HARVEST v. CASTRO
The Ninth Circuit Court of Appeals today released an opinion in HARVEST v. CASTRO, No. 05-16879, a habeas corpus appeal. The panel consisted of John R. Gibson, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.
TASHIMA, Circuit Judge:
We must decide whether and, if so, under what circumstances, a district court has the authority to modify a conditional 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. 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 remedies, 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 Fourteenth 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 . . .