Christian v. Bissen, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TARYN CHRISTIAN,
Petitioner,
vs.
CLAYTON FRANK, Director,
State of Hawaii, Department
of Public Safety,
Respondent.
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CIVIL NO. 04-00743 DAE-LEK
FINDINGS AND RECOMMENDATION TO DENY
RESPONDENTS’ MOTION TO REVOKE BAIL
Before the Court is the Motion to Revoke Bail
(“Motion”) filed by Respondents Clayton A. Frank, Director, State
of Hawai’i Department of Public Safety (“DPS”), and the DPS
(“Respondents”), on February 22, 2010. 	Petitioner
Taryn Christian (“Petitioner”) filed his response on March 8,
2010, and Respondents filed their reply on March 11, 2010. 	This
Court issued questions for the hearing on the Motion on March 11
and 16, 2010. 	Petitioner filed a response to the Court’s
questions on March 16, 2010. 	This matter came on for hearing on
March 18, 2010. 	Appearing on behalf of Respondents were
Richard Minatoya, Esq., and Peter Hanano, Esq., and appearing on
behalf of Petitioner, who was present, were Mark Barrett, Esq.,
and Keith Shigetomi, Esq. 	After careful consideration of the
Motion, supporting and opposing memoranda, and the arguments of
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counsel, this Court HEREBY FINDS AND RECOMMENDS that Respondents’
Motion be DENIED for the reasons set forth below.
BACKGROUND
In 1997, Petitioner was convicted of, inter alia, one
count of murder in the first degree. 	Petitioner filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(“Petition”) on December 22, 2004. 	On August 29, 2008, this
Court issued its findings and recommendation to grant the
Petition in part and deny it in part. 	On September 30, 2008, the
district judge issued an order adopting this Court’s findings and
recommendation in part and modifying them in part (“Habeas
Order”). 	The Habeas Order granted the Petition as to one of
Petitioner’s grounds and ordered Respondents to release
Petitioner within seven days of the entry of judgment, unless the
State elected to retry Petitioner. 	The Habeas Order denied the
Petition as to all other grounds. 	Both Petitioner and
Respondents filed notices of appeal.
After granting a temporary stay of the judgment, on
November 3, 2008, the Ninth Circuit Court of Appeals remanded the
case to the district court to make findings as whether Petitioner
posed a flight risk and whether his release would pose a danger
to the public. 	The district judge received written briefing and
conducted a hearing. 	On November 18, 2008, the district judge
issued his findings that Petitioner’s release would not pose a
danger to the public and that, with certain conditions in place,
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Petitioner would not pose an unreasonable risk of flight. 	The
district judge also recommended conditions that should be imposed
on Petitioner’s release pending the appeal and a new trial, if
any. 	On December 5, 2008, based on the district judge’s
findings, the Ninth Circuit denied Respondents’ motion to stay
the order of release in the Habeas Order. 	On December 11, 2008,
Respondents filed a motion to set a bail amount and impose
conditions of release. 	This Court held a hearing and granted the
motion on December 23, 2008. 	An Order Setting Conditions of
Release (“Release Order”) was filed on December 29, 2008.
On February 19, 2010, the Ninth Circuit issued its
opinion reversing the Habeas Order and denying the Petition. 	The
Ninth Circuit’s opinion did not order any remand to this district
court.
In light of the Ninth Circuit’s decision, Respondents
now seek an order revoking Petitioner’s bail and returning him to
custody. 	Respondents argue that Petitioner is an extreme flight
risk because he is a citizen of South Africa and because
Petitioner “now faces an uphill cause to obtain en banc review
and/or certiorari to the United States Supreme Court.” 	[Mem. in
Supp. of Motion at 6.] 	Respondents also argue that Petitioner
poses an extreme danger to the public because of the nature of
the offense that he was convicted of. 	Thus, Respondents assert
that the State has a strong interest in protecting the public and
the State will be irreparably harmed if Petitioner flees the
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jurisdiction.
In his response, Petitioner argues that he has behaved
responsibly while on release, and he emphasizes that the district
judge previously found that he was neither a danger to the
community nor a flight risk. 	Petitioner asserts that, in light
of all of the relevant factors, he remains an appropriate person
to be released on bond, in spite of the Ninth Circuit’s reversal
of the Habeas Order.
