United States District Court, D. Montana, Missoula Division
ORDER DENYING RESPONDENTS' MOTION FOR STAY PENDING APPEAL
JEREMIAH C. LYNCH, Magistrate Judge.
This matter came before the Court on Petitioner Rukes's application for writ of habeas corpus under 28 U.S.C. § 2254. On March 11, 2014, based on the parties' written consent, see Consents (Doc. 27-1, 27-2), the case was assigned to the undersigned for all purposes, including entry of judgment and post-judgment proceedings, 28 U.S.C. § 636(c). Judgment was entered on May 23, 2014.
In view of the recent amendment of the judgment, see Order Granting Relief Under Fed.R.Civ.P. 60(b) (Doc. 57), the State renews its motion for stay pending appeal (Docs. 56, 41). The briefs originally filed by both parties (Docs. 42, 43, 45) have been deemed resubmitted, Order Granting Rule 60 Relief at 3, and are considered here.
Rukes was granted relief on his claim of misconduct by the bailiff. Immediately before the jury began its deliberations, a juror innocently asked the bailiff "who that guy was that was sitting behind the defendant." The bailiff told the entire assembled jury "that was the guard for Mr. Rukes." Nothing else is known, because the trial court had already excused the jurors before telling the parties what the bailiff did. The prosecutor opined that any error was "probably harmless." When defense counsel attempted to explain why he thought the error might have been harmful - including reference to the possibility that one juror saw Rukes accompanied by the guard even in the bathroom - the trial court cut defense counsel off.
New counsel appointed on appeal filed an Anders brief. She not only failed to point out that the State had the burden of proving the error harmless beyond reasonable doubt, see Fry v. Pliler, 551 U.S. 112, 116 (2007) (citing Chapman v. California, 386 U.S. 18, 24 (1967)), but she also opined that Rukes could not carry his burden of showing prejudice. The Montana Supreme Court accepted the Anders brief and dismissed the appeal without discussion.
Rukes filed a postconviction petition, alleging, inter alia, that trial counsel was ineffective because he did not move for a new trial based on the bailiff's misconduct. The Montana Supreme Court held that it had decided on direct appeal that Rukes failed to establish prejudice, so counsel could not have been ineffective. Rukes v. State, 297 P.3d 1195, 1198 ¶ 20 (Mont. 2013).
The facts of the bailiff's conduct, sparse as they are in the record, are undisputed. The State's motion for stay does not rely on any claim that the Montana Supreme Court's decision on direct review was reasonable and so was owed deference under 28 U.S.C. § 2254(d). It argues instead that Rukes failed to show the bailiff's misconduct had "a substantial and injurious effect" under the standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). See also Fry, 551 U.S. at 121-22.
District courts consider four factors in determining whether to impose a stay pending appeal:
(1) whether the party seeking a stay has made a strong showing that it is likely to succeed 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 ...