Gennel Edward Miles, Jr. v. Bryan D. Phillips

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENNEL EDWARD MILES, JR., No. 2:19-cv-00377-DAD-DMC 12 Petitioner, 13 v. ORDER GRANTING RESPONDENT’S MOTION TO STAY PENDING APPEAL 14 BRYAN D. PHILLIPS, (Doc. No. 89) 15 Respondent.

16 17 This matter came before the court on February 2, 2026 for a hearing on respondent’s 18 motion for stay pending appeal. (Doc. No. 89.) Attorney Elizabeth H. Richardson-Royer 19 appeared on behalf of petitioner and California Deputy Attorney General Tami M. Krenzin 20 appeared on behalf of respondent. For the reasons explained below, the court will grant 21 respondent’s motion for a stay pending appeal. 22 BACKGROUND 23 On April 3, 2019, petitioner filed a petition for writ of habeas corpus initiating this action 24 and challenging his 2012 judgement of conviction entered in the Sacramento County Superior 25 Court. (Doc. No. 1.) On November 29, 2021, petitioner filed the operative first amended petition 26 for writ of habeas corpus. (Doc. No. 47.) In that amended petition, petitioner asserted four 27 separate grounds for federal habeas relief: (1) his trial counsel provided ineffective assistance of 28 counsel when litigating a pretrial motion to exclude testimony; (2) the prosecution withheld 1 material exculpatory evidence, as well as impeachment evidence, in violation of petitioner’s due 2 process rights as explained in Brady v. Maryland, 373 U.S. 83 (1963); (3) admission of witness 3 Brittany Ashcraft’s testimony at his 2012 trial regarding a purported phone call between 4 petitioner and Ashcraft’s boyfriend violated petitioner’s right to due process; and (4) due to the 5 cumulative effect of the errors at petitioner’s trial. (Id. at ¶¶ 113–47.) 6 On September 3, 2025, the assigned magistrate judge issued amended findings and 7 recommendations recommending that the first amended petition be granted as to petitioner’s third 8 claim for relief. (Doc. No. 74.) In this regard, the assigned magistrate judge found that petitioner 9 had failed to show the requisite prejudice required to assert an ineffective assistance of counsel 10 claim and that petitioner’s Brady claim amounted to a delayed disclosure claim that did not merit 11 habeas relief. (Id. at 14–19.) However, the magistrate judge concluded that the admission of 12 Ashcraft’s testimony, which according to the magistrate judge comprised “the sole evidence 13 against Petitioner,” was based on an unreasonable determination of the facts and was accordingly 14 not subject to Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) deference. (Id. 15 at 22–29.) The magistrate judge therefore concluded that the state court’s admission of that 16 testimony violated petitioner’s right to due process and rendered his trial fundamentally unfair. 17 (Id. at 30–32.) On October 3, 2025, respondent filed objections to those findings and 18 recommendations arguing that the magistrate judge erred by considering the reliability of the 19 testimony at issue, asserting that admission of unreliable evidence alone cannot constitute a due 20 process violation. (Doc. No. 80 at 4–6.) On December 31, 2025, the previously-assigned district 21 judge adopted the findings and recommendations, granted petitioner’s petition for writ of habeas 22 corpus, and ordered respondent to release petitioner within thirty days of the date of entry of that 23 order or, in the alternative, file a written notice of election to retry petitioner and within sixty days 24 of the filing of that notice commence the retrial. (Doc. No. 86 at 2.) 