Petitioner, incarcerated in the county jail, filed for a writ of habeas corpus under 28 USC. § 2241(c)(3) challenging his confinement pending the prosecution's appeal of the Circuit Court's opinion granting petitioner a new trial.
On May 19, 1982, petitioner was convicted of felony murder, assault with intent to murder, two counts of assault with intent to rob while armed and felony firearm. In July 1995, he filed a motion for relief from judgment on a number of grounds including actual innocence, constitutional violations, invalidity of the eyewitness identification, and newly discovered exculpatory evidence. After a lengthy evidentiary hearing, the trial court vacated the petitioner's conviction because (a) important evidence had been withheld by the prosecutor's office, (b) ineffective assistance of counsel, (c) unreliable and inconsistent identification of the defendant; and (d) subsequent to the conviction, a witness confessed to the crime and defendant passed a polygraph exam.
After vacating the conviction, the Circuit Court held a hearing on petitioner's emergency motion for bond pending appeal. The Circuit Court Judge found that the petitioner did not represent a danger to society and set the petitioner's bond at $50,000 cash or surety. The bond was posted and petitioner released. Subsequently the prosecutor filed an application for leave to appeal the trial court's order granting petitioner a new trial. The Court of Appeals granted the application for leave to appeal and also ordered that the defendant was to remain incarcerated pending resolution of the appeal, vacating the order granting pretrial release of the defendant. The Michigan Court of Appeals did not give any reason for its order vacating the trial court's order granting petitioner's release on bond. In fact, the prosecutor's office had not filed a motion to revoke the bond in the Court of Appeals. After the Court of Appeals' order, the petitioner presented himself to the trial court and was remanded to the custody of the Wayne County Sheriff where he remained at the time of the District Court's opinion.
In reviewing the petitioner's application, the District Court concluded: (1) because the trial court issued an opinion granting the petitioner a new trial and that order was never stayed, the petitioner was in effect a pre-trial detainee, rather than a post conviction detainee; (2) once the trial court vacated the conviction and granted petitioner release on bond, he had a fundamental interest in liberty pending the prosecutor's appeal of the grant of the new trial; and (3) that constitutionally-protected liberty interest was arbitrarily denied and petitioner's right to due process of law was violated when the Michigan Court of Appeals vacated his release on bond without any statement of the reason for the action. Accordingly, the District Court reinstated the Circuit Court order releasing petitioner under bond pending final resolution of the prosecutor's appeal or retrial.
Dwight Carvel Love v. Robert Ficano, Case No. 98-CV-71652-DT, 9/10/98, Tarnow, J. (dkt #22). This article was prepared by William F. Frey, a partner in our Litigation Department, and will appear in the December 1998 edition of the Michigan Bar Journal.