Petition for Writ of Certiorari — Deuth v. Gentry (No. 06-627)

Supreme Court, U.S.

FILED

InTae OFFICE OF THE CLERK —

Saptemns Cound of the United States :

DORIS DEUTH, WARDEN,

Petitioner

versus

CARRIE GENTRY,

Respondent

On Petition for Writ of Certiorari

~ to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Assistant Attorney Gener al)

Counsel of Record

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601

(502) 696-5342

QUESTION PRESENTED

I, WHETHER A FEDERAL HABEAS COURT

MAY ORDER A STATE COURT JUDGMENT

OF CONVICTION NULL AND VOID?

PARTIES TO THE PROCEEDING IN THE

COURT WHOSE JUDGMENT IS UNDER REVIEW

The parties to the proceeding in the Court whose

judgment is under review are: (1) the Commonwealth of

Kentucky; and (2) Carrie Gentry.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .............e0ceeeees

PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS UNDER REVIEW ........... i

TABLE OF CONTENTS ...:...--.0-0ccevees: ok iii

TABLE OF AUTHORITIES ............00cceeeees: iv

Oph A oc era 2

TIN ee oe 3

CONSTITUTIONAL PROVISION INVOLVED ........ 3

STATEMENT OF THE CASE ........00-ccs0eceeee 4

REASONS FOR GRANTING THE WRIT ..........--. 7

I. CERTIORARI SHOULD BE GRANTED IN

ORDER TO HARMONIZE TWO CONFLICTING

LINES OF AUTHORITY STEMMING FROM

FAY v. NOIA, 372 U.S. 391 (1963), AND

CARAFAS v. LaVALLEE, 391 U.S. 234 (1968)

AND TO FINALLY DEFINE THE SCOPE OF

RELIEF AUTHORIZED BY 28 U.S.C. § 2243.... 7

CONCLUSION ..... Se NRO ep ee ies SN uae ke 13

TABLE OF AUTHORITIES

CASES CITED:

Barry v. Brower,

864 F.2d 294, 300 (3rd Cir. 1988) ........- eee e eee. 9, 10

Carafas v, LaVallee,

501 US, TOF (IGOR) 6 occ ccc cc ccevewsscnvones 7, 8, 10

Duhamel v. Collins,

955 F.2d 926, 968 (5 Cir. 1992)... .. cee ee eee eee 9

Fay v. Noia,

B72 US. FOL (UGG) oc cc ces cccscn cede ven twee ne 7,8

Gentry v. Deuth,

45 F.3d 687, 693 (6 Cir. 2006) .......-.0-- 00s. 6. 7, i3

Henderson v. Frank, .

155 F.3d 159, 168 (3rd Cir. 1998) .. 1.2... -- ee eee ee eee 9

Madigan v. Snyder,

804 N.E.2d 546, 554 (Ill. 2004) .......--0- 2 eee ee eee 9

Moore v. Rose,

19 F.3d 1433 (Table), 1994 WL 102958 (6th. Cir 1994)... 9

Sibron v. New York, :

SOT UES, GO CII on ei che voces eccsnonecntetees 8, 11

iV

a

Wanatee v. Ault,

120 F.Supp. 784 (N.D. Iowa, 2000)

Wilson v. Lawrence County,

154 F.3d 757, 761 (8th Cir. 1998) .

FED TATU

sae be 2 £2 6.6 84.68

28 U.S.C. § 2243

IN THE

Supreme Coul of the United States

DORIS DEUTH, WARDEN,

Petitioner

versus

CARRIE GENTRY,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

The Attorney General of the Commonwealth of

Kentucky, as counsel for Petitioner Doris Deuth, Warden,

petitions this Court to issue a writ of certiorari to the United

States Court of Appeals for the Sixth Circuit.

OPINION BELOW

The petitioner seeks certiorari review of the published

Sixth C’ uit panel decision in Gentry v, Deuth, 456 F.3d 687

(6" Cir. 26).

The procedural history leading to the United States

Sixth Circuit Court of Appeals Opinion is as follows.

Gentry’s convictions for manslaughter second degree and

driving under the influence first offense were affirmed by the

Kentucky Court of Appeals in an unpublished opinion (2000-

CA-1893) entered on December 7, 2001. (discretionary

review denied by the Kentucky Supreme Court). On January

23, 2003, Gentry filed a petition for writ of habeas corpus.

The Federal District Court for the Western District of

Kentucky, on May 21, 2004, entered a judgment

implementing its Memorandum Opinion conditionally

granting the writ of habeas corpus to Ms. Gentry. On July

22, 2005, the District Court entered its Final Judgment,

which altered and/or amended its May 21, 2004, judgment

granting Gentry an absolute writ and ordering her state court

judgment of conviction null and void. On appeal United

States Court of Appeals for the Sixth Circuit was only asked

to address the District Court’s July 22, 2005 judgment, which

it then affirmed in Gentry v. Deuth, 456 F.3d 687 (6" Cir.

2006).

JURISDICTION

The petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. §1254. The petitioner seeks

certiorari review of a United States Court of Appeals Opinion -

decided July 31, 2006, granting Gentry an absolute writ of

habeas corpus and nullifying Gentry’s state court judgment of

conviction.

Rehearing was not sought in this case and this petition

is timely pursuant to United States Supreme Court Rule 13.

_—

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

: Art. Ill § 2 - “The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which shall

be made, under their Authority. . .”

' 28 U.S.C. § 2243 - “. . . The Court shall summarily

hear and determine the facts, and dispose of the matter as law

and justice require.”

STATEME FT

The facts of this case are not in dispute and are not

particularly relevant to the subject of this appeal. Therefore,

petitioner will only briefly describe the facts underlying

Gentry’s convictions. On January 28, 1999, Carrie Gentry

met the victim, Brian Pettit, at a bar in McCracken County,

Kentucky. Although both had been drinking, Gentry claimed

to be much more sober than Mr. Pettit and agreed to drive

them back to her apartment in Pettit’s vehicle. Once at the

apartment Pettit wanted to continue listening to some music _

he had recently purchased, so Gentry agreed to continuing

driving Pettit around so they would not wake Gentry’s

daughter who was sleeping back at the apartment. While

driving, Gentry’s failed to negotiate a curve and hit a bridge

abutment. Both Gentry and Pettit were ejected from the

vehicle and Pettit died at the scene. (See 6" Cir. Opinion,

Apx. 2).

Ultimately Gentry was tried and convicted in state

court of manslaughter in the second degree and driving under

the influence first offense. (Apx. 3). The Kentucky Court of

Appeals affirmed Gentry’s convictions and the both the

Kentucky Supreme Court and the United States Supreme

Court declined to review Gentry’s convictions. Gentry v.

Kentucky, 537 U.S. 981 (2002) (denying cert.).