25 On January 14, 2026, respondent filed a motion to stay the previously-assigned district 26 judge’s order pending his appeal to the Ninth Circuit and filed a notice of appeal. (Doc. Nos. 88, 27 89.) In that motion, respondent also requests the alternative relief of a temporary stay to permit 28 ///// 1 respondent to request a stay pending appeal from the Ninth Circuit. (Doc. No. 89 at 4.)1 On 2 January 23, 2026, the court directed petitioner to file an opposition to the motion for a stay no 3 later than January 28, 2026. (Doc. No. 94.) On January 26, 2026, the parties filed a joint 4 stipulation regarding a briefing schedule on the pending motion, which the court granted on 5 January 27, 2026 and accordingly extended the time in which respondent could file a notice of 6 intent to retry petitioner. (Doc. No. 100.) On January 27, 2026, petitioner filed his opposition to 7 the motion to stay and a counter-motion for immediate release. (Doc. No. 101.) On January 28, 8 2026, respondent filed his reply and an opposition to the motion for immediate release and on 9 January 30, 2026, petitioner filed a reply thereto. (Doc. Nos. 102, 103.) 10 LEGAL STANDARD 11 “The typical relief granted in federal habeas corpus is a conditional order of release unless 12 the State elects to retry the successful habeas petitioner” within a certain period of time. Herrera 13 v. Collins, 506 U.S. 390, 403 (1993). 14 Pursuant to Rule 23 of the Federal Rules of Appellate Procedure, “[w]hile a decision 15 ordering the release of a prisoner is under review, the prisoner must—unless the court or judge 16 rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of 17 either court orders otherwise—be released on personal recognizance, with or without surety.” 18 Fed. R. App. P. 23(c). “[I]n deciding whether to stay pending appeal a district court order 19 granting relief to a habeas petitioner,” federal courts apply Rule 23(c), which “undoubtedly 20 creates a presumption of release from custody in such cases, but that presumption may be 21 overcome if the judge rendering the decision, or an appellate court or judge, ‘otherwise orders.’” 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 1 On January 15, 2026, this case was re-assigned to the undersigned following the retirement of 28 Judge Mueller. 1 Hilton v. Braunskill, 481 U.S. 770, 774 (1987).2 “[A] court making an initial custody 2 determination under Rule 23(c) should be guided not only by the language of the Rule itself but 3 also by the factors traditionally considered in deciding whether to stay a judgment in a civil case.” 4 Id. at 777 (noting that the presumption of release “may be overcome if the traditional stay factors 5 tip the balance against it”). 6 In civil cases, “[a] stay is not a matter of right, even if irreparable injury might otherwise 7 result.” Nken v. Holder, 556 U.S. 418, 433 (2009). A stay “is instead an exercise of judicial 8 discretion, and the propriety of its issue is dependent upon the circumstances of the particular 9 case.” Id. (internal quotation and brackets omitted). “The party requesting a stay bears the 10 burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433–34. 11 In exercising discretion to grant or deny a stay in civil cases, courts consider the following 12 factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on 13 the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether 14 issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) 15 where the public interest lies.” Id. at 434 (quoting Hilton, 481 U.S. at 776). The Ninth Circuit 16 has held that courts should apply these factors flexibly when analyzing stay requests. See Leiva- 17 Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (reasoning, in part, that “stays are typically 18 less coercive and less disruptive than are injunctions”). To apply the factors flexibly, courts 19 employ a “sliding scale,” meaning that the factors are balanced so that “a stronger showing of one 20 element may offset a weaker showing of another.” Id. at 964–66 (quoting in part Alliance for the 21 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)); Kum Tat Ltd. v. Linden Ox 22 Pasture, LLC, No. 3:14-cv-02857-WHO, 2015 WL 674962, at *2 (N.D. Cal. Feb. 17, 2015). 23

24 2 As the Ninth Circuit has explained: 25 The plain language of Rule 23 gives the district court jurisdiction concurrent with the appeals court over the custody of a habeas 26 petitioner. As the Supreme Court has made clear, a district court has broad discretion in conditioning a judgment granting habeas relief, 27 including whether or not to release a prisoner pending appeal.

