Myers Emergency Order

Case: 19-3158 Document: 33-1 Filed: 06/05/2020 Pages: 9 (1 of 26)
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
No. 19-3158
JOHN MYERS,
Petitioner-Appellee,
v.
RON NEAL,
Warden, Indiana State Prison,
Respondent-Appellant.
Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-2023-JRS-DML
The Honorable James R. Sweeney II, Judge.
EMERGENCY MOTION TO VACATE ORDER RELEASING JOHN MYERS
Respondent Ron Neal files this emergency motion to prevent the release of
Petitioner John Myers from Respondent’s custody on June 15, 2020. Myers, a
convicted murderer, initially agreed that he should remain in custody during
Respondent’s appeal of the district court’s conditional writ of habeas corpus. But he
changed his mind while the parties were preparing for oral argument in this Court,
citing his fear of contracting COVID-19. Three days after oral argument in this
Court, the district court granted Myers’s motion, ordering Myers’s release from
Respondent’s custody on June 15. The district court acted without authority. This
Court should vacate the district court’s order.

BACKGROUND
Myers was convicted of murdering Jill Behrman. After state appellate and
collateral proceedings, the district court conditionally granted a writ of habeas
corpus, “ordering Mr. Myers’s release from custody unless the State elects to retry
Mr. Myers within 120 days of entry of Final Judgment in this action” (ECF No. 60
at 146). Respondent initiated an appeal and filed an unopposed motion for extension
of time to comply with the conditional writ (ECF Nos. 63, 68, 69). The district court
treated Respondent’s motion as a request to stay its order pending the appeal and
granted it on January 24, 2020, staying its judgment for 60 days after the mandate
(ECF No. 70).
On March 27, 2020, this Court scheduled an oral argument for May 26.
Briefing was completed on March 30. On April 7, Myers asked the district court to
release him on bond because he has psoriasis and takes medication that suppresses
an overactive immune system and may increase his risk of contracting COVID-19
(ECF Nos. 72, 73). The district court ordered an expedited briefing schedule (ECF
No. 74). Respondent filed an opposition to Myers’s release on April 13 (ECF No. 76).
The court then waited over a month to issue its order three days after the oral
argument in this case. On May 29, the district court ordered Myers to be released
on bond pending his appeal under the supervision of the United States Probation
Office for the Southern District of Indiana on June 15 (ECF No. 81).
2
ARGUMENT
The Court should vacate the district court’s order.
The Court should vacate the district court’s order granting Myers’s release
because the district court did not have authority to grant it. Under Federal Rule of
Appellate Procedure 23(d), only the judges of this Court or the justices of the
Supreme Court can modify a custody order when a writ of habeas corpus is under
review. Alternatively, even if the district court had authority to modify Myers’s
custody order while this Court is reviewing his conditional writ, it was
inappropriate to do so because the Indiana Department of Correction continues to
address Myers’s concerns.
I.
The district court exceeded its authority.
The district court could not modify its order that Myers remain in custody
while this Court was reviewing the decision to grant Myers habeas relief. Federal
Rule of Appellate Procedure 23(c) authorizes a district court to keep a successful
habeas petitioner in custody during the custodian’s appeal:
While a decision ordering the release of a prisoner is under review, the

prisoner must—unless the court or judge rendering the decision, or the
court of appeals, or the Supreme Court, or a judge or justice of either
court orders otherwise—be released on personal recognizance, with or
without surety.
Fed. R. App. P. 23(c) (emphasis added). The district court exercised its authority to
keep Myers in custody during Respondent’s appeal on January 24, 2020 (ECF No.
70).
3
After a district court exercises its authority under Rule 23(c) to keep the
petitioner in custody pending the custodian’s appeal, it does not have authority to
reverse itself. Only the reviewing court can modify the district court’s order under
Rule 23(d):
An initial order governing the prisoner’s custody or release, including

