NOT RECOMMENDED FOR PUBLICATION File Name: 26a0251n.06
No. 25-3383
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 04, 2026 KELLY L. STEPHENS, Clerk ) DAVID M. SMITH, ) Petitioner-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO CYNTHIA DAVIS, Warden, ) Respondent-Appellant. ) OPINION ) ) )
Before: COLE, CLAY, and THAPAR, Circuit Judges.
CLAY, J., delivered the opinion of the court in which COLE, J., concurred. THAPAR, J. (pp. 16–17), delivered a separate dissenting opinion.
CLAY, Circuit Judge. Warden Cynthia Davis appeals the district court’s grant of an
unconditional writ of habeas corpus to Petitioner David Smith pursuant to 28 U.S.C. § 2254. For
the reasons set forth below, we AFFIRM the district court’s judgment.
I. BACKGROUND
A more detailed account of the factual background and procedural history in this case can
be found in our opinions, Smith v. Davis, No. 23-3604, 2024 WL 3596872 (6th Cir. July 31, 2024)
and Smith v. Davis, Nos. 25-3381/3383, 2025 WL 1826652 (6th Cir. July 2, 2025). For the
purposes of the issues before us now, we summarize the relevant facts and procedural history.
On October 16, 2015, Quortney Tolliver (“Tolliver”) was attacked with a hammer in her
mobile home and then hospitalized because of severe head injuries. Smith, 2024 WL 3596872, at
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*1. As the police investigated the crime over the course of months, Tolliver maintained that she
could not remember any details surrounding the incident. Id. at *1-2. The police improperly
sought to obtain an identification from Tolliver. Id. at *2. In doing so, the police showed Tolliver
a photo of Petitioner David Smith (“Smith”) and told her that Smith attacked her, he was previously
convicted for attempted murder, and he wanted her dead. Id. Despite the police’s attempts to
obtain an identification, Tolliver still could not recall the incident. Id. at *3. However, Tolliver
eventually told police that, because of a dream that she had about the attack, Smith was the
perpetrator. Id. The prosecution then presented Tolliver’s identification of Smith at the trial in
state court, and the jury convicted Smith of attempted murder, felonious assault, aggravated
robbery, and aggravated burglary. Id. at *1.
After unsuccessfully appealing the trial court’s suppression ruling and exhausting his state
options, Smith filed a petition for a writ of habeas corpus in February 2020, and the district court
denied the petition. Id. at *4. Smith appealed, and we held that “Smith was convicted based on
an unduly suggestive and coercive single photo identification procedure.” Id. at *12. As such, we
reversed the district court’s denial of the writ of habeas corpus and ordered that “the district court
issue Smith a writ of habeas corpus unless the State proceeds, within 180 days, to prosecute Smith
in a new trial without utilizing Tolliver’s identification of Smith, which shall be suppressed and
excluded from evidence.” Id.
The government proceeded to retry Smith. Smith, 2025 WL 1826652, at *2. During retrial
in February 2025, the government elicited testimony from Tolliver about the attack, including
“ask[ing] Tolliver to describe and identify the person she saw outside her house immediately
before the attack.” Id. Tolliver testified that she clearly saw that Smith was the only person outside
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her house before the attack, and that after opening the door to let Smith into her house, she
experienced the attack. Id. The jury then convicted Smith. Id.
Soon after, Smith moved the district court to enforce the conditional writ as absolute and
order his release, alleging that the state failed to comply with the conditional writ by using
Tolliver’s identification of him at retrial. The district court found that “the testimony the
prosecution elicited from Tolliver leaves no doubt about the effect of her testimony—she identified
[] Smith as the person who hit her in the head with [a] hammer.” R. 52, Page ID #3909. The
district court stated that the “record leaves the [c]ourt with no choice but to conclude that [Smith’s]
retrial suffers from the same constitutional error the Sixth Circuit identified in his first” trial. Id.
at 3908. The district court thus granted Smith’s motion to enforce the conditional writ as absolute
on May 12, 2025. The district court issued an administrative stay that delayed Smith’s release for
seventy-five days. Smith, 2025 WL 1826652, at *2.