On January 23, 2003, Gentry filed a petition for writ of

habeas corpus relief in district court. In July 2003, Gentry

was unconditionally released from state court custody, having

served out the sentence imposed by state court. Initially, the

district court denied Gentry’s petition finding that the use of

the two-way video to present trial testimony which violated

Gentry's right to confrontation under the Sixth Amendment

was harmless. Gentry then moved to alter or amend the

district court's ruling arguing that the court misapplied the

harmless error standard. (Apx. 3).

On May 21, 2004, the district court entered a second

Memorandum Opinion finding that its prior harmless error

analysis was inadequate thus, granting Gentry's motion to

alter and amend. (Apx. 3). The district court conditionally

granted the writ of habeas corpus, “if the Commonwealth

does not retry Gentry within ninety days of the entry of this

judgment should appeal not be taken, or within ninety days of

any final opinion on appeal that affirms this revisited decision

should an appeal be taken by the respondent.” (Apx. 24). |

The Commonwealth of Kentucky noticed an appeal, but then

voluntarily abandoned the appeal on July 12, 2004. (Apx. 3).

Approximately eight months after the district court's

order granting Gentry's petition for a writ, Gentry filed with

the district court a Motion to Enforce Judgment by voiding

the Commonwealth’s judgment of conviction so that she

could not be made to suffer any collateral consequences as a

result of being a convicted felon. (Apx. 4). On July 21,

2005, the district court granted Gentry’s motion to enforce by

converting the conditiona! writ to an absolute writ and

ordering Gentry’s state court judgment of conviction null and

void. (Apx. 20-21).

The Commonwealth appealed on August 18, 2905, so

that the Sixth Circuit could address whether or not a district

court retained jurisdiction to alter its prior judgment and

whether the district court in a habeas action has the power to

simply void a state court judgment.

In Gentry v. Deuth, 456 F.3d. 687 (6 Cir. 2006), the

Sixth Circuit affirmed the district court’s July 21, 2005,

judgment holding that:

(1) petitioner's motion to enforce order was

not motion to alter or amend judgment;

(2) District Court retained jurisdiction over

conditional grant of habeas corpus,

(3) petition was live case or controversy not

rendered moot by petitioner's release from

prison;

(4) petitioner exhausted potential challenges to

collateral consequences of conviction; and

(5) District Court had authority to nullify

conviction.

(Apx. 1-19). The Commonwealth did not request rehearing,

opting instead to pursue this petition for certiorari.

SON G T TH

I. CERTIORARI SHOULD BE GRANTED IN

ORDER TO HARMONIZE TWO

CONFLICTING LINES OF AUTHORITY

STEMMING FROM FAY vy. NOIA, 372 U.S.

391 (1963), AND CARAFAS v. LaVALLEE,

391 U.S. 234 (1968) AND TO FINALLY

DEFINE THE SCOPE OF RELIEF

AUTHORIZED BY 28 U.S.C. § 2243.

\

Valid Supreme Court precedent continually relied on

by the federal circuits prevents a federal habeas court from

revising, voiding, or vacating a state court judgment. See Fay

v. Noia, 372 U.S. 391 (1963). However, the Sixth Circuit in

Gentry v. Deuth, 45 F.3d 687, 693 (6" Cir. 2006), relied on

and interpreted another line of valid Supreme Court authority

as permitting a federal habeas court to grant any relief,

including declaring a state court conviction null and void, as

justice requires. See Carafas v. LaVallee, 391 U.S. 234

(1968); Sibron v. New York, 392 U.S. 40 (1968). In Gentry

the Sixth Circuit attempted to justify its reliance on the line

of authority stemming from Carafas because it was decided

subsequent to Fay and because it seemed to fit with the

language of 28 U.S.C. § 2243, which authorizes a habeas

court to, “dispose of the matter as law and justice require.”

However, this explanation ‘s insufficient given that Fay

continues to be good law that is routinely relied on and cited

as limiting the scope of relief available to a successful

petitioner by the numerous federal courts. Thus, it is

incumbent on this Court to finally resolve this long standing

conflict and determine once and for all the extent of a federal

habeas court’s power to grant relief directly affecting a state

~ court’s judgment.

In Fay v. Noia, 372 U.S. 391, 430-431, 83 S.Ct. 872, 9

L.Ed.2d 837 (1963), this Court found that,

Habeas lies to enforce the right of personal

liberty; when that right is denied and a person

confined, the federal court has the power to

release him. Indeed, it has no other power; it

cannot revise the state court judgment; it can

act only on the body of the petitioner.

See, Wilson v. Lawrence County, 154 F.3d 757, 761 (8th Cir.

1998) ("[a] writ of habeas corpus does not reverse or void the

state judgment of conviction"); Henderson v. Frank, 155 F.3d

159, 168 (3rd Cir. 1998) (federal court in habeas proceeding

has no authority to revise the state court judgment; court may

determine only whether there is an improper detention and, if

so, order the release of the prisoner conditioned on the State's

opportunity to correct errors); Duhamel v. Collins, 955 F.2d

926, 968 (5" Cir. 1992) (A federal habeas court is

empowered to dispose of the matter as law and justice

require, but a federal district court does not have the authority

to commute a death sentence to life imprisonment); Madigan

v. Snyder, 804 N.E.2d 546, 554 (Il. 2004) (“A federal court

considering a state prisoner's petition for writ of habeas

corpus does not have the authority to revise a state court

judgment"); Wanatee v. Ault, 120 F.Supp. 784 (N.D. Iowa,

2000), (“. . .court had no other power than to order Wanatee’s

release.”). In its unpublished disposition of Moore v. Rose,

19 F.3d 1433 (Table), 1994 WL 102958 (6th. Cir 1994), the

Sixth Circuit Court expressly indicated its agreement with the

holding of Fay, surpa, when determining the appropriateness

of aremedy. In Barry v. Brower, 864 F.2d 294, 300 (3rd Cir.

1988), the Third Circuit found that,

Although the district court did not err in

granting Barry a writ of habeas corpus, it went

beyond its power in directly ordering the

Appellate Division of the New Jersey Superior

Court to reinstate his appeal. Both the historic

nature of the writ and principles of federalism

preclude a federal court's direct interference

with a state court's conduct of state litigation.

Based on the express language in Fay, supra, and other

supporting authorities, it appears clear that a federal habeas

court cannot grant relief directly affecting the state court’s

judgment. Nonetheless, the Sixth Circuit has not only

granted Gentry relief inconsistent with Fay, its progeny and

the historical nature of the writ itself, but has also granted

Gentry relief not originally requested in her petition for writ

of habeas corpus.

Despite the apparent clarity of Fay and the other

authorities cited above, law governing a federal court’s power

to fashion remedies when granting a habeas petition is not.