any recognizance or surety, continues in effect pending review unless
for special reasons shown to the court of appeals or the Supreme Court,
or to a judge or justice of either court, the order is modified or an
independent order regarding custody, release, or surety is issued.
Fed. R. App. P. 23(d) (emphasis added). Under the plain language of Rule 23(d),
only the judges of this Court and the justices of the Supreme Court can modify an
order keeping the petitioner in custody while the order granting habeas relief is
being reviewed. District courts cannot. See, e.g., Woodfox v. Cain, 789 F.3d 565, 568
& n.5 (5th Cir. 2015) (“Rule 23(d) plainly limits the entities that can modify an
initial order or issue an independent order regarding custody to ‘the court of appeals
or the Supreme Court, or to a judge or justice of either court.’”).
The district court misread the plain language of Rule 23(d). It read the final
phrase, “or an independent order regarding custody, release, or surety is issued,” as
granting it authority to modify Myers’s custody (ECF No. 81 at 2). But such a
reading is grammatically impossible without a comma between “modified” and “or.”
Without a comma, “for special reasons shown to the court of appeals or the Supreme
Court” cannot be separated from “an independent order regarding custody, release,
or surety.” In other words, this Court and the Supreme Court can modify a custody
order or issue an independent custody, release, or surety order for special reasons.
4
But the district court cannot. Unlike Rule 23(c), which expressly authorizes district
courts to act, Rule 23(d) does not.
After the district court exercised its Rule 23(c) authority to keep Myers in
custody during Respondent’s appeal, it did not have authority to reverse itself.
Myers needed to petition this Court or the Supreme Court to exercise its Rule 23(d)
authority. The district court exercised authority that it did not have. This Court
should vacate the district court’s order.
II.
There was no reason to lift the stay.
Even if the district court possessed the authority to reverse itself in that
manner, then this Court should vacate the district court’s order pursuant to its Rule
23(d) authority. This case has already been submitted to this Court for review, and
a resolution is imminent. There were no compelling reasons for the district court to
upset the status quo by letting Myers go home when he might have to promptly
return to prison.
Myers’s fear of COVID-19 does not change the stay factors in his favor. There
are four traditional factors for determining whether to release a state prisoner
during an appeal of the district court’s order granting habeas relief:
(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 a stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). After the court that grants habeas
relief determines that the prisoner should remain in custody during the appeal
5
under Rule 23(c), “Rule 23(d) creates a presumption of correctness” for the court’s
order. Id. at 774. To overcome that presumption, the prisoner must show the
(appellate) court “special reasons.” Fed. R. App. P. 23(d); Braunskill, 481 U.S. at
774; see also 2 Randy Hertz & James S. Liebman, Fed. Habeas Corpus Prac. & Proc.
§ 36.4[b] (7th ed. 2019) (“In this context, ‘special reasons’ warranting modification of
a prior custody order seem to refer either to clear error or abuse by the district court
or to the existence of preciously unconsidered circumstances relevant to the [factors
considered in the initial determination].”).
Myers did not show special reasons to reconsider the district court’s order
granting a stay. He agreed that continued custody was appropriate at the beginning
of the year, implicitly acknowledging that the Braunskill factors favored
Respondent. As support for his change of heart less than three months later, he
identified COVID-19 as the only “special reason” to justify release. He therefore
waived any arguments that are not related to COVID-19 and should not get a
second chance to make arguments that he could have made before—especially at
this late stage of the appeal. See, e.g., United States v. Addison, 803 F.3d 916, 919
(7th Cir. 2015) (quoting United States v. Fulford, 980 F.2d 1110, 1116 (7th Cir.
1992)) (“‘It is well-settled that where error is invited, not even plain error permits
reversal.’”). He did not make any COVID-19 arguments to address Respondent’s
likelihood of success on the merits or Respondent’s injury absent a stay.
Myers made COVID-19 arguments for two of the factors, but they do not
amount to a special reason to reconsider custody. First, the stay will not
6
substantially injure him because the Indiana Department of Correction (IDOC) is
addressing each of his concerns. He cited his higher risk for infection because he
takes medication for his psoriasis that might suppress his immune system (ECF No.
73 at 23).1 According to Myers, he has been taking his medication for five years,
while he has been in what he calls a “tinderbox[] for infectious disease” (ECF No. 73
at 23) (internal quotation marks and citation omitted), apparently without issue.
But he did not explain how COVID-19 increases his risk of infection now.
Even so, Myers did not suggest that the IDOC is not aware of his particular
situation or that the IDOC’s procedures and protocols are insufficient to minimize
his risk of contracting COVID-19. See generally IDOC, Preparedness and Response
Plan (Pandemic Response) (Mar. 3, 2020), https://www.in.gov/idoc/files/IDOC%20
Pandemic%20Response%20Plan%203-3-2020.pdf#response%20plan. His
prescription must be authorized by the prison, so the staff is familiar with his
medication and any possible side effects. The IDOC will continue to manage Myers’s
individual medical needs as it has done. And the IDOC recognizes that inmates
with medication-induced immunosuppression are high risk. Id. at 2–3. Given the
IDOC’s increased awareness and precaution, along with Myers’s ready access to
1 The website that he relied on states that “[m]ethotrexate works by suppressing the
overactive immune system that causes psoriasis.” Am. Acad. of Dermatology,
Psoriasis Treatment: Methotrexate, https://www.aad.org/public/diseases/psoriasis/
treatment/medications/methotrexate (last visited Apr. 11, 2020). It does not state
that methotrexate suppresses the immune system below normal levels.
7
medical care, he has not shown that remaining in prison is more dangerous than
relocating to a place with uncertain protection and access to medical care.
Myers also suggested without evidence that he cannot “practice the sorts of
hygiene and social distancing techniques recommended by the CDC and state and
federal officials to minimize his risk” if he remains in prison (ECF No. 73 at 17).
That suggestion is starkly refuted by the Pandemic Response. The IDOC’s detailed
plan for combatting COVID-19 includes measures for primary prevention,
environmental management, and surveillance activities. Id. at 4–9. The primary
prevention measures specifically include guidelines for “Cough Etiquette” and
“Hand Hygiene.” Id. at 4–6. The plan also specifically “[i]mplement[s] social
distancing” and follows the guidelines of the World Health Organization, the
Centers for Disease Control and Prevention, and the Indiana State Department of
Health. Id. at 2, 4, 5, 9. In prison, Myers must “practice the sorts of hygiene and
social distancing techniques recommended by the CDC and state and federal
officials to minimize his risk” of contracting COVID-19 (ECF No. 73 at 17). Unlike
the rest of the state, which is relaxing its protective measures, the IDOC’s stringent
measures continue.
The time between when Myers will be released and when this Court will
issue its decision supports maintaining the status quo. If this Court reverses the
district court’s order granting a conditional writ, then Myers will be returned to
custody to serve his sentence. The IDOC has protected Myers during the pandemic
8
and will continue to do so. He agreed that the initial decision for him to remain in
custody was correct. It still is.
CONCLUSION
The Court should vacate the district court’s order releasing Myers from
Respondent’s custody.
Respectfully submitted,
Andrew A. Kobe
Section Chief, Criminal Appeals
By: /s/ Jesse R. Drum