Warden Cynthia Davis then appealed the district court’s order granting an unconditional
writ. Id. The warden moved this Court for a complete stay of the district court’s order pending
the appeal. Id. Smith moved this Court to vacate the administrative stay and order his immediate
release. Id. We resolved those motions on July 2, 2025, denying the warden’s motion to stay and
granting Smith’s motion to vacate the administrative stay. Id. at *8. We therefore ordered “the
district court to dissolve its administrative stay and effectuate its order releasing Smith from
custody, effective immediately.” Id.
The same day, the district court dissolved its administrative stay and ordered the warden to
release Smith from custody. We now turn to the warden’s appeal of the district court’s order
granting an unconditional writ.
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II. DISCUSSION
The warden argues that the district court’s order granting an unconditional writ must be
reversed because the district court lacked jurisdiction under 28 U.S.C. § 2254 to issue such an
order and because the order violates the Crime Victims’ Rights Act, 18 U.S.C. § 3771, et seq. We
reject both arguments below.
A. Standard of Review
“In habeas proceedings, we review a district court’s legal conclusions de novo and its
factual findings for clear error.” Jackson v. Cool, 111 F.4th 689, 695 (6th Cir. 2024) (citing
Upshaw v. Stephenson, 97 F.4th 365, 370 (6th Cir. 2024)). A factual finding is clearly erroneous
if we are “left with the definite and firm conviction that a mistake has been committed.” Easley v.
Cromartie, 532 U.S. 234, 242 (2001) (citation modified).
B. Jurisdiction
A conditional grant of the writ of habeas corpus provides the state “with an opportunity to
cure their constitutional errors, out of a proper concern for comity among the co-equal sovereigns.”
Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006). “[T]he sole distinction between a conditional
and an absolute grant of the writ of habeas corpus is that the former lies latent unless and until the
state fails to perform the established condition, at which time the writ springs to life.” McKitrick
v. Jeffreys, 255 F. App’x 74, 76 (6th Cir. 2007) (quoting Gentry, 456 F.3d at 692). The district
court retains jurisdiction to enforce a conditional writ “until the unconstitutional judgment is
gone.” Gall v. Scroggy, 603 F.3d 346, 353 (6th Cir. 2010).
The district court’s jurisdiction to enforce a conditional writ can be extinguished in two
ways. First, the state’s compliance with the terms of the conditional writ extinguishes the district
court’s jurisdiction. Gentry, 456 F.3d at 692 (citing Pitchess v. Davis, 421 U.S. 482, 490 (1975)).
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But “[a] federal district court retains jurisdiction to determine whether a party has complied with
the terms of a conditional order in a habeas case.” Id. (citations omitted). “When a petitioner
alleges noncompliance with a conditional order, the district court must make a finding concerning
the sufficiency of the action that the state has taken pursuant to the district court’s mandate, and it
must also evaluate the prejudice to the petitioner by any noncompliance.” McKitrick, 255 F. App’x
at 76. “District courts retain jurisdiction to execute their judgments if necessary—in other words,
they may change their ‘conditional’ orders into absolute orders if the state does not fulfill the
mandate directed in the habeas court’s order.” Id. “When the state fails to cure the error, i.e.,
when it fails to comply with the order’s conditions, ‘[a] conditional grant of a writ of habeas corpus
requires the petitioner’s release from custody.’” Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th
Cir. 2006) (quoting Fisher v. Rose, 757 F.2d 789, 791 (6th Cir. 1985) (emphasis removed)).
Second, the state’s release of the petitioner and vacatur of the unconstitutional conviction
extinguishes the district court’s jurisdiction. Eddleman v. McKee, 586 F.3d 409, 413 (6th Cir.
