The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
AMENDED MEMORANDUM OPINION AND ORDER
On November 8, 2012, the Court granted Petitioner Melvin Newman's petition for a writ of habeas corpus and ordered that the State of Illinois release or retry him within 180 days . On December 3, 2012, Respondent simultaneously filed a timely notice of appeal with the Seventh Circuit, seeking review of the Court's decision, and a motion for stay of judgment pending appeal , maintaining that it should not be required to retry Petitioner before resolution of the appeal. Petitioner has both objected to the stay motion and cross-moved for Petitioner's release on recognizance . For the reasons set forth below, the Court grants in part and denies in part Respondent's motion for stay of judgment pending appeal  and grants Petitioner's cross-motion for release on recognizance without surety  subject to the conditions set forth herein.
Consideration of whether to grant a stay and whether to grant a successful habeas petitioner's motion for release on bond both are controlled by Federal Rule of Appellate Procedure 23(c) as well as the U.S. Supreme Court's decision in Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Under Rule 23(c), there is a presumption of release pending appeal where a petitioner has been granted habeas relief. However, the presumption can be overcome if the traditional factors regulating the issuance of a stay weigh in favor of granting a stay. See O'Brien v. O'Laughlin, 557 U.S. 1301 (2009) (Breyer, J., in chambers). These factors are: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the other parties in the proceeding; and (4) where the public interest lies. Hilton, 481 U.S. at 778; O'Laughlin, 557 U.S. at 1301. The Hilton Court summarized how to weigh whether the factors rebut the Rule 23's presumption as follows: "Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release." Hilton, 481 U.S. at 778. Among the matters that a court should consider are the possibility of the petitioner's flight; any showing by the respondent of a risk that the petitioner will pose a danger to the public if released; and the state's interest in continuing custody and rehabilitation pending a final determination of the case on appeal. Id. at 777.
In granting habeas relief, the Court concluded that Petitioner's counsel provided constitutionally ineffective assistance by failing to investigate and raise the issue of his fitness to stand trial, even though counsel received a stack of records detailing Petitioner's mental limitations, including a Social Security Administration document concluding that Petitioner was mentally retarded and a psychologist's evaluation that put Petitioner's IQ in "the national percentage rank of 1." Cognizant that Cullen v. Pinholster, 131 S.Ct. 1388 (2011), "chang[ed] the landscape that applies to ineffective assistance of counsel habeas cases," prior to issuing its opinion granting habeas relief, this Court looked to guidance from the Seventh Circuit on how to proceed and applied the procedure set forth by the Seventh Circuit in Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012). In its decision, the Court limited its § 2254(d) analysis to the record before the state court at the time it reviewed the claim and only considered the evidence adduced at the evidentiary hearing to determine whether Petitioner was being held in violation of the constitution pursuant to § 2254(a).
Courts have determined that "a substantial case on the merits" is "largely interchangeable" with establishing "reasonable probability" or a "fair prospect" of success, or that "serious legal questions * * * [are] raised." Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012). The standard requires more than demonstrating a "better than negligible" or "a mere possibility" of success on appeal, but something less than establishing that success is "more likely than not." Id. Respondent acknowledges that the Court "analyzed petitioner's claims within the proper legal framework," but maintains that the state court's decision does not lie "well outside" the boundaries of permissible differences of opinion and that the Court came to "an erroneous legal conclusion."
In addressing these issues, Respondent points out the "dissonance" associated with a district court's consideration of "the likelihood of being reversed." On the one hand, the Court would not have issued its decision granting habeas relief unless it believed the decision to be correct and consistent with the controlling decisions of the Supreme Court and the Seventh Circuit as well as the applicable statutes. On the other hand, the Court appreciates the exacting standards for habeas relief, the relative infrequency with which habeas relief is granted, and Respondent's firmly held view that the Court's decision is incorrect. With that said, however, the Court is not convinced that Respondent's arguments create a reasonable probability that the Court's decision will be reversed. First, the Court applied the proper legal framework. Second, the state trial court did not merely make a questionable ruling; rather, in this Court's view, the ruling "evinced a fundamental misunderstanding of what could constitute a mental deficiency." Further, the Court's reliance on analogous Seventh Circuit decisions in support of its conclusion bolsters its decision. See, e.g., Wilson v. Gaetz, 608 F.3d 347 (7th Cir. 2010); Brown v. Sterns, 304 F.3d 677 (7th Cir. 2002). Indeed, in its analysis, the Court concluded that Petitioner's trial counsel exerted even less effort on behalf of its client than the attorney in Brown, a case in which the Seventh Circuit reversed the district court's denial of a habeas petition and concluded that counsel failed to fulfill his duty to investigate his client's fitness. Finally, the state appellate court's decision that an unrebutted expert report concluding that Petitioner was unfit at trial was "irrelevant" was almost certainly unreasonable.
