Split Widened: Can a District Court Modify a Conditional Writ of Habeas Corpus After It Has Become Final?

Per Harvest v. Castro, 2008 WL 795360, *6-*11 (9th Cir. Mar. 27, 2008)

Joshua Harvest was convicted of first degree murder during a state trial. The Ninth Circuit granted a conditional writ of habeas corpus, reasoning that the admission of hearsay testimony at trial violated the Confrontation Clause, and remanded to district court. The district judge gave the state sixty days to pursue one of three options – modify the conviction to second degree murder, retry Harvest, or release him.

Unfortunately, the state Attorney General, who handled the habeas litigation, did not inform the district attorney of this deadline and the sixty days expired without any action being taken. The error was discovered a month later, and the state filed a motion to amend the district court’s order because of the mistake. Harvest, on the other hand, argued that he was entitled to immediate release. The district judge amended the order, finding that the state’s error was ‘excusable.’

The Ninth reviews the ability of district courts to modify conditional writs of habeas corpus de novo. In its discussion, the panel notes that the circuits are split on the issue. The CA 6 hold that the failure to comply with the terms of a conditional release must always result in the release of the prisoner. The CAs 3,7, on the other hand, believe that the district court has broad discretion in deciding whether to employ its equitable powers to modify conditional writs even after they have become final.

The Ninth holds that the district court does have the power to modify its writs, but that the state motion to modify is governed by Federal Rule of Civil Procedure 60. Rule 60(b) permits a party to seek relief from final judgment under a limited set of circumstances, e.g. fraud, mistake, and newly discovered evidence. The attorney general’s mistake in this case, however, is not one of the type envisaged by the rule and none of the other circumstances apply either. The Ninth thus orders Harvest’s immediate release, but concludes its opinion by noting that nothing prevents the state from arresting and retrying him the moment he is released.

Additional coverage from the California Appellate Report and Decision of the Day. Like Professor Martin, I think that Judge Tashima's opinion is exactly right, especially in light of the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).