Dovala v. Tim

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Melissa Dovala, Case No. 1:16cv2511

Petitioner,

-vs- JUDGE PAMELA A. BARKER

Teri Baldauf, Warden, ORDER

Respondent

This matter is before the Court on Respondent Teri Baldauf’s Motion to Stay Judgment

Granting Writ Conditioned upon New Trial. (Doc. No. 39.) Also pending is Petitioner Melissa

Dovala’s Motion to Set Appellate Bond, which was recently filed on December 3, 2020. (Doc. No.

41.) For the following reasons, Respondent’s Motion to Stay Judgment Pending Appeal (Doc. No.

39) is GRANTED as set forth herein. The Court takes Petitioner’s Motion for Bond (Doc. No. 41)

under advisement and refers this matter to Pretrial Services for an investigation and recommendation

in relation to the appropriate conditions, if any, for Petitioner’s release.

I. Background

On October 19, 2020, this Court issued a Memorandum Opinion & Order and Judgment Entry

in which it conditionally granted a Writ of Habeas Corpus to Petitioner Melissa Dovala pursuant to

28 U.S.C. § 2254 on the basis of ineffective assistance of trial counsel. (Doc. Nos. 33, 34.) Therein,

the Court ordered that “[u]nless a new trial is scheduled within 120 days, Dovala must be

unconditionally released.” (Id.) By this Court’s calculations, the 120-day deadline expires on

February 16, 2021.

On November 17, 2020, Respondent filed a Notice of Appeal to the Sixth Circuit Court of

Appeals. (Doc. No. 38.) The next day, Respondent filed a Motion to Stay this Court’s Order

conditionally granting the Writ and ordering a new trial. (Doc. No. 39.)

On December 3, 2020, Dovala responded by filing a Motion to Set Appellate Bond. (Doc.

No. 41.) Therein, Dovala indicates that she does not oppose Respondent’s request that the Court stay

the deadline for scheduling a new trial but asks the Court to “set a bond to allow her to be at liberty

during the pendency of the Warden’s appeal of this Court’s granting of her petition for habeas

corpus.” (Id. at pp. 1, 6.) Respondent filed a Brief in Opposition to Dovala’s Motion for Bond on

December 17, 2020. (Doc. No. 42.) Dovala did not file a Reply Brief in support of her Motion.

II. Legal Standard

Although this matter is pending before the Sixth Circuit, this Court retains jurisdiction to enter

a stay or set bail, pursuant to Fed. R. App. P. 23(c). Miller v. Stovall, 641 F.Supp.2d 657, 661 (E.D.

Mich. 2009). The Supreme Court holds that the same standards governing stays of civil judgments

apply to the release of habeas petitioners pending appeal. Hilton v. Braunskill, 481 U.S. 770, 776

(1987).

The traditional factors to review when determining whether to stay an order pending appeal

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. See also Workman v. Tate, 958 F.2d 164, 166 (6th Cir.1992); Miller, 641 F.Supp.2d

at 661. In addition to these factors, the court should consider factors more directly germane to bail

consideration, i.e., the possibility of flight, possible danger to the public, and the state’s interest in

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continuing custody and rehabilitation pending the case’s final determination. Id. at 777. See also

Workman, 958 F.2d at 166; Newman v. Metrish, 300 Fed. Appx. 342, 344 (6th Cir. 2008).

“Since the traditional stay factors contemplate individualized judgments in each case, the

formula cannot be reduced to a set of rigid rules.” Hilton, 481 U.S. at 777. The Supreme Court

offered the following guidance to lower courts in evaluating the Hilton factors:

The balance may depend to a large extent upon determination of the State's prospects

of success in its appeal. Where the State establishes that it has a strong likelihood of

success on appeal, or where, failing that, it can nonetheless demonstrate a substantial

case on the merits, continued custody is permissible if the second and fourth factors

in the traditional stay analysis militate against release. Cf. McSurely v. McClellan, 225

U.S. App. D.C. 67, 75, 697 F.2d 309, 317 (1982); O'Bryan v. Estelle, 691 F.2d 706,

708 (CA5 1982), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984);

Ruiz v. Estelle, 650 F.2d 555, 565–566 (CA5 1981). Where the State's showing on the

merits falls below this level, the preference for release should control.

