The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Respondent's Motion for Stay of Judgment Pending Appeal. For the reasons stated herein, the Motion is denied.
On February 1, 2008, this Court granted Petitioner William Johnson's § 2254 petition for a writ of habeas corpus. This Court agreed with the Illinois Court of Appeals that the State had improperly commented on his post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610 (U.S.Ohio, 1976). The Court disagreed with the appellate court's finding that any error was harmless, however. Considering the egregiousness of the violations, the centrality of Petitioner's credibility to the defense, and certain weaknesses in the remainder of the State's case, the Court found that the error had a substantial and injurious effect or influence on the jury's verdict and could not be deemed harmless. The Court therefore conditionally granted Johnson's petition for writ of habeas corpus.
In granting the writ, the Court ordered that the State of Illinois either must retry or release Petitioner within 90 days. Upon the State's Motion for Clarification, the Court modified its order to read that: "the State has 120 days in which to begin proceedings." Otherwise, Petitioner must be released. The State's companion motion for stay of judgment pending appeal was taken under advisement and is the subject of this Order.
When a federal district court issues a writ of habeas corpus, there is a presumption in favor of release pending appeal. See FED. R. APP. P. 23(C). That presumption can be overcome, however, where application of traditional stay factors tip the balance against release. See Hilton v. Braunskill, 481 U.S. 770, 777 (U.S.N.J., 1987). In considering the motion for stay pending appeal, the Court therefore must consider: (1) the respondent's likelihood of success on the merits; (2) the irreparable injury to respondent absent a stay; (3) the substantial injury to the petitioner caused by a stay; and (4) the public interest. See id. at 776. It is also appropriate to consider the possibility of flight, a petitioner's danger to the public if released, and the state's interest in continuing custody and rehabilitation pending a final determination on appeal. See id. at 777. These circumstances will be considered in evaluating the public interest and the possibility of irreparable injury to the state absent a stay. Cf. Franklin v. Duncan, 891 F.Supp. 516, 519 n.4 (N.D.Cal., 1995).
A. Likelihood of Success on the Merits
Ordinarily, for this factor to tip in favor of a stay, the movant must demonstrate a strong and substantial showing of likely success on appeal, not merely the possibility of success. See Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294, 1301 (7th Cir., 1997). However, where the second and fourth factors militate against release, the state's demonstration that it has a substantial case on the merits will be enough. See Hilton, 481 U.S. at 778.
Here, the State may have an arguable case on appeal, but it is hardly substantial. The State's first contention on appeal that no Doyle violation occurred, has been rejected by both this Court and the Illinois Court of Appeals. Although the State argues that the prosecutor's questioning was designed simply to expose Johnson's prior inconsistent statement, and was therefore permissible under Anderson v. Charles, 447 U.S. 404 (U.S.Mich., 1980), the state appellate court found there were no material inconsistencies between the two statements, and this Court left that finding undisturbed. The focus of the prosecutor at Johnson's trial was clearly on Johnson's failure to tell his exculpatory story at an earlier time, not on any inconsistencies in the two statements. Indeed, although some minor inconsistencies between Johnson's two descriptions of his day existed, the State never attempted to expose these inconsistencies, focusing instead on Johnson's post-arrest silence regarding the events surrounding the robbery. The finding of Doyle error is clear on the record before us, and the Court believes the State has little likelihood of success on appeal regarding this issue.
The State's alternative argument that any error was harmless may present a closer question on appeal. The State plans to argue that this Court focused too much on minor discrepancies and did not give enough weight to the eyewitness accounts found reliable by the Illinois Court of Appeals. Yet, it is precisely this kind of comprehensive review and testing of the evidence that the Court is required to make in applying the Brecht harmless error standard. See Kotteakos v. United States, 328 U.S. 750, 765 (U.S.N.Y., 1946). This Court properly considered the relative strength of all the evidence presented in deciding that the error in this case had a substantial and injurious effect on the jury's verdict. Therefore, although the Court recognizes there is some possibility that the Seventh Circuit could reach a contrary conclusion on the issue of harmlessness, it cannot that the likelihood of reversal is strong or substantial.
B. Irreparable Injury Absent a Stay
The State argues that it will be irreparably injured absent a stay, because it will be forced to begin a new trial which may be rendered unnecessary by a successful appeal. Yet, the State has not been deprived of its right to postpone preparation and commencement of a new trial against Mr. Johnson, and this Court's order does not force them into the irreparable injury of commencing a case which may be rendered moot. The Court's amended order simply requires that Mr. Johnson be released if a new trial is not commenced within 120 days. It is permissible, and perhaps very wise, for the State to delay commencement of new proceedings pending appeal; however, further delay of Petitioner's release in the meantime requires a separate showing of irreparable injury. See Hampton v. Leibach, 2001 WL 1618737 *2 (N.D. Ill., 2001).
In its motion, the State makes only a conclusory argument that the convictions before this Court demonstrate the substantial risk of harm Petitioner would pose to the public if released. However, the conviction for offenses now invalidated upon habeas review cannot by itself demonstrate a sufficient risk of harm to overcome Rule 23(c)'s presumption of release. See Hampton, 2001 WL 1618737 at *2. The Court does note that the State may have an interest in Petitioner's continuing custody and rehabilitation, as Petitioner has served less than ten years of his twenty-five year sentence. See Hilton, 481 U.S. at 777. The Petitioner also has a history of other past convictions, including possession of cannabis, attempt theft, robbery, and unlawful use of a firearm by a felon. However, the State has made no argument that these past offenses show a ...