28 Stein v. Wood, 127 F.3d 1187, 1190 (9th Cir. 1997) (citing Hilton, 481 U.S. at 775). 1 Under this sliding scale approach, 2 a moving party who cannot show a strong likelihood of success on the merits may nonetheless be entitled to a stay where he shows that 3 his appeal “raises serious legal questions, or has a reasonable probability or fair prospect of success.” Leiva-Perez, 640 F.3d at 4 971. A party satisfying this lower threshold under the first Nken factor is not required to show that it is more likely than not to win on 5 the merits, but it must demonstrate that the balance of hardships under the second and third factors tilts sharply in its favor. 6 7 Kum Tat, 2015 WL 674962, at *2 (cleaned up). 8 In federal habeas corpus cases, “[t]he most important factor is the first, that is, whether the 9 state has made a strong showing of likely success on the merits of its appeal of the district court’s 10 decision.” Haggard v. Curry, 631 F.3d 931, 935 (9th Cir. 2010). “Where the State establishes 11 that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless 12 demonstrate a substantial case on the merits, continued custody is permissible if the second and 13 fourth factors in the traditional stay analysis militate against release.” Hilton, 481 U.S. at 778. 14 However, “[w]here the State’s showing on the merits falls below this level, the preference for 15 release should control.” Id. 16 In addition, courts may also consider “the possibility of flight,” the “risk that the prisoner 17 will pose a danger to the public if released,” and “[t]he State’s interest in continuing custody and 18 rehabilitation pending a final determination of the case on appeal.” Id. at 777. 19 DISCUSSION 20 A. Likelihood of Appellate Success (First Hilton Factor) 21 Respondent argues that he is likely to prevail on appeal because the Supreme Court has 22 previously rejected the contention that “potential unreliability” of admitted testimony standing 23 alone can constitute a due process violation. (Doc. No. 89 at 2–3.) In his motion, respondent 24 largely repeats the argument previously rejected by both the assigned magistrate judge and the 25 previously-assigned district judge. (Compare Doc. No. 89 with Doc. No. 80 at 4–6.) In response, 26 petitioner first argues that merely restating arguments raised in prior briefing is insufficient to 27 establish a likelihood of appellate success. (Doc. No. 101 at 9–10.) Petitioner also contends that, 28 even if repetition of an argument could demonstrate a substantial case for appeal, Supreme Court 1 precedent has established that admission of evidence that is “so unreliable and prejudicial” that it 2 renders the underlying trial “fundamentally unfair” violates a defendant’s due process rights. (Id. 3 at 10–11.) 4 First, the court observes that respondent’s position is merely that he has demonstrated that 5 “there is a substantial case on the merits[,]” which is lesser showing than that of a “strong 6 likelihood of success.” See Arciga v. Frauenheim, No. 1:15-cv-01372-DAD-CDB (HC), 2023 7 WL 144199, at *3–4 (E.D. Cal. Jan. 10, 2023) (discussing the showing required under Ninth 8 Circuit precedent for a motion to stay habeas relief). Indeed, at the hearing on the pending 9 motion, respondent clarified that his position is that he has shown a substantial case on the merits 10 and that consideration of the remaining Hilton factors weigh heavily in his favor. 11 The amended findings and recommendations found that the admission of Ashcraft’s 12 testimony violated petitioner’s right to due process on the grounds that it was the sole evidence 13 against petitioner and was so unreliable that its admission rendered petitioner’s trial 14 fundamentally unfair. (Doc. No. 74 at 32.) Respondent argues that the purported unreliability of 15 the evidence cannot, standing alone, serve as a basis for the finding of a due process violation. 16 (Doc. No. 89 at 2–3.) Specifically, respondent maintains that “when trial testimony is admissible 17 under state evidentiary rules, and a defendant is able to confront and cross-examine a witness, due 18 process [does not require] anything more than a credibility determination by the trier of fact.” 19 (Doc. No. 102 at 2.) Petitioner counters that the admission of Ashcraft’s testimony was so 20 prejudicial that due process was violated by its admission. (Doc. No. 101-1 at 10–11.) At the 21 hearing counsel clarified that petitioner’s position is that due process was violated even though 22 Ashcraft’s testimony was admissible under the California Evidence Code.3 23