Hilton, 481 U.S. at 777–78 (citations omitted). Finally, the Supreme Court also explained that “[t]he

State's interest in continuing custody and rehabilitation pending a final determination of the case on

appeal is also a factor to be considered; it will be strongest where the remaining portion of the

sentence to be served is long, and weakest where there is little of the sentence remaining to be served.”

Id. at 777.

III. Analysis

Respondent states that the purpose of her Motion to Stay is to allow the State to seek appellate

review of this Court’s decision granting habeas relief in the Sixth Circuit and, if necessary, the United

States Supreme Court. (Doc. No. 39.) Respondent argues that the Hilton factors weigh in her favor,

arguing in particular that there is a strong likelihood that the State will succeed on the merits on

appeal. (Id. at pp. 3-7.) Respondent further asserts that the State will be irreparably injured if a stay

is not granted “because it is unlikely that the Respondent’s appeal would be briefed and decided

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before this Court’s 120-day deadline” for scheduling the matter for a new trial. (Id. at p. 7.) Finally,

Respondent argues the public interest lies in favor of a stay because Dovala was convicted of a violent

felony and the State therefore has a strong interest in continuing her custody and rehabilitation. (Id.

at p. 8.)

Dovala filed a Motion to Set Appellate Bond in response to Respondent’s Motion. (Doc. No.

41.) Therein, Dovala states that “Respondent’s Motion to Stay is not challenged here as courts have

not normally questioned that a Respondent has a substantial interest in avoiding a re-trial of Petitioner

prior to a ruling on her appeal.” (Id. at p. 6.) Dovala explains that “the idea is not to prevent the

Warden from pursuing an appeal but, under these circumstances, to avoid Melissa’s serving

additional and a possibly undeserved extended term of incarceration” pending the outcome of appeal.

(Id.)

Thus, Dovala does not present any argument regarding the Hilton factors with respect to

Respondent’s request for a stay of the 120-day deadline for scheduling a new trial. She does,

however, argue that the Hilton factors weigh in her favor with respect to her request that she be

released on bond pending the outcome of Respondent’s appeal. (Id.) In this regard, Dovala argues

that Respondent has not made a strong showing of likelihood of success on appeal, asserting that the

state court ruling at issue herein was “clearly inconsistent with firmly established United States

Supreme Court precedent.” (Id. at p. 7.) Dovala further maintains that the remaining Hilton factors

also weigh in her favor in light of the fact that she has no previous criminal record; is a model prisoner

with no disciplinary infractions; has already served her minimum sentence of 15 years; and has

developed a strong support system which will provide her emotional and financial support if released.

(Id. at pp. 7-8.) Lastly, Dovala suggests that she will be substantially injured if this Court does not

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release her on bond because the Ohio Department of Rehabilitation and Correction (“ODRC”) has

already once rescheduled her November 2020 parole hearing due to “the present uncertainty of her

legal status.” (Id. at p. 5.)

Respondent opposes Dovala’s request for release on bond. (Doc. No. 42.) Respondent

reiterates her argument that the State has a strong likelihood of success on the merits and that the

State’s ability to appeal will be irreparably injured if a stay is not granted. (Id. at pp. 2-7.) With

respect to the remaining Hilton factors, Respondent argues that these factors weigh against release.

Specifically, Respondent asserts that Dovala will not be substantially injured if denied release because

she “is scheduled to go before the parole board for a release consideration hearing in March of 2021.”