In Carafas v. LaVallee, 391 U.S. 234 (1968), this Court

expanded the historical scope of the great writ to permit a

federal court to fashion relief as by justice requires. See also

28 U.S.C. § 2243. Specifically, this Court in Carafas found

that a petitioner’s challenge was not mooted by his release

from incarceration prior to his hearing because of the

collateral consequences that stemmed from his convictions

10

and authorized a federal court to fashion relief necessary to

alleviate the collateral consequences. Id. at 237; See Sibron

v. New York, 392 U.S. 40 (1968). In this case, the Sixth

Circuit conceded that no Supreme Court authority exists that

would directly authorize a federal district court to void a state

court judgment by acknowledging that, “the courts have

heretofore had little occasiofi to speak directly to the district

court’s authority to nullify an unlawful state conviction. . .”

Nonetheless, the Sixth Circuit in Gentry reasoned that justice

requires such relief be available to release a successful

petitioner from the collateral consequences stemming from

the unlawful conviction. Gentry, 45 F.3d at 696-697. |

In reaching the above conclusion the Sixth Circuit

chose to marginalize this Court’s holding in Fay (the only

Supreme Court precedent directly addressing the issue) and

chose to ignore authority from other federal courts that relied

on and followed Fay, in favor of expansively interpreting

Carafas and Sibron in order to tenuously craft an explanation

to justify its desired result. The Sixth Circuit’s holdings in

Gentry stretch the original purpose of the writ to its absolute

extreme. Although it is evident that this Court has sought to

expand the scope of relief available to a federal habeas court

to include more than just release, it is also evident that this

Court has not gone so far as to authorize a federal habeas

1}

t

court to simply void a state court’s judgment of conviction.

To authorize such relief, as the Sixth Circuit does in Gentry,

would violate the fundamental tenets of our system of

federalism and unnecessarily offend the importance of comity

between the state and federal courts.

The Sixth Circuit’s decision in Gentry further offended

comity between the federal and state courts by finding it

unnecessary for Gentry to have requested relief from

collateral consequence in her original petition and that it was

not necessary for Gentry to exhaust her state court remedies

before seeking such relief. Through its decision in this case

the Sixth Circuit has condoned the ultimate encroachment on

the state’s sovereignty by allowing a federal court to

unilaterally declare a state court judgment of conviction null

and void without first affording the state any opportunity to

address petitioner’s concerns regarding the imposition of

collateral consequences.

12

CONCLUSION

WHEREFORE, certiorari review should be granted.

| Respectfully submitted,

GREGORY D. STUMBO

Attorney General of Kentucky

WM. ROBE

Assistant Attorney Genera

Counsel of Record

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

13

IN THE

Scpreme Court of the United States

DORIS DEUTH, WARDEN,

Petitioner

versus

CARRIE GENTRY,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

APPENDIX TO CERTIORARI PETITION

GREGORY D. STUMBO

Attorney General of Kentucky

WM. ROBERT LONG, JR.

Assistant Attorney General

Counsel of Record

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive ~

Frankfort, Kentucky 40601

(502) 696-5342 :

APPENDIX

Item' Page

Opinion, United States Court of Appeals,

Sixth Circuit, July 31, 2006 .....--- eee errr rere 1-19

Final Judgment, United States District Court, |

Western District of Kentucky, July 21,2005 .....--- 20-21

Memorandum Opinion, United States District Court,

Western District of Kentucky, July 21, 2005 .....--- 22-35

1 In addition to the judgment and opinion contained in this

this Appendix, the district court in this case issued two other

opinions on March 17, 2004, and May 21, 2004. These

opinions have not been included in this Appendix since the

deal solely with the merits of Gentry’s habeas petition; i.e.,

whether or not the use of two-way video to present trial

testimony violated Gentry’s right of confrontation under the —

Sixth Amendment.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0265p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CARRIE GENTRY,

Petitioner-Appellee,

DORIS DEUTH, Warden, Kentucky

Correctional Institute for Women,

)

)

)

V. )

)

)

)

Respondent-Appellant. )

Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 03-00015—Edward H. Johnstone, District Judge.

Argued; May 31, 2006

Decided and Filed : July 31, 2006

Before: BOGGS, Chief Judge; and GIBBONS and GRIFFIN,

Circuit Judges.

COUNSEL

ARGUED: William Robert Long, Jr., OFFICE OF THE

ATTORNEY GENERAL, Frankfort, Kentucky, for

Appellant. Timothy G. Arnold, DEPARTMENT OF PUBLIC

ADVOCACY, Frankfort, Kentucky, for Appellee. ON

BRIEF: William Robert Long, Jr., OFFICE OF THE

ATTORNEY GENERAL, Frankfort, Kentucky, for

Appellant. Timothy G. Armold, DEPARTMENT OF PUBLIC

ADVOCACY, Frankfort, Kentucky, for Appellee.

OPINION

BOGGS, Chief Judge. This is a case in which the district

court granted a conditional writ of habeas corpus after the

petitioner had already been released from incarceration, but

no party challenges that order. Instead, the

respondent-appellant Commonwealth of Kentucky challenges

the district court's subsequent order rendering the conditional

writ absolute in response to the appellee's motion to enforce,

on the grounds that the commonwealth had failed to comply

with the district court's conditions. By the express terms of

“ this order, the district court nullified the petitioner-appellee's

criminal conviction so that she would not suffer any

collateral consequences as a result of her felony conviction.

For the reasons stated below, we affirm.

I

The facts of this case are not in dispute. On January 28, 1999,

Carrie Gentry met Brian Pettit at Ginger and Pickles, a bar in

McCracken County, Kentucky. Both were drinking, though

Gentry claims that she was much more sober than her new

friend. Gentry agreed to drive Pettit, in his 1991 Ford

Mustang, to her apartment. Upon arriving at her home,

however, Pettit wished to continue listening to some new

music that he had recently purchased, so Gentry agreed to

keep driving so as not to wake her daughter who was asleep

in the apartment. While driving, Gentry failed to negotiate a

curve. The car crossed the center line, hit a bridge abutment,

and flipped in the air. Both Pettit and Gentry were ejected

from the vehicle. Pettit died at the scene.

Gentry was indicted by a grand jury for driving under the

influence and manslaughter in the second degree. During

trial, the Commonwealth introduced, over Gentry's

objections, the testimony of five expert witnesses-state

employees testifying as to Gentry's blood alcohol level and as

to physical evidence in the car that pointed to her as having

been the driver-via two-way closed-circuit television. Gentry

was convicted and sentenced to five years in prison. Gentry's

appeals were denied at all levels, including the United States

Supreme Court. Gentry v. Kentucky, 537 U.S. 981, 123 S.Ct.

450, 154 L.Ed.2d 343 (2002) (denying cert.).

Gentry filed the instant habeas petition on January 23, 2003.

While her petition remained pending, she was released from

prison in July 2003. The district court denied her habeas

petition on March 18, 2004, holding that although the

Commonwealth had violated Gentry's Sixth Amendment

Confrontation Clause rights by employing the two-way

closed-circuit system without good cause, the error had been

harmless. Gentry then filed a motion to alter or amend

judgment, and the district court subsequently changed its

mind, holding that its prior harmless error analysis had been

inadequate. The court conditionally granted a writ of habeas

corpus “‘if the Commonwealth does not retry Gentry within

ninety days of the entry of this judgment should appeal not be

taken, or within ninety days of any final opinion on appeal

that affirms this revisited decision should an appeal be taken

by the respondent.” The order was entered on the docket on

May 21, 2004. Kentucky filed an appeal, but then dropped it

voluntarily on July 14, 2004.

