The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING PETITIONER'S RELEASE PENDING APPEAL AND DENYING RESPONDENT'S MOTION TO STAY
Robert Dooley, respondent, moves pursuant to Federal Rules of Appellate Procedure 8(1)(A) and 23(c) for the court to stay its September 30, 2011, Memorandum Opinion, Judgment and Order, and the October 3, 2011, Amended Judgment and Order, which granted petitioner's habeas corpus relief. Docket 84. Oakley Bernard Engesser, petitioner, requests that the court deny respondent's motion to stay and moves for the court to release him pending respondent's appeal. Docket 87. For the reasons listed below, respondent's motion to stay is denied and petitioner's motion for release pending appeal is granted.
A South Dakota jury convicted Engesser of two counts of vehicular battery and one count of vehicular homicide in 2001. The dispute at trial was whether Engesser was the driver of the car that killed one and injured others. Engesser was sentenced to twenty-five years' imprisonment in the South Dakota State Penitentiary. On appeal, the South Dakota Supreme Court upheld Engesser's conviction. State v. Engesser, 661 N.W.2d 739 (S.D. 2003). Engesser filed a petition for a writ of habeas corpus in state court. His petition was denied, and both the state circuit court and South Dakota Supreme Court denied his request for a certificate of probable cause.
Engesser then filed his first federal petition for habeas corpus, which was denied and affirmed by the Eighth Circuit Court of Appeals. Engesser v. Dooley, No. 04-5065, 2005 WL 1278473 (D.S.D. May 26, 2005); Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006), cert. denied, 549 U.S. 1223 (2007). Engesser filed a second habeas petition in state court raising ineffective assistance of counsel claims against his trial counsel and initial habeas counsel. That petition was granted because the court found that Engesser's initial habeas counsel failed to identify key eyewitnesses in the habeas proceeding and his trial counsel failed to identify and call them at trial. The South Dakota Supreme Court reversed, finding that because Engesser failed to show the requirement of ineffective assistance of his initial habeas counsel, then the petition could not be considered by the circuit court. Engesser v. Dooley, 759 N.W.2d 309 (S.D. 2008).
Engesser filed a third state habeas petition, but relief was denied and he did not seek further review from the South Dakota Supreme Court. Engesser requested permission to file a federal petition with the Eighth Circuit Court of Appeals. The Eighth Circuit authorized Engesser to present his petition because there was new evidence that could not have been discovered earlier. This court held an evidentiary hearing and eventually granted Engesser's petition for a writ of habeas corpus on September 30, 2011. Docket 77.
On October 3, 2011, the court filed an amended judgment. The writ of habeas corpus was granted because Engesser received ineffective assistance when his trial counsel did not interview key witnesses and failed to call them to testify. Docket 79 at 1. The petition was denied in all other aspects. The court also ordered "that unless the State of South Dakota commences proceedings to afford Petitioner Oakley Bernard Engesser a new trial on or before December 5, 2011, Petitioner Oakley Bernard Engesser shall be released from custody on the conviction and sentence challenged in this action." Docket 79 at 2. Respondent now seeks to stay this court's conditional grant of habeas relief pending its appeal to the Eighth Circuit. Docket 84. Petitioner asks that the court deny the stay and release him pending appeal because respondent cannot make a showing that he is likely to succeed on the merits, respondent will not be irreparably injured absent a stay, petitioner will be substantially injured by a stay, and the public interest weighs in favor of his release. Docket 87; Docket 88.
If a court grants a petition for writ of habeas corpus and the government appeals that decision, Federal Rule of Appellate Procedure 23(c) states that, "the habeas petitioner shall be released from custody 'unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.' " Hilton v. Braunskill, 481 U.S. 770, 772 (1987) (quoting Fed. R. App. P. 23). The court also considers the factors of a traditional civil motion to stay, which 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 ...