opinion: HILTON, SUPERINTENDENT, NEW JERSEY STATE PRISON, et al. v. BRAUNSKILL
  No. 86-108.
  Argued March 25, 1987
  Decided May 26, 1987
  Rehnquist, C. J., delivered the opinion of the Court, in which White, Powell, Stevens, O’ConnoR, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which BRENNAN and Blackmun, JJ., joined, post, p. 780.
  John G. Holl argued the cause for petitioners. With him on the briefs were W. Cary Edwards, Attorney General of New Jersey, and Allan J. Nodes, J. Grail Robinson, Mary Ellen Halloran, Michael Weinstein, and Raymond S. Gurak, Deputy Attorneys General.
  Mark H. Friedman argued the cause and filed a brief for respondent.
  Solicitor General Fried, Assistant Attorney General Weld, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr., filed a brief for the United States as amicus curiae urging reversal.
  Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Leon Friedman, Brian Neary, Alvin Bronstein, and Eric Neisser; and for the Coastal States Organization et al. by David C. Slade.
  Chief Justice Rehnquist
  delivered the opinion of the Court.
  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 from custody “unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.” Federal Rule of Appellate Procedure 23(d) states that initial orders issued pursuant to Rule 23(c) shall “govern review in the court of appeals and in the Supreme Court unless for special reasons shown . . . the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.” In this case, we are asked to decide what factors these provisions allow a court to consider in determining whether to release a state prisoner pending appeal of a district court order granting habeas relief.
  In January 1981, respondent Dana Braunskill was convicted in the Superior Court of New Jersey, Law Division, of sexual assault and unlawful possession of a weapon, in violation of N. J. Stat. Ann. §§2C:14-2, 2C:39-5(d) (West 1982 and Supp. 1986-1987), and was sentenced to eight years’ imprisonment. The Appellate Division of the Superior Court affirmed the convictions, and the New Jersey Supreme Court denied review.
  Respondent then, in 1985, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Finding that respondent’s Sixth Amendment rights had been violated at his trial, the District Court granted respondent’s petition and ordered that “a writ of habeas corpus shall issue unless within 30 days the State of New Jersey shall afford [respondent] a new trial.” 629 F. Supp. 511, 526 (1986). Petitioners subsequently moved the District Court to stay its order pending appeal. Relying on Carter v. Rafferty, 781 F. 2d 993, 997 (CA3 1986), the District Court determined that it could grant petitioners’ request only if they demonstrated that there was risk that respondent would not appear for subsequent proceedings. The court found that petitioners had failed to make such a showing and denied the motion.
  Petitioners then filed a motion in the United States Court of Appeals for the Third Circuit, seeking a stay of the District Court’s order releasing respondent. The Court of Appeals denied the motion by order dated May 27,1986. We granted certiorari to review the Court of Appeals’ denial of the stay, 479 U. S. 881 (1986), and now vacate and remand the case to the Court of Appeals.
  In Carter v. Rafferty, supra, the authority governing the Court of Appeals decision in this case, the court held that federal courts deciding whether to release a successful ha-beas petitioner pending appeal may consider the petitioner’s risk of flight, but not his danger to the community. The court observed that Rule 28(c) creates a presumption that a prisoner who has received habeas relief is entitled to release from custody. Moreover, the Carter court reasoned, the principal interests that a federal court may consider under Rules 23(c) and (d) are those of ensuring the appearance of the prisoner in subsequent federal proceedings and returning the prisoner to state custody if the State prevails on appeal of the award of habeas relief. To conclude otherwise, the court determined, would result in federal-court intrusion into matters of traditional state concern.
  We do not believe that federal courts, in deciding whether to stay pending appeal a district court order granting relief to a habeas petitioner, are as restricted as the Carter court thought. Rule 23(c) undoubtedly creates a presumption of release from custody in such cases, but that presumption may be overcome if the judge rendering the decision, or an appellate court or judge, “otherwise orders.” Rule 23(d) creates a presumption of correctness for the order of a district court entered pursuant to Rule 23(c), whether that order enlarges the petitioner or refuses to enlarge him, but this presumption may be overcome in the appellate court “for special reasons shown.” We think a resort to the history of habeas practice in the federal courts and the traditional standards governing stays of civil judgments in those courts is helpful in illuminating the generality of these terms of Rules 23(c) and (d).
  Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief. Federal courts are authorized, under 28 U. S. C. § 2243, to dispose of habeas corpus matters “as law and justice require.” In construing § 2243 and its predecessors, this Court has repeatedly stated that federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court. See, e. g., Rogers v. Richmond, 365 U. S. 534, 549 (1961); Dowd v. United States ex rel. Cook, 340 U. S. 206, 210 (1951); In re Bonner, 151 U. S. 242, 261-262 (1894). Even in 1894, when this Court’s Rule 34 indicated that enlargement of successful habeas petitioners pending the State’s appeal was mandatory, see n. 4, swpra, the Court interpreted the predecessor of §2243 as vesting a federal court “with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.” Id., at 261. We think it would make little sense if this broad discretion allowed in fashioning the judgment granting relief to a habeas petitioner were to evaporate suddenly 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. Although the predecessor of Rule 23 apparently required this strange result, see n. 4, supra, the language of the current Rule undoubtedly permits a more sensible interpretation.
  In those instances where a Member of this Court has been confronted with the question whether a prevailing habeas petitioner should be released pending the Court’s disposition of the State’s petition for certiorari, our approach has been to follow the general standards for staying a civil judgment. See Tate v. Rose, 466 U. S. 1301 (1984) (O’Connor, J., in chambers); cf. Sumner v. Mata, 446 U. S. 1302 (19801 (Rehnquist, J., in chambers). This practice reflects the common-sense notion that a court’s denial of enlargement to a successful habeas petitioner pending review of the order granting habeas relief has the same effect as the court’s issuance of a stay of that order. Our decisions have consistently recognized that habeas corpus proceedings are civil in nature. See, e. g., Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 269 (1978). It is therefore logical to conclude that the general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State’s appeal; and such a conclusion is quite consistent with the general language contained in Rules 23(c) and (d).
  Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal. See Fed. Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under both Rules, however, the factors regulating the issuance of a stay are generally 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. See, e. g., Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 110, 259 F. 2d 921, 925 (1958); Washington Metropolitan Area Comm’n v. Holiday Tours, Inc., 182 U. S. App. D. C. 220, 221-222, 559 F. 2d 841, 842-844 (1977); Garcia-Mir v. Meese, 781 F. 2d 1450, 1453 (CA11 1986); Accident Fund v. Baerwaldt, 579 F. Supp. 724, 725 (WD Mich. 1984); see generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2904 (1973).
  For the reasons stated, we think that a court making an initial custody determination under Rule 23(c) should be guided not only by the language of the Rule itself but also by the factors traditionally considered in deciding whether to stay a judgment in a civil case. There is presumption in favor of enlargement of the petitioner with or without surety, but it may be overcome if the traditional stay factors tip the balance against it. A court reviewing an initial custody determination pursuant to Rule 23(d) must accord a presumption of correctness to the initial custody determination made pursuant to Rule 23(c), whether that order directs release or continues custody, but that presumption, too, may be overcome if the traditional stay factors so indicate. The construction of Rule 23 we here adopt accords both the court making the initial custody determination and the court reviewing that determination considerably more latitude than that apparently thought appropriate by the Court of Appeals for the Third Circuit in this case.
  Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid rules. The Court of Appeals in Carter v. Rafferty, 781 F. 2d 993 (CA3 1986), agreed that the possibility of flight should be taken into consideration, and we concur in that determination. We also think that, if the State establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration in determining whether or not to enlarge him. The State’s interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered; it 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.
  The interest of the habeas petitioner in release pending appeal, always substantial, will be strongest where the factors mentioned in the preceding paragraph are weakest. The 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. Cf. McSurely v. McClellan, 225 U. S. App. D. C. 67, 75, 697 F. 2d 309, 317 (1982); O’Bryan v. Estelle, 691 F. 2d 706, 708 (CA5 1982), cert. denied, 465 U. S. 1013 (1984); Ruiz v. Estelle, 650 F. 2d 555, 565-566 (CA5 1981). Where the State’s showing on the merits falls below this level, the preference for release should control.