24 3 In this regard, petitioner’s relies on Estelle v. McGuire, 502 U.S. 62, 68–70 (1991) and Montana v. Egelhoff, 518 U.S. 37, 53 (1996). (Doc. No. 101-1 at 11.) However, both of those 25 cases discuss the possibility that erroneous evidentiary rulings could result in a violation of due process, rather than the possibility that a correct evidentiary ruling under state law may 26 nevertheless constitute a violation of due process. Estelle, 502 U.S. at 68–70 (holding that the 27 evidence at issue was relevant and properly admitted and that there was therefore no due process violation); Montana, 518 U.S. at 53 (summarizing earlier case law regarding erroneous 28 evidentiary rulings). 1 The court concludes that respondent has demonstrated that his appeal raises a serious legal 2 question. Petitioner is correct that the Supreme Court has found that due process bars “the 3 introduction of evidence ‘that is so unduly prejudicial that it renders the trial fundamentally 4 unfair.’” Andrew v. White, 604 U.S. 86, 92–93 (2025) (quoting Payne v. Tennessee, 501 U.S. 5 808, 825 (1991)). However, the Supreme Court in Andrew addressed the state appellate court’s 6 ruling that the erroneous admission of irrelevant evidence at trial constituted harmless error. Id. 7 at 90. Here, on the other hand, petitioner’s position is that even if Ashcraft’s testimony was 8 properly admitted under the California Evidence Code, its admission still violated his due process 9 rights. 10 Though not cited by respondent in his motion to stay, the undersigned has reviewed the 11 recent decision in Bredemeier v. Phillips, 786 F. Supp. 3d 1300 (C.D. Cal. June 16, 2025), in 12 which the district court addressed a similar contention as that which has been presented by 13 petitioner in this case. There, the district court observed that “the Due Process Clause (properly 14 understood) sets only the metes and bounds of a fair trial; it doesn’t impose per se constitutional 15 constraints on ordinary evidentiary rulings by state trial courts, especially since they are called 16 upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of 17 evidence.” Bredemeier, 786 F. Supp. 3d at 1320 (internal quotation marks omitted) (quoting 18 Crane v. Kentucky, 476 U.S. 683, 689 (1986)). Here, the findings and recommendations and the 19 district judge’s order adopting those findings and recommendations treated petitioner’s case as an 20 unusual one in which evidence may have been properly admitted under the California Evidence 21 Code but its admission nonetheless violated due process. In light of the relevant discussion by the 22 district court in Bredemeier, the undersigned concludes that reasonable jurists may differ as to the 23 appropriate resolution of this unique legal issue.4 The court therefore finds that respondent’s 24 appeal presents a serious legal question upon which respondent may prevail. See Sifuentes v. 25 Brazelton, No. 09-cv-02902-PJH, 2014 WL 186867, at *1 (N.D. Cal. Jan. 16, 2014) (finding that 26

27 4 In the undersigned’s view it could be credibly argued that respondent’s appeal presents a substantial case on the merits and perhaps even one upon which respondent has some degree of 28 likelihood of success. 1 a showing that reasonable jurists may differ as to the assessment of a habeas claim is sufficient to 2 support a “substantial probability that respondent may succeed on appeal”). 3 The court therefore finds that consideration of the first Hilton factor—the most important 4 factor—weighs modestly in favor of the granting of a stay. See Hilton, 481 U.S. at 778 (“Where 5 the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it 6 can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if 7 the second and fourth factors in the traditional stay analysis militate against release.”) (emphasis 8 added). 9 B. Remaining Factors 10 1. Irreparable Harm to Respondent 11 Respondent argues in summary fashion that the state has an interest in “continuing 12 custody and rehabilitation” which is strengthened here by the fact that petitioner was sentenced to 13 a consecutive indeterminate term of life without the possibility of parole following his 14 determinate sentence. (Doc. No. 89 at 3–4.) Respondent contends that the length of petitioner’s 15 sentence standing alone demonstrates irreparable injury were a stay not to issue. (Id.) Petitioner 16 argues that respondent cannot have a defensible interest in continued incarceration because the 17 court has granted habeas relief and accordingly found that his conviction was obtained through a 18 constitutional violation. (Doc. No. 101-1 at 13–14.) 