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Zagorski v. Mays

United States Court of Appeals, Sixth Circuit

October 10, 2018

Edmund Zagorski, Petitioner-Appellant,
v.
Tony Mays, Warden, Respondent-Appellee.

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:99-cv-01193-Aleta Arthur Trauger, District Judge.

         ON MOTION AND REPLY:

          Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

         ON RESPONSE:

          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.

          ORDER

          GRIFFIN, CIRCUIT JUDGE.

         The 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 execution stayed.

         A 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).

         The 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.

         On 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 issues:

[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 pauperis.

         Petitioner 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.

         Federal 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 ...


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