On January 27, 2005, Gentry filed a motion asking the district

court to enforce its May 2004 judgment by voiding the

Commonwealth's conviction so that she would not face any

collateral consequences as a result of having been convicted

of a felony. The district court granted this motion on J uly 21,

2005, converting the conditional grant of habeas into an

absolute grant, and nullifying the conviction. The

Commonwealth thereafter filed a timely appeal from that

order.

II

We review a district court's disposition of a habeas petition

de novo, and its findings of fact for clear error. Rickman v.

Bell, 131 F.3d 1150, 1153 (6th Cir.1997). Questions of law or

or mixed questions of law and fact are reviewed de novo.

Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005). As

this appeal is essentially predicated on a technical legal

issue-whether the district court possessed jurisdiction over

the motion to enforce and the authority to nullify the

Commonwealth's conviction-we must apply de novo review.

A

The Commonwealth first argues that Gentry's January 2005

motion to enforce should be construed as a motion to alter or

amend judgment pursuant to Rule 59 of the Federal Rules of

Civil Procedure and that such a motion would have been

untimely as it was filed eight months after entry of judgment.

The state predicates this argument on its assertion that Gentry

was asking for relief that she had not been previously

granted-relief from collateral consequences of her felony

conviction-and that such relief was trinsic to the

conditional writ. As such relief was ostensibly not granted by

the district court's May 2004 order, the state thus suggests

that Gentry was essentially asking the court to alter or amend

its judgment pursuant to Civil Rule 59.

The Commonwealth is wrong. In her January 2005 motion, -

Gentry clearly asked the district court to enforce its May

2004 judgment, and she did not challenge or seek to amend

that order. The district court issued its May 2004 order

“conditionally granting [the writ] if the Commonwealth does

not retry Gentry within ninety days of the entry of this

judgment should not appeal be taken, or within ninety days of

any final opinion on appeal that affirms this revisited

decision should an appeal be taken by the respondent.” The

Commonwealth unquestionably failed to grant Gentry a new

trial, and therefore it failed to abide by the condition that the

district court had established. As there was no need to release

Gentry from incarceration, the only action required was to

expunge Gentry's record of her unconstitutional felony

conviction. The Commonwealth took no such action. Gentry

therefore filed her January 2005 motion asking for the

essential relief contemplated by the conditional order, for the

court's May 2004 order implicitly expected that the

Commonwealth would vacate the prior judgment pursuant to

seeking a new trial, and thus the Commonwealth's failure to

seek a new trial effectively circumvented the district court's

purpose. The motion was thus not filed pursuant to Civil

Rule 59, and it was not untimely.

The Commonwealth next argues that the district court did not

retain jurisdiction to hear this matter. Again, the

Commonwealth is incorrect. In the first place, the 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. See Smith v. Lucas, 9 F.3d

359, 366-67 (5th Cir.1993); McQuillion v. Duncan, 253

F.Supp.2d 1131, 1134 (C.D.Cal.2003). District courts rightly

favor conditional grants, which provide states with an

opportunity to cure their constitutional errors, out of a proper

concern for comity among the co-equal sovereigns. “{C]ourts

may delay the release of a successful habeas petitioner in

6

—~

order to provide the State an opportunity to correct the

constitutional violation found by the court.” Hilton v.

Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d

724 (1987). Absolute grants are therefore generally limited to

situations where the nature of the error is simply incurable,

such as a conviction under an unconstitutional statute. See,

e.g., Staley v. Jones, 108 F.Supp.2d 777, 788

(W.D.Mich.2000), rev'd on other grounds, 239 F.3d 769 (6th

Cir.2001). Conditional grants of writs of habeas corpus are

final orders, Phifer v. Warden, United States Pen., Terre

Haute, Ind., 53 F.3d 859, 862 (7th Cir.1995), exactly like

absolute grants, and they ordinarily and ideally operate

automatically, that is, without the need for the district court

to act further.

Nevertheless, district courts retain jurisdiction to execute a

lawful judgment when it becomes necessary. “If the state

complies with its order, the petitioner will not be released; if

the state fails to comply with its order, release will occur.

Ordinarily, the only task that remains for the district court is

the execution of judgment.” /bid. “A federal district court

retains jurisdiction to determine whether a party has complied

with the terms of a conditional order in a habeas case. A

state's failure to timely cure the error identified by a federal

district court in its conditional habeas order justifies the

release of the petitioner.” Satterlee v. Wolfenbarger, No. 03-

71682-DT, 2005 U.S. Dist. LEXIS 25874, at *6 (E.D.Mich.

Oct. 19, 2005) (internal citations omitted) (vacating

petitioner's conviction), aff'd in part, 453 F.3d 362 (6th

Cir.2006). See also Santos-Rosario v. Renico, 05-CV-70456,

2006 U.S. Dist. LEXIS 44074, at *3-4 (E.D.Mich. March 30,

2006) (denying writ even though the state failed to comply

with the precise terms of the district court's conditions

because the state had substantially complied with the

conditions). On the other hand, when a state meets the terms

of the habeas court's condition, thereby avoiding the writ's

actual issuance, the habeas court does not retain any further

jurisdiction over the matter. Pitchess v. Davis, 421 U.S. 482,

490, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975) (per curiam)

(noting “(nJeither Rule 60(b), 28 U.S.C. § 2254, nor the two

read together, permit a federal habeas court to maintain a

continuing supervision Over a retrial conducted pursuant to a

conditional writ granted by the habeas court.”).

As Gentry had been released from prison prior to the district

court's order, the Commonwealth obviously had no duty

under the district court's order to take any action with respect

to her person. However, Gentry's status as a convicted felon

apparently remained in force, as the Commonwealth did not

nullify her conviction, and thus her January 2005 motion

reasonably asked the court to enforce its order by making the

conditional writ absolute. Therefore, we find that the district

court retained jurisdiction to enforce its conditional grant of a

writ of habeas corpus.

C

Next, the Commonwealth argues that Gentry's January 2005

motion was moot because the essential object of the F

conditional habeas writ-release of the person of the

petitioner-had already been met, claiming

the condition for granting the writ occurred and Gentry, who

had already completed service of her sentence, was entitled to

be released from custody. The district court's judgment did

not void or otherwise vacate the state court's judgment of

conviction nor did it place any other duty or condition on the

Commonwealth.

Appellant's Br. at 15-16. Thus, the Commonwealth argues,

“once the condition occurred and Gentry was released from

custody there ceased to be a case in [sic] controversy.” Ibid.

This simply misstates the law respecting habeas relief, for it

muddies the clear distinction between a habeas petition

challenging a conviction, and one challenging the

particularities of sentencing.

