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Emergency Motion for Immediate Release

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No. 18-13524
Crosley Green—who was granted habeas relief by the District Court below,
who stands before the Court not convicted of anything, and who is 62 years old—is
quarantined in a Florida state prison dormitory room because an inmate in the same
dorm just this week tested positive for COVID-19.1 If Mr. Green dies of COVID-
19 while awaiting this Court’s judgment, it will be a miscarriage of justice of
unconscionable proportions.
To date, 64 inmates of the Calhoun Correctional Institute (“CCI”) where Mr.
Green is imprisoned have tested positive for the novel coronavirus, all of which
1 Declaration of Keith J. Harrison, attached hereto as Exhibit A, at ¶¶4-6.
Case: 18-13524 Date Filed: 08/07/2020 Page: 1 of 31
have been confirmed in just the past week.2 As the Centers for Disease Control
and Prevention (“CDC”) explained, “People in correctional and detention facilities
are at greater risk for some illnesses, such as COVID-19, because of close living
arrangements with other people.”3 Due to his age and other factors, Mr. Green is at
an extremely high risk of death or severe, permanent health impairment if he
contracts the virus.
This Court has jurisdiction over the pending appeal. This emergency motion
is filed pursuant to 11th Circuit Rule 27-1(b) because Mr. Green is at significant
risk of becoming infected with COVID-19 and dying, rendering this appeal—and
the District Court’s habeas grant—moot. Mr. Green asks this Court to exercise its
power under Federal Rule of Appellate Procedure 23(d) to grant his release from
potential forcible exposure to COVID-19 pending the conclusion of this appeal
(and potential retrial) by modifying the District Court’s custody order or by issuing
an “independent order” to that effect. The reasons stated by the District Court for
keeping Mr. Green confined no longer exist and are overshadowed by the potential
effect of keeping Mr. Green imprisoned in close contact with COVID-19-positive
Nearly two years after the District Court ordered Mr. Green to remain in
prison pending appeal, the novel coronavirus is now spreading like wildfire
through the prison in which Mr. Green is confined. The very real and imminent
risk of Mr. Green dying of a pandemic sweeping his prison while he awaits
affirmance by this Court is a perfect example of why Rule 23(d) exists; these are
the sort of “special reasons” that allow this Court to release Mr. Green pending this
Court’s ruling. Mr. Green requests this Court act on his behalf now, and soon.
Counsel for Appellee-Petitioner Crosley Green, pursuant to 11th Cir. R. 27-
1(b) certifies that this motion is an emergency because (1) the new circumstances
of Mr. Green’s confinement may moot the motion unless a ruling is obtained
within seven days and (2) this motion is being filed within seven days of a
significant change of circumstances affecting the District Court’s previous order
requiring Mr. Green’s continued imprisonment pending appeal.
Three days ago, on August 4, 2020, Mr. Green became quarantined in a
dormitory room at Calhoun Correctional Institution due to another inmate’s
positive COVID-19 test. Mr. Green is 62 years old and is at significant risk of
becoming infected with COVID-19 in the next seven days and, potentially, dying,
which would render this appeal—and the District Court’s habeas grant—moot.
Case: 18-13524 Date Filed: 08/07/2020 Page: 3 of 31
Before filing this motion, counsel for Mr. Green notified counsel for the
State of the motion by email and also emailed them a service copy of the motion.
On July 27, 2018, the U.S. District Court for the Middle District of Florida
granted in part Mr. Green’s Amended Petition of for Writ of Habeas Corpus,
conditionally granting the writ unless the State of Florida initiated new trial
proceedings within 90 days. The State moved the District Court to stay its
judgment pending appeal and appealed to this Court, and Mr. Green opposed.5 On
September 5, 2018, the District Court granted the State’s motion, which stayed its
order requiring a new trial within 90 days.6
On December 11, 2018, Mr. Green moved the District Court to release him
pending appeal under Federal Rule of Appellate Procedure 23(c), and the State
opposed.7 On January 7, 2019, the District Court denied Green’s motion, relying
4 All citations in this section are to pleadings from Green v. Sec’y, Dep’t of Corr., Case No. 6:14-cv-330 (M.D. Fla.), attached as exhibits hereto. 5 See Exhibit B (Motion for Stay Pending Appeal, Aug. 20, 2018 (Doc. 78)); Exhibit C (Opposition to State’s Motion for Stay Pending Appeal, Sept. 4, 2018 (Doc. 80)). 6 See Exhibit D (Order, Sept. 5, 2018 (Doc. 83)). 7 See Exhibit E (Motion for Release Pending Appeal, Dec. 11, 2018 (Doc. 84)); Exhibit F (Response to Motion for Release, Dec. 21, 2018 (Doc. 85)).
