D'AMBROSIO v. Bagley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0245p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOE D’AMBROSIO,
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Petitioner-Appellee,
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No. 10-3247
v.
,
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Respondent-Appellant. -
MARGARET BAGLEY, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-02521—Kathleen McDonald O’Malley, District Judge.
Argued: November 30, 2010
Decided and Filed: August 29, 2011
Before: BOGGS, GIBBONS, and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. John Q. Lewis, JONES DAY, Cleveland, Ohio, for
Appellee. ON BRIEF: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant. John Q. Lewis, JONES DAY, Cleveland,
Ohio, David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined.
BOGGS, J. (pp. 17–27), delivered a separate dissenting opinion.
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OPINION
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ROGERS, Circuit Judge. This case requires this court to resolve whether a
federal court has jurisdiction to bar the reprosecution of a criminal defendant when the
court determines that the state has failed to comply with an earlier order issuing a

1
No. 10-3247 D’Ambrosio v. Bagley Page 2

conditional writ of habeas corpus. Margaret Bagley, warden for the State of Ohio,
appeals the district court’s decision to vacate a prior order and issue an unconditional
writ that bars the reprosecution of Joe D’Ambrosio, an Ohio death row inmate. Bagley
argues that the district court lacked both subject-matter and Article III jurisdiction to
make this ruling. However, because the state failed to comply with the district court’s
conditional writ, because the district court was acting pursuant to a Federal Rule of Civil
Procedure 60(b) motion, and because this clearly presents a case or controversy, the
district court had both subject-matter and Article III jurisdiction.

I.

In 1988, Joe D’Ambrosio was indicted, along with his two co-defendants Thomas
“Mike” Keenan and Edward Espinoza, on four separate counts of aggravated murder
with prior calculation and design, aggravated felony murder, kidnaping, and aggravated
burglary. The three men were each tried separately. D’Ambrosio waived his right to a
trial by jury, and a three-judge panel convicted him on all counts and sentenced him to
death. D’Ambrosio’s convictions were upheld on direct appeal, State v. D’Ambrosio,
No. 57448, 1990 WL 125453, at *26 (Ohio Ct. App. Aug. 30, 1990), and affirmed by the
Ohio Supreme Court, State v. D’Ambrosio, 616 N.E.2d 909, 921 (Ohio 1993).
Following a remand to permit the state court of appeals to conduct an independent
review of the death sentence, the Ohio Supreme Court also affirmed D’Ambrosio’s
sentence. State v. D’Ambrosio, 652 N.E.2d 710, 716 (Ohio 1995). D’Ambrosio
unsuccessfully sought post-conviction relief in the state courts pursuant to Ohio Rev.
Code § 2953.21, State v. D’Ambrosio, No. 75076, 2000 WL 283079, at *2 (Ohio Ct.
App. Mar. 16, 2000), and D’Ambrosio’s application to reopen his direct appeal was also
denied, State v. D’Ambrosio, No. 57448, 2001 WL 1399850, at *2 (Ohio Ct. App. Nov.
2, 2001).

In March 2001, D’Ambrosio filed a petition for a writ of habeas corpus in the
federal district court. After conducting an evidentiary hearing in July 2004, the district
court concluded that the prosecution had failed to disclose exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and granted a conditional writ,
No. 10-3247 D’Ambrosio v. Bagley Page 3

requiring the state either to set aside D’Ambrosio’s convictions and sentences or to
conduct another trial.1 D’Ambrosio v. Bagley, No. 1:00 CV 2521, 2006 WL 1169926,
at *56 (N.D. Ohio Mar. 24, 2006). We affirmed that decision, D’Ambrosio v. Bagley,
527 F.3d 489, 499-500 (6th Cir. 2008), and on September 11, 2008, the district court
issued the conditional writ.

