Harvest v. Castro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA HARVEST,  No. 05-16879
Petitioner-Appellant, D.C. No.
v.
 CV 00-20498 JW
ROY CASTRO, Warden, HDSP, ORDER AND
Respondent-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
September 27, 2007—San Francisco, California
Filed March 27, 2008
Amended July 9, 2008
Before: John R. Gibson,* A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
8207
HARVEST v. CASTRO 8211
COUNSEL
Scott A. Sugarman, Sugarman & Cannon, San Francisco, Cal-
ifornia, for the petitioner-appellant.
Jeremy E. Friedlander, Deputy Attorney General, State of
California, San Francisco, California, for the respondent-
appellee.
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and reported at 520 F.3d 1055, is withdrawn and superseded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. Sub-
sequent 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 circum-
stances, a district court has the authority to modify a condi-
tional 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.
8212 HARVEST v. CASTRO
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 reme-
dies, 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 Four-
teenth 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 F. App’x 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 proceed-
ings to either modify the conviction to one for second degree
murder or to retry Petitioner.”
The State did not initiate proceeding to modify the convic-
tion, 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 Attor-
HARVEST v. CASTRO 8213
ney’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 “excus-
able,” the district court granted in part the State’s application
to amend the conditional writ — it gave the State an addi-
tional 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.
1
The State’s delay also provided time for the superior court to issue a
no-bail warrant for Harvest’s arrest.
8214 HARVEST v. CASTRO
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
[1] When a court issues a writ of habeas corpus, it declares
in essence that the petitioner is being held in custody in viola-
tion of his constitutional (or other federal) rights. See 28
U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 484
(1973) (“[T]he essence of habeas corpus is an attack by a per-
son 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
(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 convic-
tion.”); Medley, Petitioner, 134 U.S. 160, 173 (1890)
(“[U]nder the writ of habeas corpus we cannot do anything
else than discharge the prisoner from the wrongful confine-
ment in the penitentiary[.]”); William Blackstone, 3 Commen-
taries *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 pro-
duce the body of the prisoner . . . and, if the cause of impris-
onment were palpably illegal, they might have discharged
him.”).
[2] In modern practice, however, courts employ a condi-
tional order of release in appropriate circumstances, which
HARVEST v. CASTRO 8215
orders the State to release the petitioner unless the State takes
some remedial action, such as to retry (or resentence) the peti-
tioner. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 89 (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 (1993) (“The typical relief granted in federal habeas cor-
pus 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.”); Hil-
ton v. Braunskill, 481 U.S. 770, 775 (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 (1894) (recog-
nizing for the first time that the habeas court had the power
to retain the petitioner in conditional custody before granting
relief).
[3] Such “[c]onditional orders are essentially accommoda-
tions 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 judg-
ment with a valid one[,]” Wilkinson, 544 U.S. at 87 (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 com-
plies 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
8216 HARVEST v. CASTRO
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 never-
theless 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 cus-
tody even when the State failed to act within the prescribed
time period. Those circuits hold that when the State fails to
replace an invalid judgment with a valid one, the consequence
for failing to do so need not always be release.
The most expansive view of this power has been expressed
by the Third and Seventh Circuits. In Gilmore v. Bertrand,
301 F.3d 581 (7th Cir. 2002) (per curiam), the Seventh Circuit
held that the district court has the power to grant the State’s
motion for an extension to comply with the conditional order
even if the State fails to act in a timely manner. Id. at 583. In
that case, after failing to act within the 120 days given in the
conditional order, the State moved for a 45-day extension of
the stay, and the district court granted it. Id. at 582. The Sev-
enth Circuit reasoned that:
[H]abeas corpus is an equitable remedy, and courts
have broad discretion in conditioning a judgment
granting habeas relief. Indeed, 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. Logi-
cally, the equitable power of the district court in
deciding a habeas corpus petition includes the ability
to grant the state additional time beyond the period
prescribed in a conditional writ to cure a constitu-
tional deficiency.
HARVEST v. CASTRO 8217
Id. at 582-83 (internal citations and quotation marks omitted).