  Respondent contends, and the Court of Appeals apparently agreed, that matters of “traditional state concern” such as the petitioner’s danger to the community ought not to be considered in determining whether a successful habeas petitioner should be enlarged pending appeal. Respondent supports his argument by stating that this Court’s decisions embody the view that state governments should have the opportunity to vindicate state interests in their own court systems. We do not at all dispute this observation, but note that here we have the Attorney General of New Jersey speaking for that State and seeking a stay of the District Court order enlarging a habeas petitioner pending appeal. Whatever strain on federal-state relations arising as a result of federal habeas jurisdiction comes because of the granting of habeas relief itself, and not the existence of any discretion in habeas courts to refuse enlargement of a successful habeas petitioner pending appeal. Until the final determination of the petitioner’s habeas claim, federal courts must decide applications for stay of release using factors similar to those used in deciding whether to stay other federal-court judgments.
  Respondent finally contends that staying the release of a successful habeas petitioner pending appeal because of dangerousness, even when guided by the standards we have enunciated, is “repugnant to the concept of substantive due process, which . . . prohibits the total deprivation of liberty simply as a means of preventing future crimes.” United States v. Salerno, 794 F. 2d 64, 71-72 (CA2 1986). We have just held in reversing the judgment of the Court of Appeals for the Second Circuit in Salerno, however, that the quoted language is an incorrect statement of constitutional law. Ante, p. 739. But we also think that a successful habeas petitioner is in a considerably less favorable position than a pretrial arrestee, such as the respondent in Salerno, 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. Although the decision of a district court granting habeas relief will have held that the judgment of conviction is constitutionally infirm, that determination itself may be overturned on appeal before the State must retry the petitioner. This being the case, we do not agree that the Due Process Clause prohibits 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.
  We think that the District Court and the Court of Appeals, in relying on the latter’s decision in Carter v. Rafferty, supra, took too limited a view of the discretion allowed to federal courts under Rules 23(c) and (d) in staying pending appeal an order directing the release of a habeas petitioner. We therefore vacate the judgment of the Court of Appeals denying petitioner’s application for a stay in this case, and remand the case to that court for further proceedings consistent with this opinion.
  It is so ordered.
  Rules 23(e) and 23(d) provide in full:
  “(c) Release of prisoner pending review of decision ordering release.— Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his own recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.
  “(d) Modification of initial order respecting custody. — An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.”
  On December 2, 1986, a three-judge panel of the Court of Appeals affirmed the District Court’s grant of respondent’s petition for a writ of habeas corpus. Subsequently, however, the Court of Appeals granted petitioners’ petition for panel rehearing, and vacated its December 2 judgment. The matter is still pending before the Court of Appeals.
  The Court of Appeals summarily denied the stay application. The grounds upon which it relied are therefore not entirely clear. The parties have treated the denial as predicated on the conclusion that the stay application was foreclosed by the Court of Appeals’ prior decision in Carter v. Rafferty, 781 F. 2d 993 (1986). We proceed from that assumption as well.
  Rule 23 derives from this Court’s former Rule 34, promulgated in 1886. Former Rule 34 required enlargement of successful habeas corpus petitioners:
  “3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required.” 117 U. S. 708 (1886).
  In light of the differences between general civil litigation and habeas corpus proceedings, we have recognized that there are some circumstances where a civil rule of procedure should not govern habeas proceedings. See Harris v. Nelson, 394 U. S. 286, 294 (1969); see also Fed. Rule Civ. Proc. 81(a)(2). Neither Harris v. Nelson, supra, nor Federal Rule of Civil Procedure 81(a)(2), however, forecloses the approach we uphold today. Where, as here, the need is evident for principles to guide the conduct of habeas proceedings, it is entirely appropriate to “use . . . [general civil] rules by analogy or otherwise.” Harris v. Nelson, supra, at 294.