2009). In determining whether a conviction was vacated, the court considers whether the warden
submitted “any proof that [the petitioner’s] record was expunged or that the district court or state
took any action to actually vacate [the petitioner’s] convictions.” D’Ambrosio v. Bagley, 656 F.3d
379, 388 (6th Cir. 2011). “What vacates a conviction is an entry in the court docket, which—
depending on the state’s procedures—is likely made through a court order, or clear actions by the
court signifying a vacatur.” Id. Such “clear actions” include a court’s statement in an opinion that
a petitioner’s “conviction and sentences are [v]acated.” Gillispie v. Warden, London Corr. Inst.,
771 F.3d 323, 329 (6th Cir. 2014). Additionally, “the parties’ agreement that a petitioner’s
conviction has been vacated” establishes vacatur. See id. at 329; see also Eddleman, 586 F.3d at
412-13. Conversely, a state’s indication that it chose to proceed “with the retrial option afforded
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under the conditional writ issued by the [d]istrict [c]ourt” “counsels against finding” that a
conviction was “vacated.” D’Ambrosio, 656 F.3d at 387. And the court’s mere use of “the term
‘vacate’ in reference to . . . prior convictions is not enough.” Id. Where the evidence in the record
does not support a finding that, under the totality of the circumstances, the state vacated the
petitioner’s conviction, “the district court continue[s] to retain jurisdiction over [the petitioner’s]
case.” Id. at 388.
1. Compliance with the Conditional Writ
The warden contends that the state complied with the terms of the conditional writ, which
divested the district court of jurisdiction.
The district court held that the warden “waived any argument that the prosecution complied
with the spirit of the writ” because the warden “offered no authority supporting such a contention,”
and the district court “discern[ed] no basis for such a claim on this record.” R. 52, Page ID #3910.
“It is well-established that arguments not adequately developed are waived on appeal.” United
States v. Franco, 318 F. App’x 411, 418 (6th Cir. 2009).
But, in any event, the district court still reviewed the record and determined whether the
state complied with the terms of the conditional writ. The district court highlighted various points
of Tolliver’s testimony at retrial: the government “asked Tolliver to describe the person she saw
arrive at her house and to identify him for the jury,” to which Tolliver identified Smith; then the
government “asked Tolliver a series of questions underscoring her ability to perceive the person
at her door and emphasizing that she saw only one person at her door,” who was Smith; and then
Tolliver testified that she experienced the attack right after she opened the door to let Smith into
her house. R. 52, Page ID #3905-08. The district court found that the “record leaves no doubt that
Tolliver identified [] Smith as her attacker. Indeed, that was the point of the testimony.” Id. at
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3908. The district court emphasized that the government’s opening and closing arguments at
retrial further illustrated that the government elicited Tolliver’s testimony to identify Smith. In
opening argument, the government stated:
Quortney will tell you that David let's [sic] her know that he arrives and that he's at the trailer park and that they're planning to go. Then she hears a knock at her trailer, that she opens the door. She sees David. And more importantly, she'll tell you she sees no one else, nobody but David Smith. Then she opens the door, or he opens the door, and she turns to get her shoes on and she is struck from behind by what investigators later believe is a hammer in the back of her skull.
Id. at 3909 (quoting R. 41-1, Page ID #3191). In closing argument, the government also stated:
And, again, don’t miss the big elephant in the room, Quortney Tolliver’s own testimony. The last person she saw, the person she was gonna do a deal with, the person that she opens the door for or he opens the door, and then she wakes up in a hospital almost beaten to death.
Id. at 3908 (quoting R. 43-1, Page ID #3626-27). The district court thus found that “it is difficult
to see how this record arguably complies with the Sixth Circuit’s mandate that [] Smith’s retrial
proceed ‘without utilizing Tolliver’s identification of Smith, which shall be suppressed and
excluded from evidence.’” Id. (quoting Smith, 2024 WL 3596872, at *12).
The district court properly concluded that the state did not comply with the terms of the
conditional writ. Before the police’s suggestive identification procedure, Tolliver maintained that
she had no memory of the day of the attack. See Smith, 2024 WL 3596872, at *1-2. We thus
unequivocally mandated that “the district court issue Smith a writ of habeas corpus unless the State
proceeds, within 180 days, to prosecute Smith in a new trial without utilizing Tolliver’s
identification of Smith, which shall be suppressed and excluded from evidence.” Id. at *12. The
government then elected to retry Smith but failed to suppress and exclude Tolliver’s identification
of Smith. Instead, as the district court found, the government elicited Tolliver’s testimony that she
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clearly saw Smith outside her house before the attack, he was the only person outside of her house
in the moments before the attack, and after the door opened to let Smith into her house, she
experienced the attack. As further highlighted by the district court, the government’s opening and
closing arguments demonstrate that Tolliver’s testimony identified Smith.