Thus, Gilmore seems to suggest that a district court’s power
to modify the condition is boundless, or at least constrained
only by the limits placed on the discretion of the court to craft
the initial conditional order.
The Third Circuit expressly agreed with Gilmore that the
district court has the power to modify a conditional writ, but
it did so without defining the power in such expansive terms.
See Gibbs v. Franks, 500 F.3d 202, 208-09 (3d Cir. 2007),
cert. denied No. 07-7905, 2008 WL 423765 (U.S. Feb. 19,
2008). In Gibbs, the district court allowed the Commonwealth
to retain custody of the petitioner even though it failed to retry
him within the 120 days provided for in the conditional writ,
based in part on the district court’s finding that the delay was
caused by both the Commonwealth and the petitioner. Id. In
light of these circumstances, the Third Circuit failed “to see
why a post-deadline justification offered by the state for the
delay in a prisoner’s retrial should be categorically rejected as
a legal matter” and concluded that “[t]he broad discretion
inherent in a district court’s habeas powers include [sic] the
ability to evaluate whether the Commonwealth has provided
a legitimate reason for its delay in retrying a defendant subject
to a conditional habeas writ.” Id. at 208. The Gibbs court held
that the district court’s power to modify the conditional order
includes the power to modify the writ when the district court’s
“actions are reasonable under the circumstances,” id. at 207,
and that one circumstance in which modification is reasonable
is when the Commonwealth (or State) “provide[s] a legitimate
reason for its delay[,]” id. at 208. To the Gibbs court, “it is of
no moment whether the Commonwealth seeks an extension
directly from the District Court during the initial deadline or
. . . provides a post hoc justification for the trial delay.” Id.
Whether the district court has the power to modify the writ
when the State provides no reason, or an illegitimate one,
remains an open question under Gibbs.
8218 HARVEST v. CASTRO
The Eighth Circuit also has concluded that the district
court’s power to modify a lapsed conditional writ includes the
power to modify the writ when the State provides a good rea-
son. In Chambers v. Armontrout, 16 F.3d 257 (8th Cir. 1994),
the Eighth Circuit did “not think the district court erred in
granting the state additional time to retry” the petitioner, in
part because “there was . . . some evidence that the delay in
retrial had been attributable at least in part to the defense.” Id.at 261 n.2.2
[4] We agree with our sister circuits that a district court can
modify its conditional writ even after the time provided in the
conditional writ has lapsed. Given that “habeas corpus is, at
its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298,
319 (1995), and that courts have “broad discretion in condi-
tioning a judgment granting habeas relief,” Hilton, 481 U.S.
at 775, we agree with the Seventh Circuit that “[l]ogically, the
equitable power of the district court in deciding a habeas peti-
tion includes the ability to grant the state additional time
beyond the period prescribed in a conditional writ to cure a
constitutional deficiency.”3 Gilmore, 301 F.3d at 582-83; cf.
2
Additionally, the Eleventh Circuit, in a per curiam opinion, concluded
that the district court had the power to give the State additional time to
resentence the petitioner to death even though the district court “ordered
that ‘petitioner within 180 days after this order becomes final by failure
to appeal or by mandate of the circuit court of appeals shall be afforded
a new sentencing phase trial, failing which upon motion a writ of habeas
corpus discharging him from custody shall issue.’ ” Moore v. Zant, 972
F.2d 318, 319 (11th Cir. 1992) (per curiam) (citation omitted). In that
case, the State argued that the “delay in resentencing had been caused by
confusion on the part of the state Attorney General’s office.” Id. Moore,
however, is not particularly helpful because the Moore court did not read
the district court order as a discharge order; instead, it “read [the order]
as saying that, unless [petitioner] were resentenced within 180 days, [peti-
tioner] would have to be treated by [the State] not as someone in its cus-
tody pursuant to a death sentence, but as an unsentenced person.” Id. at
320.
3
Of course the district court also had the authority to deny the extension.