Jesse R. Drum
Supervising Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South
302 West Washington Street, Fifth Floor
Indianapolis, Indiana 46204-2770
317-234-7018 (telephone)
Jesse.Drum@atg.in.gov
Attorneys for Appellee
CERTIFICATE OF SERVICE
I certify that the foregoing document was electronically filed and served upon
the following CM/ECF participants on June 5, 2020:
Marie F. Donnelly
Clifford W. Berlow
Faaris Akremi
/s/ Jesse R. Drum

Jesse R. Drum
9
Case 1:16-cv-02023-JRS-DML Document 81 Filed 05/29/20 Page 1 of 17 PageID #: 1683
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN MYERS, )
)
Petitioner, )
)
v. ) No. 1:16-cv-02023-JRS-DML
)
SUPERINTENDENT, Indiana State Prison, )
)
Respondent. )
ORDER ON MOTION FOR RECONSIDERATION

AND FOR RELEASE ON BOND PENDING APPEAL
Mr. Myers's conviction has been vacated, and he has now, for the first time, requested
release pending appeal. Under such circumstances, the law affords Mr. Myers the presumption
that he should be released, and the State has failed to offer anything of substance to overcome that
presumption.
After this Court granted Mr. Myers's petition for writ of habeas corpus and ordered the
respondent to either release or retry Mr. Myers within 120 days of final judgment, the respondent
moved to extend the time to comply with the writ to within 60 days of issuance of the appellate
mandate. Dkt. 68. Mr. Myers did not oppose the motion. Dkt. 69. Because granting the motion
would have required this Court to reissue final judgment, the Court instead construed the
respondent's motion as a motion to stay the Court's decision pending appeal and granted the
motion. Dkt. 70. Because the motion was unopposed, and the parties had not briefed the factors
governing whether a stay was appropriate, the Court did not analyze them.
On April 7, 2020, Mr. Myers filed a motion to reconsider the Court's Order staying
its decision. Dkt. 72. Mr. Myers suffers from psoriasis and is prescribed Methotrexate to treat it.
Dkt. 73-1. He argues that the medication suppresses his immune system making him more
vulnerable to complications from Covid-19 and that the current pandemic warrants reconsideration
of the Court's prior Order. He requests release pending his appeal. 1
I. Rule 23(d) and This Court's Authority to Decide the Pending Motion
The respondent argues that this Court cannot modify its prior custody order while the case
is on appeal. This argument is based on Rule 23(d) of the Federal Rules of Appellate Procedure
which states that:
An initial order governing the prisoner's custody or release, including any

recognizance or surety, continues in effect pending review unless for special
reasons shown to the court of appeals or the Supreme Court, or to a judge or justice
of either court, the order is modified or an independent order regarding custody,
release, or surety is issued.
(emphasis supplied).
Both parties argue that the plain language of the rule supports their position. The Rule
indicates that only the Court of Appeals or Supreme Court can review or modify an initial custody
order, but it is unclear whether a district court can issue an independent order altering its initial
custody decision.
When ruling on Mr. Myers's petition, this Court granted a conditional writ. That initial
ruling—that the government must either release or retry Mr. Myers within 120 days of final
judgment—was not an initial determination on the merits of Mr. Meyers's custody on appeal.
The respondent's motion to extend the deadline for releasing or retrying Mr. Myers focused
on the retrial aspects of the conditional writ, rather than on the question of whether Mr. Myers
should be released pending appeal. The respondent's motion argued that it would waste state
resources to initiate new trial proceedings while on appeal before the Seventh Circuit because, if
the Seventh Circuit reversed this Court, then no retrial would be needed. The respondent also
1
Oral Argument before the Seventh Circuit occurred on May 26, 2020.
2
argued that if the state initiated new state proceedings against Mr. Myers, he would need separate
defense counsel for the state proceedings and conflicts of interest could develop between his state
criminal defense attorneys and his federal appellate attorneys. These concerns were abated by
staying implementation of the Court's judgment, but they would still be abated if Mr. Myers were
released pending appeal. In other words, the question of when the state must initiate new trial
proceedings can be separated from the issue of whether Mr. Myers should be released pending
appeal. See Hampton v. Leibach, 2001 WL 1618737, *2 (N.D. Ill. Dec. 18, 2001) ("The Court
agrees that it is appropriate to permit the state to defer its decision whether to retry Hampton until
the conclusion of the appeal—thus resolving respondent's primary claim of irreparable injury—
but that does not govern whether Hampton should be released pursuant to Rule 23(c) while
respondent's appeal is pending."). Because the parties never briefed the question of release on
appeal, the Court explicitly did not analyze the factors to make that determination in its prior Order.
Furthermore, this new motion from Mr. Myers is his first request for release pending appeal.
Therefore, it is fair to say that the Court has not made an initial determination on the merits
regarding Mr. Myers's custody on appeal.
Nevertheless, even if the Court's prior Order staying its judgment is construed as an initial
custody order, the Court has authority to issue a new Order.
The Seventh Circuit has not addressed this exact question. But other circuits have
concluded that the district court retains the power to "issue orders respecting custody or
enlargement of the petitioner at least until a party seeks a modification or change of such an order
by motion in the court of appeals." Jago v. U.S.Dist.Ct., N.Dist. of Ohio, 570 F.2d 618, 626
(6th Cir. 1978); accord United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 742-43 (3d Cir.
3
1973); Stein v. Wood, 127 F.3d 1187, 1190 (9th Cir. 1997). 2 In Jago, the district court first
denied the petitioner's motion for bail after granting his habeas petition. It then granted a second
motion for bail after the respondent had appealed the district court's grant of the writ.
The Sixth Circuit reiterated its position in 1992:
In the context of habeas proceedings, specifically, we have recognized that, even

