Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-00264-Kathleen McDonald O'Malley, District Judge.
The opinion of the court was delivered by: Clay, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Before: BATCHELDER, Chief Judge; MARTIN and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which MARTIN, J., joined. BATCHELDER, C.J. (pp. 18-22), delivered a separate opinion concurring in the judgment only.
Petitioner Roberts Girts appeals the district court's decision not to bar a pending third trial following the state's failure to retry Petitioner within the time provided by this Court's conditional grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has twice been convicted of the 1992 murder of his wife. Both convictions were subsequently overturned based on prosecutorial misconduct. The first conviction was overturned by the state court on direct appeal. The second conviction was overturned by this Court in Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007). In that decision, Petitioner was granted a conditional writ of habeas corpus calling for the release of Petitioner from custody if he was not tried within 180 days. Girts was not tried within 180 days but was released and has subsequently been rearrested for the same murder. He argues on appeal that a third trial should be barred. For the following reasons, the district court's decision not to bar retrial is AFFIRMED.
Robert Girts' wife, Diane, died on September 2, 1992. Girts was indicted for aggravated murder on February 9, 1993. At his first trial, Girts testified on his own behalf. During the cross-examination of Girts, the prosecutor asked a series of questions about Girts' alleged confession to a jailhouse informant. Girts denied the confession, and no witness was ever provided to support the prosecutor's contentions. Girts was convicted of the murder. On July 28, 1994, the conviction was reversed by the Ohio Court of Appeals on account of the blatant prosecutorial misconduct.
Girts was subsequently retried and chose not to testify. During closing arguments at that trial, the prosecution made several statements in closing argument regarding Girts' decision not to testify or to speak with police. Girts was again convicted. This Court granted Girts' habeas petition based on the prosecutorial misconduct in the second trial. We found that:
Given the facts in this case, there is a strong likelihood that the prosecutor strategically made the prejudicial statements at the end of the trial to focus the jury's attention on Petitioner's silence, and away from the limited evidence presented at trial. The improper statements in this case constitute flagrant prosecutorial misconduct and are grounds for reversal even if trial counsel did not raise an objection.
Girts, 501 F.3d at 761.*fn1 We conditionally granted the habeas petition, remanding to the district court with instructions to order Girts' release unless the State of Ohio granted him a new trial within 180 days. Ohio sought rehearing and rehearing en banc. This Court denied those requests on February 19, 2008. Respondent did not seek a stay of the mandate under Federal Rule of Appellate Procedure 41, and the Court issued its mandate on March 12, 2008. The district court entered an order conditionally granting the writ on April 14, 2008. The order stated: "Petitioner's application for a writ of habeas corpus is CONDITIONALLY GRANTED as follows. Unless the State of Ohio grants Petitioner a new trial within 180 days from the date of this Order, Petitioner is to be released from custody at that time." That order created a deadline of October 11, 2008 for the State to act. Respondent filed a petition for certiorari on May 19, 2007, and the Supreme Court denied the petition on October 6, 2008.
Two days later, on October 8, 2008, Respondent moved for a 30-day extension of time to comply with the conditional writ. The district court initially granted the motion. Girts filed a motion for reconsideration and immediate release on October 10, 2008. On October 14, 2008, while that motion for reconsideration was pending, the state hurriedly convened a pretrial hearing, presumably in anticipation of a retrial, but despite the fact that the state was still holding Girts under the authority of the not-yet-vacated prior conviction for the same crime. Girts was appointed counsel, who was provided only five minutes to meet with Petitioner and who objected to the hastily convened proceedings. No bail was set at the hearing.
On November 3, 2008, the district court granted the motion for reconsideration and entered an unconditional writ of habeas corpus, calling for Petitioner's release no later than November 6, 2008. A formal written memorandum and order was issued on November 5, 2008. Respondent filed a "Notice of Compliance" on November 5, 2008, stating that it had released Girts from state prison into the custody of the county sheriff's department. Respondent requested a finding on whether it could retry Girts, and on November 6, 2008, the district court clarified its order, stating that, while it was an "extremely close question," Respondent could retry the prisoner. The district court also stated, however, that Girts could not be returned to the state's physical custody until Respondent obtained a valid conviction. On that same day, Girts was placed on supervised release, and Respondent has not appealed the district court's order releasing Girts pending a retrial.
We review a district court's disposition of a habeas petition de novo. Eddleman v. McKee, 586 F.3d 409, 412 (6th Cir. 2009).
Defendant argues that our recent decision in Eddleman forecloses federal jurisdiction because Girts is no longer in custody. In Eddleman, the Court reversed the district court's decision barring retrial where Michigan had failed to retry a petitioner who had secured a conditional grant of the writ of habeas corpus during the prescribed period. The prisoner in that case had already had the defective conviction set aside by the state when the district judge considered the motion to bar retrial. "For federal habeas jurisdiction to exist under § 2254, therefore, a state prisoner must be held pursuant to a judgment -- rather than, say, an indictment or criminal information . . . [T]he limitation . . . means that, once the unconstitutional judgment is gone, so too is federal jurisdiction under § 2254." Id. at 413.
Eddleman is not directly on point for the situation before the Court. In Eddleman, this Court affirmed a district court's grant of a conditional writ for the petitioner to be retried within a "reasonable time." Our mandate issued on January 5, 2007. The district court's order required the state to retry the petitioner within 45 days of the issuance of the mandate. The following month, the petitioner was rearrested. He appeared for a hearing in state court on February 28, 2007 and agreed that his sentence, based on the improper conviction, had been "vacated." He filed a motion on March 1, 2007 requesting an order barring a subsequent trial. The order was denied. The state court was slow to retry Eddleman, and he renewed his motion in federal court for an unconditional writ barring reprosecution on November 19, 2007. The district court agreed and ordered the release of petitioner on January 22, 2008. On February 5, 2008, the order was clarified to bar Michigan from reprosecuting the ...