For example, in Satterlee, the district court issued a conditional writ and
HARVEST v. CASTRO 8219
Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d
1001, 1030 (9th Cir. 1985) (“The district court has continuing
jurisdiction over such matters as the modification of injunc-
tive relief.”). However, “the fact that the writ has been called
an ‘equitable’ remedy does not authorize a court to ignore . . .
statutes, rules, and precedents. . . . Rather, courts of equity
must be governed by rules and precedents no less than the
courts of law.” Lonchnar v. Thomas, 517 U.S. 314, 323
(1995). Habeas proceedings brought by state prisoners are
governed by a discrete set of rules. See Rules Governing Sec-
tion 2254 Cases in the United States District Courts (codified
after 28 U.S.C. § 2254) (“Habeas Rules”); Mayle v. Felix, 545
U.S. 644, 654 (2005). The final Habeas Rule, Rule 11, pro-
vides that the “Federal Rules of Civil Procedure, to the extent
that they are not inconsistent with any statutory provisions or
[the habeas] rules, may be applied to a proceeding under these
rules.” Habeas Rule 11; see also Fed. R. Civ. P. 81(a)(4) (pro-
viding that the Rules of Civil Procedure apply in habeas cases
to the extent that those rules do not conflict with the Habeas
Rules or other statutory provisions); Mayle, 545 U.S. at
654-55 (discussing the application of the civil rules to a
habeas proceeding).
[5] Civil Rule 60 governs relief from judgments or orders.
See Fed R. Civ. P. 60. Specifically, “Rule 60(b) allows a party
to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud,
mistake, and newly discovered evidence.”4 Gonzalez v.
when the State failed to act within the allotted time, the district court
ordered the petitioner’s immediate release. 453 F.3d at 368-69. The State
challenged the district court’s order and the Sixth Circuit affirmed, reason-
ing that “[w]hen the state fails to cure the error, i.e., when it fails to com-
ply with the order’s conditions, a conditional grant of habeas corpus
requires the petitioner’s release from custody.” Id. at 369 (emphasis in
original).
4
Rule 60(b) provides:
8220 HARVEST v. CASTRO
Crosby, 545 U.S. 524, 528 (2005). As the Supreme Court has
stated, “Rule 60(b) has an unquestionably valid role to play
in habeas cases.” Id. at 534. In Gonzalez, the Supreme Court
held that a habeas petitioner may move for relief from denial
of habeas under Rule 60(b) so long as the motion is not the
equivalent of a successive petition.5 Id. at 535-36. In doing so,
the Court noted that “[i]n some instances . . . it is the State,
not the habeas petitioner, that seeks to use Rule 60(b), to
reopen a habeas judgment granting the writ.”6 Id. at 534
Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable dili-
gence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
5
If the motion seeking relief from the judgment is, in reality, a succes-
sive petition, the motion would be “inconsistent with” the Anti-Terrorism
and Effective Death Penalty Act. Gonzalez, 545 U.S. at 531. Like the
other Civil Rules, Rule 60 applies only “to the extent that [it is] not incon-
sistent with any statutory provisions or [the habeas] rules[.]” Habeas Rule
11.
6
The Supreme Court has also explicitly held that Rule 52(b) and Rule
59 apply in habeas corpus proceedings. Browder v. Director, 434 U.S.
257, 270-71 (1978). The State, therefore, could have brought a Rule 52(b)
or 59 motion to modify the conditional writ as well. The deadlines under
HARVEST v. CASTRO 8221
(emphasis in the original) (citing Ritter v. Smith, 811 F.2d
1398, 1400 (11th Cir. 1987)).
[6] Moreover, Rule 60, before the 2007 Amendments, spe-
cifically provided that “the procedure for obtaining relief from
a judgment shall be by motion as prescribed in [the Civil]
rules or by an independent action.” Fed. R. Civ. P. 60(b).
Although the 2007 Amendments deleted that provision “as
unnecessary,” the 2007 advisory committee notes make clear
that “[r]elief [from the judgment] continues to be available
only as provided in the Civil Rules or by independent action.”
