United States District Court, W.D. Missouri, Western Division
CLIFTON A. GABAREE, JR., Petitioner,
CINDY GRIFFITH,  Respondent.
ORDER AND OPINION GRANTING PETITIONER'S RENEWED
MOTION FOR UNCONDITIONAL WRIT OF HABEAS CORPUS
D. SMITH, SENIOR JUDGE
is Petitioner's Renewed Motion for Unconditional Writ of
Habeas Corpus. Doc. #43. For the following reasons,
Petitioner's motion is granted.
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.
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).
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.
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.
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
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.
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).
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.
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 ...