Emergency Motion for Immediate Release

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CROSLEY ALEXANDER GREEN , Appellee v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Appellant.

) ) ) ) ) ) ) ) ) )

No. 18-13524

EMERGENCY MOTION FOR IMMEDIATE RELEASE OF CROSLEY GREEN PURSUANT TO CIRCUIT RULE 27-1(b) AND RULE

23(d)

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

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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

inmates.

2 Id. at ¶7. 3 FAQs for Administrators, Staff, People Who Are Incarcerated, and Families, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/316368A_FS_COVID19_CorrectionDetention.pdf


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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.

11TH CIR. R. 27-1 CERTIFICATE

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.


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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.

PROCEDURAL BACKGROUND 4

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)).


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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).

LEGAL STANDARDS

“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)).


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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


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rehabilitation pending a final decision on appeal; and [4] the prisoner’s substantial

interest in release pending appeal.” Id. at 771.

ARGUMENT

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


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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 http://www.dc.state.fl.us/comm/covid-19.html (last visited Aug. 6, 2020).


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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 https://doi.org/10.1086/521910.


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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

16 Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): Social Distancing, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. 17 See Centers for Disease Control, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html for information regarding air circulation. 18 The Marshall Project, A State-by-State Look at Coronavirus in Prisons, available at https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.


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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, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html. See also UCSF Health, FAQ: Coronavirus and Older Adult Patients, https://www.ucsfhealth.org/education/faq-coronavirus-and-older-adult-patients (Continued...)


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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.

rate.22

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 https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf 21 Journal of the American Medical Association, “COVID-19 in Prisons and Jails in the United States,” available at https://jamanetwork.com/journals/jama/fullarticle/2768249, 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

release.”).

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 this Court can sustain that part of the

stay order while at the same time releasing Mr. Green pending appeal and possible

23 Office of the Attorney General, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020) at 1, available at https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000.


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retrial. The State is not prejudiced by Mr. Green’s release if that portion of the

stay order is maintained.

The fact that the state may decide to retry Mr. Green does not prevent this

Court from granting his release. Because Mr. Green’s conviction has been

overturned, he stands before this Court as a presumptively innocent man. Liberty

is the norm and “detention prior to trial or without trial is the carefully limited

exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). One charged with

a crime is, after all, presumed innocent. Stack v. Boyle, 342 U.S. 1, 4 (1951). A

single individual unnecessarily detained before trial is one too many, and the

increasing use of the practice places tremendous wear on our constitutional system.

United States v. Montalvo-Murillo, 495 U.S. 711, 723–24 (1990) (Stevens, J.,

dissenting, joined by Brennan and Marshall, JJ.). Due to the crucial interests

involved, it follows that a “case-by-case” approach is required at any stage of the

case in assessing the propriety of pretrial detention. See United States v. Gonzales

Claudio, 806 F.2d 334, 340 (2d Cir. 1986) (discussing due process analysis for

evaluating propriety of prolonged pretrial detention, and the interests at stake)

(citations omitted), cert. dismissed sub nom., Melendez-Carrion v. United States,

479 U.S. 978 (1986).


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2. Mr. Green’s continued unconstitutional incarceration constitutes irreparable harm

The possibility that Mr. Green may die, or become seriously ill or

debilitated, as a direct result of continued unconstitutional imprisonment

constitutes irreparable harm. If Mr. Green’s health and life are given any weight at

all, it should easily tip the balance in favor of his immediate release.

“Factor three requires the court to determine whether the petitioner will be

substantially injured.” Engesser v. Dooley, No. CIV 10-5039-KES, 2011 WL

6085523, at *3 (D.S.D. Dec. 7, 2011). And, when a court is making this

determination, “the interest of the habeas petitioner in release pending appeal [ ][is]

always substantial.” Castillo v. Tucker, No. 10-23898-CIV, 2012 WL 2049360, at

*2 (S.D. Fla. June 6, 2012) (quoting Hilton, 481 U.S. at 778); see also Boyles v.

Weber, No. CIV 04-4134, 2007 WL 2684872, at *2 (D.S.D. Sept. 7, 2007) (noting

that the state should not minimize this harm because “[c]ontrary to [the state’s]

argument, one of the most important personal rights guaranteed by the Constitution

of the United States is one’s right to liberty without due process of law, which

cannot be lightly disregarded”).24 This is because “[a] petitioner convicted of a

24 Although a pre-Hilton decision, Cross is persuasive here on this point. The court in Cross rejected the State’s argument that because the petitioner in Cross “only” served 8 years of a 30-year term, the petitioner posed a great risk of flight. U.S. ex rel Cross v. DeRobertis, No. 82 C 4072, 1986 WL 12590, *2 (N.D. Ill. Nov. 3, 1986). In reaching this decision, the court explained that “petitioner’s (Continued...)


