. 165, 179 (2013).
Third Circuit has recently examined the factors applied in
considering a stay, explaining that, “[i]n order not to
ignore the many gray shadings stay requests present, courts
‘balance them all' and ‘consider the relative
strength of the four factors.'” In re Revel AC,
Inc., 802 F.3d 558, 568 (3d Cir. 2015) (internal
brackets omitted) (quoting Brady v. NFL, 640 F.3d
785, 789 (8th Cir. 2011). It noted, however, “the most
critical factors” are the first two, the likelihood of
success and the potential for irreparable harm to the movant.
Id. The movant need not show that success is more
likely than not, but should establish that the likelihood of
success is more than simply “better than
negligible.” Id. at 569. If the movant shows
that it is likely to suffer irreparable harm without a stay,
then the Court must balance that potential harm against the
potential irreparable harm to the opponent of the stay if it
is granted. See id.
Supreme Court noted that, in addition to the standard stay
factors, a court considering whether to grant a stay of
habeas relief pending appeal must also consider the
possibility that release of the petitioner would create a
risk of flight or a danger to the public.
Braunskill, 481 U.S. at 777. It found that courts
should also weigh the State's interest in continuing
custody and rehabilitation, noting that this interest
“will be strongest where the remaining portion of the
sentence to be served is long, and weakest where there is
little of the sentence remaining to be served.”
Id. In justifying these additional considerations,
the Supreme Court noted, “[u]nlike a pretrial arrestee,
a state habeas petitioner has been adjudged guilty beyond a
reasonable doubt by a judge or jury, and this adjudication of
guilt has been upheld by the appellate courts of the State[;]
[a]lthough the decision of a district court granting habeas
relief will have held that the judgment of conviction is
constitutionally infirm, that determination may itself be
overturned on appeal before the State must retry the
petitioner.” Id. at 779.
the factors listed above, and balancing the parties'
interests, the Court concludes that a stay is warranted in
this case. Respondents' arguments on appeal are not
frivolous or facially meritless, and they do demonstrate a
potential for irreparable harm if the State is compelled to
pursue an expedited retrial that is ultimately rendered moot.
The harm to Pierce of denying a stay is, of course,
non-trivial. But, as directed by the Third Circuit, the Court
must take into account the time remaining to be served on the
sentence imposed and the potential risk of flight. While
Respondents' contention that Pierce is in “the
early stages” of his sentence appears exaggerated in
light of the fact that he has, in fact, completed nearly two
thirds of his period of parole ineligibility, the Court must,
nonetheless, take into account that the eleven years
remaining in that period still represent a long remaining
sentence. Consequently, after weighing the factors, the Court
finds that the interests of Respondents and the State
prevail, and the motion for a stay is granted. An appropriate
 The Court subsequently granted a
consented 14-day extension to this ...