Article III, Section 2 of the United States Constitution

authorizes the federal judiciary only to hear cases or

controversies, and therefore federal courts may not exercise

jurisdiction when the controversy has been mooted, that is to

say, when the “issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.” Los

Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379,

59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395

U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). See

also Stewart v. Blackwell, 444 F.3d 843, 855-56 (6th

Cir.2006). Although the Supreme Court had seemed to limit

habeas relief to “the body of the petitioner” in Fay v. Noia,

372 U.S. 391, 430-31, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), a

stance that was in line with the writ's historical] function of

releasing prisoners from incarceration, the Court

subsequently expanded the writ's scope in Carafas v.

LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554

(1968), stating that the petitioner's challenge was not mooted

9

by his release from incarceration prior to his hearing because,

“in consequence of his conviction, he cannot engage in

certain businesses; he cannot serve as an official of a labor

union for a specified period of time; he cannot vote in any

election held in New York State; he cannot serve as a juror.”

Ibid. Therefore, “[o]n account of these ‘collateral

consequences,’ the case is not moot.” Id. at 237-38, 88 S.Ct.

1556. The Court reached a similar decision a few weeks later

in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20

L.Ed.2d 917 (1968), in which the petitioner had been released

prior to argument in the state intermediate appellate court.

Therefore the Supreme Court has found that the appropriate

remedy for a writ of habeas corpus issued pursuant to an

unlawful criminal conviction includes relief not only from the

conviction's direct consequences ( €.g. incarceration), but

also from its collateral consequences. Id. at 55-58, 88 S.Ct.

1889.

We have followed this precedent, as we must. In Abela v.

Martin, 380 F.3d 915, 921 (6th Cir.2004), we held, in part,

that a petitioner's “release from custody and the subsequent

conclusion of his parole term, after the filing of his habeas

petition [challenging his conviction], do not render moot his

appeal from the district court's denial of the petition” because

“of the continuing collateral consequences to a wrongful

criminal conviction.” Jbid. (citing Spencer v. Kemna, 523

USS. 1, 8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Similarly,

in Brewer v. Dahlberg, 942 F.2d 328, 335 (6th Cir.1991), we

held that a petitioner's challenge to his parole status, rather

than a challenge to a parole revocation and consequent

incarceration for parole violation, meant that his case was not

10

rendered moot simply because he was no longer imprisoned

for his parole revocation. In Green v. Arn, 839 F.2d 300,

301-02 (6th Cir.1988), we concluded that a habeas petition

was not mooted by the petitioner's release from prison prior

to the court's determination, for the petitioner could still face

“significant collateral consequences flow[ing] from a

criminal conviction.” See also Stotts v. Perini, 28 Ohio Misc.

111, 427 F.2d 1296, 1297 (6th Cir.1970) (“Petitioner's action

is not mooted by his release from custody, because

‘disabilities' may still result from the conviction which he is

attacking.”’).

The Commonwealth mistakenly relies on a line of decisions

that addresses habeas petitions attacking the sentence rather

than the conviction. Post-release habeas petitions challenging

the conditions of confinement are almost necessarily moot,

for courts normally cannot offer any habeas redress in such

circumstances. As the Spencer Court noted:

Once the convict's sentence has expired, however,

some concrete and continuing injury other than the

now-ended incarceration or parole-some “collateral

consequence” of the conviction-must exist if the

suit is to be maintained. In recent decades, we have

been willing to presume that a wrongful criminal

conviction has continuing collateral consequences

(or, what is effectively the same, to count collateral

consequences that are remote and unlikely to occur). ©

Spencer v. Kemna, 523 U.S. at 7-8, 118 S.Ct. 978 (citations

omitted). The Court in Lane v. Williams, 455 U.S. 624, 102

11

-

S.Ct. 1322, 71 L.Ed.2d 508 (1982), found moot the habeas

petitions of defendants who had pled guilty to a felony

pursuant to a plea agreement. The petitioners in that case

challenged their incarceration for parole violation after they

had served their sentences, and they alleged that they had

been unaware that their plea bargains had included a term of

parole. The district court granted them specific performance

of their plea agreement by declaring void the mandatory

parole terms. The Supreme Court then held that their petition

was moot because they had been released during the petition's

pendency, and because their petition attacked only their

sentences. Id. at 630-31, 102 S.Ct. 1322. See also Parker v.

Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960). In

Diaz v. Kinkela, 253 F.3d 241, 243-44 (6th Cir.2001), the

petitioner, while serving a prison sentence for a matter

unrelated to his later petition, was convicted by the parole

board for felonious assault and possessing a dangerous

weapon while in detention, and his term of incarceration was

increased by 90 days under Ohio's “bad acts” statute. The

petitioner challenged that “bad acts” conviction and his

additional 90-day sentence, but, before the district court

could hear his éase, he was released from prison, and Ohio's

Supreme Court found the “bad acts” statute to be

unconstitutional. /d. at 243. The district court thereafter

denied his petition, and we affirmed, because the challenged

conviction had already been nullified, and the court found

moot his sole surviving challenge to the additional 90 days of

imprisonment because he had long since been released from

prison. Jd. at 243-44.

12

With respect to injury, an essential element of a live

controversy, the law does not require a habeas petitioner to

prove by a preponderance of the evidence that she may face

collateral consequences of her unconstitutional felony

conviction, for the disabilities consequent to a felony

conviction are legion, and patently obvious in many cases.

Indeed, as we have already noted, the Supreme Court has

acknowledged that it has allowed federal courts to presume

the existence of collateral consequences “in recent decades.”

Spencer, 523 U.S. at 8, 118 S.Ct. 978. Moreover, in the case

before us, the petitioner has pointed to Kentucky statutes that,

on their face and as a matter of law, strip her, °s a felon, of

certain rights and privileges, including, inter alia, the right to

vote and certain driving privileges. See Ky. Const. § 145

(stripping felons of the right to vote); Ky. Const. § 150

(restricting felons from holding public office); Ky.Rev.Stat.

Ann. § 29A.080(2)(e) (2006) (disallowing felons from

serving on juries); Ky.Rev.Stat. Ann. § 527.040 (2006)

(disallowing felons from possessing firearms); Ky.Rev.Stat.

Ann. § 189A.070 (2006) (revoking driver's license pending

alcohol treatment program); Ky.Rev.Stat. Ann. § 532.080

(2006) (making felons eligible for persistent felony offender

charges). There are also well-known collateral consequences

of a felony conviction under federal law of which we take

judicial notice. See, e.g., 18 U.S.C. § 922(g) (disallowing

felons from possessing firearms). Therefore, to the extent that

she was required to make a minimal showing of possible

collateral consequences of her unconstitutional criminal

conviction, Gentry has done so.

13

The instant petitioner raised a live and viable challenge to her

felony conviction. Abela, Spencer, and the entire line of

decisions dating back to Carafas, thus control this case. As

such, the law obligates us to hold that Gentry's challenge to

her conviction and its attendant direct and collateral

consequences is not mooted simply by the fact of her prior

release.