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crime does not have the same rights and guarantees as a pretrial detainee, but

petitioner’s continued custody after the court has determined that the original

convictions should not stand would cause petitioner substantial injury.” Engesser,

2011 WL 6085523, at *3 (emphasis added). Accordingly, “[t]his factor weighs in

favor of … releasing the petitioner[,]” id., “undoubtedly creat[ing] a presumption

of release from custody,” unless the possibility of flight, the risk of danger to the

public, and the state’s interest in continuing custody, “tip the balance against it.”

Kelley, v. Singletary, 265 F. Supp. 2d 1305, 1307 (S.D. Fla. 2003) (citing Hilton,

481 U.S. at 774, 777); Floyd v. Vannoy, 894 F.3d 143 (5th Cir. 2018).

Courts therefore consider a number of facts, including the length of time

served by a petitioner, previous criminal record, and flight risk, among other

things. See, e.g., Castillo, 2012 WL 2049360 at *2 (recognizing the state’s own

admission that the “[p]etitioner ha[d] currently served close to 8 years” of a ten-

year minimum mandatory prison term and that “the possibility of prejudice to

Petition[er] from a stay does exist[,]” and “tips against the stay”); Kelley, 265 F.

Supp. 2d at 1308 (finding that the petitioner would be harmed because the court

________________________ constitutional rights were flagrantly violated[,] [and] [d]ue to the nature and extent of those constitutional violations, and in light of the long wait the petitioner has had for a ruling on this matter, the court believes that the respondents bear an especially great burden to show why the petitioner should remain incarcerated while his case drifts through what is likely to be a lengthy appeal process.” Id. at *2.


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reversed his conviction and ordered a new trial, the age of his prior conviction was

well over 40 years old, and his connections to Florida eliminated his flight risk).

The key facts in both Kelley and Floyd are similar to those here, and the

courts in both decisions found that the petitioner would be irreparably injured if not

released from prison over the state’s motion to stay. In Kelley, the Southern

District of Florida found the petitioner’s history “insufficient to warrant [him] a

public threat” even though he had served eighteen years in prison, and, prior to his

1985 capital murder conviction, had one prior violent conviction for robbery from

1959 when he was seventeen. 265 F. Supp. 2d at 1308. Importantly, the State had

never challenged Kelley’s characterization as a model inmate during his eighteen

years in prison. Id. The court also did not find the petitioner a flight risk from his

retrial in Florida, even though he would be living in Massachusetts when released,

because of his closeness to immediate family in Florida.

Similarly, in Floyd, the Eastern District of Louisiana relied on the affidavit

of a former warden at the petitioner’s prison, where he served nearly 35 years for

second-degree murder. Floyd, 2017 WL 2688082 *3. The court determined that

the petitioner was not a danger to the public based on the former warden’s

affidavit, where the former warden attested to the petitioner as a “model prisoner

with a nearly perfect disciplinary record.” Id.


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Just like in Floyd, the Warden of CCI has provided the Court with a sworn

declaration that Mr. Green has been a model inmate and would pose no threat to

the community if released:

Mr. Green has been a model prisoner. I have even mentioned to others that I wished all of our inmates were like Mr. Green. Mr. Green carries himself with dignity, and respect. He is respectful of my staff and has a positive attitude despite his incarceration. …. Since Mr. Green has been at Calhoun CI, he has been nothing short of exemplary. I am sure that should Mr. Green be released he will be a model member of society.25

Such a sworn statement by a warden is extraordinary in and of itself, but also aptly

demonstrates that Mr. Green is an extraordinary petitioner. Add to that the life-

and-death threat posed by COVID-19, and the case in favor of release is

compelling.

3. Mr. Green has been a model prisoner, is not a flight risk, and would not be a threat to public safety if released

Mr. Green is neither a flight risk nor a danger to public safety—and the State

has never argued otherwise in support of his continued imprisonment. For 31

years, both while on Florida’s Death Row and since his resentencing, Mr. Green

has been a model prisoner in the eyes of the correctional officers and officials who

have supervised his incarceration. See Exhibit I, Declaration of Warden Heath

25 Decl. of Warden Heath Holland, ¶¶ 5, 8, attached as Exhibit I.


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Holland; and Exhibit J, Affidavits of Corrections Officers Lieutenant Watson,

Lieutenant Salle, Sergeant Lee, and Declaration of Sergeant Wallace.

Mr. Green is exactly the kind of person for whom Rule 23(c) was created.