The Cuyahoga County prosecutor notified the state court of this judgment and
requested that the state court docket D’Ambrosio’s case for a new trial within 180 days,
or before March 10, 2009. The state court scheduled D’Ambrosio’s retrial for March 2,
2009, and began pretrial proceedings. However, a little more than one week before the
retrial was to begin, the prosecutor notified defense counsel of the existence of additional
evidence, including blood samples and soil samples. Defense counsel sought additional
time to examine and possibly test this newly disclosed evidence, prompting the trial
court to change the previously scheduled trial date, which was within the 180 days, to
May 4, 2009, which was not. On March 4, 2009, the state moved the federal district
court for an enlargement of time in which to conduct a retrial because of this extension
by the state court. On March 6, 2009, the district court granted an enlargement of time
solely for the purpose of having the parties submit briefs addressing the issues presented
in the motion. In his response to the motion, D’Ambrosio asked the district court to
grant an unconditional writ and bar his reprosecution because of the state’s failure to
comply with the conditional writ.

On April 1, 2009, the district court conducted an evidentiary hearing in regard
to the state’s motion, and on April 27, 2009, the district court filed its opinion and order,
denying the motion and issuing an unconditional writ. D’Ambrosio v. Bagley, 619 F.
Supp. 2d 428, 460 (N.D. Ohio 2009). In this order, the district court found that “the
State did not respond to multiple discovery requests; produced material, relevant items

1
The court’s original judgment required the state to either “(1) set aside D’Ambrosio’s conviction
and sentence of death; or (2) conduct another trial . . . within 180 days from the effective date of this
Order.” The court filed an amended judgment three weeks later, which clarified its order, requiring the
state to either “(1) set aside D’Ambrosio’s convictions and sentences as to all counts of the indictment,
including the sentence of death; or (2) conduct another trial . . . within 180 days from the effective date
of this Order.”
No. 10-3247 D’Ambrosio v. Bagley Page 4

of discovery on the eve of trial; and then sought to interfere with the orderly progress of
the trial through gamesmanship,” and concluded that these failings “all counsel against
a finding that the State engaged in a good-faith effort to substantially comply with this
Court’s mandate.” Id. at 455. The district court also ordered the expungement of
D’Ambrosio’s record, but declined to bar his reprosecution. Id. at 456, 460.

In regard to D’Ambrosio’s reprosecution, the district court explained that “while
there is certainly no clear-cut demonstration of D’Ambrosio’s guilt, . . . the evidence also
does not so strongly suggest his innocence that, standing alone, the state of the evidence
against him would demand an order barring retrial;” that “D’Ambrosio cannot
demonstrate material prejudice from the additional two-month delay,” because “the state
court protected D’Ambrosio from the most material consequences of those discovery
failures by granting a continuance to afford him the opportunity to test the blood
evidence;” and that “[w]hile the State’s discovery compliance has been woefully
inadequate over the course of its dealings with D’Ambrosio . . . , and the State’s attempt
to contort the reality of what occurred in state court before it returned here is both
reckless and, frankly, baffling,” it is not the sort of egregious conduct that warrants
barring reprosecution as “there is no evidence of an attempt by the current prosecutors
to affirmatively hide evidence or distort witness testimony.” Id. at 459-60. Moreover,
the district court noted that the actions of the state trial court and the district court’s
confidence in the state court’s ability to conduct a fair retrial were relevant to its decision
to not bar D’Ambrosio’s reprosecution, stating that “the state court is committed to
conducting a constitutional trial,” and that “[t]he state court’s decision to delay the
proceedings both benefits D’Ambrosio and ensures that the State has and will continue
to honor its discovery obligations.” Id. at 460. D’Ambrosio appealed the district
court’s decision with respect to his reprosecution.

On April 26, 2009 (the day before the district court issued its ruling denying the
prosecution’s motion for an enlargement of time), Espinoza, the prosecution’s key
witness, died. The prosecution learned of Espinoza’s death four days later, but did not
inform the state trial court of this development until July. Presumably, the district court
No. 10-3247 D’Ambrosio v. Bagley Page 5

did not know of Espinoza’s death until August 14, 2009, the date on which D’Ambrosio
moved the district court, pursuant to Federal Rule of Civil Procedure 60(b)(2), (5), and
(6), to vacate its April 27 order and to bar his reprosecution in light of Espinoza’s death.
D’Ambrosio argued that Espinoza’s death prevented D’Ambrosio from “hav[ing] the
opportunity to expose the truth as Espinoza faced the withheld exculpatory evidence that
eviscerates his entire story and the State’s case.” According to D’Ambrosio, the state
court had ruled to exclude Espinoza’s prior testimony from the retrial, because
D’Ambrosio’s inability to cross-examine him would violate the Confrontation Clause.
After conducting an evidentiary hearing, the district court issued an order indicating its
inclination to grant D’Ambrosio’s Rule 60(b) motion if this court remanded the case
(which was pending before us because of D’Ambrosio’s appeal).