choices: U.S. Court of Customs and Patent Appeals U.S. Court of International Trade U.S. Court of Claims, Court of Federal Claims U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces U.S. Court of Military Review U.S. Court of Veterans Appeals U.S. Customs Court U.S. Court of Appeals, Federal Circuit U.S. Tax Court Temporary Emergency U.S. Court of Appeals U.S. Court for China U.S. Consular Courts U.S. Commerce Court Territorial Supreme Court Territorial Appellate Court Territorial Trial Court Emergency Court of Appeals Supreme Court of the District of Columbia Bankruptcy Court U.S. Court of Appeals, First Circuit U.S. Court of Appeals, Second Circuit U.S. Court of Appeals, Third Circuit U.S. Court of Appeals, Fourth Circuit U.S. Court of Appeals, Fifth Circuit U.S. Court of Appeals, Sixth Circuit U.S. Court of Appeals, Seventh Circuit U.S. Court of Appeals, Eighth Circuit U.S. Court of Appeals, Ninth Circuit U.S. Court of Appeals, Tenth Circuit U.S. Court of Appeals, Eleventh Circuit U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) Alabama Middle U.S. District Court Alabama Northern U.S. District Court Alabama Southern U.S. District Court Alaska U.S. District Court Arizona U.S. District Court Arkansas Eastern U.S. District Court Arkansas Western U.S. District Court California Central U.S. District Court California Eastern U.S. District Court California Northern U.S. District Court California Southern U.S. District Court Colorado U.S. District Court Connecticut U.S. District Court Delaware U.S. District Court District Of Columbia U.S. District Court Florida Middle U.S. District Court Florida Northern U.S. District Court Florida Southern U.S. District Court Georgia Middle U.S. District Court Georgia Northern U.S. District Court Georgia Southern U.S. District Court Guam U.S. District Court Hawaii U.S. District Court Idaho U.S. District Court Illinois Central U.S. District Court Illinois Northern U.S. District Court Illinois Southern U.S. District Court Indiana Northern U.S. District Court Indiana Southern U.S. District Court Iowa Northern U.S. District Court Iowa Southern U.S. District Court Kansas U.S. District Court Kentucky Eastern U.S. District Court Kentucky Western U.S. District Court Louisiana Eastern U.S. District Court Louisiana Middle U.S. District Court Louisiana Western U.S. District Court Maine U.S. District Court Maryland U.S. District Court Massachusetts U.S. District Court Michigan Eastern U.S. District Court Michigan Western U.S. District Court Minnesota U.S. District Court Mississippi Northern U.S. District Court Mississippi Southern U.S. District Court Missouri Eastern U.S. District Court Missouri Western U.S. District Court Montana U.S. District Court Nebraska U.S. District Court Nevada U.S. District Court New Hampshire U.S. District Court New Jersey U.S. District Court New Mexico U.S. District Court New York Eastern U.S. District Court New York Northern U.S. District Court New York Southern U.S. District Court New York Western U.S. District Court North Carolina Eastern U.S. District Court North Carolina Middle U.S. District Court North Carolina Western U.S. District Court North Dakota U.S. District Court Northern Mariana Islands U.S. District Court Ohio Northern U.S. District Court Ohio Southern U.S. District Court Oklahoma Eastern U.S. District Court Oklahoma Northern U.S. District Court Oklahoma Western U.S. District Court Oregon U.S. District Court Pennsylvania Eastern U.S. District Court Pennsylvania Middle U.S. District Court Pennsylvania Western U.S. District Court Puerto Rico U.S. District Court Rhode Island U.S. District Court South Carolina U.S. District Court South Dakota U.S. District Court Tennessee Eastern U.S. District Court Tennessee Middle U.S. District Court Tennessee Western U.S. District Court Texas Eastern U.S. District Court Texas Northern U.S. District Court Texas Southern U.S. District Court Texas Western U.S. District Court Utah U.S. District Court Vermont U.S. District Court Virgin Islands U.S. District Court Virginia Eastern U.S. District Court Virginia Western U.S. District Court Washington Eastern U.S. District Court