UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LARRY DEVEL STEWART,

Petitioner, Civil No. 2:15-CV-11843

HONORABLE GERALD E. ROSEN

v. UNITED STATES DISTRICT JUDGE

THOMAS MACKIE,

Respondent,

________________________________/

OPINION AND ORDER GRANTING THE MOTION FOR A STAY OF THE 

WRIT OF HABEAS CORPUS PENDING APPEAL AND GRANTING THE

MOTION TO SEAL THE PRE-SENTENCE INVESTIGATION REPORT

This matter is before the Court on respondent’s motion for a stay

pending the appeal of the Court’s decision to grant habeas relief to the

petitioner and the motion to seal the pre-sentence investigation report. For

the reasons stated below, the motions are GRANTED.

Larry Devel Stewart, (“Petitioner”), filed a pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for

first-degree felony murder, armed robbery, conspiracy to commit armed

robbery, and felony-firearm. On July 12, 2016, this Court granted petitioner

a writ of habeas corpus, finding that petitioner was denied his due process

right to a fair trial by the pervasive and flagrant misconduct of the prosecutor

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throughout the trial. Stewart v. Mackie, ----- F. Supp. 3d----; No.

2:15-CV-11843, 2016 WL 3682914 (E.D. Mich. July 12, 2016). 

On August 9, 2016, respondent filed a notice of appeal from the Court’s

order granting habeas relief. 

Respondent has also now filed a motion for a stay pending appeal and

a motion to seal the pre-sentence investigation report. 

There is a presumption that a successful habeas petitioner should be

released from custody pending the state’s appeal of a federal court decision

granting habeas relief, but this presumption may be overcome if the judge

rendering the decision, or an appellate court or judge, orders otherwise. Hilton

v. Braunskill, 481 U.S. 770, 774 (1987); Workman v. Tate, 958 F. 2d 164, 166

(6th Cir. 1992); F.R.A.P. Rule 23(c). Because habeas proceedings are civil

in nature, the general standards of governing stays of civil judgments should

also guide courts when they must decide whether to release a habeas

petitioner pending the state’s appeal. Hilton, 481 U.S. at 776.

The factors regulating the issuance of a stay are:

(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 the issuance of the stay will substantially injure the

other parties interested in the proceeding; and

(4) where the public interest lies.

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Hilton v. Braunskill, 481 U.S. at 776; Workman v. Tate, 958 F. 2d at

166.

In determining whether to grant a stay, a federal court may also

consider “[t]he State’s interest in continuing custody and rehabilitation

pending a final determination of the case on appeal ...; it 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.” Hilton,

481 U.S. at 777.

Although this Court disagrees with respondent’s claim that he has made

a strong showing that he is likely to succeed on the merits of the case on

appeal, the Court will grant respondent a stay pending appeal. In the present

case, petitioner is serving a nonparolable life sentence. Although petitioner

may suffer injury from his continued confinement pursuant to a conviction that

this Court has found to be constitutionally infirm, “it would be a waste of

judicial resources for the appeal to proceed in the Sixth Circuit Court of

Appeals, while simultaneously requiring the State to grant relief to Petitioner.”

Williams v. Booker, 715 F. Supp. 2d 756, 770 (E.D. Mich. 2010); rev’d on

other grds, 454 Fed. Appx. 475 (6th Cir. 2012). Accordingly, the Court will

grant respondent’s motion for stay pending appeal.

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Respondent also filed a motion to seal the pre-sentence investigation

report from petitioner’s sentencing.

A federal court has the power to seal records when the interests of

privacy outweigh the public’s right of access to those records. See Ashworth

v. Bagley, 351 F. Supp. 2d 786, 789 (N.D. Ohio 2005)(internal citation

omitted). State law dictates that the contents of a pre-sentence investigation

report be kept confidential. See 1991 Staff Comment to M.C.R. 7.212. The

Court will grant the motion to seal.

ORDER 

IT IS ORDERED THAT Respondent’s Motion for a StayPending Appeal

[Dkt. # 13] is GRANTED.

IT IS FURTHER ORDERED that the Motion to Seal [Dkt. # 14] is

GRANTED.

s/Gerald E. Rosen 

United States District Judge

Dated: September 14, 2016

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served upon the

parties and/or counsel of record on September 14, 2016, by electronic and/or

ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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