D

Focusing on the fact that the petitioner in Diaz had proposed

as a remedy that we reduce his post-release control by 90

days, which we dismissed because he had not exhausted it in

the state courts, the Commonwealth claims that Diaz

mandates that we require the instant petitioner to exhaust her

potential challenges to the collateral consequences of her

conviction before we can address them. Yet the

Commonwealth has misunderstood our analysis in Diaz. In

the first place, as noted above, the petitioner in Diaz

ultimately presented no viable challenge because his “bad

acts” conviction had already been nullified as

unconstitutional by the state supreme court before the district

court could review his petition, and because he had long since

been released from all confinement, including that arising

from his “bad acts” sentence. As the district court was left

with no possible remedy, his petition was moot. We then

dismissed the Diaz petitioner's proposed remedy of reducing

his post-release control by 90 days because that remedy was

extrinsic to his petition, for the petitioner's period of

post-release control had been determined by his unchallenged

felony conviction, not by his “bad acts” conviction or

14

sentence. Diaz v. Kinkela, 253 F.3d 241. Therefore, the

proposed remedy raised a legal question independent of the

habeas petition, and so the petitioner in Diaz had failed to

exhaust his challenge with respect to that issue as required,

requiring us to dismiss his suit.

Turning to our case, we have already noted that a successful

habeas challenge to an unconstitutional conviction

necessitates relief not only from any present incarceration

arising from that conviction, but also from any collateral

consequences thereof. Therefore, Gentry’s challenge to the

collateral consequences of her conviction was implied by her

original petition challenging her conviction as

unconstitutional, and as she had successfully exhausted her

claim before bringing her habeas petition in the first place,

she also met all exhaustion requirements with respect to the

collateral consequences of that challenged conviction.

Successful habeas petitioners are entitled to the appropriate

benefit of the writ, and we cannot require them to exhaust

their claims anew in order to receive that benefit. To mandate

that a petitioner who has-obtained a writ of habeas corpus

with respect to her unconstitutional conviction independently

challenge the attempted imposition of collateral

consequences of her unconstitutional conviction in state

judiciaries, either in toto or seriatim, would, at a minimum,

entail a uselessly formal acknowledgment of the states’

sovereignty, for states could not constitutionally enforce

those collateral consequences. Indeed, the Commonwealth

itself implicitly acknowledges this problem in that it failed to

_ faise any merits defense of its potential imposition of

15

criminal collateral consequences against Gentry. Even more

perniciously, under the Commonwealth's proposal, a less

ethical state might find itself able in practice to impose

collateral consequences of unlawful convictions when

successful habeas petitioners find the task of challenging the

attempted imposition of those consequences too onerous OF

intimidating. But a government under the law simply could

not long remain under the law by acting in such a manner.

Therefore, we hold that the petitioner is not required to

exhaust anew her challenge to the collateral consequences of

her unconstitutional conviction.

E

Finally, the Commonwealth asserts that the district court did

not possess lawful authority to nullify the petitioner's

conviction. Relatedly, the state argues that federal courts

cannot nullify state court decisions when “less drastic means

of preventing enforcement of collateral consequences exists.”

The Commonwealth is wrong in its assertion that federal

courts, pursuant to the issuance of a writ of habeas corpus,

lack the proper authority to nullify an unconstitutionally

obtained state criminal conviction. To hold otherwise would

be incongruent with the writ's historical purpose and with the

will of Congress, which has seen fit to empower the federal

courts to dispose of habeas matters “as law and justice

require.” 28 U.S.C. § 2243. Accordingly, we have held that

federal courts have been given “broad discretion in

fashioning [habeas corpus] relief.” Gall v. Parker, 231 F.3d

265, 335 (6th Cir.2000). While the courts have heretofore had

16

little occasion to speak directly to the district court's authority

to nullify an unlawful state conviction, see, e.g., Heck v.

Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129

L.Ed.2d 383 (1994) (“in order to recover damages for

allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a [42 U.S.C.] § 1983

plaintiff must prove that the conviction or sentence has been

‘« [ inter alia | called into question by a federal court's

issuance of a writ of habeas corpus”), nevertheless the law is

absolutely clear that the writ releases the successful petitioner

from the state's custody, and, as we have discussed above,

such release includes relief from the conviction's collateral

consequences when it was the conviction itself that was

found to be unconstitutional. As a practical, logical, and _

necessary matter, relief from the collateral consequences of

an unconstitutionally obtained state criminal conviction

effectively requires expungement of the conviction from the

petitioner's record, and expungement of the record implies

nullification of the unconstitutional conviction. See Satterlee

v. Wolfenbarger, 453 F.3d at 370 (“It appears that we have

never expressly addressed whether habeas courts have the

power to order the expungement of the record of a

conviction. We conclude that they do.”); Ward v.

Wolfenbarger, 340 F.Supp.2d 773, 776 (E.D.Mich.2004) (“A

federal district court has the authority, in a habeas corpus

proceeding, to order the expungement of a habeas petitioner's

criminal records against all persons who maintain custody of

such records.” (citations and internal quotation marks

omitted)). Put another way, a state acts ultra vires when it

obtains a criminal conviction in violation of the United States

17

Constitution, and ultra vires acts bear no legitimate force in a

government under the law. A public act without legitimate

force is indistinct under the law from an act that never was, Or

an act that has been voided. Therefore, we hold that the

district court acted within its constitutional authority when it

nullified the petitioner's unlawful criminal conviction.

In so holding, however, we note that the fact that the writ

nullifies the criminal conviction does not necessarily reverse

that conviction, for the writ does not itself generally preclude

the Commonwealth from retrying the petitioner if it can

otherwise do so lawfully. Nullification is thus akin to a

non-prejudicial dismissal. See Rimmer v. Fayetteville Police

Dept., 567 F.2d 273, 277 (4th Cir.1977) (“While the state

court judgment is neither reversed nor vacated, the prisoner is

released and the state court judgment authoritatively declared

void. Thereafter, the state court judgment should have no

preclusive effect.”); Smith v. Spina, 477 F.2d 1140, 1147-48

(3d Cir.1973) (‘Although this court has ordered that a writ of

habeas corpus issue, such action is not the equivalent of a

reversal of a state conviction. Only the Supreme Court has

power, on direct appeal, to reverse a state judgment of

conviction.”); Rosa v. McCray, 03 CIV 4643(GEL), 2004

US. Dist. LEXIS 24772, at *16 (S.D.N.Y. Dec. 8, 2004)

(“Short of an order barring retrial, however, which is only

appropriate in ‘extraordinary’ circumstances, even an order

requiring release of a petitioner does not prohibit the

reprosecution of the petitioner. Absent such extraordinary

circumstances, the federal courts usually permit rearrest and

retrial after the time period specified in the conditional

release order has elapsed and the prisoner has been

18

released.”’) (citations and internal quotation marks omitted)

(granting writ), rev'd on other grounds, 396 F.3d 210 (2d

Cir.2005).