(Id. at p. 8.) Respondent also emphasizes the State’s interest in continued custody and rehabilitation,

noting that the Cuyahoga County Prosecutor’s Office has submitted a statement to the Ohio Adult

Parole Authority opposing Dovala’s parole. (Id. at p. 9.) Finally, Respondent argues that, pursuant

to 18 U.S.C. § 3771(a) & (b)(2), the victim’s representatives (i.e., Riley Smath’s parents) have a right

to be heard on the issue of Dovala’s potential release before any decision is made. (Id. at pp. 9-10.)

The Court will first address the parties’ arguments regarding Respondent’s likelihood of

success on the merits and will then turn its attention to the remaining Hilton factors, below.

A. Likelihood of Success on the Merits

As noted above, the first factor a court must consider in determining whether to stay an order

granting a habeas petition is whether the respondent has made a strong showing that it is likely to

succeed on the merits, or at the very least has demonstrated “a substantial case on the merits.” Hilton,

481 U.S. at 778.

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Here, Respondent argues that “an affirmance in the Sixth Circuit of the district court’s

decision is by no means a certainty.” (Doc. No. 42 at p. 2.) Specifically, Respondent maintains that

the State has a strong likelihood of success on the merits because this Court erred when it failed to

apply AEDPA deference in evaluating the prejudice prong of the test for ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984). Respondent further asserts that “this

Court also did not explain why it considered the issue of prejudice de novo and did not accord double

deference to the appellate court’s March 31, 2016 decision.” (Id. at p. 4.)

Respondent is incorrect. In its October 19, 2020 Memorandum Opinion & Order, this Court

applied AEDPA deference to the state court’s analysis of the deficient performance prong of the

Strickland test but then explained that, under prevailing Sixth Circuit precedent, review of the

performance prong was de novo. Specifically, the Court stated as follows:

Here, having concluded that [trial counsel] Burge’s performance was not deficient, the

state appellate court did not reach the issue of prejudice. [fn omitted] The Sixth Circuit

has explained that ‘[w]hen a state court relied only on one Strickland prong to

adjudicate an ineffective assistance of counsel claim, AEDPA deference does not

apply to review of the Strickland prong not relied upon by the state court’ Rayner v.

Mills, 685 F.3d 631, 638 (6th Cir. 2012); see also Moss v. Olson, 699 Fed. Appx 477,

481–82 (6th Cir. 2017) (explaining why this split standard still applies by reconciling

Harrington, 562 U.S. at 99, with Rompilla v. Beard, 545 U.S. 374 (2005)). See also

Smith v. Cook, 956 F.3d 377, 392 (6th Cir. 2020); Phillips v. Hoffner, 755 Fed. Appx.

481, 491 (6th Cir. 2018). Accordingly, this Court considers the issue of prejudice de

novo.

(Doc. No. 33 at pp. 44-45.) Notably, although Respondent argues that reviewing the prejudice prong

de novo under these circumstances contravenes the Supreme Court’s decision in Harrington v.

Richter (Doc. No. 42 at p. 4), the Sixth Circuit expressly considered and rejected this very argument

in Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012). Specifically, in Rayner, the Sixth Circuit

explained as follows:

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Harrington does not specifically address the scenario where, as here, a state court's

decision discusses one prong but not the other. We, and other circuits, have addressed

that scenario in post-Harrington decisions. In at least two published opinions—one of

which was decided en banc—where the state court adjudicated only one prong, we

have continued to rely on Wiggins and have reviewed the remaining prong de novo.

Davis v. Lafler, 658 F.3d 525, 537 (6th Cir.2011) (en banc); Rice v. White, 660 F.3d

242, 251 (6th Cir.2011); see also Brown v. McKee, 460 Fed. Appx. 567, 580 (6th

Cir.2012); Davis, 658 F.3d at 541 (Martin, J., concurring in part and dissenting in

part). These decisions did not examine the interplay between Wiggins and Harrington

nor specifically address the argument that tension may exist between the cases.

However, an Eleventh Circuit opinion and a one-judge opinion in the Seventh Circuit

have undertaken this analysis and both concluded that Harrington did not disturb

Wiggins. Ferrell v. Hall, 640 F.3d 1199, 1224–27 (11th Cir.2011); Sussman v.