On March 11, 2010, Petitioner filed petitions for
rehearing and petitions for rehearing en banc. 	On March 17,
2010, the Ninth Circuit issued an order directing Respondents to
file a response to these petitions within twenty-one days of the
order.
DISCUSSION
The instant Motion presents an unusual set of facts.
Both Petitioner and Respondents represented that there is no case
law directly on point, and this Court has not found any in its
own research.
Petitioner and Respondents cite Hilton v. Braunskill,
481 U.S. 770 (1987), and Federal Rule of Appellate Procedure 23.
In Hilton, the United States Supreme Court noted that, “[i]n
those instances where a Member of this Court has been confronted
with the question whether a prevailing habeas petitioner should
be released pending the Court’s disposition of the State’s
petition for certiorari, our approach has been to follow the
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general standards for staying a civil judgment.” 	481 U.S. at 775
(citing Tate v. Rose, 466 U.S. 1301 (1984) (O’Connor, J., in
chambers); Sumner v. Mata, 446 U.S. 1302 (1980) (Rehnquist, J.,
in chambers)) (emphasis in original) (some citations omitted).
The Supreme Court stated that, in making an initial custody
determination under Rule 23(c), a court should be guided by the
language of the rule and the factors traditionally considered in
evaluating any motion to stay a judgment in a civil case. 	See
id. at 777. 	These factors 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
issuance of the stay will substantially injure the
other parties interested in the proceeding; and
(4) where the public interest lies.
Id. at 776 (citations omitted). 	The Supreme Court also approved
of the consideration of: the possibility of flight; the risk that
the habeas petitioner’s release will pose a danger to the public;
and the state’s interest in continuing custody and rehabilitation
until the final determination of the appeal. 	See id. at 777.
In addition, at the hearing on the Motion, Respondents
cited Nash v. Eberlin, 437 F.3d 519 (6th Cir. 2006), for the
proposition that a habeas petitioner should not be released
pending further proceedings where the court of appeals has
vacated the district court’s grant of a petition for writ of
habeas corpus.
Hilton and Nash are certainly instructive on the
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standard to be applied to Respondents’ Motion, but it does not
answer the question whether this district court has jurisdiction
to rule upon Respondents’ Motion in the first instance. 	In Nash,
it was the Sixth Circuit Court of Appeals, not the district
court, that ruled that the petitioner was not entitled to release
pending further review. 	In Hilton, the district court granted a
habeas petition and ordered that the petitioner be released
unless the state afforded him a new trial within thirty days.
The government appealed the grant of habeas relief (“merits
appeal”) and moved to stay the district court’s order pending the
appeal. 	The district court denied the government’s motion to
stay, finding that the government failed to show that there was a
risk the petitioner would not appear for subsequent proceedings.
The Third Circuit Court of Appeals denied the government’s motion
to stay the district court’s order releasing the petitioner. 	The
Supreme Court granted certiorari to review the Third Circuit’s
denial of the motion to stay (“stay appeal”). 	See id. at 773.
Hilton addressed a motion to stay a successful habeas
petitioner’s release while the government’s appeal of the order
granting habeas relief was pending before the circuit court of
appeals. 	While the stay appeal was pending before the Supreme
Court, the Third Circuit issued a decision on the merits appeal.
The Third Circuit affirmed the grant of habeas relief, but later
granted the government’s petition for panel rehearing. 	See id.
at 773 n.2. 	Thus, at the time the Supreme Court issued its
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1 The Court acknowledges that district courts have applied
the Hilton factors to motions for release pending appeal and
motions to stay orders granting habeas relief pending appeal.
See, e.g., Wanatee v. Ault, 120 F. Supp. 2d 784, 788-89 (N.D.
(continued...)
opinion on the stay appeal, the merits appeal was still pending
before the Third Circuit. 	The Supreme Court vacated the Third
Circuit’s decision to deny the stay and remanded the matter to
the Third Circuit for further proceedings. 	See id. at 779.
