Sixth Circuit Holds That Time Limits in Conditional Habeas Corpus Grants Are Unenforceable

Decisions granting habeas corpuses for criminal defendants often contain language saying that the state court must retry the individual within so many days of the grant of the writ. When Mr. Eddleman won his habeas corpus in 2007, his writ contained similar language. The state court, however, did not comply with the time limit. Mr. Eddleman successfully petitioned the District Court to bar any further prosecution. The Michigan Attorney General’s Office appealed the ruling. On November 12, 2009, the Sixth Circuit handed down a ruling stating that the time period is was unenforceable and the Michigan court was free to violate the ruling. The Court per Judge Kethledge held that once the individual was out of MDOC custody and the conviction was vacated, the District Court lost all jurisdiction to enforce its order. Eddleman v McKee, — F3d —, 2009 WL 3763155 (6th Cir Nov 12, 2009).

The court held:

"More to the point here, the limitation also means that, once the unconstitutional judgment is gone, so too is federal jurisdiction under § 2254. And thus, in a typical case where a prisoner's conviction is vacated 'because a state fails to retry [him] by the deadline set in a conditional writ,
'the state is not precluded from rearresting petitioner and retrying him under the same indictment.' ' Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir.2006) (quoting Fisher v. Rose, 757 F.2d 789, 791 (6th Cir.1985) (emphasis added)), cert. denied, 549 U.S. 1281, 127 S.Ct. 1832, 167 L.Ed.2d 322 (2007). That a petitioner's first trial was unconstitutional in some respect, generally does not mean he can never be tried again. The power to 'release' a prisoner under § 2254 normally is not a power to release him forever from the underlying charge. It is the power, instead, only to release him from custody pursuant to the unconstitutional judgment."

2009 WL 3763155, at *3. The Court based its ruling on the Sixth Circuit’s prior decision in Satterlee v Wolfenbarger, 453 F3d 362 (6th Cir 2006). A review of that opinion, however, shows that it rejected rather than accepted the arguments made by the Attorney General. Irognically that case also involved an appeal from Judge Tarnow’s courtroom. Judge Tarnow granted the writ. The state court did not comply with the time period. Judge Tarnow not only ordered the writ be changed into an unconditional writ, but also also ordered the defendant’s conviction records expunged. The Sixth Circuit affirmed and found that the Court had the authority to enforce its orders.

Judge Kethledge undoubtedly drawing his position from the very end of the ruling where the Court left undecided whether an unconditional writ would be a bar to a completely new prosecution for the same offense. The Court cited to two cases from other circuits which upheld such new prosecutions.
Foster v. Lockhart, 9 F.3d 722, 727-28 (8th Cir.1993); Moore v. Zant, 972 F.2d 318, 320 (11th Cir.1992), cert. denied, 507 U.S. 1007, 113 S.Ct. 1650, 123 L.Ed.2d 271 (1993). At the same time, the Court also stated that the Court could set limitations on such a new prosecution designed to ensure that the Court did again commit the same constitutional violation or penalize the Defendant’s right to seek federal habeas corpus. See Footnote 7. This suggests that the Court had the very residual jurisdiction that Judge Kethledge denied.