Mr. Green’s previous arrests for petit larceny and drug offenses over 33 years ago

are irrelevant today. Mr. Green does not pose a flight risk. Mr. Green is a lifelong

resident of Florida, and all of his immediate family lives in Florida. If released,

Mr. Green would stay with his brother-in-law who owns a three-bedroom home in

Titusville. See Declaration of David U. Peterkin, attached as Exhibit K. Mr.

Green’s brother and sister live in Orlando, Florida, and two more sisters live in

Titusville, Florida. Mr. Green has two sons and several grandchildren, all of whom

live in Titusville, Florida. Id. Mr. Green only desires to spend time with his

family, none of whom plan to leave Florida. And, as the correctional officers and

Warden Holland attest under oath, he would be a “law-abiding member of society”

and “a model member of society.”26

C. The Public Interest Strongly Supports Mr. Green’s Immediate Release Pending This Court’s Judgment

Under the fourth stay factor, “[t]he public has three primary interests in

habeas petitions: [1] the competing interest in the State’s sentences being

enforced, [2] the State not incarcerating individuals in violation of the United 26 Exhibit J at 2, 5, 8, 10; Exhibit H ¶ 8; see also Resentencing Transcript (Excerpt), attached as Exhibit L, at 25.


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States Constitution, and [3] an interest in being protected from dangerous

individuals.” Manley, 2008 WL 2783491 at *7 (citing Poindexter v. Booker, 2007

WL 2780556, *4 (E.D. Mich. 2007); Burdine v. Johnson, 87 F. Supp. 2d 711, 717

(S.D. Tex. 2000)).

Under the first inquiry, a court considers the State’s interest in the continued

custody of petitioner. Engesser, 2011 WL 6085523, *3. In Castillo, the petitioner

had served eight years of a fifteen-year sentence with a minimum term of

imprisonment of ten years. The Southern District of Florida found that the

petitioner’s time served amounted to “more than half of Petitioner’s sentence, and

more than eighty percent of her minimum prison term.” 2012 WL 2049360 at *3.

Accordingly, the court concluded that the state’s interest did not compel a stay to

be issued. Id. Here, Mr. Green has served 31 years in prison. He was eligible for

parole after 25 years. The State has little, if any, interest in the continued custody

of Mr. Green.

With regard to the second interest, a court considers whether the State is

incarcerating individuals in violation of the U.S. Constitution; that is, the inquiry is

whether the State is treating the Petitioner fairly. See Kelley, 265 F. Supp. 2d at

1308 (explaining that a state will have little to gain from the continued

incarceration of a petitioner where the court already determined he was in custody

in violation of the U.S. Constitution). The District Court has already determined


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that Mr. Green is in custody as a result of the State improperly withholding and

suppressing exculpatory and impeachment evidence—a violation of the U.S.

Constitution. Such violations are clearly contrary to the public interest.

The third inquiry is whether the public has an interest in being protected

from Mr. Green. Warden Holland’s sworn declaration, combined with those of the

three other correctional officers, puts to rest any potential concerns. The public

interest lies squarely with the release of Mr. Green.

CONCLUSION

The quarantine of Mr. Green due to COVID-19 while he is

unconstitutionally imprisoned constitutes a “special reason” that fully supports Mr.

Green’s immediate release, whether by a modification of the District Court’s order

or the issuance of an independent order. Either way, Mr. Green’s unconstitutional

incarceration should not continue as this Court’s decision pends because the

District Court’s concerns over Mr. Green’s release have become moot. As a model

prisoner whose warden swears he poses no risk of flight or public harm, Mr.

Green’s continued incarceration as the novel coronavirus sweeps through his

facility constitutes irreparable harm to him. Justice, as well as the letter and spirt

of Rule 23(c), require that Mr. Green be immediately released.


24

Respectfully submitted:

s/ Keith Harrison Keith J. Harrison Jeane A. Thomas Vincent J. Galluzzo Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2592 (202) 624-2500 (telephone) (202) 628-5116 (facsimile) [email protected]


25

CERTIFICATE OF COMPLIANCE

This motion complies with the type-volume limitations of 11th Cir. R. 27-

1(a)(10) and Fed. R. App. P. 27(d)(2)(A) as the motion contains 5,154 words,

excluding those parts exempted by Fed. R. App. P. 32(f).

This motion complies with the typeface requirements of Fed. R. App. P.

27(d)(1)(E,) Fed. R. App. P. 32(a)(6), and Fed. R. App. P. 32(g)(1) and the type

style requirements of Fed. R. App. P. 32(a)(6) as this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in 14 point Times New

Roman font.

