           IN THE UNITED STATES COURT OF APPEALS of Appeals
                                           United States Court
                                                    Fifth Circuit
                    FOR THE FIFTH CIRCUIT        FILED
                                                                        December 12, 2008

                                                                      Charles R. Fulbruge III
                                       No. 08-30958                           Clerk


ALBERT WOODFOX

                                                  Petitioner - Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                                  Respondent - Appellant



               Appeal from the United States District Court for the
                          Middle District of Louisiana
                                No. 06-789-JJB


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Before the court is the Emergency Motion for Stay of Release Order filed
by respondent-appellant Warden Burl Cain (the Warden or the State), which
seeks to have petitioner-appellee Albert Woodfox remain in custody pending
review of the district court’s final judgment granting Woodfox habeas corpus
relief. For the reasons stated below, we grant the motion.
       This court reviews a district court’s order regarding custody pending
appeal of a successful habeas corpus petition pursuant to Rule 23(d) of the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                         No. 08-30958

Federal Rules of Appellate Procedure. The district court’s order continues in
effect unless the movant can show “special reasons.” FED. R. APP. P. 23(d).1
       Rule 23(c) of the Federal Rules of Appellate Procedure creates a rebuttable
presumption that a prisoner who has received habeas relief will be released
pending appeal. In Hilton v. Braunskill, the Supreme Court set forth the factors
that a court should consider in determining whether to enlarge the prisoner or
continue custody. 481 U.S. 770 (1987). The Court drew upon the traditional
factors for a stay pending appeal: (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. These factors are not exclusive:
           [I]f the State establishes that there is a risk that the prisoner will
           pose a danger to the public if released, the court may take that
           factor into consideration in determining whether or not to enlarge
           him. The 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 778.
       As the Court recognized in Hilton, an appellate court asked to modify
(here, to stay) an initial custody determination pursuant to Rule 23(d) also looks
to the traditional stay factors. We proceed to the most important, whether the

       1
          The Court in Hilton v. Braunskill held that “Rule 23(d) creates a presumption of
correctness for the order of a district court entered pursuant to Rule 23(c), whether that order
enlarges the petitioner or refuses to enlarge him, but this presumption may be overcome in the
appellate court ‘for special reasons shown.’” 481 U.S. 770, 775 (1987). At the time Hilton was
decided, Rule 23(d) stated that the district court order “shall govern review” in this court. After
an amendment in 1998, Rule 23(d) now states that the district court order “continues in effect
pending review.” We assume without deciding that this alteration does not change the
presumption of correctness which this court must afford the district court’s custody
determination. However, as described herein, we find that this presumption has been
overcome.

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applicant (the State) has shown a likelihood of success on the merits. The Court
in Hilton also recognized that the applicant need not always show a likelihood
of success on the merits. The prisoner should remain in custody if the State can
“demonstrate a substantial case on the merits” and the other factors militate
against release. Id. (citing O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982);
Ruiz v. Estelle, 650 F.2d 555, 565-66 (5th Cir. 1981)). While we are not now
convinced that the State has established a likelihood of success on the merits,
it has at least shown that it presents a substantial case. Accordingly, we
consider the other factors in Hilton.
      The Court acknowledged that the interest of a successful habeas petitioner
in being released pending appeal is “always substantial.” Hilton, 481 U.S. at
777. Accepting that, we move on to analyze the strength of the other factors,
particularly the risk of danger to the public. The only testimony on whether
Woodfox poses a threat of danger was the deposition of Warden Cain, who
testified about his impressions of Woodfox’s character and Woodfox’s disciplinary
record while in prison. The Warden stated his belief that Woodfox has not been
rehabilitated and still poses a threat of violence to others. The district court
found Woodfox’s recent prison record more persuasive than the violent incidents
in his past. Although the Warden agreed in a previous deposition that Woodfox
had an excellent record during the last five years, he unequivocally stated, in the
deposition submitted to the district court in connection with Woodfox’s motion
for release pending appeal, that he believed, based upon Woodfox’s entire history
and the particular circumstances surrounding the case, that Woodfox is still too
dangerous to be allowed into the general population at the prison or into the
public at large. Accordingly, this factor weighs in favor of continuing custody.
Additionally, Hilton recognizes that the State has a strong interest in continuing
custody where there is a long period left on the prisoner’s sentence. Woodfox is




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serving a life sentence and, therefore, the State’s interest in continuing custody
should be given substantial weight.
      Because the State has shown a substantial case on the merits and the
remaining factors weigh against release, we GRANT the Emergency Motion for
Stay of Release Order. The district court’s order entered on November 25, 2008
granting Woodfox’s motion for release pending the State’s appeal of the grant of
habeas relief is STAYED. We order that the State’s appeal be expedited and that
the case be placed on the March oral argument calendar.
      STAYED. APPEAL EXPEDITED.
      DENNIS, Circuit Judge, concurs but notes that if the district court’s grant
of habeas corpus relief is ultimately affirmed, the State should be prepared to
retry the petitioner with the greatest expedition possible thereafter.




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