Jenkins, 642 F.3d 532, 534 (7th Cir.2011) (Ripple, J.). Fifth and Ninth Circuit cases

have, like our own, continued to follow Wiggins or Rompilla without discussion. Salts

v. Epps, 676 F.3d 468, 480 n. 46 (5th Cir.2012); Detrich v. Ryan, 677 F.3d 958, 983

(9th Cir.2012); Williams v. Cavazos, 646 F.3d 626, 637 n. 6 (9th Cir.2011), cert.

granted on other grounds, ––– U.S. ––––, 132 S.Ct. 1088, 181 L.Ed.2d 806 (2012).

We see no reason to stray from the standard of review observed by our en banc Sixth

Circuit in Davis v. Lafler and the other four circuits to encounter this issue: When a

state court relied only on one Strickland prong to adjudicate an ineffective

assistance of counsel claim, AEDPA deference does not apply to review of the

Strickland prong not relied upon by the state court. The unadjudicated prong is

reviewed de novo. A fuller examination supports this standard.

Let us begin with the Harrington situation, a state court decision without explanation.

A summary holding rejecting an ineffective assistance claim necessarily reveals that

the state court relied on at least one Strickland prong but gives no indication as to

whether the holding was based on deficiency or prejudice or both. In such situations,

it makes sense under Harrington for a habeas court to review both prongs pursuant to

AEDPA to assure proper deference to the unspoken holding(s) actually relied upon by

the state court. See also Harrington, 131 S.Ct. at 785 (dismissing the “pure

speculation” that the state court members “may not have agreed on the reasons for

denying his petition”). This contrasts with the situation in Wiggins in which the state

court rendered a conclusion only on the deficiency prong. Because a petitioner must

satisfy both Strickland prongs in order to prevail, a court's dismissal of an ineffective

assistance claim based solely on one prong says nothing about what the court thought

about the other prong. It would be inappropriate to presume the state court not only

had a finding in mind as to the unexplained prong but that this finding was against the

petitioner. See Childers, 642 F.3d at 986 (“Conversely [to Harrington], Wiggins and

Rompilla were cases where the Court was not left to speculate as to what the state

court had, and had not, adjudicated.”). Thus, in the situation where the state court

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adjudication relies upon only one prong, deference has no proper role in reviewing the

remaining prong.

Review of Harrington supports our conclusion. In that decision, the Supreme Court

expressly limited application of its holding to cases in which the state court's decision

“is unaccompanied by an explanation.” Sussman, 642 F.3d at 534 (quoting

Harrington, 131 S.Ct. at 784). Moreover, “the Supreme Court in Harrington did not

disturb its approach in Wiggins” and “[w]e certainly cannot assume that the Court

overruled sub silentio its holding in Wiggins—a precedent so important to the daily

work of the lower federal courts,” id., which the Supreme Court cited in Harrington

“without the slightest hint of disapproval,” Childers, 642 F.3d at 986–87, and has

continued to rely upon in other decisions, e.g., Cullen v. Pinholster, ––– U.S. ––––,

131 S.Ct. 1388, 1410, 179 L.Ed.2d 557 (2011) (citing Rompilla, 545 U.S. at 390, 125

S.Ct. 2456).

Thus, we do not find Harrington and the Supreme Court's earlier decisions to be in

conflict. The principle that “§ 2254(d) applies when a ‘claim,’ not a component of

one, has been adjudicated,” Harrington, 131 S.Ct. at 784, does not necessarily mean

that each “component” must itself be reviewed under the § 2254(d) standard in every

situation. After all, both Wiggins and Rompilla recognized that the AEDPA standard

applies to the “claim” of ineffective assistance of counsel before evaluating an

unreviewed prong de novo. 539 U.S. at 519–20, 123 S.Ct. 2527, 545 U.S. at 380, 125

S.Ct. 2456; see also Porter, 130 S.Ct. at 452. The Wiggins and Rompilla line of cases

work together with Harrington to ensure application of AEDPA to an entire

ineffective assistance claim. In doing so, they mandate AEDPA deference to both

prongs when the state court decision summarily dismisses the claim without

explanation; when a state court decision relies only on one prong, the cases

mandate AEDPA deference to that prong and de novo consideration of the

unadjudicated prong. This is a “straightforward approach” that allows those

Supreme Court decisions to “co-exist comfortably.” Childers, 642 F.3d at 986. We

hold this to be the proper framework and affirm the district court's denial of Rayner's

habeas petition for the reasons provided below.