Moreover, the Commonwealth is wrong in its suggestion that

the district court should have pursued an option “less drastic”

than nullifying the conviction in order to provide the

petitioner with an appropriate and effective remedy. Having

correctly issued the writ, the choice of habeas remedy lies

_ within the district court's sound discretion, see Hilton, 481

U.S. at 775, 107 S.Ct. 2113 (noting that “a court has broad

discretion in conditioning a judgment granting habeas

relief”), though, of course, “a federal district court --- should

give careful consideration to the appropriate demands of

comity in effectuating its habeas corpus decree.” Parisi v.

Davidson, 405 U.S. 34, 46, 92 8.Ct. 815, 31 L.Ed.2d 17

(1972). As it took action only after the Commonwealth had

decided, by its inaction, not to provide the petitioner with

appropriate relief, and as its ultimate choice of remedy lay

squarely within its constitutional authority, the district court

did not abuse its discretion by nullifying the

Commonwealth's unconstitutional conviction.

Il

For the reasons stated above, we AFFIRM.

19

UNITED STATES DISTRICT COURT

WESTER DISTRICT OF KENTUCKY

PADUCAH DIVISION

CIVIL ACTION NO. 5:03CV 15-J

CARRIE GENTRY PETITIONER

V.

DORIS DEUTH, Warden .

Kentucky Correctional Institute for Women RESPONDENT

FINAL JUDGEMENT

On May 21, 2004, this Court rendered a Conditional

Writ of Habeas Corpus, conditional upon the

Commonwealth’s re-trial of Petitioner’s case within ninety

days. The Respondent failed to fulfill the condition

precedent to re-try the Petitioner, and abandoned its appeal of

_ the Judgment granting the Conditional Wnit:

NOW THEREFORE, IT IS ORDERED AND

ADJUDGED:

20

1) This Court’s Judgment granting a writ of |

conditional habeas corpus dated May 21, 2004 is not declared

to be an Absolute Writ of Habeas Corpus; and

2) The July 6, 2000 Judgment of Conviction entered

in McCracken Circuit Court Action 99-CR-00021 against

Petitioner Carrie Gentry is declared null and void, and

without effect.

This is a final and appealable Judgment, and there is

no just cause for delay.

July 21, 2005

s/ Edward H. Johnstone, Senior Judge

United States District Court

21

UNITED STATES DISTRICT COURT

WESTER DISTRICT OF KENTUCKY

PADUCAH DIVISION

CIVIL ACTION NO. 5:03CV 15-J

CARRIE GENTRY PETITIONER

Vv.

DORIS DEUTH, Warden

Kentucky Correctional Institute for Women RESPONDENT

MEMORANDUM OPINION

This matter is before the Court upon Petitioner

Carrie Gentry’s Motion to Enforce May 21, 20004 Judgment.

Petitioner seeks enforcement of the J udgment of this Court

which awarded her a Conditional Wnt of Habeas Corpus so

as to relieve her of the collateral consequences of her

conviction. The Court has reviewed the record and briefs of

the parties and, for the reasons that follow, will make the

Writ of Habeas Corpus Absolute for failure of the

22

Respondent to abide by the conditions imposed, and will

grant Petitioner the relief requested.

Gentry was convicted of Manslaughter 2 Degree

and Driving Under the Influence in McCracken Circuit

Court, and the Judgment of Conviction was entered on July

6, 2000. Gentry was found guilty of driving under the

influence, and of causing the motor vehicle accident in which

her passenger was killed. Petitioner assigned numerous trial

errors on appeal in the state courts, including a claim that she

was denied her constitutional right to confront five state

prosecution witnesses in violation of the 6" Amendment.

After exhausting her state court appeals, Gentry filed in this

Court a Petition for Writ of Habeas Corpus. This Court

determined that the trial testimony of five prosecution expert

witnesses via two-way, closed circuit television (despite their

having been subpoenaed for live testimony by the

23

prosecution) lacked compelling state justification, and

violated her right to confrontaion, contray to Maryland v.

Craig, 497 U.S. 836, 848-50 (1990). Accordingly, this Court

entered Judgment granting Petitioner a Conditional Writ of

Habeas Corpus, which reads in pertinent part as follows:

2) The motion of the petitioner for a writ of

habeas corpus be, and it is, hereby

CONDITIONALLY GRANTED if the

Commonwealth does not retry Gentry within

ninety (90) days of the entry of this judgment

should not [sic] appeal be taken, or within

ninety (90) days should an appeal be taken by

the respondent.

At the time of this Court’s decision granting the Conditional

Writ of Habeas Corpus, Petitioner had already served her term

of incarceration. She was released from prison on July 2,

7003. The Commonwealth elected not to re-try the Petitioner

within the ninety (90) day window as permitted by the

24

Conditional Writ of Habeas Corpus’. The Attorney General

filed a timely appeal on behalf of the Respondent to the

United States Court of Appeals for the Sixth Circuit, by

voluntarily dismissed the appeal as of July 14, 2004.

1

A chronology of pertinent events in this case is as follows:

July 6, 2000

June 5, 2002

Jan. 23, 2003

July 2, 2003

May 21, 2004

June 23, 2004

July 14, 2004

Jan. 27, 2005

McCracken Circuit Court Judgment of

Conviction entered

Petitioner exhausts state court remedies

challenging her conviction

Petitioner files habeas corpus petition in

U.S. District Court

Petitioner completes sentence and is

released from prison

Federal court grants Conditional Writ of

Habeas Corpus

Respondent appeals Conditional Writ to

Sixth Circuit

Respondent voluntarily dismisses appeal

challenging Writ

petitioner moves to enforce Judgment

granting Conditional Wnt

25

The very nature of the Conditional Writ entered in

this case contemplated that this Court could re-visit the issue

to determine whether the condition precedent was met. For

that reason, this Court has jurisdiction to determine whether a

party has compiled with the terms of the Conditional Writ,

and to otherwise “dispose of the matter a law and justice

require.” 28 U.S.C. § 2243.

This Court must now decide whether Petitioner is

entitled to the relief she has requested for the Respondent’s

failure to fulfill the terms of the Conditional Writ. At the time

Petitioner made the present Motion to Enforce, she was still

without an operators license from the Kentucky Department of

Transportation, and still a convicted felon according to the

penal records of the Commonwealth of Kentucky. Petitioner

seeks to enforce the Writ, asking this Court to vacate the

26

_ judgment of conviction so as to restore her civil rights and

drivers license.

The United States Supreme Court has recognized

that habeas corpus relief from such collateral consequences

attending criminal convictions should be available, Carafas v.

LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554

(1968). In Carafas, the Court made it clear the Habeas court s

have the poer to relieve successful siltina of the collateral

consequences which burden then even after a criminal

sentence has been served. Similarly, the Sixth Circuit Court

of Appeals recognized a federal court’s authority to fashion

relief as justice requires in the case of Glenn v. Dallman, 686

F.2d 418, 423 (6" Cir. 1982), citing Peyton v. Rowe,

[companion case decided simultaneously with Carafas] 391

U.S. 54, 88 S.Ct. 1549, 1555, 20 L Ed.2d (1968); and Byrd v.

Smith, 407 F.2d 363, 366 n. 8 (5" Cir. 1969). Therein, the

27

Sixth Circuit noted that a successful petitioner’s having

obtained final release during the course of his habeas corpus

proceedings complicates the process of determining an

appropriate remedy; the fact that a petitioner is no longer in

custody in any traditional sense does not automatically moot

his claim for relief nor defeat federal jurisdiction over the

matter, Glenn v. Dallman at 422, citing Carafas.

The Sixth Circuit further elaborated:

If there is any possibility that “adverse

collateral legal consequences” will flow from

a prior conviction a defendant has sufficient

stake in challenging that conviction to prevent

the case becoming moot even though the

defendant is no longer in custody or under

parole. [Citations omitted.] As the Supreme

Court recognized in Carafas, a prior

conviction may place numerous legal

disabilities and burdens on a habeas corpus

petitioner’s civil liberties that he would not

have if his convictions were expunged. If

petitioner in the present case were entitled to

28

complete-eradication of any felony conviction

from his record... then quite clearly petitioner

would have substantial stake in challenging

his conviction required to save his proceeding

from mootness. Glenn v. Dallman at 422-423.

The Court acknowledged that the federal habeas corpus

statute permits federal courts to fashion relief as justice

requires, and accordingly the Court directed the

reclassification of the petitioner’s conviction. The Court

likened its remedy to one fashioned on other grounds by

North Carolina v, Rice,434 F.2d 297, 300 (4" Cir. 1970)

[overturned on other grounds by North Carolina v, Rice, 404

U.S. 244, 92 S.Ct. 402, 30 L.Ed 2d 413 (1971)], wherein a

successful habeas corpus petitioner who had completed a

five-year sentence was entitled to “issuance of the writ with

complete cancellation of the record of his (state)

convictions.”

29

It is antithetical to the concept of habeas corpus for

a court to have the authority to award a conditional writ to a

successful petitioner, but to lack the authority to enforce the

writ once the conditions contained therein are not fulfilled. A

conditional writ by definition assumes that the Court

jurisdiction for its enforcement, see for example Phifer. v.

Warden, United States Penitenti € aute, Indiana, 53

F.3d 859, 865 (7" Cir. 1995). Finally, the habeas corpus

statutes themselves would appear to give a habeas court the

latitude to use its equitable or injunctive powers to dispose of

a habeas corpus matter “as law and justice require.” 28

U.S.C. §2243.

Respondent first argues that petitioner was required

to file a timely appeal or Rule 59 motion if the terms of the

judgment granting the condition writ were not agreeable to

her. The Court rejects this motion. First, it was the

30

Respondent that actually availed itself of an appeal to the

Sixth Circuit to challenge the grant of the writ, only to

abandon that appeal some several months after its filing.

Secondly, even if for the sake of arguments the Petitioner is

correct, this Court always retains jurisdiction of matters

before it for purposes of making corrections to its judgment

on its own motion under Fed.R.Civ.P. Rule 60.

Respondent’s second argument is that habeas

corpus principles from the overturned United States Supreme

Court case of Fay v. Noia, 372 U.S. 391, 430-41, 83 S.Ct.

872, 9 L Ed.2d 837 (1963) which was adopted by the Sixth

Circuit in dicta in the unpublished decision of Moore v, Rose,

19 F.3d 1433, 1994 WL 102958 (6" Cir. 1994), should be

controlling. Specifically, Respondent relies upon the

following language to suggest that a federal district court

31

lacks any other habeas authority than the power to release a

successful petitioner:

Habeas lies to enforce the right of personal

liberty; when that right is denied and a person

confirmed, the federal court has the power to

release him. Indeed, it has no other power, it

cannot revise the state court judgment; it can

act only on the body of the petitioner.

This narrow meaeeaation of a federal court’s habeas power

has been supplanted by the adoption of the federal habeas

corpus statutes contained in 28 U.S.C. §2241 et seq. Such

a restrictive approach is contrary to the interpretation of the

habeas corpus statutes made by numerous other federal

courts throughout the United States.

See for example, Riggs v. Fairman, 399 F.3d 1179 (9"

Cir. 2005), a district court has considerable discretion in

fashioning a remedy tailored to the injury suffered from the

constitutional violation, and a court must consider the

32

unique facts and circumstances of a particular case; Jeanty

yv. Bulger, 204 F.Supp.2d 1366 (S.D. Fla. 2002), a court

granting a writ of habeas corpus may also issue an

injunction in aid of the writ; Gall v. Parker, 231 F.3d 265

(6" Cir. 2000), a habeas court has broad discretion in

| fashioning habeas relief; Hannon v. Maschner, 981 F.2d

1142 (10" Cir. 1992), a district court may exercise its broad

authority in habeas cases to grant any relief it deems

necessary, including permanent discharge of a successful

habeas petitioner; Hilton v. Braumskill, 107 S.Ct. 2113

- (1987), federal courts have largest power to control and

direct the form of judgment entered in cases brought up on

habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.

1981), where appropriate, a habeas court may grant

injunctive, declaratory and mandatory relief; Hobson v.

Murray, 485 F.Supp. 1340 (E.D. Va. 1980), federal courts

33

are not narrowly restricted in fashioning an appropriate

remedy on granting petition for writ of federal habeas

corpus relief but instead, the court is charge to dispose of

the matter as law and justice require; U.S. ex. Rel, Marrero

v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3% Cir.

1973), inmmediate and unconditional release is not the only

remedy available in a habeas corpus proceeding.

The United States Supreme Court has recognized the

viability of a petitioner’s claim for habeas relief despite the

expiration of his sentence and despite the fact that his civil

liberties, including suffrage and the right to hold public

office, has been restored, Evitts v. Lucey, 469 U.S. 387,

391, 105 S. Ct. 830, 83 L.Ed.2d 821 (1985). The Court has

also admonished that conditionals write must be tailored to

ensure that all constitutional defect will be cured by the

satisfaction of the condition precedent, Hilton v. Braunskill,

34

481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).

The Conditional Writ of Habeas Corpus entered in

this case gave the Commonwealth the opportunity to cure

the constitutional defects found by this Court. The

Commonwealth elected not to re-try Gentry, nor did it fully

prosecute its appeal of the Judgment granting the Writ.

Accordingly, this Court finds the condition precedent

contained within the Conditional Writ was not met, and an

Absolute Writ of Habeas Corpus is granted to Petitioner

with instructions for the state court judgment of conviction

to be vacated. A Judgment in conformity with this

Memorandum Opion has this day been entered.

July 21, 2005

/ Edward H. Johnstone, Seni

United States District Court

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