As the foregoing summary indicates, even without considering what took place at the evidentiary hearing, the Court does not believe that Respondent would likely prevail on appeal. However, when the Court adds to the mix its own observations at the evidentiary hearing, Respondent's case grows weaker, not stronger. Even taking into account Petitioner's recent educational improvements and achievements-as the Court did in its ruling-Petitioner's mental acuity was "noticeably lower than any other witness" who had ever testified before the Court. Additionally, the Court heard extensive testimony from experts on both sides and, as demonstrated in its opinion, considered all of it before concluding that Dr. Kavanaugh's thorough study-undertaken much closer to trial and consisting of a more diverse range of documents and viewpoints-was more credible and ultimately more accurate.
The balance of the remaining factors, to the extent they are even considered when Respondent has failed to demonstrate a substantial case on the merits, weigh in favor of releasing Petitioner (but, as demonstrated below, not necessarily in favor of denying a stay altogether). The injury that Petitioner will suffer by continued detention is undeniably irreparable. The Court notes the presumption of release established by Rule 23(c) and further notes that every day Petitioner spends in prison compounds the "substantial harm" that he has suffered on account of imprisonment based upon an unconstitutional conviction. See Harris v. Thompson, No. 12-1088 (7th Cir. Feb. 20, 2013) (slip opinion) (modifying State's deadline for retrial, releasing petitioner, and noting that the "harm to [petitioner] is self-evident: Maintaining the status quo increases the length of time she spends in prison on an unconstitutional conviction * * * * Any harm to the State pales in comparison."). The fact that Petitioner already has spent more than 12 years in prison does not mean that the Court can disregard the harm he will suffer from further imprisonment. See also Hampton v. Leibach, 2001 WL 1618737, at *2 (N.D. Ill. Dec. 18, 2001). As then-District Judge Williams wrote in addressing similar circumstances:
It would be intolerable that a custodian adjudged to be at fault, placed by the judgment of the court in the position of a wrongdoer, should automatically, by a mere notice of appeal prolong the term of imprisonment, and frustrate the operation of the historic writ of liberty * * * * The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty' * * * * Certain it is, at least, that the write may not be thwarted at the pleasure of the jailer * * * * Little would be left of this, the greatest of all writs * * * if a jailer were permitted to retain the body of his prisoner during all the weary processes of an appeal * * *.
U.S. ex rel. Cross v. DeRobertis, 1986 WL 12590, at *3 (N.D. Ill. Nov. 3, 1986) (quoting Justice Cardozo's opinion in People ex rel. Sabatino v. Jennings, 158 N.E. 613 (C.A.N.Y. 1927) (internal quotations omitted). Justice Cardozo's sentiments and Judge Williams' ruling apply with equal force in the present case.
Additionally, the public interest does not tilt the balance in favor of continued incarceration. The public has a significant interest in ensuring that individuals are not imprisoned in violation of the Constitution. With respect to Petitioner's danger to society, the Court recognizes the seriousness of the murder charge of which Petitioner was convicted, albeit following a constitutionally deficient trial. Yet Petitioner had no record of a violent criminal history prior to his arrest in the case at issue, and Respondent has made no attempt to show that Newman poses a current risk, twelve years after the events at issue (for example, there is no indication that he has committed any acts of violence while incarcerated). See also Hampton, 2001 WL 1618737 at *2 (noting that the petitioner had no criminal history, not even an arrest, other than the charges that were the subject of the habeas corpus petition); McCandless v. Vaughn, 1999 WL 1197468, at *2 (E.D. Pa. Dec. 14, 1999) (finding no current danger resulting from defective seventeen-year-old murder conviction). Indeed, "[i]f the mere fact of having been convicted in the case to which a habeas corpus petition is directed was enough to overcome Rule 23(c)'s presumption of release, the presumption would be meaningless." Hampton, 2001 WL 1618737 at *2.
Further, in his 12 years in the Cook County Department of Corrections and the IDOC, Petitioner has not attempted escape, assaulted anyone, or possessed any weapons in the facility. In fact, Petitioner's prison record includes only three disciplinary incidents, all non-violent, during his time in custody. Respondent raises a concern that Petitioner has affiliated himself with a gang (the Gangster Disciples) during his incarceration. But the indication of any gang involvement appears to be minimal-resting on an abbreviation placed on one of Petitioner's prison records. To be sure, gang activity is a proper consideration when considering release, but there is no concrete manifestation of any such activity on the record before the Court. Moreover, the strict conditions of release make it highly unlikely that Petitioner would associate in any fashion with Gangster Disciples or any other gang and carry with them the possibility of swift revocation of his release if he does. Finally, having heard from multiple witnesses at the evidentiary ...