The warden fails to show that the district court erred in making those findings, let alone
clearly erred. See Easley, 532 U.S. at 242. The warden contends that Tolliver’s testimony was
permissible because “Tolliver never testified during the retrial that Smith was her attacker.”
Appellant’s Br. at 25. But the government’s opening and closing arguments at retrial confirm as
such. And, regardless, we did not articulate such a limitation in our mandate. Instead, we
mandated that if the state pursues a retrial of Smith, it must do so “without utilizing Tolliver’s
identification of Smith.” Smith, 2024 WL 3596872, at *12. In other words, the conditional writ
prohibited the government from introducing at retrial any evidence involving Tolliver’s
identification of Smith, regardless of whether she testified specifically that he was her attacker.
By eliciting at retrial Tolliver’s testimony identifying Smith, including describing Smith as the
only person outside her house in the moments before the attack and her last memory before the
attack being opening the door to let Smith into her house, the state “fail[ed] to comply with the
order’s conditions” and thus “fail[ed] to cure the error” of the unconstitutional conviction. See
Satterlee, 453 F.3d at 369.
Because the state failed to comply with the terms of the conditional writ, the district court
retained jurisdiction to change the conditional writ into an absolute writ, see McKitrick, 255 F.
App’x at 76, and Smith’s “release from custody” was required, see Satterlee, 453 F.3d at 369. The
district court’s jurisdiction thus was not extinguished by the state’s compliance with the terms of
the conditional writ in this case.
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2. Vacatur of the Unconstitutional Conviction
The warden contends that the state vacated Smith’s prior unconstitutional conviction and
released him, which extinguished the district court’s jurisdiction.
The district court found that the “[s]tate trial court did not vacate [] Smith’s conviction
from 2016.” R. 52, Page ID #3895. The district court based this determination on a series of
findings in the record, including that “no vacatur appears on the docket,” “no arraignment
occurred,” “Smith was not re-arrested,” “no evidence of an agreement by the parties that the first
conviction was vacated appears in the record,” and “the prosecution and the [s]tate trial court acted
as if the prior conviction was not vacated.” Id. at 3896.
The district properly concluded that the state did not vacate Smith’s prior unconstitutional
conviction. As recognized by the district court, the parties in this case have not “agreed” that
Smith’s conviction was vacated. See Eddleman, 586 F.3d at 412. Nor is there any “entry in the
court docket” signifying vacatur. See D’Ambrosio, 656 F.3d at 388; Appellant’s Br. at 13 (“It is
true that the trial court did not enter upon its docket any order of vacatur of Smith’s initial
conviction before proceeding with the retrial.”). The warden has not submitted “any proof” that
Smith’s “record was expunged” or that “the district court or state took any action to actually vacate
[Smith’s] convictions.” See D’Ambrosio, 656 F.3d at 388. Rather, as the district court noted, the
state sought to retry Smith within 180 days in accordance with the retrial option in our mandate.
And the state’s choice to proceed “with the retrial option afforded under the conditional writ issued
by the [d]istrict [c]ourt” “counsels against finding” that a conviction was “vacated.” Id. at 387.
The warden argues that, despite the lack of any entry in the docket signifying vacatur, the
“transcript of the court’s initial pre-trial hearing reveals the prosecutor’s understanding that this
Court’s order had ‘reversed’ Smith’s initial conviction, indicating the belief that the conviction
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was already vacated by this Court.” Appellant’s Br. at 13. The warden references the following
statement by the government:
I think at this point, to be safe, there is a journal entry of July 31st reversing the case, remanding it back for trial from the Sixth Circuit Court of Appeals for the United States and that would give us approximately the end of January 2025. So, using that, I believe we’re going to tentatively set a commencement, or a trial start date, selecting a jury on January 22nd, that’s a Wednesday, 2025, and beginning the trial then.
R. 47-4, Page ID #3796. But this statement by the government does not establish vacatur. To
begin, the government did not use the word “vacate,” and even if we were to equate “vacate” with
“reverse,” the mere use of “the term ‘vacate’ in reference to . . . prior convictions is not enough.”