This court remanded the case and on March 3, 2010, the district court granted
D’Ambrosio’s Rule 60(b) motion, vacating a portion of its original judgment and barring
D’Ambrosio’s reprosecution. D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 735 (N.D.
Ohio 2010). The district court reasoned that the state’s actions were of the
“extraordinary” nature required to bar reprosecution:

For 20 years, the State held D’Ambrosio on death row, despite
wrongfully withholding evidence that “would have substantially
increased a reasonable juror’s doubt of D’Ambrosio’s guilt.” Despite
being ordered to do so by this Court during the extensive habeas
proceedings before it, the State still failed to turn over all relevant and
material evidence relating to the crime of which D’Ambrosio was
convicted. Then, once it was ordered to provide D’Ambrosio a
constitutional trial or release him within 180 days, the State did neither.
During those 180 days, the State engaged in substantial inequitable
conduct, wrongfully retaining and delaying the production of yet more
potentially exculpatory evidence. And, as the 180-day deadline
approached, certain of the State’s counsel baselessly attacked the state
trial judge, came before this Court and supplied testimony that,
charitably, only can be described as “strain[ing] credulity,” and showed
startling indifference to D’Ambrosio’s rights. Because the state failed to
retry D’Ambrosio within 180 days, moreover, the critical State’s
witness—the man around whom the entire theory of the State’s case
revolved—is no longer available for trial, a fact the State knew but
withheld from D’Ambrosio, the state court, and this Court. To fail to bar
No. 10-3247 D’Ambrosio v. Bagley Page 6

retrial in such extraordinary circumstances surely would fail to serve the
interests of justice.

Id. at 727-28 (alteration in original) (citations omitted). The district court found that
Espinoza’s death, and the state’s failure to inform anyone of his passing for
approximately two months, affected its evaluation of the state’s inequitable conduct and
of the material prejudice against D’Ambrosio, and tipped the balance in favor of barring
reprosecution. Id. at 728-31. The state, represented by the warden, now appeals this
decision.

II.

The district court had jurisdiction to grant D’Ambrosio’s Rule 60(b) motion,
vacate its prior judgment, and issue an unconditional writ of habeas corpus that bars
D’Ambrosio’s reprosecution.

A.

The broad discretion of the habeas court in fashioning a proper remedy allows
a district court to bar the state from reprosecuting the habeas petitioner in “extraordinary
circumstances.” Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir. 2006). In
Satterlee, the state failed to comply with a conditional writ, which prompted the district
court to grant an unconditional writ, ordering the petitioner’s immediate release and the
expungement of his conviction. Id. at 365. On appeal we upheld both writs, but
because the unconditional writ did not designate whether the state could reprosecute the
petitioner, we remanded the case for the district court to clarify its intent. Id. at 365-70.
We explained our remand as follows:

In a typical case in which a prisoner is released because a state fails to
retry the prisoner by the deadline set in a conditional writ, “the state is
not precluded from rearresting petitioner and retrying him under the same
indictment.” . . . However, in “extraordinary circumstances,” such as
when “the state inexcusably, repeatedly, or otherwise abusively fails to
act within the prescribed time period or if the state’s delay is likely to
prejudice the petitioner’s ability to mount a defense at trial,” a habeas
court may “forbid[] reprosecution.”
No. 10-3247 D’Ambrosio v. Bagley Page 7

Id. at 370 (second alteration in original) (emphasis added) (citations omitted).