Hilton does not establish this district court’s
authority to rule upon the instant Motion. 	The Supreme Court
vacated the Third Circuit’s denial of a motion to stay and
remanded the matter back to the Third Circuit. 	In the instant
case, the Ninth Circuit denied Respondents’ motion to stay
Petitioner’s release pending appeal. 	Hilton is not directly on
point because Respondents are not appealing the Ninth Circuit’s
denial of a stay. 	In Hilton, the merits appeal was still pending
before the Third Circuit in light of the grant of the
government’s petition for panel rehearing and the Supreme Court
remanded the stay issue back to the Third Circuit. 	In the
instant case, the Ninth Circuit ruled on the merits of the
underlying appeal and did not order remand to this district
court. 	The appeal, however, is still before the Ninth Circuit
because of the pending petitions for panel rehearing and
rehearing en banc. 	In this Court’s view, Hilton indicates that
the Ninth Circuit, and not this district court, should rule on
any change to Petitioner’s custody status. 1
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1(...continued)
Iowa 2000); Franklin v. Duncan, 891 F. Supp. 516, 519 (N.D. Cal.
1995); Yohn v. Love, No. CIV. A. 94-524, 1995 WL 424772, at *1
(E.D. Pa. July 18, 1995). 	These cases, however, do not address
whether the district court can apply Hilton where the district
court has already issued a custody order and the court of appeals
has reversed the district court’s grant of habeas relief.
2 The comparable provision in the Rules of the Supreme Court
of the United States is Rule 36(4).
Federal Rule of Appellate Procedure 23(d) also supports
deferral to the Ninth Circuit. 2 	It states:
An initial order governing the prisoner’s custody
or release, including any recognizance or surety,
continues in effect pending review unless for
special reasons shown to the court of appeals or
the Supreme Court, or to a judge or justice of
either court, the order is modified or an
independent order regarding custody, release, or
surety is issued.
Fed. R. App. P. 23(d) (emphasis added). 	The Habeas Order, which
ordered Petitioner’s release if the State did not retry him, and
the Release Order, which set the conditions of release, are
initial orders governing custody or release. 	Pursuant to Rule
23(d), these orders should remain in effect pending review of the
merits of the appeal of the Habeas Order. 	Respondents
essentially argue that the Ninth Circuit’s reversal of the Habeas
Order constitutes special reasons to revoke Petitioner’s bail and
release status by either modifying the existing orders or issuing
a new order. 	According to the plain language of Rule 23(d), only
the Ninth Circuit, the Supreme Court, or a judge or justice of
either court has the authority to rule upon Respondents’ request.
Respondents argue that both the district court and the
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Ninth Circuit have the authority to rule on the request pursuant
to Rule 23(b), which states:
While a decision not to release a prisoner is
under review, the court or judge rendering the
decision, or the court of appeals, or the Supreme
Court, or a judge or justice of either court, may
order that the prisoner be:
(1) detained in the custody from which
release is sought;
(2) detained in other appropriate custody; or
(3) released on personal recognizance, with
or without surety.
Fed. R. App. P. 23(b). 	Rule 23(b) corresponds with Rule 23(c),
which states:
While a decision ordering the release of a
prisoner is under review, the prisoner
must--unless the court or judge rendering 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). 	If Rule 23(b) or 23(c) applied, the
district court would have the authority to rule upon the Motion.
This Court, however, finds that Rule 23(b) and (c) only
applied to the initial decision whether, and under what terms, to
release Petitioner pending the appeal of the Habeas Order. 	Now
that Respondents seek either a modification of those initial
decisions or the issuance of a new ruling on Petitioner’s
custody, Rule 23(d) applies. 	A Rule 23(d) motion may only be
considered by a court of appeals, the Supreme Court, or a judge
or justice of one of those courts.
Petitioner also argues that a district court retains
jurisdiction over custody issues even after an appeal has been
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taken. 	[Pet.’s Response to Court’s Questions at 7 (citing Stein
v. Wood, 127 F.3d 1187 (9th Cir. 1997)).] 	In Stein, the Ninth
Circuit did note that “[t]he plain language of Rule 23 gives the
district court jurisdiction concurrent with the appeals court
over the custody of a habeas petitioner.” 	127 F.3d at 1190.
Stein, however, does establish concurrent jurisdiction under the
circumstances presented in the instant case.