D’Ambrosio, 656 F.3d at 387. Moreover, rather than signal vacatur, this statement further
illustrates the government’s clear intention to proceed with the retrial option of the conditional
writ, as the government recognized that our July 2024 mandate allowed 180 days to retry Smith
and ensured that retrial would begin within that time frame in January 2025. Again, the decision
to proceed “with the retrial option afforded under the conditional writ issued by the [d]istrict
[c]ourt” “counsels against finding” that a conviction was “vacated.” Id.
The warden also claims that Smith’s transfer from state prison to county jail, along with
the setting of bond and a retrial date, established that Smith’s first conviction was vacated. In
support of this contention, the warden relies on a series of cases, all of which are distinguishable
from this case. We address each case in turn.
In Eddleman, we concluded that the “record ma[de] clear . . . that [the petitioner’s]
conviction was vacated” because “counsel for both [the petitioner] and the [s]tate represented to
the court, and the court itself agreed, that [the petitioner’s] unconstitutional conviction had been
vacated,” and the petitioner “was later rearraigned and afforded a bond hearing in state court.” 586
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F.3d at 412. It is true that the setting of bond informed the determination of whether vacatur
occurred in Eddelman. But we assess whether a conviction was vacated under the “totality of the[]
circumstances.” D’Ambrosio, 656 F.3d at 388. And, unlike in Eddelman, both parties have not
represented to any court that Smith’s conviction was vacated, no court has agreed that Smith’s
conviction was vacated, and Smith was never rearraigned, as the district court found in this case.
Resultingly, this case does not present the circumstances that warranted the finding that vacatur
occurred in Eddelman.
In Gillispie, we held that a state court opinion, which stated that the petitioner’s “conviction
and sentences are [v]acated” constituted “indisputably” that “clear actions” signified vacatur. 771
F.3d at 329. Unlike in Gillispie, as conceded by the warden, no statement in any opinion or docket
entry articulates that Smith’s conviction was vacated. Therefore, the warden’s reliance on Gillispie
to establish vacatur in this case is also unavailing.
In Pitchess, the petitioner filed a petition for habeas corpus based on the police’s failure to
turn over an exculpatory laboratory report. 421 U.S. at 483. The district court issued a conditional
writ of habeas corpus, which compelled the state to release the petitioner, unless the state provided
the petitioner “with the laboratory report and moved to retry him within 60 days.” Id. The state
complied with the conditional writ, moving to retry the petitioner “in accordance with the terms of
the conditional writ,” including turning the laboratory report over to the petitioner before trial. Id.
at 484. Prior to retrial, the petitioner filed a motion in the district court to modify the conditional
writ and “replace it with an order granting an absolute writ and enjoining any retrial on the pending
state charges,” based on a new issue – the destruction of physical evidence. Id. at 485. The district
court held a hearing and eventually granted the motion. Id. The Supreme Court reversed, finding
that “the unavailability of the physical evidence . . . was never raised . . . during the proceedings
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resulting in issuance of the conditional writ of habeas corpus.” Id. at 487. The Court thus held
that the district court was not permitted “to maintain a continuing supervision over a retrial
conducted pursuant to a conditional writ granted by the habeas court,” and the petitioner must first
exhaust state court remedies to obtain habeas relief based on the newly raised issue. Id. at 490.
Pitchess is entirely inapplicable to this case, let alone the determination of whether vacatur
occurred. To begin, the Court did not discuss whether the petitioner’s prior conviction was vacated
in Pitchess, so the case does little to inform our determination here. Moreover, unlike in Pitchess,
the state did not comply with the terms of the conditional writ in this case. While the state in
Pitchess fulfilled the conditions in the writ by turning over the laboratory report when proceeding
to retrial, the state in this case did not fulfill the conditions of the writ because, as established
above, the state did not exclude Tolliver’s identification of Smith when proceeding to retrial.