Rayner, 685 F.3d at 637-639 (emphasis added) (footnotes omitted). As recently as April 2020, the

Sixth Circuit reaffirmed in a published decision that, where a state appellate court addresses only one

of the Strickland prongs, “this court's caselaw requires” that a court review the remaining prong de

novo. Smith v. Cook, 956 F.3d 377, 392 (6th Cir. 2020). Indeed, in Smith, the Sixth Circuit observed

that “Rayner purported to distinguish Richter, see 685 F.3d at 638, and its ‘peculiar rule’ remains the

law of our circuit.” Id.at fn 2 (citing Hodges v. Colson, 727 F.3d 517, 537 & n.5 (6th Cir. 2013)).

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While Respondent may disagree with the Sixth Circuit’s “peculiar rule” in Rayner, it is

binding precedent in this Circuit and this Court is bound to follow it. The Court further notes that,

contrary to Respondent’s assertion that this Court “failed to explain” why it considered the issue of

prejudice de novo, this Court expressly discussed this issue and cited both Rayner and Smith in its

October 19, 2020 Memorandum Opinion & Order. (Doc. No. 33 at pp. 44-45.) Lastly, the Court

notes that, after addressing the issue of prejudice de novo, the Court further found as follows: “Even

if the Court were to apply AEDPA deference to the state trial court’s finding of prejudice, however,

the Court would nonetheless find (for all of the reasons set forth above) that the state court’s decision

was an unreasonable application of Strickland.” (Id. at fn 17.) Thus, for all the reasons set forth

above, the Court is not persuaded that Respondent has a strong likelihood of success on the merits

with respect to this particular issue.

Respondent next argues that the State has a strong likelihood of success on the merits because

this Court erroneously relied on Sixth Circuit precedent (rather than United States Supreme Court

precedent) in finding that the state appellate court unreasonably concluded that trial counsel was not

ineffective under Strickland. For the following reasons, the Court disagrees.

In support of its grant of habeas relief, this Court expressly stated that “the well-established

federal law used for assessing ineffective assistance of counsel claims is the framework set forth in

Strickland v. Washington, 466 U.S. 668 (1984).” (Doc. No. 33 at p. 22.) The Court further

acknowledged the very high level of deference that is accorded to state court decisions regarding

Strickland under § 2254(d). In particular, the Court noted that a federal habeas court’s review is

“’doubly deferential’ because AEDPA provides deference to the state court, which in turn is expected

to give considerable deference to trial counsel’s decisions.” (Id. at p. 23.) After carefully reviewing

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the state appellate court’s decision, the Court concluded that “the state appellate court’s determination

that Burge’s performance was not deficient is an unreasonable application of Strickland.” (Id. at p.

44.) Thus, this Court appropriately acknowledged and applied United States Supreme Court

precedent in determining that Dovala was entitled to habeas relief.

It is true that, as part of its analysis, this Court considered and cited the Sixth Circuit’s

published decision in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), as well as other several other

decisions in which the Sixth Circuit granted habeas relief on the basis that trial counsel failed to

conduct a reasonable investigation regarding potential expert testimony. (Doc. No. 33 at pp. 33-34)

(citing Couch v. Booker, 632 F.3d 241 (6th Cir. 2011) and Dendel v. Washington, 647 Fed. Appx.