after an appeal has been taken from the district court's order granting or denying a
habeas petition, the district court retains some jurisdiction to issue orders regarding
the custody or enlargement of the defendant pending review. Jago v. U.S. Dist. Ct.,
N. Dist. of Ohio, 570 F.2d 618, 623 (1978). The district court retains such
jurisdiction because "the question concerning the physical custody of the defendant
pending further review does not affect the matters involved in the appeal itself." Id.
at 622. (emphasis added).
Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992).
The Seventh Circuit has cited Jago approvingly for the proposition that "federal courts
have inherent authority to allow petitioners for federal habeas corpus to be released on bail."
Bolante v. Keisler, 506 F.3d 618, 619–20 (7th Cir. 2007); see also Cherek v. United States, 767
F.2d 335, 337 (7th Cir. 1985). But the Seventh Circuit has not ruled on the question of whether the
district court can issue a second order on custody under Rule 23(d).
An Eastern District of Wisconsin case also cited Jago approvingly and held that a district
court can issue multiple orders regarding custody while the case is on appeal. The court also noted
that the district court's first order granting a stay pending appeal was pursuant to Rule 8 rather than
Rule 23:
No such "initial order" has been entered in this matter; the court's stay order of
March 26, 1985, was entered pursuant to Rule 8, Federal Rules of Appellate
Procedure, concerning stays pending appeal, not Rule 23, concerning the custody
of prisoners in habeas corpus proceedings. In any case, during the pendency of the
appeal process the district court retains power to issue more than one order
respecting the custody or enlargement of the successful habeas petitioner.
2
The respondent argues that Stein did not involve a second order from the district court, instead
the district court had authority to determine whether the State had complied with the conditional
writ, but the Stein opinion discusses Jago at length and explicitly adopts its holding.
4
Woods v. Clusen, 637 F. Supp. 1195, 1197 (E.D. Wis. 1986) (citing Jago).
In Dassey v. Dittmann, No. 14-CV-1310, 2016 WL 6684214, at *2 (E.D. Wis. Nov. 14,
2016), the district court considered a request for release pending appeal even though it had
previously stayed its judgment pending appeal. The district court explained:
In Walberg v. Israel, 776 F.2d 134 (7th Cir. 1985), the court of appeals granted the
petitioner's writ of habeas corpus and ordered the state to release him unless it
retried him within 120 days. Id. at 135. However, the court stayed its mandate to
allow the respondent to petition the Supreme Court for certiorari. Id. The state did
so. When the petitioner subsequently sought release pursuant to Rule 23, a dispute
arose as to whether it was for the court of appeals or for the Supreme Court to
decide whether the petitioner should be released in the interim. Id. Despite its stay,
the court of appeals concluded that the issue was for it to decide. Id.
This court likewise concludes that, notwithstanding its stay of its judgment pending
the respondent's appeal, it remains this court's obligation to address in the first
instance whether Dassey should be released while the court of appeals considers
the respondent's appeal.
Dassey, 2016 WL 6684214, at *2.
The respondent cites Woodfox v. Cain, 789 F.3d 565, 568 & n.5 (5th Cir. 2015), for the
proposition that this Court lacks authority to rule on the pending motion. Although the Fifth Circuit
stated in Woodfox that "Rule 23(d) plainly limits the entities that can modify an initial order or
issue an independent order regarding custody to 'the court of appeals or the Supreme Court, or to
a judge or justice of either court,'" the court declined to decide the issue because it had not been
briefed by the parties. The court then assumed that the district court had a "vehicle" for ordering
the petitioner's release. Id.
Although it is an open question in our circuit, the weight of authority supports the district
court's authority to decide the pending motion. Other district courts in our circuit have agreed with
this position. Furthermore, it seems inconsistent for the respondent to argue that this Court had the
power to modify its conditional writ when asked by the respondent to extend Mr. Myers's custody,
5
but no longer has that power when asked to modify its order a second time. For these reasons, the
Court finds that it has the authority to rule on the pending motion whether it is considered an initial
decision on the merits of Mr. Myers's custody or an independent order under Rule 23(d).
II. Legal Standard
"When a district court has granted habeas relief, the petitioner is granted a presumption in
favor of release pending appeal." Etherly v. Schwartz, 590 F.3d 531, 532 (7th Cir. 2009) (citing
O'Brien v. O'Laughlin, 557 U.S. 1301, 1302 (2009), and Hilton v. Braunskill, 481 U.S. 770, 777
(1987)). The state can overcome this presumption "if the traditional factors regulating the issuance
of a stay weigh in favor of granting a stay." O'Brien, 557 U.S. at 1302. The factors used to make
this determination are "(1) whether the state has made a strong showing that it is likely to succeed
on the merits of its appeal; (2) whether the state will be irreparably harmed absent a stay;
(3) whether the issuance of a stay will substantially injure the other parties to the proceeding; and
(4) where the public interest lies." Etherly, 590 F.3d at 532. "Since the traditional stay factors
contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid
rules." 3 Hilton, 481 U.S. at 777.
III. Discussion
Before turning to analyze the Hilton factors, the Court first addresses the respondent's
contention that Mr. Myers has waived any arguments that are not related to COVID-19 because he
did not oppose the respondent's motion to extend the time to comply with the writ. In support of his
argument, the respondent cites Seventh Circuit cases involving invited errors at trial. United States v.
3
Although the respondent argues there has been no change in the analysis of these factors since
the Court's previous ruling, the Court did not analyze these factors in its prior Order because the
respondent had not styled his motion as a motion for a stay, neither party had briefed the factors,
and Mr. Myers did not oppose the motion.
6