Fed. R. Civ. P. 60 advisory committee notes on 2007 amend-
ments; see also 12 James Wm. Moore, Moore’s Federal
Practice § 60.40 (3d ed. 2006) (“[A]part from a motion under
Rule 60(b), and independent action in equity, statutory proce-
dures, and the court’s inherent power to set aside judgments
for fraud on the court, there are no other recognized means,
outside of a timely appeal, for relief from a final judgment or
order.”).7 Therefore, we hold that the district court has the
authority to modify a conditional writ in order to give the
State more time to cure the constitutional deficiency, but that
such modifications are governed by the Habeas Rules and, by
incorporation, the Rules of Civil Procedure, including Rule
60.
Rule 52(b) and 59, however, are strict. See Carter v. United States, 973
F.2d 1479, 1488 (9th Cir. 1992) (“The district court has no discretion to
consider a late Rule 59(e) motion.”). Thus, once the State failed to move
to amend the judgment within 10 days, a Rule 52(b) or 59 motion was no
longer available.
7
The advisory committee notes make plain that “[t]he language of Rule
60 has been amended as part of the general restyling of the Civil Rules to
make them more easily understood and to make style and terminology
consistent throughout the rules. These changes are intended to be stylistic
only.” Fed. R. Civ. P. 60 advisory committee notes on 2007 amendments.
8222 HARVEST v. CASTRO
II. Applying Civil Rule 60 to Harvest’s Conditional Writ
Even though the State’s motion to the district court was
labeled as an “Application to Amend Order Nunc Pro Tunc,”
we treat it as a Rule 60(b) motion. See Am. Ironworks & Erec-
tors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th
Cir. 2001) (“a motion for reconsideration . . . is treated as a
Rule 60(b) motion” if it is filed more than ten days after entry
of judgment); see also 12 Moore, supra, § 60.64
(“Nomenclature is not important. The label or description that
a party puts on its motion does not control whether the party
should be granted or denied relief.”).
[7] On appeal, the State argues that Rule 60(b)(1)’s excus-
able neglect standard provides sufficient grounds for the dis-
trict court to reopen the conditional writ. Rule 60(b)(1),
however, grants the power to “correct judgments . . . which
have issued due to inadvertence or mistake.” Am. Trucking
Ass’ns v. Frisco Transp. Co., 358 U.S. 133, 145 (1958)). See
11 Charles Alan Wright et al., Federal Practice and Proce-
dure § 2858, at 276 (2d ed. 1995) (noting that Rule 60(b)
empowers courts “to relieve the oppressed from the burden of
judgments unfairly, fraudulently or mistakenly entered”)
(internal citation and quotations marks omitted). As the advi-
sory committee notes state, the rule is designed to provide
relief “where the judgment is taken against the party through
. . . mistake, inadvertence, etc.” Fed. R. Civ. P. 60 advisory
committee notes to the 1946 amendment. The State, however
does not argue that the conditional writ was issued due to a
mistake or excusable neglect; rather, the contention is that the
State deserves relief from the judgment due to its failure
timely to carry out the terms of the conditional writ. The
State’s mistake, a “mistake” that came after the issuance of
the order, did not result in the issuance of the order.
[8] Whether Rule 60(b)(1) applies to this circumstance is
therefore questionable. Yet, as the State, in its petition for
rehearing, points out, had it not itself brought its noncompli-
HARVEST v. CASTRO 8223
ance to the attention of the court and made a motion to modify
the original order, but rather waited until it was discovered by
the court and a unconditional writ was issued, it could have
made a Rule 60(b)(1) motion. In other words, under that sce-
nario, the unconditional writ would have been issued due to
the State’s inadvertence, and as such, Rule 60(b)(1) would
apply. We acknowledge that it seems odd that Rule 60(b)(1)
applies when a party compounds its negligence by failing to
bring its error to the attention of the court, but does not apply
when the party brings the same error to the court at an earlier
point in time. Given that anomaly, we do not decide the
bounds of Rule 60(b)(1)as applied to a failure to comply with
a district court order because of neglect because we can
decide the case by assuming, without deciding, that Rule
60(b)(1) does apply. Instead, considering whether the State’s
neglect was excusable under Rule 60(b)(1), we conclude that
the neglect was not excusable.
