Harvest v. Castro

• Decision Date: 27 March 2008
• Docket Number: No. 05-16879.,05-16879.
• Citation: 531 F.3d 737
• Parties: Joshua HARVEST, Petitioner-Appellant, v. Roy CASTRO, Warden, HDSP, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

531 F.3d 737

Joshua HARVEST, Petitioner-Appellant, v. Roy CASTRO, Warden, HDSP, Respondent-Appellee.

No. 05-16879.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 27, 2007.

Filed March 27, 2008.

Amended July 9, 2008.

Scott A. Sugarman, Sugarman & Cannon, San Francisco, CA, for the petitioner-appellant.

Jeremy E. Friedlander, Deputy Attorney General, State of California, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV 00-20498 JW.

Before: JOHN R. GIBSON,^* A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

Respondent-appellee's petition for panel rehearing is granted and the opinion filed March 27, 2008, slip op. 3121, and reported at 520 F.3d 1055, is withdrawn and superseded by an amended opinion, filed concurrently with this order.

The petition for rehearing en banc is denied as moot. Subsequent petitions for panel rehearing and for rehearing en banc may be filed with respect to the amended opinion.

OPINION

TASHIMA, Circuit Judge:

We must decide whether and, if so, under what circumstances, a district court has the authority to modify a conditional writ of habeas corpus after the time provided in the order has lapsed. We hold that the district court does have such authority, but that such modifications may only be made pursuant to the Rules of Civil Procedure. In this case, the State has failed to demonstrate that relief under Rule 60 is warranted; therefore, we reverse the district court, concluding that it abused its discretion when it modified the conditional writ. We remand with instructions for the district court to grant the unconditional writ of habeas corpus ordering the petitioner's release.

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

BACKGROUND

Joshua Harvest was convicted of first-degree murder in California Superior Court. After exhausting his state remedies, Harvest challenged his conviction in a federal habeas action on the ground, among others, that the trial court had violated his right of confrontation under the Sixth and Fourteenth Amendments by improperly admitting Harvest's accomplice's hearsay testimony. We granted relief on that ground and remanded the case, directing "the district court to order the state to release the petitioner unless the state either modifies the conviction to one for second degree murder or retries the petitioner." Harvest v. Castro, 121 Fed. Appx. 216, 220 (9th Cir.2005). Consistent with our mandate, the district court issued a conditional writ ordering the State to release Harvest "within sixty (60) days of the date of this Order unless within that period of time the state initiates proceedings to either modify the conviction to one for second degree murder or to retry Petitioner."

The State did not initiate proceeding to modify the conviction, nor did it release Harvest within sixty days from the date of the district court's order. The State's lawyer admits that he failed to act within the designated time. He explained:

The Court's order was received by the California Attorney General ... on March 25, 2005, [two days after the district court issued the conditional writ]. Through counsel's error, the order was simply filed and not transmitted to the District Attorney of Contra Costa County, where petitioner was tried. The error was discovered on July 22, when the District Attorney's office inquired of the Attorney General's office about the status of the case.

The error in this matter occurred for a very simple reason. After advising the District Attorney of the Ninth Circuit's modification of its opinion (in which modification the Ninth Circuit authorized the state to retry petitioner for murder or modify his conviction to second degree murder), counsel for respondent foolishly assumed that it was unnecessary for him to advise the District Attorney of the District Court's order giving effect to the Ninth Circuit's judgment. Counsel's error was professionally inexcusable. ...

After discovering his error, the State's counsel nevertheless waited three more days before bringing the error to the district court's attention, providing the Contra Costa County District Attorney time to file a new complaint in Superior Court recharging Harvest with the murder.¹

The State eventually filed an "Application to Amend Order Nunc Pro Tunc," seeking to amend the conditional writ. The application sought an additional sixty days to retry Harvest, modify his conviction, or release him. Harvest opposed the application, arguing that the district court should order his immediate release. Finding the State's counsel's error "excusable," the district court granted in part the State's application to amend the conditional writ — it gave the State an additional month to "release petitioner or initiate proceedings to either modify the conviction to one for second degree murder or to retry petitioner." Harvest timely appealed.

STANDARD OF REVIEW

We review de novo the question of which legal standard applies to the State's motion to modify the conditional writ, see Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1252 (9th Cir.1999), but review for abuse of discretion the district court's granting of relief under Rule 60(b), see id.

ANALYSIS

I. Modifying the Conditional Writ

When a court issues a writ of habeas corpus, it declares in essence that the petitioner is being held in custody in violation of his constitutional (or other federal) rights. See 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody[.]"). Given that function of the writ, courts originally confined habeas relief to orders requiring the petitioner's unconditional release from custody. See, e.g., In re Frederich, 149 U.S. 70, 77, 13 S.Ct. 793, 37 L.Ed. 653 (1893) ("[I]f such conviction was obtained in disregard or in violation of rights secured to him by the constitution and laws of the United States, ... he may apply for a writ of habeas corpus to be discharged from custody under such conviction."); Medley, Petitioner, 134 U.S. 160, 173, 10 S.Ct. 384, 33 L.Ed. 835 (1890) ("[U]nder the writ of habeas corpus we cannot do anything else than discharge the prisoner from the wrongful confinement in the penitentiary[.]"); William Blackstone, 3 Commentaries *131 ("[T]he great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ... directed to the person detaining another, and commanding him to produce the body of the prisoner ... and, if the cause of imprisonment were palpably illegal, they might have discharged him.").

In modern practice, however, courts employ a conditional order of release in appropriate circumstances, which orders the State to release the petitioner unless the State takes some remedial action, such as to retry (or resentence) the petitioner. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 89, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (Kennedy, J., dissenting) (describing the "common practice of granting a conditional writ," that is, "ordering that a State release the prisoner or else correct the constitutional error through a new hearing"); Herrera v. Collins, 506 U.S. 390, 403, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ("The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence."); Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ("[T]his 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."); In re Bonner, 151 U.S. 242, 259-60, 14 S.Ct. 323, 38 L.Ed. 149 (1894) (recognizing for the first time that the habeas court had the power to retain the petitioner in conditional custody before granting relief).

Such "[c]onditional orders are essentially accommodations accorded to the state," Phifer v. Warden, 53 F.3d 859, 864-65 (7th Cir.1995), in that conditional writs "enable habeas courts to give States time to replace an invalid judgment with a valid one[,]" Wilkinson, 544 U.S. at 87, 125 S.Ct. 1242(Scalia, J., concurring). The consequence when the State fails to replace an invalid judgment with a valid one is "always release." Id.; accord Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th Cir. 2006) (affirming district court's granting of immediate release upon the State's failure to comply with the conditional writ); Phifer, 53 F.3d at 862 ("If the state complies with [the district court's] order, the petitioner will not be released; if the state fails to comply with its order, release will occur."); Fisher v. Rose, 757 F.2d 789, 791 (6th Cir.1985) ("A conditional grant of a writ of habeas corpus requires the petitioner's release from custody if new proceedings are not commenced by the state within the prescribed time period."); 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 33.3, at 1684 (5th ed. 2005) ("If the state fails to act within the time set for retrial (or for some other proceeding) to occur, the petitioner must be released from custody immediately.").

Despite the absolute language employed by some jurists and commentators, several of our sister circuits have nevertheless held that a district court can modify its conditional order even after the expiration of the time period set in the order, thus allowing the State to retain the petitioner in its custody even when the State failed to act within the prescribed time...