Case: 18-13524 Date Filed: 08/07/2020 Page: 4 of 31
in large part on the unrelated fact that it had already stayed the order to retry him.8
On January 23, 2019, Mr. Green filed a Notice of Appeal of that Order, but
thereafter withdrew that appeal “to proceed to resolution of the main appeal [ . . . ]
without delay.” Response to Jurisdictional Question, Green v. Sec’y, Dep’t of
Corr., No. 19-10287 (11th Cir. Aug. 14, 2019).
“Federal courts are authorized, under 28 U. S. C. § 2243, to dispose of
habeas corpus matters ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S.
770, 775 (1987). “[A] court has broad discretion in conditioning a judgment
granting habeas relief.” Id. That broad discretion remains “when either the district
court or the court of appeals turns to consideration of whether the judgment
granting habeas relief should be stayed pending appeal.” Id. Federal Rule of
Appellate Procedure 23, which governs custody or release of a prisoner pending
review of a habeas decision, accords considerable latitude to both “the court
making the initial custody determination and the court reviewing that
determination.” Id. at 777.
Federal Rule of Appellate Procedure 23(c) provides that, when the
Government appeals a decision granting a writ of habeas corpus, the habeas
petitioner shall be released “unless the court or justice or judge rendering the 8 Exhibit G (Order, Jan. 7, 2019 (Doc. 87)).
Case: 18-13524 Date Filed: 08/07/2020 Page: 5 of 31
decision, or the court of appeals or the Supreme Court, or a judge or justice of
either orders otherwise.” Fed. R. App. P. 23(c). This rule “undoubtedly creates a
presumption of release from custody” which “may be overcome if the traditional
stay factors tip the balance against it.” Hilton, 481 U.S. at 774, 777.
Federal Rule of Appellate Procedure 23(d) similarly states that an initial
order issued pursuant to Rule 23(c) “continues in effect pending review unless for
special reasons shown . . . the order is modified or an independent order respecting
custody, release, or surety shall be made.” Fed. R. App. P. 23(d). In reviewing
these “special reasons,” the reviewing court retains broad latitude, including to
consider whether the stay factors favor release: the “presumption of correctness
[accorded] to the initial custody determination [ . . . ], too, may be overcome if the
traditional stay factors so indicate.” Hilton, 481 U.S. at 777.
The “traditional factors” regulating the issuance of a stay under both Rule
23(c) and under Circuit Rule 27-1(b) are the same: “(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. In addition, a court may consider “[1]
the possibility of the prisoner’s flight; [2] the risk that the prisoner will pose of
danger to the public if released; [3] the State’s interest in continuing custody and
Case: 18-13524 Date Filed: 08/07/2020 Page: 6 of 31
rehabilitation pending a final decision on appeal; and [4] the prisoner’s substantial
interest in release pending appeal.” Id. at 771.
A. “Special Reasons” Support the Modification of the District Court’s Order or the Issuance of an Independent Order for Immediate Release
1. Changes in circumstances such as severe risks to a petitioner’s health and life are “special reasons” envisioned by Rule 23(d)
While neither the Rules nor precedent defines “special reasons,”9 analogous
rules and court practice make clear that continued incarceration risking Mr.
Green’s health and life constitutes “special reasons” in at least three ways.
9 The Supreme Court has reasoned that, in the case of appeal from the denial of habeas relief, “the most important ‘special reason’ [ . . . ] would be that the pending appeal presents substantial questions,” and that “a greater showing of special reasons” is required for a convicted petitioner than one incarcerated for reasons other than conviction. Aronson v. May, 85 S. Ct. 3, 5 (1964). Plainly, both of these considerations favor Mr. Green, whose habeas claim presented such substantial merit as to grant the petition, vacate his conviction, and leave him incarcerated primarily in the furtherance of judicial economy. The District Court’s Order denying Mr. Green’s motion for release pending appeal (Doc. 87) relied on its prior Order granting the State’s motion to stay pending appeal (Doc. 83) to dispense with half the factors governing its decision. See Exhibit G at 2 (“The Court previously found that the four factors outlined in Hilton weighed in favor of a stay.”). That Order in turn reasoned, on grounds not applicable to the this motion: “It makes little sense for Respondents to be required to immediately conduct a first-degree murder trial, with the associated angst to the victims and strain on judicial resources if there is any possibility the trial may be mooted by a reversal of the Amended Order on appeal [ . . . . ] As to the fourth factor, the public interest favors a stay of retrial in that a possibly unnecessary retrial could contribute to a burden on the participants in the trial and a lack of public confidence in the judicial system. Also, the public interest in preserving State (Continued...)