Addison, 803 F.3d 916, 919 (7th Cir. 2015) (quoting United States v. Fulford, 980 F.2d 1110, 1116
(7th Cir. 1992)) ("'It is well-settled that where error is invited, not even plain error permits reversal.'").
The respondent's argument is not persuasive. The invited error doctrine counsels against remedying
invited trial errors because to do so would usually involve a mistrial or retrial after appeal—a very
costly remedy for an error created, at least in part, by defense counsel. Here, the only cost is the Court
embarking on the Hilton analysis which it did not do when addressing the respondent's motion for
extension of time. Furthermore, the Court can revisit decided issues in a case when "there is a
compelling reason, such as a change in, or clarification of, law that makes clear that the earlier
ruling was erroneous." United States v. Harris, 531 F.3d 507, 513 (7th Cir. 2008). The Covid-19
pandemic is a compelling reason—one both unforeseen and unforeseeable by Mr. Myers at the
time he chose not to oppose the respondent's motion to extend the time to comply with the writ—to
reconsider Mr. Myers's custody at this time. More specifically, it is a reason, not for release, but
to consider the Hilton factors. Finally, Rule 23 contemplates the possibility of multiple or revised
orders regarding the custody of a habeas petitioner on appeal. For these reasons, the Court will
consider the Hilton factors to determine whether Mr. Myers should be released pending appeal.
A. Likelihood of Success on the Merits
This Court has already addressed the merits of Mr. Myers's claims in a lengthy order issued
on September 30, 2019. Dkt. 60. Given the double deference applied when addressing ineffective
assistance of counsel claims on federal habeas review, this Court did not grant Mr. Myers's habeas
petition lightly and believes its decision to be correct and consistent with the law. Therefore, "any
attempt to predict the likelihood of reversal of its own decision places the Court in the awkward
position of second guessing its own work." Newman v. Harrington, 917 F. Supp. 2d 765, 791 (N.D.
Ill. 2013).
7
The respondent argues that it is likely to succeed on appeal because the state appellate court
reasonably applied Strickland and "there is no clearly established 'cumulative-error doctrine.'"
Dkt. 76 at 11.
To argue for the respondent's likelihood of success on the merits, the respondent reiterates
the arguments he previously raised in this Court against Mr. Myers's petition. The Court is not
persuaded by these arguments, particularly the argument that there is no clearly established
"cumulative-error doctrine." The Seventh Circuit has repeatedly held that the prejudice resulting
from multiple instances of deficient performance must be considered together. Sussman v. Jenkins,
636 F.3d 329, 360-61 (7th Cir. 2011) (explaining that when faced with multiple errors by counsel,
the Court "must consider the[ir] cumulative impact" to determine prejudice); Martin v. Grosshans,
424 F.3d 588, 592 (7th Cir. 2005) ("even if [counsel's] errors, in isolation, were not sufficiently
prejudicial, their cumulative effect" can amount to prejudice under Strickland); Goodman v.
Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) ("the pattern of counsel's deficiencies must be
considered in their totality"); Raether v. Meisner, 608 F. App'x. 409, 415 (7th Cir. 2015) ("The
state court examined the prejudice flowing from each alleged error individually, but the correct
question is whether [the defendant] was prejudiced by counsel's errors in the aggregate.").
To the extent this Court should assess the respondent's further assertion that if the
respondent loses on appeal before the Seventh Circuit, the State is likely to succeed when retrying
Mr. Myers, the Court notes the extensive discussion of the admissible evidence against Mr. Myers
in its Order granting Mr. Myers's petition. The Court concluded that the evidence against Mr.
Myers was "far from overwhelming." Dkt. 60 at 113. "Other than [a jailhouse informant's]
testimony, there was no direct evidence linking Mr. Myers to the crime; there were no witnesses
that ever saw Mr. Myers with Ms. Behrman; there was no physical evidence linking Mr. Myers to
8
the crime; and, had the rape evidence been properly excluded, there was no evidence that Mr.
Myers had any motive to kill Ms. Behrman." Id.
The respondent's assertion that the State is likely to convict Mr. Myers in a retrial is
speculative at best.
The Supreme Court has highlighted the importance of the factor of likelihood of success
on the merits: "[t]he balance may depend to a large extent upon determination of the State's
prospects of success in its appeal. Where the State establishes that it has a strong likelihood of
success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the
merits, continued custody is permissible if the second and fourth factors in the traditional stay
analysis militate against release." Hilton, 481 U.S. at 778.
The respondent has failed to make a strong showing that he is likely to succeed on the
merits. He has reiterated the arguments previously raised before this Court and questioned the
viability of the Court's cumulative error analysis. Because the Court finds that the cumulative error
argument lacks merit, the respondent is left with simply arguing that the Seventh Circuit will
review the case de novo and apply AEDPA deference to the state court's ruling. This alone is not
enough to show that the respondent has even a substantial case on the merits.
All successful petitioners face de novo review on appeal, and with the "double deference"
of AEPDA and Strickland review. But these legal standards alone do not rebut the Rule 23(c)
presumption of release. Otherwise, nearly every respondent appealing a grant of habeas relief
would have a substantial case on the merits and the presumption would be all but eliminated.
B. Irreparable Harm to the State
In Hilton, the Supreme Court noted three factors to consider when assessing whether the
State will suffer irreparable harm without a stay: the possibility of the petitioner fleeing, the risk
9
that he will pose a danger to the public, and the State's interest in continuing custody pending
appeal. 481 U.S. at 777. As for the last factor, the Hilton court noted that the State's interest in
continuing custody "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.
The respondent only briefed the third of these factors. He argues that because Mr. Myers
