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. 

 / 

ORDER (1) GRANTING RESPONDENT’S MOTION FOR IMMEDIATE 

CONSIDERATION (ECF NO. 31) AND (2) DENYING RESPONDENT’S 

EMERGENCY MOTION TO STAY ORDER GRANTING PETITIONER’S 

MOTION TO SET BAIL (ECF NO. 32)

 

 On February 6, 2013, this Court conditionally granted Petitioner Frederick 

Spencer’s (“Petitioner”) petition for writ of habeas corpus filed pursuant to 28 

U.S.C. § 2254. Soon thereafter, Respondent appealed this Court’s decision to the 

United States Court of Appeals for the Sixth Circuit. On March 22, 2013, this 

Court granted Respondent’s motion for immediate consideration and motion to 

stay enforcement of the habeas judgment pending appeal in part. Specifically, the 

Court granted a stay with respect to its order that Petitioner be released from 

custody unless the State initiated a new trial within 180 days. Although 

Respondent made arguments pertaining to whether Petitioner should remain 

confined pending appeal, the Court deemed it prudent to refrain from addressing 

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any arguments pertaining to Petitioner’s release unless and until Petitioner sought 

such relief. On April 22, 2013, Petitioner filed a motion to set bail. Respondent 

declined to respond to this motion. 

After thoughtful consideration, this Court concluded that Petitioner was 

indeed entitled to be released pending appeal and issued an Opinion and a separate 

Order to this effect on September 25, 2013. The same day that the Court issued its 

Opinion and Order, Respondent filed a motion for immediate consideration (ECF 

No. 31) as well as an emergency motion to stay the Court’s order granting 

Petitioner’s motion to set bail (ECF No. 32). These motions are presently before 

the Court. For the reasons stated herein, the Court grants Respondent’s Motion for 

Immediate Consideration but denies Respondent’s Motion to Stay Order Granting 

Petitioner’s Motion to Set Bail. 

 Without citation to a single legal authority, Respondent argues that this 

Court should stay execution of its Order granting Petitioner’s release on bail 

because a Sixth Circuit panel is scheduled to hear oral argument on the habeas 

appeal on October 8, 2013, which is less than two weeks away, and “[a]n opinion 

is expected to issue not long thereafter.” (Resp’t’s Mot. 2.) This argument is not 

well taken. Not only is the proximity of oral argument irrelevant to whether 

Petitioner is entitled to release, Respondent’s prediction regarding when a decision 

will issue is just that: a prediction. Moreover, and as Petitioner points out in 

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responding to the pending motions, Respondent’s motion to stay essentially asks 

this Court to revisit its analysis of the propriety of releasing Petitioner pending 

appeal. (Pet.’s Br. 1, ECF No. 33.) The Court will do no such thing. Not only did 

Respondent decline to respond to Petitioner’s motion seeking release but 

Respondent has not argued that the decision granting Petitioner bail was an 

erroneous one. 

 Accordingly, 

IT IS ORDERED that Respondent’s Motion for Immediate Consideration 

(ECF No. 31) is GRANTED; 

IT IS FURTHER ORDERED that Respondent’s Emergency Motion to 

Stay Order Granting Petitioner’s Motion to Set Bail is DENIED. 

Date: September 30, 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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