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First, a significant change in circumstances that alters the equities is a well-
established basis for reconsideration of or relief from an order. See, e.g., Agostini
v. Felton, 521 U.S. 203, 215 (1997) (“[I]t is appropriate to grant a Rule 60(b)(5)
motion when the party seeking relief from an injunction or consent decree can
show ‘a significant change either in factual conditions or in law.’”). Indeed, failure
to modify an order that “has been turned through changed circumstances into an
instrument of wrong” is reversible error. Id. Here, prior to the coronavirus
pandemic, the District Court reasoned that continued incarceration presented no
risk of substantial injury to Green but would “simply provide Respondents the
opportunity to appeal without the necessity of conducting a trial in the meantime.”
Exhibit D at 2, cited by Exhibit G at 2. Now, nearly two years later, Mr. Green
might die of a preventable disease if he is not released pending appeal (and
possible retrial) so that he can take recommended precautionary measures such as
social distancing and have greater access to a broader range of medical care,
should he need it.
Second, a new risk that, absent modification of an order pendente lite, may
moot the case is a frequently considered factor in analogous contexts. Courts of
________________________ resources in a retrial that may prove unnecessary weighs in favor of a stay. Finally, the Court notes that it would be a waste of judicial resources for the appeal to proceed in the Eleventh Circuit Court of Appeals, while simultaneously requiring the State to retry Petitioner.” Exhibit D at 2-3.
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Appeal and the Supreme Court have repeatedly accepted this argument in principle
but found it inapplicable on the facts. See, e.g., In re Johnson, 72 S. Ct. 1028
(1952) (Douglas, J., in chambers) (“Hence there is no danger at present that
petitioner's appellate proceedings will be jeopardized.”) (applying analogous
Supreme Court Rule); Benson v. Cal., 328 F.2d 159, 162 (9th Cir. 1964)
(“Apparently the suggestion is that [ . . . ] he would lose his opportunity to set
aside or annul his state court conviction [ . . . . ] The answer to this contention is
that appellant's case would not become moot after his release from jail.”). Here,
the risk that Mr. Green might unnecessarily die from unnecessary exposure to a
pandemic creates the new and preventable risk that the case might become moot—
with the relief granted by the District Court never having materialized.
Finally, courts have interpreted “special reasons” to mean that the strength
of the Hilton factors alone may overcome the “presumption of correctness” of the
District Court’s Rule 23(c) decision. See Hilton, 481 U.S. at 777 (“[The
presumption of correctness [ . . . ] may be overcome if the traditional stay factors
so indicate.”). Thus, appellate courts routinely modify district court orders through
motions practice simply because the Hilton factors weigh in the moving party’s
favor. See, e.g., Haggard v. Curry, 623 F.3d 1035, 1039 (9th Cir. 2010) (“We may
reverse or modify a district court’s decision to release a prisoner pending appeal of
his successful habeas petition ‘for special reasons shown.’ [ . . . . ] Accordingly, we
Case: 18-13524 Date Filed: 08/07/2020 Page: 9 of 31
consider the [Hilton] factors.”). Independent of any change in circumstances, the
Hilton factors strongly favor Mr. Green’s release pending conclusion of the appeal
because of the novel coronavirus pandemic.
2. Mr. Green faces severe risks to his health and life
There has been a sudden and dramatic increase in coronavirus infections at
CCI. Only nine days ago, based on publicly available statistics published by the
State, there were zero reported positive tests among inmates at the facility.10 And
yet, seventy-two hours ago, Mr. Green was quarantined because an inmate who
shares the dormitory room with Mr. Green tested positive for COVID-19.11 As a
result, Mr. Green, along with the other inmates in his dorm room, are quarantined
for at least 14 days.12 The latest Department of Corrections figures demonstrate
that the virus is spreading rapidly through the prison:13
10 Exhibit A, at ¶2. 11 Id. 12 Id. 13 Florida Department of Corrections, COVID-19 Information, available at (last visited Aug. 6, 2020).