Further, unlike in Pitchess, Smith did not file a motion to modify the conditional writ and replace
it with an absolute writ based on a new issue that was never discussed during the original habeas
proceedings. Rather, Smith filed a motion to enforce the conditional writ based on the state’s
failure to comply with the precise terms of the conditional writ issued by the district court. Our
caselaw is clear that the district court retains jurisdiction in that situation. See, e.g., D’Ambrosio,
656 F.3d at 386 (“[T]he state never complied with the conditional writ . . . and the district court
retained jurisdiction over it.”). Because the district court in this case did not grant the
unconditional writ based on a newly raised issue unrelated to the original habeas proceedings, the
district court did not “continu[e] supervision over a retrial conducted pursuant to a conditional writ
granted by the habeas court,” as in Pitchess. 421 U.S. at 490. Pitchess thus cannot support a
finding of vacatur in this case.
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Lastly, in Fisher, the district court issued a conditional writ which was “stayed for ninety
[] days pending appeal by respondent or, within which time, the [s]tate may on its own motion
vacate petitioner’s conviction and grant him a new trial.” 757 F.2d at 790. Around nineteen
months after that order, the petitioner moved to enforce the conditional writ, “citing the state’s
failure to retry or release him within ninety days.” Id. The district court ordered that the petitioner
be immediately released and enjoined the state from further prosecution of the petitioner. Id. at
790-91. This Court reviewed for abuse of discretion the district court’s order barring retrial and
discharging the petitioner from custody. Id. at 791. This Court recognized that “[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” but “the state is not precluded
from rearresting [the] petitioner and retrying him under the same indictment.” Id. (citations
omitted). This Court highlighted that “the state had appointed counsel for [the petitioner], set
bond, and set a trial date.” Id. This Court found that those “facts indicate[d] that . . . [the petitioner]
was no longer in custody pursuant to the constitutionally defective judgment of conviction, but
was being held pursuant to the indictment.” Id. This Court therefore concluded, not that the district
court lacked jurisdiction due to the vacatur of a prior conviction, but “that the district court abused
its discretion in barring retrial by the state.” Id.
Fisher again is inapplicable to this case and does not establish that vacatur occurred here.
In Fisher, this Court did not address whether the district court’s jurisdiction had been extinguished
due to the vacatur of a prior conviction. Further, unlike in Fisher, the district court in this case did
not bar retrial while the state was proceeding to retry Smith. Nor are we reviewing the merits of
such an order for abuse of discretion.
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Even if we were to ignore that Fisher did not deal with jurisdiction, it is not clear under the
facts of this case that Smith “was no longer in custody pursuant to the constitutionally defective
judgment of conviction,” as in Fisher. See 757 F.2d at 791. Although a retrial date and bond were
set in this case, the “warrant for removal” requiring the transfer of Smith from state prison to
county jail prior to retrial indicates that Smith’s unconstitutional conviction was not vacated. See
R. 43-1, Page ID #3317. As noted by the district court, every provision of state law listed in the
warrant for removal “refers to a convicted felon and applies to the housing and transportation of a
person following a conviction for a felony,” and no provision refers to “a person’s custody
following indictment, pending trial, or before a conviction.” R. 52, Page ID #3893-94. The warden
attempts to explain away the language in the warrant for removal as a “ministerial error made by
the clerk.” Appellant’s Br. at 16. But “[s]tatements of confused parties and judges do not vacate
convictions.” D’Ambrosio, 656 F.3d at 388.
Neither Fisher nor any other case cited by the warden guide us to conclude that the
circumstances in this case involve “clear actions by the court signifying a vacatur.” See
D’Ambrosio, 656 F.3d at 388. Nor has the warden demonstrated that the district court clearly erred
in its findings. See Easley, 532 U.S. at 242. The district court’s jurisdiction thus was not
extinguished by the state’s vacatur of the unconstitutional conviction in this case.
C. Crime Victims’ Rights Act
The warden contends that the district court’s order granting an unconditional writ violated
the Crime Victims’ Rights Act, 18 U.S.C. § 3771, et seq. The Act provides a “crime victim” with
certain rights, including the “right to be reasonably heard at any public proceeding in the district
court involving release.” 18 U.S.C. § 3771(a)(4).
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As Smith points out, the warden’s claim under this Act features multiple defects. First, the
Act states that, in a federal habeas corpus proceeding, those “rights may be enforced by [t]he crime
victim or the crime victim’s lawful representative.” Id. § 3771(b)(2)(B)(i). The crime victim in
this case, Tolliver, is not participating or represented in this lawsuit, and she has not asserted any
rights under the Act. Under the plain language of the Act, the warden may not enforce the rights
of the crime victim in this case.