19 It is true that “[t]he State’s interest in continuing custody and rehabilitation pending a final 20 determination of the case on appeal is also a factor to be considered; it will be strongest where the 21 remaining portion of the sentence to be served is long, and weakest where there is little of the 22 sentence remaining to be served.” Hilton, 481 U.S. at 777. The undersigned has previously held 23 that this “interest alone does not establish irreparable injury[.]” Arciga, 2023 WL 144199, at *5. 24 As another district court has pointed out, this basis for irreparable injury “could be argued in any 25 habeas proceeding when a district court’s decision ordering release or a new trial is appealed” and 26 accordingly cannot alone overcome “the presumption of release from custody[.]” Naranjo v. 27 Beard, No. 11-cv-01487-WQH-PCL, 2013 WL 3389477, at *6 (S.D. Cal. July 8, 2013). 28 ///// 1 Nevertheless, though not argued here by respondent, it is apparent that there are other 2 costs associated with the mandating of a re-trial of petitioner before the Ninth Circuit Court of 3 Appeals has had the opportunity to consider the unique legal issue posed by this case. As one 4 district court has observed, “[i]t makes little sense for the State to be required to immediately 5 conduct a murder trial if there is any possibility the trial could be mooted by a reversal of this 6 Court’s order on appeal.” Franklin v. Duncan, 891 F. Supp. 516, 520 (N.D. Cal. 1995). Here, it 7 appears obvious that if respondent filed an election to retry petitioner, the state’s resources would 8 have to be expended to locate, contact, and potentially transport witnesses and evidence regarding 9 events that occurred over 15 years ago. See Becker v. Martel, No. 10-cv-01209-W-AJB, 2011 10 WL 2181361, at *2 (S.D. Cal. June 3, 2011) (finding that the expenditure of state resources to 11 conduct a retrial constituted irreparable injury to the state); see also Sifuentes, 2014 WL 186867, 12 at *2 (“Respondent has established that if a stay is denied, petitioner must be retried during the 13 pendency of the appeal, requiring substantial effort and use of public resources to locate witnesses 14 and exhibits even before a final decision is issued by the court of appeals.”). Accordingly, the 15 court concludes that the state would face irreparable injury in the absence of a stay. 16 Consideration of this factor weighs in favor of granting a stay. 17 2. Irreparable Harm to Petitioner 18 Respondent argues that petitioner’s interest in his release, while substantial, is weakened 19 because of his significant criminal history and the risk of flight posed were he to be released. 20 (Doc. No. 89 at 4.) Petitioner argues that his significant interest in release, particularly in light of 21 having spent 16 years in prison based on what this court has found to be a constitutionally 22 defective conviction, weighs heavily against granting a stay in this case. (Doc. No. 101-1 at 12– 23 13.) “[C]ontinuing Petitioner’s incarceration after a successful habeas petition would not only 24 constitute a substantial injury to Petitioner but also extend the constitutional violation Petitioner 25 has suffered.” Perez v. Hartley, No. 1:08-cv-01665-LJO-JMD, 2010 WL 3505062, at *2 (E.D. 26 Cal. Sept. 7, 2010); see also Arciga, 2023 WL 144199, at *5 (finding that the petitioner’s interest 27 in his release was significant in light of spending 12 years in prison under a constitutionally 28 defective conviction). However, “[u]nlike a pretrial arrestee, a state habeas petitioner has been 1 adjudged guilty beyond a reasonable doubt by a judge or jury, and this adjudication of guilt has 2 been upheld by the appellate courts of the state.” Sifuentes, 2014 WL 186867, at *2 (finding that 3 the petitioner’s interest in release weighed against the granting of respondent’s motion for a stay, 4 but not heavily in light of the petitioner’s conviction by a jury). Accordingly, in light of 5 petitioner’s substantial interest in release, the court finds that this