has served less than half of his lengthy sentence, the State has an "interest in continuing custody
and rehabilitation pending a final determination of the case on appeal." Dkt. 76 at 12 (quoting
Braunskill, 481 U.S. at 777). Assuming the State has a strong interest in this factor, the respondent
has failed to address the other two factors or to raise any other argument that the State will suffer
irreparable harm if Mr. Myers is released.
The respondent provided no evidence that Mr. Myers has a criminal record apart from the
vacated conviction or that he has been violent in prison. Mr. Myers asserts that he has no record
of violence in prison. Dkt. 73 at 25. Other than a mention on direct appeal that at some point Mr.
Myers was held in the Monroe County Jail on an unrelated charge, there is no evidence in the
record of Mr. Myers's criminal history or conduct record in prison. Therefore, the Court cannot
conclude that he would be a danger to the public.
Mr. Myers states that upon release he will live with his mother who resides in Ellettsville,
Indiana. Other members of Mr. Myers's family also live in Ellettsville. The respondent has
provided no evidence that Mr. Myers is a flight risk. Furthermore, "if he were to flee and become
a fugitive while an appeal is pending, controlling law would result in this [C]ourt's judgment being
vacated, and his ... conviction[s] and sentence being reinstated despite his claims of innocence."
Watkins v. Miller, 2000 WL 680418 (S.D. Ind. May 16, 2000) (citing Dently v. Lane, 720 F.2d 472
(7th Cir. 1983)). "To the extent that a risk of non-appearance is inherent whenever a person faces
10
a lengthy period of incarceration, these risks can be appropriately mitigated through routine
conditions of release." Dassey, 2016 WL 6684214, at *5 (citing Newman, 917 F. Supp. 2d at 790).
Overall, the respondent has not made a strong showing that the State will suffer irreparable
harm if Mr. Myers is released pending appeal.
C. Substantial Harm to the Petitioner
"The interest of the habeas petitioner in release pending appeal, always substantial, will be
strongest where the factors mentioned in the preceding [section] are weakest." Hilton, 481 U.S. at
777. Here, Mr. Myers enjoys the usual substantial interest a petitioner in Mr. Myers's shoes has
in release pending appeal. Given the respondent's weak showing of likelihood of success on the
merits or of irreparable harm, this is enough. The worldwide Covid-19 pandemic and the
documented presence of Covid-19 in the prison population of Indiana State Prison where Mr.
Myers is incarcerated pose additional risk of potential though not dispositive harm. Although this
is a factor that merely bolsters the conclusion that Mr. Myers has a substantial interest in release
pending appeal, it is an unusual and unforeseen factor worthy of some discussion.
The respondent argues both that Mr. Myers is safer in prison than in the community and
that he could potentially get Covid-19 in prison before his release and then spread it to the
community of Ellettsville. Dkt. 76 at 7-9. If these contradictory arguments do not completely
cancel each other out, then the latter at least substantially undercuts the former.
Data from the Indiana Department of Correction website shows that three inmates have
tested positive for Covid-19 and are in isolation. IDOC Facility Covid-19 Statistics, available at
https://www.in.gov/idoc/3780.htm (last visited May 20, 2020). Ellettsville, Indiana, is located in
Monroe County which has reported 152 cases of the disease. Indiana Covid-19 Data Report,
available at www.coronavirus.in.gov (last visited May 20, 2020). These data points do not clearly
11
indicate whether Mr. Myers would be safer from Covid-19 in prison or in the wider community,
however it is generally understood that prisons are less equipped to meet Centers for Disease
Control & Prevention guidelines to prevent the spread of infection than individuals living in a
home environment. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-
19) in Correctional and Detention Facilities, Ctrs. for Disease Control & Prevention (Mar. 23,
2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-
correctional-detention.html (last visited May 20, 2020) ("Incarcerated/detained persons live,
work, eat, study, and recreate within congregate environments, heightening the potential for
COVID-19 to spread once introduced.").
The respondent argues that Methotrexate may reduce the activity of one's immune system
without lowering it below a normal level, but the website cited by both Mr. Myers and the
respondent states that "Methotrexate can reduce your body's ability to fight infections." Psoriasis
Treatment: Methotrexate, Am. Academy of Dermatology,
https://www.aad.org/public/diseases/psoriasis/treatment/medications/methotrexate (last visited
Apr. 26, 2020). The parties have provided limited evidence in support of their opposing views on
this issue, perhaps because much remains unknown about Covid-19 and how immunosuppressant
drugs, like Methotrexate, impact a person's ability to respond to the disease. Nonetheless, the Court
concludes that Mr. Myers has a substantial interest in release pending appeal of the grant of his
habeas petition. Although the Court lacks sufficient information to quantify with much specificity
the impact of Covid-19 on Mr. Myers's interest in release, it is sufficient to say that the existence
of the disease in his prison facility and his use of Methotrexate heighten his already substantial
interest in release.
12
D. Public Interest
The respondent devotes one sentence in his brief to the question of public interest: "The
public interest is better served by keeping a convicted murderer in prison to shelter in place than
releasing him into the community." Dkt. 76 at 12. While the State and public have an obvious
interest in incarcerating persons convicted of violent crimes, if the fact of Mr. Myers's vacated
conviction was all that was necessary to overcome Rule 23(c)'s presumption in favor of release,
the presumption would be meaningless. Dassey, 2016 WL 6684214, at *4; Hampton v. Leibach,
2001 WL 1618737 (N.D. Ill. Dec. 18, 2001). Moreover, as much as public interest favors
incarcerating the convicted, it also favors ensuring that persons are not detained in violation of the
Constitution.
The court is also mindful that because a jury rendered a judgment of conviction against
