Rose v. Engle, 85-3740
| Decision Date | 09 September 1986 |
| Docket Number | No. 85-3740,85-3740 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Charles E. Rose, Petitioner-Appellant v. TED ENGLE, Supt., Respondent-Appellee |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MERRITT and MARTIN, Circuit Judges; and BERTELSMAN, * District Judge.
Rose appeals the district court's denial of his motion to stay retrial and to issue the writ of habeas corpus which was previously granted. On December 29, 1982, Rose was granted a writ of habeas corpus. The Sixth Circuit affirmed and issued a mandate which was filed with the district court on February 15, 1984. The state moved for a stay of the mandate on February 20, and the motion was denied. In April, 1984, the state petitioned for certiorari. A motion to stay the Sixth Circuit mandate was granted on May 19, 1984. The Court denied certiorari on February 25, 1985, and notice of that denial was filed in district court on March 21, 1985.
Rose was returned to the Warren County Sheriff and released on bail on March 8, 1985. Retrial was scheduled for April 15, 1985, but was continued to September 30, 1985, at Rose's request. On June 6, 1985, Rose filed a motion to stay retrial and to issue the writ of habeas corpus. Rose appeals the denial of the motion.
The origial grant of the writ of habeas corpus contains the following provision:
The writ of habeas corpus will issue sixty (60) days from the date of the filing of this Opinion and Order unless, within such time, the State initiates proceedings to retry petitioner. If a notice of appeal from the judgment entered in this case is filed, the writ of habeas corpus will not issue until sixty (60) days after the appellate court's mandate is filed in this Court.
Rose complains that he should have been released and that retrial is somehow wrong because no stay of mandate issued within sixty days of February 15, 1984, the date that the appeals court mandate was filed in the district court. Nor was retrial scheduled within sixty days of the filing of the mandate. Rose's arguments are meritless.
The provision in the order granting Rose's habeas petition does not in any way limit the state's right to retry Rose. Fisher v. Rose, 757 F.2d 789, 791 (6th Cir. 1985). The provision is solely a guide for when, in the procedural life of Rose's case, he must be released on the writ. Id. Retrial is not precluded even after the sixty day limit but must be begun within a reasonable time so as not to violate Rose's due process right to a speedy trial. Id. at 792.
Here Rose's retrial was originally scheduled to begin less than two months after the Supreme Court's denial of certiorari and less than one...
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