Case: 18-13524 Date Filed: 08/07/2020 Page: 10 of 31
According to the Department of Corrections statistics, no CCI inmates are in
medical isolation. This strongly suggests that the inmate that tested positive for
COVID-19 is quarantined in the same dorm room as Mr. Green. As this Court has
recently explained, “[b]ecause incarcerated inmates are necessarily confined in
close quarters, a contagious virus represents a grave health risk to them—and
graver still to those who have underlying conditions that render them medically
vulnerable.” Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 2020).14 The rapid
spread through the prison population can be expected to continue exponentially.
Conditions of prison confinement create the ideal environment for the transmission
of contagious disease.15 Prisons do not provide an environment for social
14 The legal standard for this motion is different from that in Swain v. Junior, which sought injunctive relief under 42 U.S.C. § 1983, requiring that plaintiffs prove deliberate indifference to risks of harm to an inmate. Id. at 1285. Deliberate indifference is unnecessary for this motion to succeed under Federal Rule of Appellate Procedure 23(d). 15 Joseph A. Bick (2007). Infection Control in Jails and Prisons. Clinical Infectious Diseases 45(8):1047-1055, available at
Case: 18-13524 Date Filed: 08/07/2020 Page: 11 of 31
distancing and continuous mask use, as suggested by the CDC “to slow the spread
of COVID-19.”16 In Mr. Green’s dorm, distancing is not an option, and the
prisoners are in a confined space with recirculating air17 and no masks. This is a
recipe for the unabated spread of COVID-19, as it appears is happening in prisons
across Florida:18
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Given Mr. Green’s age of 62, the COVID-19 pandemic poses a direct risk
that is far greater if Mr. Green continues to be detained during this public health
crisis. Adults over sixty years old are “at higher risk for severe illness” from
COVID-19.19 In addition to the general risks for a person of his age, Mr. Green is
19 Centers for Disease Control, Older Adults, adults.html. See also UCSF Health, FAQ: Coronavirus and Older Adult Patients, (Continued...)
Case: 18-13524 Date Filed: 08/07/2020 Page: 13 of 31
at greater risk of death or permanent injury as a result of his incarceration.
Incarcerated people typically have poorer health than the general population, and
even in the best of times, medical care is limited.20 A recent study published in the
Journal of the American Medical Association shows that deaths of prisoners
attributable to coronavirus were 34% higher than those of the U.S. population,
despite the fact that people over age 65—who account for 81% of the coronavirus
deaths in the U.S.—make up a much smaller share of the prison population.21 The
study further estimates that if prisons had the same age and sex distribution as the
country, mortality in prisons would be three times higher than the overall U.S.
Based on these grave risks, U.S. Attorney General William Barr directed the
Bureau of Prisons to expand the cohort of federal inmates eligible for release:
“Given the speed with which this disease has spread through the general public, it
________________________ (“There is evidence that older adults (over age 60) – especially those with cancer, diabetes or cardiovascular disease – are more susceptible and at higher risk of getting very sick from this illness.”) 20 Laura M. Maruschak et al. (2015). Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12. NCJ 248491. Washington, D.C.; U.S. Department of Justice, Bureau of Justice Statistics, available at 21 Journal of the American Medical Association, “COVID-19 in Prisons and Jails in the United States,” available at, at E1-2, attached as Exhibit H. 22 Id. at E2.
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is clear that time is of the essence.”23 State courts across the country have
instructed judges to release people from prison and reconsider detention in the face
of this global pandemic. See, e.g., Karr v. State, 459 P.3d 1183, 1186 (Alaska Ct.
App. Mar. 24, 2020) (“[C]ourts must now balance the public health safety risk
posed by the continued incarceration of pre-trial defendants in crowded
correctional facilities with any community safety risk posed by a defendant’s
B. The Reasons Ostensibly Supporting Continued Confinement Pending This Court’s Judgment No Longer Exist
1. There is no harm to the State if Mr. Green is released
The District Court previously found that the State would be irreparably
harmed absent a stay of its order due to the requirement that the state initiate
proceedings within 90 days to bring a new trial against Mr. Green. Importantly,
the State has never argued (and the District Court did not find) that Mr. Green’s
release from prison—separate and apart from the 90-day reinitiation order—would
cause any harm at all, much less irreparable harm. Mr. Green is not seeking to lift
the stay of the 90-day reinitiation order, and…