from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:99-cv-01193-Aleta Arthur
Trauger, District Judge.
MOTION AND REPLY:
R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
Michael M. Stahl, John H. Bledsoe, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
Before: COLE, Chief Judge; COOK and GRIFFIN, Circuit Judges.
GRIFFIN, CIRCUIT JUDGE.
State of Tennessee has scheduled petitioner Edmund
Zagorski's execution for tomorrow, October 11, 2018 at
7:00 p.m. He moves this court for a stay of execution. For
the reasons that follow, we GRANT
petitioner's motion and hereby ORDER the
Tennessee jury found petitioner guilty of two counts of
first-degree murder and imposed a death sentence. Zagorski
was unsuccessful in direct and post-conviction proceedings in
state court, State v. Zagorski, 701 S.W.2d 808
(Tenn. 1985), Zagorski v. State, No.
01C01-9609-CC-00397, 1997 WL 311926 (Tenn. Crim. App. June 6,
1997), aff'd, 983 S.W.2d 654 (Tenn. 1998), and
in habeas proceedings. Zagorski v. Bell, 326
Fed.Appx. 336 (6th Cir. 2009).
present appeal stems from the Supreme Court's decision in
Martinez v. Ryan, 566 U.S. 1 (2012), in which the
Supreme Court held that "[i]nadequate assistance of
counsel at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of a
claim of ineffective assistance at trial." Id.
at 9. Zagorski wishes to leverage Martinez (and the
Supreme Court's expansion of Martinez in
Trevino v. Thaler, 569 U.S. 413 (2013)), to reopen
three procedurally defaulted habeas claims.
September 12, 2018, the district court denied
petitioner's Rule 60(b) motion for relief from judgment.
In denying the motion, the district court correctly
highlighted that Martinez and Trevino,
"alone, are not extraordinary circumstances warranting
relief from a final judgment in a habeas corpus action."
(Citing Miller v. Mays, 879 F.3d 691, 698-99 (6th
Cir. 2018)). Yet, the district court recognized the issues
presented in petitioner's motion were not frivolous and
were raised in good faith. Further, the district court ruled
that Zagorski made a substantial showing of the denial of a
constitutional right under 28 U.S.C. § 2253(c)(2). The
court held that reasonable minds could differ on the issues
raised and thus granted a certificate of appealability on two
[P]etitioner's motion raises a question about whether
Martinez applies in conjunction with Edwards v.
Carpenter, 529 U.S. 446 (2000), to excuse the default of
underlying substantive claims, which has never been addressed
by a federal appellate court. He also raises a non-frivolous
claim of ineffective assistance of trial counsel. The
court's disposition of both of those issues, and whether
they might merit relief in combination with
Martinez, are reasonably debatable. Because an
appeal from this order would not be in bad faith, the court
also GRANTS the petitioner permission to appeal in forma
filed a timely appeal on October 5, 2018. He then filed
concurrent motions to stay the execution in the district
court and in this court. Yesterday, the district court denied
Zagorski's motion to stay his execution.
courts have the authority to stay an execution when a
"habeas corpus proceeding is . . . pending appeal."
28 U.S.C. § 2251(a)(1). We generally apply a four-factor
test in deciding whether to grant a stay: "1) whether
there is a likelihood he will succeed on the merits of the
appeal; 2) whether there is a likelihood he will suffer
irreparable harm absent a stay; 3) whether the stay will
cause substantial harm to others; and 4) whether the
injunction would serve the public interest." Workman