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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL D. VANCE,

Petitioner,

CASE NO. 2:09-CV-11368

v. HONORABLE GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

DEBRA SCUTT,

Respondent.

____________________________________/

OPINION AND ORDER DENYING THE 

MOTION FOR A STAY PENDING APPEAL

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 petitioner. For the

reasons stated below, the motion for a stay is DENIED. 

On February 29, 2012, this Court granted petitioner a conditional writ of

habeas corpus, finding that petitioner was denied his right to the effective

assistance of appellate counsel with respect to his appeal of right with the

Michigan Court of Appeals regarding Oakland County Circuit Court Case # 03-

193604-FC and 03-192752-FH. This Court ordered that petitioner’s appeal of

right be reinstated in both cases within sixty days of the Court’s order and that the

Michigan Court of Appeals undertake to appoint appellate counsel to represent

petitioner. The Court further ordered that if petitioner’s appeal of right was not

reinstated within 60 days of the Court’s order, that petitioner should be released

from custody. See Vance v. Scutt, No. 2012 WL 666520 (E.D. Mich. February 29,
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2012). 

Respondent has now moved this Court for a stay of the writ pending

appeal. For the reasons that follow, the motion for a stay is DENIED. 

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); Burdine v. Johnson, 87 F. Supp. 2d 711 (S.D. Tex. 2000); 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.

Hilton v. Braunskill, 481 U.S. at 776; Workman v. Tate, 958 F. 2d at 166.

In determining whether to stay an order granting relief to a habeas

petitioner, pending the state’s appeal, federal courts are not restricted to consider
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only the petitioner’s risk of flight, but are authorized to consider traditional stay

factors, including the risk that petitioner would pose a danger to the public if

released, the state’s interest in continuing custody and rehabilitation of the

petitioner, the interest of the habeas petitioner in his or her release pending

appeal, and the likelihood of the state’s success on the merits of the appeal.

Hilton, 481 U.S. at 777. The interests of the habeas petitioner in release pending

appeal, while always substantial, will be strongest where these factors are the

weakest. Id. at 777-78. The balance of factors relevant to determining whether a

successful habeas petitioner should be released pending appeal may depend to

a large extent upon a determination of the state’s prospects of success in its

appeal. Hilton, 481 U.S. at 778; Workman, 958 F. 2d at 166. Where the state

fails to show either that it has a strong likelihood of success on appeal or can

demonstrate a substantial case on the merits, the preference for release of the

petitioner should control. Hilton, 481 U.S. at 778. 

The Court declines to grant respondent’s motion for a stay of proceedings

pending appeal in this case because respondent has failed to show either a

strong likelihood of success on appeal or that she has a substantial case on the

merits. See Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 778 (E.D. Mich. 2004).

As this Court noted in its opinion and order granting habeas relief, in her answer

to the petition for writ of habeas corpus, respondent’s counsel did not contest

petitioner’s allegation that he filed a timely request for the appointment of
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appellate counsel in Case # 03-193604 and that he did not receive a separate

notice of appeal rights form at the time of sentencing regarding Case # 03-

192752. The Court thus accepted the factual allegations contained within the

habeas petition regarding petitioner’s timely filed request for the appointment of

appellate counsel in Case # 03-193604 and the trial court’s failure to provide

petitioner with a notice of appeal in Case # 03-192752 because respondent did

not dispute them. Vance, 2012 WL 666520, Slip. Op. at * 3. More importantly, this

Court noted that the respondent’s counsel did not specifically address the merits

of petitioner’s ineffective assistance of appellate counsel claim in the answer to

the petition. This Court ruled that because of respondent’s failure to address the

merits of petitioner’s ineffective assistance of appellate counsel claim in the

answer to the petition for writ of habeas corpus, respondent waived any

substantive defenses to the merits of this claim. Id., at * 4 (internal citations

omitted). 

The Sixth Circuit has noted that “[i]t is well settled law that this court will not

consider an error or issue which could have been raised below but was not.”

Barner v. Pilkington North America, Inc., 399 F. 3d 745, 749 (6th Cir.

2005)(quoting Niecko v. Emro Marketing Co., 973 F. 2d 1296, 1299 (6th Cir.

1992)(additional citations omitted). 

By failing to address the merits of petitioner’s ineffective assistance of

appellate counsel claim in the answer to the petition for writ of habeas corpus,
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respondent has waived appellate review of the issue by the Sixth Circuit. See

Caver v. Straub, 349 F. 3d 340, 345-46 (6th Cir. 2003)(State failed to preserve for

appellate review argument that habeas petitioner procedurally defaulted on

ineffective assistance of appellate counsel claims, where state did not raise the

argument before the district court); Miller v. Collins, 305 F. 3d 491, 497 (6th Cir.

2002)(State waived any argument it could have asserted that petitioner’s motion

in state court for relief from judgment did not toll the habeas statute of limitations,

where state did not address that motion in either its response to the habeas

petition or in its appellate brief); see also, Winn v. Renico, 175 Fed. Appx. 728,

731-32 (6th Cir. 2006)(respondent in a habeas proceeding, by raising the issue for

the first time on appeal, waived claim that the district court could decline the

petitioner's request for review under the concurrent sentence doctrine). Because

respondent has waived appellate review of petitioner’s ineffective assistance of

appellate counsel claim by failing to address the merits of the claim in her

answer, respondent is unable to show either a strong likelihood of success on

appeal or that she has a substantial case on the merits and is therefore not

entitled to the issuance of a stay on appeal. See e.g. Henderson v. Palmer,

U.S.C.A. No. 07-1822 (6th Cir. August 10, 2007)(Sixth Circuit declined to grant

stay of the writ pending appeal, finding that respondent had failed to demonstrate

a strong likelihood of success on the merits of the appeal, when it failed to raise

most of the arguments that it advanced for the first time on appeal in the district
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court). 

Secondly, respondent is not entitled to the issuance of a stay, because she

has failed to show that she would be irreparably injured in the absence of a stay

or that there would be any risk of harm to the public interest if a stay is not issued

in this case. Newman v. Metrish, 300 Fed. Appx. 342, 343 (6th Cir. 2008). 

Although respondent argues that a stay should be granted because petitioner is

serving a lengthy prison sentence, because respondent has failed to make a

sufficiently strong showing that she is likely to succeed on appeal, petitioner is

entitled to release, even though the public’s interest may weigh against it. See

Moore v. Calderon, 56 F. 3d 39, 40 (9th Cir. 1995); rev’d on other grds 518 U.S.

149 (1996).

Most importantly, petitioner would suffer irreparable harm each day that he

would remain imprisoned in violation of the U.S. Constitution. Because

“remedying such harm is the very essence of the writ of habeas corpus,” Ward,

340 F. Supp. 2d at 778, respondent is not entitled to the issuance of a stay

pending appeal. 

ORDER

IT IS ORDERED THAT Respondent’s Motion for a Stay Pending

Appeal [Dkt. # 18] is DENIED.

Dated: April 5, 2012
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s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record and

Michael D. Vance, #501288, 3500 N. Elm Street, Jackson, MI 

49201 on April 5, 2012, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk