UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FREDERICK TED SPENCER, 

 Petitioner, Case No. 09-13362 

v. Honorable Patrick J. Duggan 

DEBRA SCUTT, 

 Respondent. 

 / 

OPINION GRANTING PETITIONER’S MOTION TO SET BAIL 

Petitioner Frederick Spencer (“Petitioner”) is serving a life sentence for 

felony murder and a two to ten year sentence for arson of a dwelling house and 

preparation to burn property over $20,000 in connection with a fire at his home in 

Shepherd, Michigan on January 30, 2000. On March 3, 2006, a jury convicted 

Petitioner of starting this fire, which caused the death of Petitioner’s thengirlfriend, Kathy Sytek. 

In 2009, after exhausting state remedies, Petitioner sought a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner raised a single 

claim of ineffective assistance of trial counsel based on his trial counsel’s failure to 

move to exclude statements Petitioner made to state arson investigator while in the 

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hospital recovering from severe injuries sustained in the January fire.1 On 

February 6, 2013, this Court granted Petitioner a conditional writ of habeas corpus, 

ordering that the State retry Petitioner within 120 days or release him from prison. 

Feb. 6, 2013 Op. & Order (ECF No. 17).2

 In granting this relief, the Court 

determined that the hospital bed statements should have been excluded as 

involuntary, that Petitioner’s trial counsel failed to file a suppression motion 

because he misunderstood the applicable law,3

 that a motion to suppress would 

 1

 At the time of the two separate interviews, Petitioner was not only 

seriously wounded but was on what can only be described as a cocktail of potent 

painkillers and anti-psychotic drugs. Petitioner never received Miranda warnings 

nor was he aware that he was a suspect in the investigator’s mind until late in the 

second interview. For a discussion of the circumstances surrounding the interview 

sessions, see Feb. 6, 2013 Op. & Order 25-27 (ECF No. 17).

2

 The Court cites to the Opinion and Order on the Court’s Electronic Case 

Filing system. The unpublished Opinion and Order is also accessible on 

LexisNexis and Westlaw. See Spencer v. Stutt, No. 09-13362, 2013 WL 451156, 

2013 U.S. Dist. LEXIS 15782 (E.D. Mich. Feb. 6, 2013) (unpublished). 

3

 Counsel indicated that he did not believe the statements could be excluded 

as involuntary because “there were no admissions, there was no statement at all 

that would amount to anything like a confession, not even an acknowledgement 

that there was a motive.” Feb. 6, 2013 Op. & Order 14 (ECF No. 17) (citation 

omitted). Interestingly, the Michigan Court of Appeals similarly misapprehended 

federal law. In affirming the trial court’s denial of Petitioner’s post-verdict 

motions, which argued ineffective assistance of counsel amongst other things, the 

Michigan Court of Appeals held that the admission of a defendant’s involuntary 

statements cannot violate the United States Constitution where the defendant did 

not directly confess to the offense charged. Id. at 11. This holding was contrary to 

Supreme Court precedent. Id. at 11-12. 

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have succeeded, and that Petitioner suffered prejudice as a result of his counsel’s 

inaction. Id.

On March 5, 2013, Respondent filed a motion for immediate consideration 

and motion to stay the Court’s February 6, 2013 judgment pending appeal. (ECF 

No. 23.) Petitioner responded on March 12, 2013. (ECF No. 24.) On March 22, 

2013, the Court issued an Order granting Respondent’s motion in part. (ECF No. 

25.) Specifically, the Court granted a stay with respect to its order that Petitioner 

be released from custody unless the State brings him to trial within 180 days. 

Although Respondent made arguments pertaining to Petitioner’s entitlement to 

release pending appeal, the Court deemed it prudent to abstain from addressing any 

arguments regarding release unless and until Petitioner filed a motion seeking 

release. 

On April 22, 2013, Petitioner filed a motion to set bail which is presently 

before the Court. (ECF No. 26.) Respondent did not respond to this motion. For 

the reasons set forth more fully below, the Court grants Petitioner’s Motion to Set 

Bail. 

I. Legal Standard 

 Federal Rule of Appellate Procedure 23(c)4

 provides that when a decision 

ordering the release of a prisoner is on appeal, the prisoner must be released unless 

 4

 The Rule provides: 

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a court orders otherwise. While this rule undoubtedly creates “a presumption of 

release pending appeal where a petitioner has been granted habeas relief,” the 

presumption can be overcome if the traditional stay factors tip the balance against 

it. O’Brien v. O’Laughlin, 130 S. Ct. 5, 6 (2009). In deciding whether to stay an 

order granting habeas corpus relief pending appeal,5

 courts should consider the 

following factors: 

(1)Whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits; 

 

While a decision ordering the release of a prisoner is under review, 

the prisoner must—unless the court or judge ordering 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. 

Fed. R. App. P. 23(c). This rule implicitly recognizes that district courts maintain 

jurisdiction while a matter is pending appeal to enter a stay or set bail. 

5

 These factors also apply in determining whether to release a petitioner 

pending appeal. In the instant case, the Court has already stayed its Order 

requiring Respondent to retry Petitioner within 120 days. This Opinion and Order 

focuses on whether, in spite of the issuance of that stay, Petitioner should be 

released pending the Sixth Circuit’s resolution of his habeas petition. The Court 

believes that this bifurcated approach is warranted given that Petitioner had not yet 

sought release at the time Respondent filed its motion for immediate consideration 

and motion for stay pending appeal and the Court, therefore, explicitly declined to 

address any arguments regarding release. Moreover, Petitioner should not be 

penalized for not opposing Respondent’s request for a stay of a retrial as “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 F. App’x 475 (6th Cir. Jan. 5, 2012). 

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(2)Whether the applicant will be irreparably harmed absent a stay;6

(3)Whether 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. 770, 776, 107 S. Ct. 2113, 2119 (1987) (citations 

omitted). 

“Since the traditional stay factors contemplate individualized judgments in 

each case, the formula cannot be reduced to a set of rigid rules.” Id. at 777, 107 S. 

Ct. at 2119. 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 on appeal. Id. at 778, 107 

S. Ct. at 2120. 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. Id. 

II. Application 

A. Has Respondent Established a Strong Likelihood of Success on Appeal 

or Demonstrated a Substantial Case on the Merits? 

 6

 The Court’s analysis of irreparable harm to the State embraces the factors 

germane to bail consideration – specifically, the risk of flight and the risk of danger 

posed to the public if released – as well as the “State’s interest in continuing 

custody and rehabilitation pending a final determination of the case on appeal[.]” 

Hilton v. Braunskill, 481 U.S. 770, 777, 107 S. Ct. 2113, 2119-20 (1987); see also 

Drain v. Woods, No. 10-11306, 2013 U.S. Dist. LEXIS 76837 (E.D. Mich. May 

31, 2013) (Tarnow, J.). 

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Respondent argues that the State is likely to succeed on appeal or, at the very 

least, has demonstrated that the State’s prospects of success on appeal are 

substantial. (Resp’t’s Br. 6, ECF No. 23.) As support for this contention, 

Respondent makes the following arguments: (1) Petitioner’s trial counsel – the 

former prosecuting attorney for Isabella County – made a strategic decision to 

allow Petitioner’s statements to come into evidence, (id. at 9-11); (2) this decision 

was within the wide range of professionally competent assistance of counsel, (id. at 

12-14); (3) the Court erred in reviewing the Strickland prejudice prong de novo

because even though the state courts disposed of Petitioner’s ineffective assistance 

claim on the performance prong, both prongs are to receive AEDPA deference, (id.

at 14-15); (4) the Court erred in analyzing the two interview sessions together to 

determine whether they were voluntary and instead should have analyzed them 

separately, (id. at 15-17); and (5) the evidence against Petitioner was strong even 

without the hospital statements and the admission of those statements was not 

likely to affect the outcome of the trial (id. at 17-18). Each argument is analyzed 

briefly below. 

 Respondent’s first argument seems to suggest that Petitioner’s counsel’s 

experience militates against a finding of deficient performance. The Court 

disagrees as deficient performance is analyzed under an objective standard. 

Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2053, 2064 (1984) 

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(explaining that deficient performance requires a showing “that counsel’s 

representation fell below an objective standard of reasonableness[]”). Because the 

standard is an objective one, counsel’s experience does not preclude an ineffective 

assistance of counsel claim. Respondent’s remaining contentions were otherwise 

addressed and rejected by this Court in its decision granting a conditional writ. 

Feb. 6, 2013 Op. & Order 14-16. 

Respondent’s second Strickland argument suggests that the Court examined 

counsel’s conduct retrospectively by examining the impact of the statements on the 

outcome of Petitioner’s trial. An analysis of the Court’s Opinion and Order, 

however, shows that the Court focused primarily on what a reasonable attorney 

would have done with respect to seeking suppression before trial as opposed to 

assessing the damage that was done at trial. Even without assessing State’s 

reliance on the statements, no reasonably competent attorney would have failed to 

seek suppression. In sum, the Court properly assessed counsel’s conduct and 

measured this conduct in light of prevailing professional norms as set forth in the 

ABA standards for defense counsel. (Id. at 17-19.) 

 In the third argument, Respondent contends that although the Court was 

bound by Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012), it improperly 

reviewed the prejudice prong de novo. Noting that “[t]he proper standard of 

review may well make a difference in the outcome of the State’s appeal[,]” 

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Respondent points out that the State of Michigan filed a petition for writ of 

certiorari with the Supreme Court asking the Court to decide whether the 

unadjudicated Strickland prong is entitled to AEDPA deference. (Resp’t’s Br. 15 

(citing Wolfenbarger v. Foster, No. 12-420, challenging the Sixth Circuit’s 

decision at 687 F.3d 702 (6th Cir. 2012).) While it is true that “[i]f the State does 

not prevail on the deficient-performance prong, then the success of the appeal will 

hang on the prejudice prong[,]” (id.), the Court notes that the Supreme Court 

denied the aforementioned writ of certiorari on March 18, 2013, 133 S. Ct. 1580. 

Thus, the authority cited by the Court providing that the prejudice prong should be 

reviewed de novo remains good law and Respondent has not raised a substantial 

question on the merits. 

 Respondent’s fourth argument is that the Court did not analyze the two 

hospital interviews separately7

 and it should have because the state court would 

have considered the interviews separately in reaching a decision as to exclusion. 

While the Court does not believe this was in error, even if the Court should have 

analyzed the interviews separately, part of the reason the statements were so 

damaging is because inconsistencies in Petitioner’s version of events aligned with 

the prosecution’s theme that Petitioner was lying and implicated Petitioner in the 

 7

 Although the Court described the factual circumstances of the interviews 

separately, it did not conduct a separate voluntariness analysis for each interview. 

Feb. 6, 2013 Op. & Order 25-36. The Court did, however, make specific 

references to the problematic aspects of each interview. Id.

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commission of the crimes. Feb. 6, 2013 Op. & Order 38. Thus, even if the State 

had been deprived of only the second (and far more accusatory) interview session 

at trial, counsel’s failure to seek exclusion of this interview was deficient and 

prejudiced Petitioner. 

 Lastly, Respondent contends that the evidence against Petitioner was strong 

even without the statements.8

 Respondent takes the position that the evidence that 

the fires were deliberately set was strong; however, the defense presented an 

equally plausible theory of how the fires started and effectively rebutted many of 

the State’s arguments at trial. Id. at 37 (discussing examples of rebutted evidence). 

 In this Court’s opinion, Respondent has demonstrated neither a “strong 

likelihood of success on appeal” nor a “substantial case on the merits.” Hilton, 481 

U.S. at 778, 107 S. Ct. at 2120. “Where the State’s showing on the merits falls 

below this level, the preference for release should control.” Id.

B. Will Respondent be Irreparably Harmed if Petitioner is Released? 

The Court considers the traditional bail considerations of (1) likelihood of 

flight and (2) dangerousness are considered here. Hilton, 481 U.S. at 777, 107 S. 

Ct. at 2119-20. 

 8

 Respondent points out that the Court’s description of the statements as 

“direct evidence” is erroneous because Petitioner never admitted to committing the 

crime. (Resp’t’s Br. 18.) Whether the evidence was circumstantial or direct, the 

effect of the statements was the same and it cannot be seriously contended that a 

defendant’s own statements implicating him in the death of his girlfriend would 

not be damaging to the defense. 

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1. Is Petitioner a Flight Risk? 

 Respondent presents a few arguments suggesting that Petitioner is a flight 

risk. First, the penalty for first-degree murder, which includes felony murder, is 

life in prison without the possibility of parole, rendering Petitioner more likely to 

flee. See Mich. Comp. Laws § 750.316. It is true that Petitioner remains charged 

with first-degree felony murder and that the State has unequivocally expressed an 

intent to retry Petitioner even if this Court’s decision is affirmed on appeal. 

(Resp’t’s Br. 19.) 

The State insinuates that Petitioner is a flight risk because after being 

charged with the crimes of which he was eventually convicted, he was 

apprehended in North Carolina. (Id.) Petitioner concedes that he “moved to 

North Carolina between 2000 (when the fire occurred) and 2006 (when he was 

brought to trial), [but argues that] it would be patently false to say he had fled the 

[S]tate of Michigan.” (Pet. Br. 12.) The fact that Petitioner “went to live with his 

son after the traumatic loss of his fiancé and his childhood home is completely 

understandable.” (Id.) Given the span of several years between the fire and the 

initiation of criminal charges, the Court does not believe Petitioner’s relocation 

was an effort to evade law enforcement. 

 In arguing that Petitioner does not pose a risk of flight, counsel indicates that 

Spencer grew up in Michigan and that his entire family – with the exception of his 

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son – resides in Michigan. (Pet. Br. 11.) This suggests Petitioner has strong 

community ties. Moreover, Petitioner’s sister Coreen submitted an affidavit 

indicating that, if released, Petitioner would reside with her and her husband in 

Okemos, Michigan and that Petitioner would not be provided with a vehicle. (Id.; 

see also id., Coreen Spencer Aff., Ex. A.) Lastly, Petitioner’s health problems 

make him less of a flight risk as he plans to undergo surgery for tumors in his left 

lung should he be released. (Id. (see infra for further discussion on Petitioner’s 

health).) 

 In sum, while the Court agrees with the State’s position that those facing life 

imprisonment are more likely to flee than those facing lesser sentences, the Court 

does not find the State’s other arguments persuasive and believes that Petitioner’s 

strong community ties in Michigan diminishes the weight of the State’s one 

persuasive argument. 

2. Does Petitioner Pose a Threat of Danger to the Community if Released?

 The Court does not believe Petitioner poses a threat of danger to the 

community and is confident that the conditions imposed upon his release will 

further ensure the public’s safety. Petitioner is seriously ill and requires medical 

treatment. Petitioner underwent treatment for lung cancer in 2011 and doctors 

recently discovered two new tumors in his left lung. (Pet. Br. 10.) His treating 

physicians have recommended a “wedge resection or partial lobectomy on his left 

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lung.” (Id. (citing Dr. Report, Ex. B).) Additionally, Petitioner is blind in one eye 

and has a club foot. (Id. at 9-11.) 

 Further evidencing Petitioner’s lack of dangerousness is the fact that he has 

not committed any violent acts during his seven-year incarceration. (Id. at 12 

(citing various prison reports, Ex. C).) Petitioner has a relatively blemish-free 

prison record – the misconducts in his prison records are (1) for being out of place 

(not in school when he was supposed to be in school) and (2) for failing to tuck in 

his shirt. (Prison reports, Pet.’s Br. Ex. C.) Petitioner has spent his prison time 

productively, working when his health so permitted and attending class. (Id.) 

C. Will Petitioner be Substantially Injured if Not Released? 

The Court must consider whether continued confinement will substantially 

injure Petitioner. “The interest of the habeas petitioner in release pending appeal, 

[is] always substantial,” Hilton, 481 U.S. at 777, 107 S. Ct. at 2120, because 

remedying a prisoner’s confinement in violation of the Constitution “is the very 

essence of the writ of habeas corpus[,]” Burdine v. Johnson, 87 F. Supp. 2d 711, 

717 (S.D. Tex. 2000). Sixth Circuit case law holds that continued imprisonment in 

violation of the United States Constitution constitutes substantial harm. See

Newman v. Metrish, 300 F. App’x 342, 344 (6th Cir. 2008) (unpublished) (“[the 

petitioner] suffered a continuing injury while incarcerated”); see also Ward v. 

Wolfenbarger, 340 F. Supp. 2d 773, 778 (E.D. Mich. 2004) (“A petitioner suffers 

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irreparable harm each day the petitioner remains imprisoned in violation of the 

United States Constitution.”). 

 Respondent argues that continued detention pending appeal will not harm 

Petitioner because the State intends to retry him should the Sixth Circuit affirm this 

Court’s Opinion and Order conditionally granting the writ of habeas corpus. 

(Resp’t’s Br. 19.) Because, according to Respondent, the Court granted habeas 

relief on grounds unrelated to Petitioner’s “factual (as opposed to legal) guilt of the 

crime of murder[,]” (id.), he will not suffer harm from remaining in prison. 

The Court is not persuaded by Respondent’s argument. By finding that 

Petitioner was denied his Sixth Amendment right to the effective assistance of 

counsel at trial, the Court has already determined that a reasonable probability 

exists that the result of a retrial will be more favorable to Petitioner. Feb. 6, 2013 

Op. & Order 39-40. This is because in evaluating prejudice to a defendant in an 

ineffective assistance of counsel claim, a reviewing court must take “into account 

the totality of the circumstances, as well as the relative strength of the case 

proffered by the prosecution.” Foster v. Wolfenbarger, 687 F.3d 702, 709 (6th Cir. 

2012) (citation omitted). Because the evidence against Petitioner was far from 

overwhelming absent his unconstitutionally obtained hospital-bed statements, 

Respondent has failed to demonstrate that Petitioner will not be substantially 

injured by continued detention pending appellate review. 

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In sum, Petitioner would be injured by his continued confinement pursuant 

to a constitutionally infirm conviction. 

D. Where Does the Public Interest Lie? 

 The fourth Hilton factor requires consideration of where the public interest 

lies. Without a doubt, the State has “a strong interest in enforcing its criminal 

judgments and in defending the integrity of its judicial system.” Miller v. Stovall, 

641 F. Supp. 2d 657, 670 (E.D. Mich. 2009) (citations omitted). “At the same 

time, however, the public also has a compelling interest in the State not continuing 

to incarcerate individuals who have not been accorded their constitutional right to a 

fair trial. Citizens will not have confidence in the criminal justice system unless 

they are convinced that the system is compliant with constitutional norms. The 

federal writ of habeas corpus monitors the State’s compliance with constitutional 

law; this, in turn, inspires the public’s confidence in the criminal justice system.” 

Id. (citation omitted). 

 Respondent asserts that “Michigan law specifically prohibits bail for a 

person charged with murder.” (Resp’t’s Br. 20 (citation omitted). However, there 

is no such blanket prohibition in the law. See Mich. Const. art. 1, § 15(b) (denying 

bail “where proof is evidence or the presumption great” to all “persons . . . indicted 

for, or arraigned on a warrant charging, murder or treason”); Mich. Comp. Laws § 

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765.5 (stating that “no person charged with treason or murder shall be admitted to 

bail if the proof of his guilt is evident or the presumption great”). 

III. Conclusion 

Upon thorough examination, the Court concludes that Petitioner should be 

granted bond pending Appeal. This conclusion rests on Respondent’s failure to 

make a sufficiently strong showing that she is likely to succeed on appeal. Due to 

this failure, Petitioner is entitled to the presumption of release embodied in Federal 

Rule of Appellate Procedure 23(c) even if some of the stay factors weigh in 

Respondent’s favor. 

An Order consistent with this Opinion will issue. 

Date: September 25, 2013 

s/PATRICK J. DUGGAN 

UNITED STATES DISTRICT JUDGE 

Copies to: 

David A. Moran 

Imran J. Syed 

Sarah C. Zearfoss 

Linus R. Banghart-Linn

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