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Gabaree v. Griffith

United States District Court, W.D. Missouri, Western Division

January 24, 2017

CLIFTON A. GABAREE, JR., Petitioner,
v.
CINDY GRIFFITH, [1] Respondent.

          ORDER AND OPINION GRANTING PETITIONER'S RENEWED MOTION FOR UNCONDITIONAL WRIT OF HABEAS CORPUS

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Petitioner's Renewed Motion for Unconditional Writ of Habeas Corpus. Doc. #43. For the following reasons, Petitioner's motion is granted.

         I. BACKGROUND

         In August 13, 2013, this Court granted in part and denied in part Petitioner's petition for writ of habeas corpus. Doc. #18. The Court found Petitioner's trial counsel rendered ineffective assistance, and granted Petitioner habeas relief on his convictions and sentences for sodomy and child molestation. Id. at 14-18, 20. The Court stated “[t]he State of Missouri shall have seventy days from the date this Order becomes final to retry Petitioner on the sodomy and child molestation counts.” Id. at 20. The Court denied Petitioner relief with regard to his child-abuse convictions. Both parties appealed.

         On July 8, 2015, the Eighth Circuit affirmed this Court's decision. Gabaree v. Steele, 792 F.3d 991 (8th Cir. 2015); Doc. #34. The Eighth Circuit also held “[t]he order to retry Gabaree on the sodomy and child-molestation charges also is affirmed.” Id. at 1001. Respondent's request for rehearing en banc was denied. The Eighth Circuit issued its mandate on September 28, 2015. Doc. #35. Respondent filed a writ of certiorari with the United States Supreme Court, which was denied on February 29, 2016. Griffith v. Gabaree, 136 S.Ct. 1194 (2016).

         On March 4, 2016, Petitioner filed a Motion for Unconditional Writ of Habeas Corpus, arguing this Court's August 13, 2013 Order became final when the Eighth Circuit entered its mandate. Doc. #37. Petitioner argued an unconditional writ should be issued because the State did not retry him within 70 days of the mandate. Id. On April 15, 2016, the Court denied Petitioner's motion, finding the time to retry Petitioner did not begin to run until Respondent's writ of certiorari was denied. Doc. #41, at 2. The Court also stated: “To be clear: the State has 70 days from February 29, 2016, which is the date the Supreme Court denied Respondent's petition for writ of certiorari, to retry Petitioner on the sodomy and child molestation counts.” Id. at 3. On May 5, 2016, Respondent filed a “notice” with this Court stating the prosecuting attorney “elected to re-prosecute the sodomy and child molestation counts.” Doc. #42.

         On June 8, 2016, the Circuit Court of Jackson County, Missouri (“Circuit Court”) issued a notice scheduling a pretrial conference on June 29, 2016, pertaining to Petitioner's charges for sodomy and child molestation. Doc. #43, at 2; Doc. #43-1. Petitioner filed a motion to dismiss, arguing the State did not comply with this Court's August 13, 2013 Order because it did not retry Petitioner within 70 days of that order becoming final. Doc. #43, at 1; Doc. #44-1. On August 17, 2016, the Circuit Court dismissed the charges, finding “the Federal Court issued a conditional Order giving the State of Missouri seventy days to retry Mr. Gabaree on the sodomy and child molestation counts…. More than seventy days have passed. The State has not brought the defendant to trial.” Doc. #43-2.

         On October 25, 2016, the State submitted a “Refiled Complaint” against Petitioner in the Circuit Court, charging the same statutory sodomy and child molestation offenses that allegedly occurred in 1995 and 1996. Doc. #43-3 (see State v. Gabaree, Case No. 16CR97002413-02). Petitioner moved to dismiss the Refiled Complaint. Doc. #50-1. On December 30, 2016, the Circuit Court denied the motion, finding the “Federal Court issued a conditional Order giving the State of Missouri seventy days to retry the Defendant, ” and because the Order was not unconditional, the State was not barred from reprosecuting Petitioner. Doc. #49-2. Petitioner is set to be arraigned on the Refiled Complaint on January 30, 2017. No trial date has been set.

         On November 25, 2016, Petitioner filed his Renewed Motion for Unconditional Writ of Habeas Corpus because he has not been retried pursuant to this Court's August 13, 2013 Order. Doc. #43. Respondent opposes the motion. Both parties were provided opportunities to submit supplemental briefing, and the motion is now fully briefed.

         II. DISCUSSION

         A.

         The typical relief granted in federal habeas corpus is a conditional order of release, unless the State elects to retry the successful habeas petitioner. Herrera v. Collins, 506 U.S. 390, 403 (1993). The Supreme Court “has repeatedly stated that federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (citations omitted). “Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one, and the consequence when they fail to do so is always release.” Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J., concurring); see also Satterlee v. Wolfenberger, 435 F.3d 362, 369 (6th Cir. 2006); Phifer v. Warden, 53 F.3d 859, 864-65 (7th Cir. 1995). Conditional writs of habeas corpus would be rendered “meaningless if a habeas court could not order a noncompliant state to release a prisoner.” Satterlee, 435 F.3d at 369 n.5 (citations omitted).

         The State argues Petitioner is not permitted to seek federal intervention in a state court prosecution until the prosecution is complete. Doc. #50, at 1. Petitioner does not seek federal intervention in a state court proceeding. Instead, Petitioner asks this Court to issue an unconditional writ. A federal court retains jurisdiction to determine whether a state complied with the terms of a conditional habeas order. See e.g., D'Ambrosio v. Bagley, 656 F.3d 379, 385-90 (6th Cir. 2011) (stating “the district court retain[s] jurisdiction to enforce its conditional grant of a writ of habeas corpus” and finding the district court had subject-matter jurisdiction to vacate part of its original judgment, grant an unconditional writ, and bar reprosecution) (citation omitted); Leonardo v. Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011) (citations omitted); Phifer, 53 F.3d at 861-63. This Court has jurisdiction to determine whether the State complied with the terms of its August 13, 2013 Order.

         The State has known since August 2013 that it had to retry Petitioner within 70 days after the Court's Order was final. Doc. #18. In April 2016, the State was reminded of this deadline when the Court denied Petitioner's initial motion for unconditional writ of habeas corpus. Doc. #41. At no time has the State sought relief from the Court's August 13, 2013 Order. It is undisputed that the State did not comply with this Court's August 13, 2013 Order, and to date, Petitioner has not been retried. Because the State failed to retry Petitioner by the Court's deadline, this Court is left with no choice but to release ...


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