Mr. Myers, his release pending appeal warrants special consideration. Indeed, the Supreme
Court in Hilton went on to note "a successful habeas petitioner is in a considerably less favorable
position than a pretrial arrestee . . . to challenge his continued detention pending appeal. Unlike a
pretrial arrestee, a state habeas petitioner has been adjudged guilty beyond a reasonable doubt by
a judge or jury, and this adjudication of guilt has been upheld by the appellate courts of the
State." Hilton, 481 U.S. at 779. While this court has determined habeas relief is appropriate
here, "that determination itself may be overturned on appeal before the State must retry the
petitioner." Id. Thus, the Due Process Clause does not "prohibit a court from considering, along
with the other factors that we previously described, the dangerousness of a habeas petitioner as
part of its decision whether to release the petitioner pending appeal." Id. Yet, as noted above, the
State has offered no independent evidence that Mr. Myers poses any particular danger to the
community beyond the conviction itself.
13
IV. Conclusion
"Where the State establishes that it has a strong likelihood of success on appeal, or where,
failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is
permissible if the second and fourth factors in the traditional stay analysis militate against release.
Where the State's showing on the merits falls below this level, the preference for release should
control." Hilton, 481 U.S. at 778 (citations omitted). That is the case here.
The court granted Mr. Myers's petition and ordered that he be released or retried. There is
a presumption that successful habeas petitioners should be released while the respondent appeals
that decision. The respondent has failed to rebut that presumption. The respondent has not
demonstrated that he has a strong likelihood of success on appeal, nor that he has a substantial case
on the merits. The respondent does not argue that Mr. Myers poses a risk of flight or a danger to
the community. The respondent has not shown that the State will be irreparably harmed by
Mr. Myers's release or that the public interest lies in favor of his continued incarceration pending
appeal. Therefore, Mr. Myers's motion, dkt. [72], is granted to the extent the Court orders his
conditional release from the custody of the respondent.
Because an appeal is pending and Mr. Myers may be required to serve the remainder of his
sentence or otherwise appear for legal proceedings, the Court will impose conditions upon his
release consistent with those routinely imposed in analogous circumstances. Although the
respondent does not request that the court order that Mr. Myers be subject to any formal
supervision, the Court orders that Mr. Myers be supervised by the United States Probation Office
for the Southern District of Indiana. Courts routinely order such supervision when persons are
released under Fed. R. App. P. 23. See, e.g., Dassey, 2016 WL 6684214; Harris v. Thompson,
No. 12-1088, dkt. 41 at 4−6 (7th Cir. Feb. 20, 2013) (ordering supervision by the United States
14
Probation Office for the Northern District of Illinois); Newman v. Metrish, 300 F. App'x. 342, 344
(6th Cir. 2008); Waiters v. Lee, 168 F. Supp. 3d 447, 455 (E.D.N.Y. 2016); Newman v. Harrington,
917 F. Supp. 2d 765, 792 (N.D. Ill. 2013).
Pursuant to Federal Rule of Appellate Procedure 23(c), Mr. Myers is ordered to be placed
in quarantine for 14 days beginning no later than Monday, June 1, 2020, and continuing up to and
including his release from prison effective at noon Central time on Monday, June 15, 2020, and
shall thereafter be subject to home confinement and supervision by the United States Probation
Office for the Southern District of Indiana on the following conditions:
1. Mr. Myers must make contact with the U.S. Probation Office for the Southern District of
Indiana, 46 E. Ohio St., Room 101, Indianapolis, IN 46204, within 72 hours of his release
from the Indiana Department of Correction facility where he is currently housed—that is,
no later than noon Central time on Thursday, June 18, 2020. He shall continue to report to
the Probation Office periodically as directed by the United States District Court or the
Probation Office.
2. Mr. Myers shall not leave his residence except for verified medical appointments or at the
direction of the Probation office or Court.
3. Mr. Myers shall not commit any federal, state, or local crime.
4. Mr. Myers shall not unlawfully use or possess a controlled substance. The Court may
subsequently order periodic drug testing.
5. Mr. Myers shall not possess a firearm, ammunition, destructive device, or any other
dangerous weapon.
6. Mr. Myers shall appear in court as required and surrender to serve any sentence, as ordered
by a court.
7. Mr. Myers shall not obtain a passport.
8. Mr. Myers shall reside with his mother, Jodie Myers, as third-party custodian and shall
notify the Probation Office at least 10 days prior to any change in residence or employment.
9. Mr. Myers shall have no contact with the family of Jill Behrman.
15
10. Mr. Myers shall not associate with any persons engaged in criminal activity and shall not
associate with any person convicted of a felony, unless granted permission to do so by the
Probation Office.
11. Mr. Myers shall permit a Probation Officer to visit him at any time at home or elsewhere
and shall permit confiscation of any contraband observed in the plain view of the Probation
Officer.
12. Mr. Myers shall notify the Probation Office within 72 hours of being arrested or questioned
by a law enforcement officer.
13. Mr. Myers shall be placed on electronic monitoring under the standard conditions for
electronic monitoring employed by the Probation Office in this district.
14. Mr. Myers shall follow all Center for Disease Control and Prevention guidelines regarding
social distancing.
15. Prior to June 11, 2020, Mr. Myers's counsel shall provide to the Court and the Probation
Office all contact information, including address and telephone number(s), for Jodie
Myers.
IT IS SO ORDERED.
Date: 5/29/2020
Distribution:
Faaris Akremi
JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654
Clifford W. Berlow
JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654
Marie F. Donnelly
ATTORNEY AT LAW
mfdonnelly05@gmail.com
16
Jesse R. Drum
INDIANA ATTORNEY GENERAL
jesse.drum@atg.in.gov
Andrew A. Kobe
INDIANA ATTORNEY GENERAL
andrew.kobe@atg.in.gov
United States Probation Office
17