“[I]nadvertence, ignorance of the rules, or mistakes con-
struing the rules do not usually constitute ‘excusable’
neglect.” Pioneer Invs. Servs. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 392 (1993). Nonetheless, we have held that
there may be some circumstances in which simple inadver-
tence could be excusable neglect. See Pincay v. Andrews, 389
F.3d 853, 858-59 (9th Cir. 2004) (en banc). To determine
whether the inadvertence can be excusable, we apply the Pio-
neer factors: (1) the danger of prejudice to the nonmoving
party; (2) the length of delay; (3) the reason for the delay,
including whether it was within the reasonable control of the
movant; and (4) whether the moving party’s conduct was in
good faith. Id. at 855 (citing Pioneer, 507 U.S. at 395).
[9] In Pincay, there was no prejudice to the other party and
the delay in question was less than 30 days. See id. at 859.
Here, there was an actual possibility of prejudice to Harvest’s
interests. Had there been no delay, Harvest might have been
resentenced to concurrent, rather than consecutive sentences,
in which case he would immediately have been eligible for
8224 HARVEST v. CASTRO
parole. The State contends that the state court would likely
have imposed consecutive rather than concurrent sentences on
resentencing, but the state court was not required to do so. See
Cal. Penal Code § 669 (noting that judge may impose concur-
rent or consecutive sentences); Cal. R. Ct. 4.425(a) (listing
factors a court may consider in imposing consecutive sen-
tences). There is at least a possibility that the court would not
have imposed consecutive sentences, and that Harvest would
have been paroled. Certainly, staying in prison when one
might have been released constitutes prejudice.
[10] Also, here, the delay was substantial. The State did not
recognize its error and contact the district court until 64 days
after the court’s deadline.
[11] As for the third factor, the State offers no reason for
the delay. Importantly, the attorney in Pincay had made some
effort to maintain an effective system for calendaring
deadlines—albeit a system that broke down in that case. See
Pincay, 389 F.3d at 860-61 (Berzon, J., concurring) (conclud-
ing that “the complete misfiring of a generally well-conceived
calendaring system is” distinguishable from “letting court
orders pile up on desks”). Here, the State has not suggested
that it had any system for ensuring that a district court order
granting a conditional writ of habeas corpus was communi-
cated to local prosecutors. Indeed, the State’s attorney pro-
vided no reason at all for the error: he admitted that the
“system” consisted of himself, that he made “foolish”
assumptions, and that his failure to inform the district attorney
was “professionally inexcusable.” In other words, the neglect
here was systemic (as evidenced by the fact that it happened
more than once, see Currie v. Rupf, No. C-02-2343 VRW (N.
D. Cal. 2006)), and the State failed to provide any reason for
the neglect, see Pincay, 389 F.3d at 862 (Kozinski, J. dissent-
ing) (“[D]efendants need not have offered a terribly good
countervailing reason to make their neglect excusable. But
they needed to show something.” (emphasis in original)).
HARVEST v. CASTRO 8225
Moreover, also unlike the movant in Pincay, the State here
may well have operated partially in bad faith. After discover-
ing that it had failed to comply with the conditional writ, the
State’s counsel waited an additional three days before bring-
ing the error to the district court’s attention, a delay which
provided the Contra Costa County District Attorney time to
file a new complaint in Superior Court recharging Harvest
with the murder.
[12] Finally, we cannot ignore that the delay in this case,
unlike that in Pincay, may have affected an individual’s right
to personal liberty. Cf. Pincay, 389 F.3d at 859 (“Pioneer
itself instructs courts to determine the issue of excusable
neglect within the context of the particular case[.]”). It is not
too much to ask that, when a federal court holds that an indi-
vidual has been tried, convicted, and imprisoned in a manner
inconsistent with the Constitution of the United States, the
State devise some system for assuring that the court’s deci-
sion is complied with in a timely manner. If it fails to do so,
it must identify some factor that would render its actions “ex-
cusable.” It has not done so here.
