FILED
NOT FOR PUBLICATION OCT 16 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
TODD M. HONEYCUTT, No. 14-16119
Petitioner - Appellee, D.C. No. 2:06-cv-00634-RLH-
GWF
v.
BILL DONAT, Warden; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellants.
TODD M. HONEYCUTT, No. 14-16127
Petitioner - Appellant, D.C. No. 2:06-cv-00634-RLH-
GWF
v.
BILL DONAT, Warden; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted October 6, 2014
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, W. FLETCHER, and WATFORD, Circuit Judges.
In a prior disposition, we reversed in part the district court’s order denying
petitioner Todd Honeycutt’s writ of habeas corpus, holding that Nevada had
violated Honeycutt’s Sixth Amendment right to counsel by admitting uncounseled
statements in Honeycutt’s joint trial for sexual assault, kidnapping, and solicitation
of murder. Honeycutt v. Donat, 535 F. App’x 624, 629 (9th Cir. 2013). We
remanded the case to the district court to determine the appropriate remedy.
Nevada appeals the district court’s subsequent order vacating Honeycutt’s
solicitation of murder conviction in addition to his sexual assault and kidnapping
convictions. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.
We review de novo a district court’s compliance with our mandate. United
States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000). With regard to matters
that have been decided, the court “cannot vary [the mandate], or examine it for any
other purpose than execution; or give any other or further relief; or review it, even
for apparent error, upon any matter decided on appeal; or intermeddle with it,
further than to settle so much as has been remanded.” In re Sanford Fork & Tool
Co., 160 U.S. 247, 255 (1895); see also Kellington, 217 F.3d at 1093 (quoting In re
Sanford). The district court is free to act, however, as to any issues that are not
“foreclosed by the mandate.” Kellington, 217 F.3d at 1092 (internal quotation and
-2-
citation omitted). To distinguish matters that have been settled by this court from
matters that have not, the district court should “consider the opinion the mandate
purports to enforce as well as the procedural posture and substantive law from
which it arises.” Id. at 1093.
We review a district court’s habeas remedy for abuse of discretion. Johnson
v. Uribe, 682 F.3d 1238, 1243, as amended by 700 F.3d 413 (9th Cir. 2012). If the
district court used the correct legal standard, its decision will not be disturbed
unless it was “illogical, implausible, or without support in inferences that may be
drawn from facts in the record.” Id. at 1243 n.5.
In our prior mandate, we did not foreclose vacatur of Honeycutt’s
solicitation conviction as part of the remedy for the Sixth Amendment violation
that infected Honeycutt’s trial. The district court accordingly acted within its
discretion by vacating the solicitation conviction. Given the nature of the error at
issue in this case, it is clear that in any retrial of Honeycutt, Nevada will be
required to try separately the solicitation charges from the sexual assault and
kidnapping charges if it wishes to rely, in any way, on the evidence obtained in
violation of Massiah v. United States, 377 U.S. 201 (1964).
AFFIRMED.
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