612 (6th Cir. 2016)). However, the Court did not find that the state court decision in Dovala’s

underlying criminal case was an unreasonable application of Richey, Couch, and/or Dendel. Rather,

this Court expressly found that the state court’s decision was an unreasonable application of the

Supreme Court’s decision in Strickland, supra. The Court merely pointed to Richey, Couch and

Dendel as examples of cases where, under very similar circumstances, the Sixth Circuit applied

AEDPA deference and found that the state courts had unreasonably applied Strickland, supra.

In any event, the Court did not exceed AEDPA’s strict limitation on the source of clearly

established federal law by looking to Richey, Couch, and Dendel in the course of its analysis. As

noted above, in each of those decisions, the Sixth Circuit expressly found that the state courts had

considered the petitioners’ ineffective assistance claims on the merits, applied AEDPA deference,

and concluded that the state courts’ determinations were unreasonable applications of Strickland.

Thus, this Sixth Circuit precedent “already accounts for AEDPA’s severe limitation on the source of

clearly established federal law, and … a federal court does not bypass AEDPA’s limit on the source

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of that law by considering” Circuit cases that grant or affirm relief under AEDPA. Pouncy v. Palmer,

168 F.Supp.3d 954, 964 (E.D. Mich. 2016).

In light of the above, the Court is not persuaded that Respondent has a strong likelihood of

success on the merits on appeal. Nonetheless, the Court recognizes the very steep climb that habeas

petitioners face in obtaining relief under the AEDPA. The Court also acknowledges that the Sixth

Circuit may disagree with this Court's analysis of Dovala’s ineffective assistance claims.

Accordingly, while Respondent may not have shown a strong likelihood of success on the merits, the

Court finds that Respondent has at least demonstrated that it has a substantial case on the merits.

B. Remaining Hilton factors

The remaining Hilton factors are whether the applicant will be irreparably injured absent a

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

and the public interest. Hilton, 481 U.S. at 777.

Here, the parties’ arguments regarding stay vs. release on bond are somewhat muddled. With

regard to the issue of whether this Court should stay its Judgment (and the deadline set forth therein

for scheduling a new trial), Dovala does not argue that the Hilton factors weigh against a stay. Indeed,

Dovala acknowledges that Respondent has “a substantial interest in avoiding a re-trial of Petitioner

prior to a ruling on her appeal.” (Doc. No. 41 at p. 6.) Moreover, and notably, Dovala does not argue

either that she would be injured by a stay of this Court’s Judgment pending appeal, or that a stay is

contrary to the public interest. See Doc. No. 41. As noted above, Respondent argues that each of the

Hilton factors weigh heavily in favor of staying the Court’s Judgment (in particular its 120-day new

trial deadline) pending appeal. (Doc. No. 39.)

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The parties do disagree, however, regarding the application of the remaining Hilton factors in

the context of Dovala’s request to be released on bond. As noted supra, Dovala argues that these

factors weigh heavily in favor of release because she (1) has no previous criminal record; (2) has been

a model prisoner with no disciplinary infractions; (3) has already served her minimum sentence of 15

years; and (4) has developed a strong support system which will provide her with emotional and

financial support if released. (Doc. No. 41 at pp. 7-8.) She also argues that she is not a flight risk,

noting that she “remained on bond during the entire thirteen months of pretrial proceedings and was

never alleged to have committed any violations of her release, or failed to appear in court for any

required appearance, including her jury trial.” (Id. at pp. 4-5.) Dovala further asserts that, if released,

she will live with (and care for) her 80 year old father and, further, that she “has life-long friends who

will be there to provide her with love and support if she is released.” (Id. at p. 3, 4.) Lastly, Dovala

suggests that she will be substantially injured if this Court does not release her on bond because the

ODRC has already once rescheduled her November 2020 parole hearing due to “the present

uncertainty of her legal status.” (Id. at p. 5.)

