Agavo v. Neven

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 REYNALDO AGAVO, Case No.: 2:13-cv-01741-JCM-DJA

4 Petitioner Order

5 v.

6 CALVIN JOHNSON,

7 Respondents 8 Before the Court in this habeas matter is Respondents’ unopposed Motion for Relief from 9 Judgment (ECF No. 103) under Fed. R. Civ. P. 60(b). 10 Background 11 In October 2021, the Court conditionally granted the petition for writ of habeas corpus as 12 to ground one, vacated the state court judgment of conviction, and ordered Petitioner’s release 13 unless the state elected to retry Petitioner and commence jury selection within 120 days 14 following the election to retry Petitioner. ECF No. 88 at 41-42. Following appellate proceedings, 15 on October 26, 2023, the state filed a notice of intent to retry Petitioner. ECF No. 95. As such, 16 the deadline to commence jury selection was February 23, 2024. In April 2024, the Court granted 17 Respondents’ request to amend the judgment to allow jury selection in the retrial to commence 18 no later than June 24, 2024. ECF No. 96 at 3. In October 2024, the Court granted Respondents’ 19 unopposed motion to extend the deadline for the State to commence jury selection in the retrial 20 to May 22, 2025. ECF No. 102. 21 Respondents now request an extension of time to comply with the conditional writ up to 22 and including December 18, 2025. ECF No. 106. They assert that the state district court 23 permitted appointed counsel for Petitioner to withdraw and that a hearing for the 1 confirmation of counsel is set for May 20, 2025. ECF No. 103 at 2. Petitioner remains on 2 supervised release pending retrial. 3 Discussion 4 When a court issues a writ of habeas corpus, it declares in essence that the petitioner is 5 being held in custody in violation of his constitutional rights. See 28 U.S.C. § 2254(a); Preiser v.

6 Rodriguez, 411 U.S. 475, 484 (1973). Courts employ a conditional order of release in appropriate 7 circumstances, which orders the State to release the petitioner unless the State takes some 8 remedial action, such as to retry the petitioner. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 89 9 (2005) (describing the “common practice of granting a conditional writ,” that is, “ordering that a 10 State release the prisoner or else correct the constitutional error through a new 11 hearing”); Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief granted in federal 12 habeas corpus is a conditional order of release unless the State elects to retry the successful 13 habeas petitioner, or in a capital case a similar conditional order vacating the death sentence.”) 14 “[C]onditional orders are essentially accommodations accorded to the state, in that conditional

15 writs enable habeas courts to give states time to replace an invalid judgment with a valid one.” 16 Wilkinson, 544 U.S. at 87. See also Harvest v. Castro, 531 F.3d 737, 742 (9th Cir. 2008). 17 The Ninth Circuit has held that a district court can modify its conditional writ even after 18 the time provided in the conditional writ has lapsed. Harvest, 531 F.3d at 744. “Logically, the 19 equitable power of the district court in deciding a habeas petition includes the ability to grant the 20 state additional time beyond the period prescribed in a conditional writ to cure a constitutional 21 deficiency.” Id. (citing Gilmore v. Bertrand, 301 F.3d 581, 582-83 (7th Cir. 2002). Such 22 modifications are governed by the Habeas Rules and, by incorporation, the Rules of Civil 23 Procedure, including Rule 60. Harvest, 531 F.3d at 745. 1 Under Rule 60, the court may relieve a party from a final judgment or order for the 2\| following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief 5|| from the judgment. Fed. R. Civ. P. 60(b); Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000). 6 The Court considers the four-factor test the Supreme Court established in Pioneer: (1) the 7|| danger of prejudice to the nonmoving party; (2) the length of delay; (3) the reason for the delay, including whether it was within reasonable control of the movant; and (4) whether the moving 9|| party’s conduct was in good faith. Pioneer Invs. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993). In consideration of the Pioneer factors and because Petitioner does not oppose motion, the Court will grant Respondents’ motion. 12 IT IS THEREFORE ORDERED that Respondents’ Motion for Relief from Judgment CECF No. 103) is granted. 14 It is further ordered that Judgment (ECF No. 88) is modified to extend the deadline for 15|| compliance with the conditional writ to December 18, 2025. 16 DATED June 2, 2025. 17 iit ©. Atallan 8 JAMESIC. MAHAN UNITED STATES DISTRICT JUDGE 19 20 21 22 23