Dated: August 7, 2020 s/ Keith Harrison Keith J. Harrison Jeane A. Thomas Vincent J. Galluzzo CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2592 (202) 624-2500 (telephone) (202) 628-5116 (facsimile) [email protected]


26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 7, 2020 the foregoing was filed using

the CM/ECF system, which will send an electronic notice of the filing to Kellie

Nielan, Assistant Attorney General, 444 Seabreeze Boulevard, 5th Floor, Daytona

Beach, Florida 32118, [email protected].

Dated: August 7, 2020

s/ Keith Harrison Keith J. Harrison

Jeane A. Thomas Vincent J. Galluzzo

CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2595 (202)624-2500 [email protected]


C-1 of 5

Green v. Secretary, Florida Department of Corrections, et al, No. 18-13524

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, 11th Cir. R. 26.1-1, and 11th Cir. R. 26.1-

2(a), the undersigned hereby certifies that the following persons may have an

interest in the outcome of the case:

Anstead, Harry Lee, Judge

Antoon, John II, Senior United States District Judge

Baker, Hon. David A., United States Magistrate Judge

Baker, Shane, Warden, Hardee Correctional Institution

Bell, Kenneth B., Judge

Bondi, Pam, Attorney General, State of Florida

Cantero, Raoul G., Judge

Cohen, Jay P., Judge

Conway, Anne C., Judge

Crews, Michael D., Secretary, Florida Department of Corrections

Crowell & Moring LLP, for Petitioner-Appellee/Cross-Appellant

Dalton, Hon. Roy B. Jr., United Sates District Judge

Davis, Barbara C., Assistant Attorney General

Doss, D. Todd, Attorney for Petitioner at Resentencing

Dugan, W. David, Judge


C-2 of 5


Galluzzo, Vincent J., Esq., for Petitioner-Appellee/Cross-Appellant

Gaylord, Daphney E., Esq.,

Green, Crosley Alexander, Petitioner-Appellee/Cross-Appellant

Grimes, Stephen H., Judge

Gruber, Mark, Esq.

Harding, Major B., Judge

Harrison, Keith J., Attorney for Petitioner-Appellee/Cross-Appellant

Henry, David, Esq.

Holland, Heath, Warden, Calhoun Correctional Institution

Holmes, R. Wayne, Assistant State Attorney

Jacobus, Hon. Bruce, United States District Judge

Jones, Julie, Secretary, Florida Department of Corrections

Kogan, Gerald, Judge

Lamb, Travis, Warden, Hardee Correctional Institution

Landers, Kim, as Included in State’s previous CIP

Lawson, C. Alan, Judge

Leavins, Donald A., Warden, Hardee Correctional Institution

Lewis, R. Fred, Judge

Lieberman, Stacie B., Esq.


C-3 of 5


McDonald, Parker Lee, Judge

Moody, Ashley, Attorney General

Nielan, Kellie Anne, Assistant Attorney General

Nunnelly, Kenneth S., Assistant Attorney General

Olive, Mark E., Attorney for Petitioner-Appellee/Cross-Appellant

Orfinger, Richard B., Judge

Overton, Ben F., Judge

Palmer, William D., Judge

Pariente, Barbara J., Judge

Parker, John Roberson, Esq., Attorney for Petitioner at Trial

Paulken, Linda, as Included in State’s previous CIP

Quince, Peggy A., Judge

Rhoad, Robert T., Attorney for Petitioner-Appellee/Cross-Appellant

Rush, Judy Taylor, Assistant Attorney General

Shaw, Leander J., Jr., Judge

Smith, Robin, Warden, Calhoun Correctional Institution

Thomas, Jeane A., Attorney for Petitioner-Appellee/Cross-Appellant

Wells, Charles T., Judge

White, Christopher R., Assistant State Attorney


C-4 of 5


Williams, Philip B., Assistant State Attorney

No publicly traded company or corporation has an interest in the outcome of

this case or appeal.


C-5 of 5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 7, 2020 the foregoing

Certificate of Interested Persons and Corporate Disclosure Statement was filed

using the CM/ECF system, which will send an electronic notice of the filing to

Wesley Harold Heidt, Assistant Attorney General, PL-01 The Capitol, Tallahassee,

Florida 32301, and to Kellie Nielan, Assistant Attorney General, 444 Seabreeze

Boulevard, 5th Floor, Daytona Beach, Florida 32118,

[email protected].

Dated: August 7, 2020 s/ Keith Harrison Keith J. Harrison Jeane A. Thomas Vincent J. Galluzzo Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2592 (202) 624-2500 (telephone) (202) 628-5116 (facsimile) [email protected]


Documents

Emergency Motion for Immediate Release