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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

CELSO LEON,

NO. CIV. S-04-2631 FCD JFM (HC)

Petitioner,

v. MEMORANDUM AND ORDER

A.P. KANE, Warden,

Respondents.

----oo0oo----

This matter is before the court on respondent A.P. Kane’s

(“respondent”) application for a stay of the court’s February 8,

2010 order granting petitioner Celso Leon’s (“petitioner”) habeas

petition. The court adopted the magistrate judge’s findings and

recommendations (“F&Rs”), granting the petition on the ground

that the record lacked some evidence supporting the denial of

parole and requiring respondent to “forthwith set a parole

release date for petitioner.” (Docket #22.) Respondent moves

for a stay of the court’s order pending appeal, or in the

alternative, for a temporary stay to give respondent the

opportunity to seek a stay in the Ninth Circuit.

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1 Fed. R. App. Proc. 23(c) provides: “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.” 

2

Federal Rule of Appellate Procedure 8(a) provides that a

party must move in the district court for a stay of the judgment

or order of a district court pending appeal. In the context of a

habeas corpus matter, “Federal Rule of Appellate Procedure 23(c)

provides that, when the Government appeals a decision granting a

writ of habeas corpus, the habeas petitioner shall be released

from custody,” unless the court rendering the decision orders

otherwise. Hilton v. Braunskill, 481 U.S. 770, 772 (1987).1 Rule

23(c) “undoubtedly creates a presumption of release from custody

in such cases,” but the presumption may be overcome where the

factors traditionally considered in deciding whether to stay a

judgment in a civil case, “tip the balance against it.” Id. at

774, 777. These factors include: “(1) whether the stay applicant

has made a strong showing that he is likely to succeed on the

merits [of its appeal]; (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.” Id.

at 776-77. “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

. . . militate against release.” Id. at 778. Where the merits

showing does not meet this level, “the preference for release

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2 These questions and the relevant case law are

thoroughly described by the magistrate judge in the F&Rs, by

respondent’s brief objecting to the F&Rs, and the instant motion. 

Accordingly, the court does repeat that discussion here.

3

should control.” Id. Ultimately, like its discretion in

“conditioning a judgment granting habeas relief,” this court has

“broad discretion” in determining “whether the judgment granting

habeas relief should be stayed pending appeal.” Id. at 775.

In this case, respondent has shown a possibility, although

not a likelihood, of success on some of the substantial issues

presented in this case. These issues include, inter alia: (1)

whether there is clearly established federal law requiring that a

decision to deny parole be supported by “some evidence”; (2) if

such law exists, whether some evidence existed in this case; (3)

whether clearly established federal law precludes the state from

relying on petitioner’s crime to find him unsuitable for parole;

and (4) whether the appropriate remedy for a violation was

release without allowing the Board or the Governor an opportunity

to review the decision. All of these matters present complicated

questions, which neither the Supreme Court nor the Ninth Circuit

have definitively addressed.2

However, apart from the complexity of the merits issues, the

other factors do not militate strongly in favor of a stay. 

Respondent has not made a particularized showing that

petitioner’s release would endanger public safety or otherwise

harm the parole system generally. Indeed, should the appellate

court reverse this court’s grant of the petition, petitioner, if

released, could simply be ordered back to prison. Presumably, as

again, respondent has made no showing of a flight risk,

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petitioner would return as directed; a surety, pursuant to Rule

23(c), could also be ordered to assure his return. The court

also rejects respondent’s contention that a stay, which

necessarily prolongs detention, will not injure petitioner as

well as respondent’s argument that a stay sufficiently furthers

the public interest in respecting the state’s parol process to

overcome the presumption of release. 

Nevertheless, the court finds that consideration of all

relevant factors, including the highly difficult questions on the

merits, warrants a limited stay to allow respondent to seek a

stay from the Ninth Circuit Court of Appeals pursuant to Federal

Rule of Appellate Procedure 8(a)(2)(A)(ii).

IT IS SO ORDERED.

DATED: February 11, 2010

 FRANK C. DAMRELL, JR.

UNITED STATES DISTRICT JUDGE

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