Additionally, even if the warden may enforce the rights of crime victim in this case, the
warden has not followed the requisite procedure for doing so under the Act. 18 U.S.C.
§ 3771(d)(3) sets forth the procedure for asserting rights under the Act. The rights shall first “be
asserted in the district court” and that court “shall take up and decide any motion asserting a
victim’s right forthwith.” Id. Then, “[i]f the district court denies the relief sought, the movant
may petition the court of appeals for a writ of mandamus.” Id. In this case, neither the warden
nor any other party moved the district court to decide whether Tolliver’s rights were violated under
the Act. In fact, no party made any mention of this issue before the district court. Moreover, no
party has petitioned this Court for a writ of mandamus. Instead, the warden improperly raises this
claim for the first time on appeal.
The warden did not address any of these procedural issues. We therefore have no basis to
conclude that the district court’s unconditional writ violated Tolliver’s rights under the Act.
III. CONCLUSION
For the reasons set forth above, this Court AFFIRMS the judgment of the district court.
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THAPAR, Circuit Judge, dissenting. The majority again engages in “a severe and
unprecedented intrusion onto state sovereignty.” Smith v. Davis, Nos. 25-3381/3383, 2025 WL
1826652, at *9 (6th Cir. July 2, 2025) (Thapar, J., dissenting). It affirms the grant of a writ of
habeas corpus to David Smith, a violent criminal who is factually guilty of attempting to murder a
woman by bludgeoning her with a hammer and leaving her unconscious on the floor. And it does
so even though the district court lacked jurisdiction to order that extraordinary relief.
The district court first granted Smith a conditional writ of habeas corpus. That conditional
writ provided Ohio “with an opportunity to cure [the] constitutional errors” at Smith’s first trial by
re-trying him without allowing the victim to identify him as her attacker. Gentry v. Deuth, 456
F.3d 687, 692 (6th Cir. 2006). When the district court granted that conditional writ, it retained
jurisdiction only “until the unconstitutional judgment [was] gone.” Gall v. Scroggy, 603 F.3d 346,
353 (6th Cir. 2010). That’s because federal courts have jurisdiction to entertain habeas petitions
only from individuals confined “pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a);
Eddleman v. McKee, 586 F.3d 409, 412–13 (6th Cir. 2009). So if the unlawful judgment against
Smith disappeared, federal jurisdiction over his habeas petition would disappear too. Eddleman,
586 F.3d at 413.
Two circumstances can erase an unlawful state-court judgment, thus divesting a district
court of jurisdiction. As I’ve previously explained, both exist here. First, a district court loses
jurisdiction if the state vacates the unconstitutional conviction. Id. Although Ohio didn’t explicitly
state it was vacating Smith’s first conviction, we know that it did so based on the totality of the
circumstances. See D’Ambrosio v. Bagley, 656 F.3d 379, 387–88 (6th Cir. 2011). The State
transported Smith from prison to jail, gave him a re-trial, and set bond. Smith, 2025 WL 1826652,
at *11–15 (Thapar, J., dissenting). And those factors indicate a prisoner is “no longer in custody
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pursuant to the constitutionally defective judgment of conviction.” Fisher v. Rose, 757 F.2d 789,
791 (6th Cir. 1985). So too here. Second, a district court loses jurisdiction when the state complies
with the conditional writ. Gentry, 456 F.3d at 692. And Ohio did that too by re-trying Smith
without using the victim’s identification of him as her attacker. Smith, 2025 WL 1826652, at *15–
19 (Thapar, J., dissenting). In short, because Smith was no longer in custody pursuant to an
unlawful state-court judgment once Ohio vacated his conviction and re-tried him, the district court
lacked jurisdiction to grant habeas relief.
But instead of recognizing these jurisdictional limits, the majority permits the district court
to “maintain a continuing supervision over [Smith’s] retrial,” which far exceeds the role of federal
courts. Pitchess v. Davis, 421 U.S. 482, 490 (1975). As a result, I respectfully dissent from the
majority’s decision to grant a writ of habeas corpus to a twice-convicted attempted murderer.
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