Respondent argues that the remaining Hilton factors weigh against release because (1) Dovala

was convicted of a violent felony; (2) the state courts have repeatedly upheld her conviction and

sentence; (3) the remaining portion of her sentence (15 years to life) is substantial; and (4) she “is

scheduled” to go before the parole board for a hearing in March 2021. (Doc. No. 42.) Respondent

further asserts that, under 18 U.S.C. § 3771(a) & (b)(2), this Court may not release Dovala without

first providing Riley Smath’s parents with an opportunity to be heard. (Id.)

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Dovala did not file a Reply Brief in support of her Motion for Bond, thus the Court does not

have the benefit of any further information or briefing from Dovala with respect to the issues raised

in Respondent’s Brief in Opposition.

While federal courts typically consider the issues of stay and release jointly, the Court feels

constrained, under the particular circumstances presented herein, to address these issues separately.

Specifically, the 120-day deadline set forth in this Court’s October 19, 2020 decision for scheduling

a new trial is fast approaching, and Dovala does not challenge Respondent’s Motion to Stay to the

extent it seeks a stay of this deadline pending appeal. (Doc. No. 41 at p. 6.) Moreover, while the

Court is preliminarily inclined to find that the Hilton factors weigh in favor of granting Dovala release

on bond, the Court concludes that it does not have sufficient information and evidence before it

regarding the second, third, and fourth Hilton factors to make this determination, particularly in light

of Dovala’s failure to file a Reply Brief in support of her Motion.

Thus, in light of the time constraints presented, the Court proceeds as follows. For the

following reasons, Respondent’s Motion to Stay Judgment (Doc. No. 39) is granted and the 120-

deadline set forth in this Court’s October 19, 2020 decision for scheduling a new trial is hereby stayed.

The Court agrees with Respondent that, if the State is required to schedule a new trial for Dovala

within 120 days of this Court’s October 19, 2020 decision, Respondent's appeal might be rendered

moot. Moreover, while the Court does not agree that Respondent has a strong likelihood of success

on the merits, the Court acknowledges that the Sixth Circuit may disagree with the Court’s analysis

of Dovala’s ineffective assistance of counsel claim. Thus, it could be a waste of judicial resources for

the State to schedule (and potentially proceed with) Dovala’s new trial while the appeal of this Court's

order is pending before the Sixth Circuit. Lastly, Dovala does not oppose Respondent’s Motion or

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otherwise argue that she will be substantially injured by a stay pending appeal. Accordingly,

Respondent’s Motion to Stay Judgment (Doc. No. 39) is granted as set forth above.

The Court requires additional information and evidence to resolve Dovala’s Motion for Bond

(Doc. No. 41) and, therefore, takes this Motion under advisement. This matter is referred to Pretrial

Services for an investigation and recommendation in relation to the appropriate conditions, if any, for

Dovala’s release. See, e.g., Marion v. Woods, 2015 WL 5895916 (E.D. Mich. Oct. 9, 2015) (citing

Newman, 300 Fed. Appx. at 343-344.) Once the Court receives a report from Pretrial Services, the

Court will set a hearing at which the parties will be expected to introduce evidence and argument in

support of their positions with respect to Dovala’s potential release on bond. In particular, the parties

shall be prepared to present information and evidence regarding (1) the specific reasons why Dovala’s

November 2020 parole hearing was rescheduled to March 2021; and (2) whether or not the instant

habeas proceedings may result in any further postponements of her parole hearing. In addition, at the

upcoming hearing, the victim’s representatives will be afforded an opportunity to speak regarding the

issue of Dovala’s potential release, if they so choose, in accordance with 18 U.S.C. § 3771(a) &

(b)(2).

IV. Conclusion

Accordingly, Respondent’s Motion to Stay Judgment Pending Appeal (Doc. No. 39) is

GRANTED as set forth herein. The Court takes Petitioner’s Motion for Bond (Doc. No. 41) under

advisement and refers this matter to Pretrial Services for an investigation and recommendation in

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relation to the appropriate conditions, if any, for Petitioner’s release. An evidentiary hearing will be

scheduled once the Court receives a report from Pretrial Services.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: December 30, 2020 U. S. DISTRICT JUDGE

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