factor weighs somewhat against 6 the granting of a stay. 7 3. Public Interest 8 As to the public interest factor, respondent argues that petitioner poses a flight risk if 9 released and a danger to the public based on his prior serious felony conviction and the conviction 10 at issue in this action. (Doc. No. 89 at 3–4.) Petitioner argues that he has strong ties to the 11 Sacramento community, particularly due to his close relationship with his father. (Doc. No. 101- 12 1 at 15–16.) Petitioner also argues that any flight risk or danger to the community that he poses 13 can be mitigated through imposition of conditions of release such as electronic monitoring. (Id. at 14 16.) 15 It is certainly true that “[m]urder is an extremely serious charge which by its nature would 16 seem to pose a heightened risk of flight.” Franklin, 891 F. Supp. at 521. However, respondent 17 has not made any particularized showing that petitioner would constitute a flight risk or danger to 18 the community under any release conditions that could be fashioned. See id. (“The State, 19 however, has presented no evidence that Franklin poses a particularized flight risk if sufficient 20 surety is set.”); see also Stevens v. Carlin, No. 3:14-cv-00403-REB, 2018 WL 1596872, at *2 (D. 21 Idaho Apr. 2, 2018) (finding that the petitioner was not a flight risk or a danger in part because 22 the respondent failed to provide specific details supporting the contention that he was); Douglas 23 v. Singh, No. 11-cv-05370-EMC, 2013 WL 2645175, at *5 (N.D. Cal. June 12, 2013) (“Other 24 than the convictions for the offenses herein, the State has not made any particular showing of 25 flight risk or danger to community were the stay denied[.]”). Nevertheless, the undersigned 26 concludes that petitioner’s criminal history and the extended length of his remaining sentence 27 support a finding that, if released, petitioner may pose a risk of flight or of danger to the 28 community. See Boutte v. Biter, No. 2:07-cv-01508-AK, 2012 WL 5880494, at *3 (E.D. Cal. 1 Nov. 21, 2012) (finding that the petitioner posed a flight risk based on his criminal history); see 2 also Jackson v. Biter, No. 2:14-cv-02268-MCE-DB, 2021 WL 4988871, at *3–4 (E.D. Cal. Oct. 3 27, 2021) (“In light of petitioner’s criminal history, the length of time remaining on his sentence, 4 and the possibility of an unnecessary retrial, the undersigned finds that the public interest weighs 5 in favor of the imposition of a stay.”), report and recommendation adopted, 2021 WL 5811827 6 (E.D. Cal. Dec. 7, 2021). 7 Here, petitioner has shown that he has some ties to the community, such as his father and 8 his children. (Doc. No. 101-1 at 16.) His serious criminal history raises the specter of danger to 9 the community and flight risk, it does not necessarily support the conclusion that no combination 10 of release conditions could mitigate those risks. Nonetheless, on the whole, consideration of the 11 public interest factor weighs slightly in favor of the granting of a stay. 12 Having concluded that the first factor weighs moderately in favor of a stay, and the second 13 factor weighs heavily in favor of a stay while the fourth factor does not weigh against it, the court 14 concludes that the presumption of release has been overcome by a narrow margin here. See 15 Haggard, 631 F.3d at 934 (discussing the presumption of release following the granting of a 16 habeas petition). In coming to this conclusion, the court notes that, at the hearing, counsel 17 represented that respondent would be willing to stipulate to a condensed briefing schedule in 18 order to expedite that appeal. The court endorses this approach. 19 CONCLUSION 20 For the reasons above, 21 1. Respondent’s motion to stay (Doc. No. 89) is GRANTED; 22 2. Petitioner’s counter-motion for immediate release (Doc. No. 101-1) is DENIED; 23 3. The December 31, 2025 order adopting the amended findings and 24 recommendations (Doc. No. 86) is STAYED pending resolution of this matter on 25 appeal; and 26 ///// 27 ///// 28 ///// ] 4. The parties are DIRECTED to file a joint status report sixty (60) days from the 2 date of entry of this order and every sixty (60) days thereafter regarding the status 3 of the appeal in this action. 4 IT IS SO ORDERED. ° Dated: _ February 4, 2026 Dela A. 2, 6 DALE A. DROZD 4 UNITED STATES DISTRICT JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12