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Case: 19-3158 Document: 33-1 Filed: 06/05/2020 Pages: 9 (1 of 26)

UNITED STATES COURT OF APPEALS

Appeal from the United States District Court

EMERGENCY MOTION TO VACATE ORDER RELEASING JOHN MYERS

convicted murderer, initially agreed that he should remain in custody during

Court should vacate the district court’s order.

collateral proceedings, the district court conditionally granted a writ of habeas

(ECF No. 70).

The Court should vacate the district court’s order.

inappropriate to do so because the Indiana Department of Correction continues to

address Myers’s concerns.

Rule of Appellate Procedure 23(c) authorizes a district court to keep a successful

habeas petitioner in custody during the custodian’s appeal:

While a decision ordering the release of a prisoner is under review, the

An initial order governing the prisoner’s custody or release, including

or the Supreme Court, or to a judge or justice of either court.’”).

phrase, “or an independent order regarding custody, release, or surety is issued,” as

reading is grammatically impossible without a comma between “modified” and “or.”

courts to act, Rule 23(d) does not.

should vacate the district court’s order.

during an appeal of the district court’s order granting habeas relief:

or to the existence of preciously unconsidered circumstances relevant to the [factors

considered in the initial determination].”).

of the year, implicitly acknowledging that the Braunskill factors favored

identified COVID-19 as the only “special reason” to justify release. He therefore

second chance to make arguments that he could have made before—especially at

reversal.’”). He did not make any COVID-19 arguments to address Respondent’s

likelihood of success on the merits or Respondent’s injury absent a stay.

substantially injure him because the Indiana Department of Correction (IDOC) is

Plan (Pandemic Response) (Mar. 3, 2020), https://www.in.gov/idoc/files/IDOC%20

relocating to a place with uncertain protection and access to medical care.

plan for combatting COVID-19 includes measures for primary prevention,

environmental management, and surveillance activities. Id. at 4–9. The primary

prevention measures specifically include guidelines for “Cough Etiquette” and

custody was correct. It still is.

By: /s/ Jesse R. Drum

OFFICE OF THE ATTORNEY GENERAL

Attorneys for Appellee

the following CM/ECF participants on June 5, 2020:

/s/ Jesse R. Drum

UNITED STATES DISTRICT COURT

ORDER ON MOTION FOR RECONSIDERATION

of the Court's prior Order. He requests release pending his appeal. 1

which states that:

An initial order governing the prisoner's custody or release, including any

regarding Mr. Myers's custody on appeal.

custody order, the Court has authority to issue a new Order.

The Sixth Circuit reiterated its position in 1992:

In the context of habeas proceedings, specifically, we have recognized that, even

Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992).

Dassey, 2016 WL 6684214, at *2.

the petitioner's release. Id.

II. Legal Standard

rules." 3 Hilton, 481 U.S. at 777.

A. Likelihood of Success on the Merits

reasonably applied Strickland and "there is no clearly established 'cumulative-error doctrine.'"

Myers had any motive to kill Ms. Behrman." Id.

analysis militate against release." Hilton, 481 U.S. at 778.

B. Irreparable Harm to the State

irreparable harm if Mr. Myers is released.

conclude that he would be a danger to the public.

harm if Mr. Myers is released pending appeal.

C. Substantial Harm to the Petitioner

pending appeal, it is an unusual and unforeseen factor worthy of some discussion.