Washington Western U.S. District Court West Virginia Northern U.S. District Court West Virginia Southern U.S. District Court Wisconsin Eastern U.S. District Court Wisconsin Western U.S. District Court Wyoming U.S. District Court Louisiana U.S. District Court Washington U.S. District Court West Virginia U.S. District Court Illinois Eastern U.S. District Court South Carolina Eastern U.S. District Court South Carolina Western U.S. District Court Alabama U.S. District Court U.S. District Court for the Canal Zone Georgia U.S. District Court Illinois U.S. District Court Indiana U.S. District Court Iowa U.S. District Court Michigan U.S. District Court Mississippi U.S. District Court Missouri U.S. District Court New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) New Jersey Western U.S. District Court (West Jersey U.S. District Court) New York U.S. District Court North Carolina U.S. District Court Ohio U.S. District Court Pennsylvania U.S. District Court Tennessee U.S. District Court Texas U.S. District Court Virginia U.S. District Court Norfolk U.S. District Court Wisconsin U.S. District Court Kentucky U.S. Distrcrict Court New Jersey U.S. District Court California U.S. District Court Florida U.S. District Court Arkansas U.S. District Court District of Orleans U.S. District Court State Supreme Court State Appellate Court State Trial Court Eastern Circuit (of the United States) Middle Circuit (of the United States) Southern Circuit (of the United States) Alabama U.S. Circuit Court for (all) District(s) of Alabama Arkansas U.S. Circuit Court for (all) District(s) of Arkansas California U.S. Circuit for (all) District(s) of California Connecticut U.S. Circuit for the District of Connecticut Delaware U.S. Circuit for the District of Delaware Florida U.S. Circuit for (all) District(s) of Florida Georgia U.S. Circuit for (all) District(s) of Georgia Illinois U.S. Circuit for (all) District(s) of Illinois Indiana U.S. Circuit for (all) District(s) of Indiana Iowa U.S. Circuit for (all) District(s) of Iowa Kansas U.S. Circuit for the District of Kansas Kentucky U.S. Circuit for (all) District(s) of Kentucky Louisiana U.S. Circuit for (all) District(s) of Louisiana Maine U.S. Circuit for the District of Maine Maryland U.S. Circuit for the District of Maryland Massachusetts U.S. Circuit for the District of Massachusetts Michigan U.S. Circuit for (all) District(s) of Michigan Minnesota U.S. Circuit for the District of Minnesota Mississippi U.S. Circuit for (all) District(s) of Mississippi Missouri U.S. Circuit for (all) District(s) of Missouri Nevada U.S. Circuit for the District of Nevada New Hampshire U.S. Circuit for the District of New Hampshire New Jersey U.S. Circuit for (all) District(s) of New Jersey New York U.S. Circuit for (all) District(s) of New York North Carolina U.S. Circuit for (all) District(s) of North Carolina Ohio U.S. Circuit for (all) District(s) of Ohio Oregon U.S. Circuit for the District of Oregon Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania Rhode Island U.S. Circuit for the District of Rhode Island South Carolina U.S. Circuit for the District of South Carolina Tennessee U.S. Circuit for (all) District(s) of Tennessee Texas U.S. Circuit for (all) District(s) of Texas Vermont U.S. Circuit for the District of Vermont Virginia U.S. Circuit for (all) District(s) of Virginia West Virginia U.S. Circuit for (all) District(s) of West Virginia Wisconsin U.S. Circuit for (all) District(s) of Wisconsin Wyoming U.S. Circuit for the District of Wyoming Circuit Court of the District of Columbia Nebraska U.S. Circuit for the District of Nebraska Colorado U.S. Circuit for the District of Colorado Washington U.S. Circuit for (all) District(s) of Washington Idaho U.S. Circuit Court for (all) District(s) of Idaho Montana U.S. Circuit Court for (all) District(s) of Montana Utah U.S. Circuit Court for (all) District(s) of Utah South Dakota U.S. Circuit Court for (all) District(s) of South Dakota North Dakota U.S. Circuit Court for (all) District(s) of North Dakota Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma Court of Private Land Claims United States Supreme Court