In Stein, the district court granted the petition for
writ of habeas corpus based on the unconstitutional deprivation
of the petitioner’s right to a direct appeal in state court. 	The
district court ordered the petitioner released if the state did
not reinstate the petitioner’s right to a direct appeal within
ninety days. 	See id. at 1188. 	After a notice of appeal was
filed, but before the appeal was decided, the petitioner filed a
motion with the district court for an order directing his
immediate release because the state did not reinstate his right
to a direct appeal within ninety days. 	The district court
dismissed the motion, concluding that it lost jurisdiction once
the appeal was filed with the court of appeals. 	The Stein
opinion is the Ninth Circuit’s ruling on the petitioner’s appeal
of the dismissal for lack of jurisdiction. 	See id. 	In reversing
the district court’s dismissal for lack of jurisdiction, the
Ninth Circuit noted that the district court would merely be
deciding whether a condition that the district court placed on
the petitioner’s release had been met, and that Rule 23 clearly
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gave the district court jurisdiction to rule upon that issue.
See id. at 1190.
Pursuant to Rule 23(c), the district court in Stein
ordered the petitioner’s release, subject to a condition. 	The
petitioner would not be released if the state reinstated his
right to a direct appeal within ninety days. 	After the state
failed to do so within ninety days, the petitioner moved for his
release. 	This was a motion for the district court to enforce its
Rule 23(c) order. 	It was not a motion to modify the district
court’s initial custody order or a motion for the issuance of a
new custody order. 	Thus, Rule 23(d) was not implicated in Stein,
and Stein does not establish this district court’s concurrent
jurisdiction to rule upon Respondents’ Motion in the instant
case.
This Court acknowledges that in Jago v. United States
Dist. Ct., N. Dist. of Ohio, 570 F.2d 618, 626 (6th Cir. 1978),
the Sixth Circuit Court of Appeals agreed with the district
court’s construction of Rule 23 as allowing a district court to
modify its custody orders. 	The district court stated, “this
court not only has jurisdiction to consider the petitioner’s
motion by virtue of Rule 23(c), but also has a special obligation
to modify, if the circumstances require, an order which the court
of appeals might otherwise consider binding by virtue of Rule
23(d).” 	Jago, 570 F.2d at 620. 	The “modification” in Jago,
however, was not the type of modification sought here. 	In Jago,
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the district court granted the petitioner habeas relief and
ordered his release unless the state began a new trial within
ninety days. 	Five days after the entry of judgment, the
petitioner applied for bail, but the district court denied the
application. 	The district court later granted a renewed
application, noting that the ninety day period to start a new
trial had long passed. 	See id. at 619. 	Thus, it appears that
the district court was not actually modifying the custody order,
it was merely ruling upon whether a condition in the custody
order had been met since the initial denial of the bail
application. 	This Court views Jago as similar to Stein.
Finally, this Court notes that, Respondents argued
before the Ninth Circuit that, if it reversed the Habeas Order,
it should also order Petitioner returned to custody. 	The Ninth
Circuit, however, did not rule upon this request. 	Had the Ninth
Circuit remanded Respondents’ request, or if Respondents re-file
the instant Motion before the Ninth Circuit and the Ninth Circuit
remands it, this district court would have jurisdiction to rule
upon the issue. 	Absent such a remand, the district court is
constrained by the limitations of Rule 23(d). 	This Court cannot
assume that the Ninth Circuit’s silence on Respondents’ request
to return Petitioner to custody constituted a remand of the issue
to this district court.
This Court therefore FINDS that, pursuant to Federal
Rule of Appellate Procedure 23(d), this district court does not
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have jurisdiction to rule upon the instant Motion.
CONCLUSION
On the basis of the foregoing, this Court HEREBY FINDS
AND RECOMMENDS that Respondents’ Motion to Revoke Bail, filed on
February 22, 2010, be DENIED. 	The denial should be without
prejudice to the filing of a comparable motion before either the
Ninth Circuit Court of Appeals or the United States Supreme
Court, where ever the underlying appeal is pending at the time.
The parties are advised that any objection to this
Finding and Recommendation is due seventeen calendar days after
being served with a copy of this Findings and Recommendation.
See Fed. R. Civ. P. 5(b)(2) & 6(d); Local Rule LR74.2. 	If an
objection is filed with the Court, it shall be captioned
“Objections to Magistrate Judge’s Findings and Recommendation.”
A copy of the objection shall be served on all parties.
IT IS SO FOUND AND RECOMMENDED.
DATED AT HONOLULU, HAWAII, March 22, 2010.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States Magistrate Judge
TARYN CHRISTIAN V. CLAYTON A. FRANK, ETC.; CIVIL NO. 04-00743
DAE-LEK; FINDINGS AND RECOMMENDATION TO DENY RESPONDENTS’ MOTION
TO REVOKE BAIL
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