Moreover, because “Rule 60(b)(1) guides the balance
between the overriding judicial goal of deciding cases cor-
rectly, on the basis of their legal and factual merits, with the
interest of both litigants and the courts in the finality of judg-
ments,” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691,
695 (9th Cir. 2001), “[n]early all of the cases in which relief
has been granted [under the excusable neglect standard]
involve situations in which a party was prevented from
[obtaining an adjudication on the merits],” see John J. Cound
et al., Civil Procedure 1109-10 (8th ed. 2001), such as a
default judgment, see e.g., TCI Group Life Ins. Plan, 244 F.3d
at 697-701, dismissal for failure to prosecute, see, e.g., Torres
v. S.S. Pierce Co., 471 F.2d 473, 474 (9th Cir. 1972) (per
curiam), or summary judgment based on failure timely to
respond to a summary judgment motion, see, e.g., Bateman v.
U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir. 2000). In
8226 HARVEST v. CASTRO
this case, the district court issued the conditional writ after the
merits of Harvest’s habeas petition had been extensively liti-
gated.
We next examine whether Rule 60(b)(5), which “codifies
the long-established principle of equity practice that a court
may, in its discretion, take cognizance of changed circum-
stances and relieve a party from a continuing decree,” Gil-
more v. California, 220 F.3d 987, 1007 (9th Cir. 2000),
provides the proper vehicle through which the conditional
writ may have been modified in this case. To be sure, Rule
60(b)(5) applies only to those judgments that have prospective
application. “The standard used in determining whether a
judgment has prospective application is whether it is execu-
tory or involves the supervision of changing conduct or condi-
tions.” Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir. 1995)
(internal quotation marks and citations omitted). A condi-
tional writ of habeas corpus quite clearly “involves the super-
vision of changing conduct or conditions.” As the Seventh
Circuit described it:
A conditional order’s framework contemplates that a
district court will eventually make an assessment
concerning compliance with its mandate. In many
cases, whether or not the state has complied will be
apparent—where, for instance, a court orders a new
hearing and the state completely fails to provide one.
In these cases, a specific assessment concerning
compliance may be unnecessary—the writ will sim-
ply issue because it is apparent that the state has not
fulfilled the mandate. In other cases, however, the
district court will need to examine the content of the
state’s action to determine whether compliance was
sufficient.
Phifer, 53 F.3d at 865. Indeed, in this case, the conditional
writ itself clearly contemplated continued supervision in that
it ordered the State to “file and serve a notice of compliance
HARVEST v. CASTRO 8227
with this Order no later than sixty (60) days from the date of
this Order.” Therefore, we treat the State’s motion to modify
the conditional writ as a Rule 60(b)(5) motion.
[13] Under Rule 60(b)(5), modification of the conditional
writ is warranted if there is “a significant change either in fac-
tual conditions or in law.” See Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 384 (1992); see also Gilmore, 220
F.3d at 1007. The party seeking the modification has the bur-
den of demonstrating that such a change has occurred. Rufo,
502 U.S. at 384. Therefore, when the State proves that there
has been an intervening change in the law, see, e.g., Ritter,
811 F.2d at 1403 (setting aside conditional writ in light of
“extraordinary” circumstance of an intervening Supreme
Court decision which made clear that the petitioner was not
entitled to the habeas relief he had been granted);8 cf. Rufo,
8
Ritter, cited favorably by the Supreme Court in Gonzalez, is instructive
here. In Ritter, the State filed a Rule 60(b) motion more than 10 days after
the district court issued the conditional writ, but before the 180 days the
district court had allowed for resentencing had elapsed. 811 F.2d at 1400,
cited approvingly by Gonzales, 545 U.S. at 534. In that case, the Eleventh
Circuit had issued a mandate instructing the district court to issue the writ
of habeas corpus because Alabama’s capital statute was facially unconsti-
tutional. Id. Pursuant to this mandate, the district court entered a condi-
tional order giving Alabama 180 days to resentence the petitioner. Id.
