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 WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael Apelt, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-98-00882-PHX-ROS

DEATH PENALTY CASE 

ORDER 

 On December 1, 2015, this Court issued an order and judgment granting habeas 

relief on Apelt’s claim of ineffective assistance of counsel at sentencing. (Docs. 373, 

374.) Respondents move for a stay pending final resolution of their appeal to the Ninth 

Circuit. (Doc. 375.) Apelt opposes a stay. (Doc. 382.) 

 The determination whether to permit a stay pending the appeal of a decision 

granting habeas relief is governed by the standard set forth in Hilton v. Braunskill, 481 

U.S. 770 (1987). In Hilton, the Supreme Court articulated four factors the district court 

should consider in determining whether to grant a stay: (1) whether the stay applicant has 

made a strong showing that he is likely to succeed on the merits or has a substantial case 

on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) 

whether issuance of the stay will substantially injure the other parties interested in the 

proceedings; and (4) where the public interest lies. Id. at 776, 778. These factors militate 

in favor of staying execution of the writ of habeas corpus pending appellate review. 

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1. Likelihood of success on the merits 

 The likelihood of Respondents’ success on the merits of their appeal depends on 

the argument that the Court wrongly granted relief on Apelt’s claim of ineffective 

assistance of sentencing counsel. Of course, the Court disagrees that Claim 12 was 

wrongly decided. Nonetheless, the Court is persuaded that Respondents have 

demonstrated a “substantial case on the merits.” Hilton, 481 U.S. at 778. The Court 

acknowledges an apparent tension between the Ninth Circuit’s recent decision in 

Clabourne v. Ryan, 745 F.3d 362, 382 (2014), which held that a state court’s alternative 

merits ruling was entitled to deference under 28 U.S.C. § 2254(d), and the principle that 

an alternative merits ruling does not vitiate the procedural bar. See Harris v. Reed, 489 

U.S. 255, 264 n.10 (1989). This factor slightly favors Respondents. 

2. Respondents’ irreparable injury 

 The Court further agrees Respondents will suffer injury absent a stay. Respondents 

appeal this Court’s decision that Apelt received constitutionally ineffective assistance of 

counsel during sentencing. If the Court does not stay the writ, and the State of Arizona is 

forced to conduct a new sentencing hearing, Respondents’ appeal might be rendered 

moot. Further, absent a stay, the State will be forced to expend considerable time and 

resources preparing for a new mitigation hearing that might not be necessary if the Ninth 

Circuit were to reverse this Court’s decision. This factor favors Respondents. See 

Johnson v. Bagley, No. 1:02-cv-220, 2006 WL 2165685, at *2 (S.D.Ohio July 31, 2006). 

3. Apelt’s irreparable injury 

 Issuance of the stay will not substantially injure Apelt. The Court granted relief 

only as to Apelt’s death sentence. If the stay is granted, Apelt will remain in prison while 

the appeal is resolved. Apelt asserts that if the stay is granted he will face the “extreme 

hardship” of remaining on death row, while if the stay is denied he will be housed in less 

onerous conditions. (Doc. 382 at 6.) The Court, having no facts by which it can make a 

judgment concerning the conditions in which Apelt will be housed, finds that this factor 

is “essentially neutral.” Crittenden v. Chappell, No. 2:95-cv-1957-KJM-GGH, 2013 WL 

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6840451, at *10 (E.D.Cal. December 14, 2013). 

4. Public interest 

 Finally, the Court concludes that the public interest strongly supports granting the 

stay. The Court is mindful of the substantial hardship and cost to the State in preparing 

for and conducting a new sentencing hearing and must balance the interests of the State 

in avoiding that hardship and cost against the possibility that this Court’s judgment could 

be reversed on appeal. But more importantly, Apelt has cross-appealed the Court’s denial 

of his habeas conviction-related claims. (See Doc. 379.) It would be unwise to require the 

State conduct a new sentencing hearing when the constitutional validity of Apelt’s 

underlying convictions are still subject to appellate review. This factor favors granting 

the stay. See Johnson, 2006 WL 2165685, at *3. 

 For the foregoing reasons, the factors support granting a stay. 

 Accordingly, 

IT IS ORDERED granting Respondents’ motion for a stay (Doc. 375). 

IT IS FURTHER ORDERED that the Court’s judgment is stayed pending 

conclusion of appellate review. 

 Dated this 13th day of January, 2016. 

Honorable Roslyn O. Silver

Senior United States District Judge

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