After the conditional writ had been issued by the district court, the
Supreme Court granted certiorari in a case involving the question whether
Alabama’s capital statute was facially unconstitutional. Id. In response to
the granting of certiorari, the State moved for an extension of the time
within which Alabama could resentence the petitioner. Id. The Supreme
Court eventually held that the statute was constitutional. Ritter, 811 F.2d
at 1400 ; see also Baldwin v. Alabama, 472 U.S. 372 (1985). In response
to Baldwin, the State filed a motion, pursuant to Rule 60(b)(6), to set aside
the order conditionally granting the writ, which the district court granted.
Ritter, 811 F.2d at 1400. The petitioner appealed and the Eleventh Circuit
affirmed the district court’s order setting aside the conditional writ, rea-
soning that the Supreme Court decision was an extraordinary circum-
stance, but noting “that a change in the law will not always provide the
truly extraordinary circumstances necessary to reopen a case.” Id. at 1401(emphasis in the original).
8228 HARVEST v. CASTRO
502 U.S. at 388 (“[M]odification of a consent decree may be
warranted when the statutory or decisional law has changed
to make legal what the decree was designed to prevent.”), or
demonstrates that the petitioner’s actions have inhibited the
efforts of the State to retry or resentence the petitioner, see,
e.g.,Gibbs, 500 F.3d at 208 (granting the Commonwealth’s
motion to modify the conditional writ when the Common-
wealth demonstrated that the petitioner was at least partially
at fault for the delay); Chambers, 16 F.3d at 261 n.2 (same),
modification of the writ may be appropriate. In this case,
however, the State has demonstrated no “significant change[s]
either in factual conditions or in law.” See Rufo, 502 U.S. at
384. Therefore, modification pursuant to Rule 60(b)(5) was
unwarranted.
[14] Civil Rule 60(b)(6), the so-called catch-all provision,
which provides that on motion “the court may relieve a party
or a party’s legal representative from a final judgment, order,
or proceeding for . . . any other reason [in addition to those
categories specified in Rules 60(b)(1)-(5)] that justified
relief,” Fed R. Civ. P. 60(b)(6), also does not provide an ave-
nue for modification of the conditional writ. A party moving
for relief under Rule 60(b)(6) “must demonstrate both injury
and circumstances beyond his control that prevented him from
proceeding with the action in a proper fashion.” Latshaw v.
Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir.
2006) (internal quotation marks and alteration omitted). We
have cautioned that this Rule is to be “used sparingly as an
equitable remedy to prevent manifest injustice and is to be uti-
lized only where extraordinary circumstances prevented a
party from taking timely action to prevent or correct an erro-
neous judgment.” Id. (quoting United States v. Washington,
394 F.3d 1152, 1157 (9th Cir. 2005)). Even assuming that the
State can show that it has suffered an injury, it has not demon-
strated that there were any “circumstances beyond its con-
trol.” Indeed, the State’s counsel acknowledges that the
circumstances were under his control and that his error was
“professionally inexcusable.”
HARVEST v. CASTRO 8229
[15] We therefore conclude that the State has failed to dem-
onstrate that relief was warranted under Rule 60; thus, that the
district court abused its discretion when it modified the condi-
tional writ.
CONCLUSION
We hold that when the State fails to cure the constitutional
error, i.e., when it fails to comply with the order’s conditions,
and it has not demonstrated that it deserves relief from the
judgment under Rule 60 or the other mechanisms provided for
in the Rules, the conditional grant of habeas corpus requires
the petitioner’s release from custody. Because the State has
failed to demonstrate that relief under Rule 60 was warranted,
we reverse the order of the district court and direct it to issue
an unconditional writ of habeas corpus releasing Harvest from
custody.9
REVERSED AND REMANDED.
9
Our granting of an unconditional writ of habeas corpus does not, itself,
preclude the State from rearresting and retrying Harvest. See Gardner v.
Pitchess, 731 F.2d at 640 (9th Cir. 1984) (reversing order that barred rear-
rest and retrial); 2 Hertz & Liebman, supra, § 33.3, at 1686 (“[F]ederal
courts usually permit rearrest and retrial after the time period specified in
the conditional release order has elapsed and the prisoner has been
released.”).