We recently reaffirmed Satterlee’s holding that the federal court can bar a habeas
petitioner’s reprosecution in Girts v. Yanai, 600 F.3d 576 (6th Cir. 2010). In Girts, the
state failed to comply with a conditional writ in the time provided and moved for a
thirty-day extension of the original time limit. Id. at 579. Though the district court
initially granted this motion, it later reconsidered that ruling and entered an
unconditional writ. Id. After the state released the petitioner, it requested the district
court to rule on whether the state could reprosecute him, and the district court held that
the state could do so. Id. at 579-80. The petitioner appealed this decision to permit his
reprosecution, but we held that the district court both had jurisdiction to make that
determination and was correct in deciding that the preclusion of reprosecution was not
appropriate in that case.2 Id. at 580-86. We explained that “[t]he initial determination
about whether a subsequent trial should be barred is a necessary part of the grant of a
writ,” and found Satterlee to be binding precedent in this regard. Id. at 581. Further, we
noted that “a district court sitting in habeas has jurisdiction to consider the circumstances
that exist up until either the state complies with a conditional writ or the court issues an
unconditional writ, but does not have jurisdiction to consider circumstances that unfold
after the state complies with the writ.” Id. at 582.

The warden points to Pitchess v. Davis, 421 U.S. 482 (1975), and Fisher v. Rose,
757 F.2d 789 (6th Cir. 1985), to support her contention that “[t]he District Court lacked
jurisdiction under 28 U.S.C. 2254 to bar reprosecution,” but those cases are not precisely
on point. In Davis, the district court granted a petitioner’s motion to modify a
conditional writ of habeas corpus, replace it with an absolute writ, and enjoin any retrial

2
In Girts, we also rejected the petitioner’s argument that permitting reprosecution would violate
the Double Jeopardy Clause. 600 F.3d at 586-87. We explained,
The general rule . . . is that a successful post-conviction appeal is considered
differently than a mistrial. “[R]eprosecution for the same offense is permitted where the
defendant wins a reversal on appeal of a conviction . . . [T]he crucial difference between
reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial
mistrial declaration is that in the first situation the defendant has not been deprived of
his option to go to the first jury and, perhaps, end the dispute then and there with an
acquittal.”
Id. at 587 (alterations in original) (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)).
No. 10-3247 D’Ambrosio v. Bagley Page 8

on the pending state charges. 421 U.S. at 485. However, unlike in D’Ambrosio’s case,
the district court granted this motion after the state had complied with the conditional
writ by moving to retry the petitioner. The Court explained that “[n]either 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.”3 Id. at 490. In Fisher, the district court granted a conditional writ
of habeas corpus, which was “stayed for ninety (90) days pending appeal by [the state]
or, within which time, the State may on its own motion vacate petitioner’s conviction
and grant him a new trial.” 757 F.2d at 790. Though the state court set a retrial date, the
district court ordered the release of the petitioner and barred his reprosecution after the
petitioner alleged that the state had unreasonably delayed retrying him. Id. We
concluded in Fisher not that the district court lacked jurisdiction, but that it had abused
its discretion in barring retrial, given that the state had appointed counsel, set bond, and
set a trial date within the prescribed ninety days. Id. at 791. We noted that if Fisher had
been able to meet the requirements of the bond, he would have been released. Id. We
also stated that “[t]hese facts indicate that at the time of the [federal court hearing],
Fisher was no longer in custody pursuant to the constitutionally defective judgment of
conviction, but was being held pursuant to the indictment.” Id.

Davis and Fisher are both different from D’Ambrosio’s case. Even assuming
that Fisher dealt with lack of jurisdiction rather than abuse of discretion, both of these
cases involved the district court’s acting after the state had complied with a conditional
writ. At that point in time, the district court’s jurisdiction was extinguished. But in
D’Ambrosio’s case the state never complied with the conditional writ, and the district
court’s jurisdiction remained intact pursuant to the principle of Gentry v. Deuth, 456
F.3d 687, 692 (6th Cir. 2006), that “the district court retain[s] jurisdiction to enforce its
conditional grant of a writ of habeas corpus.” The warden has even acknowledged the

3
The Supreme Court principally relied on 28 U.S.C. § 2254’s exhaustion requirement in reaching
its decision in Davis, holding that the petitioner had “failed to exhaust available state remedies on the claim
which formed the basis for the unconditional writ, and he is entitled to no relief based upon a claim with
respect to which state remedies have not been exhausted.” 421 U.S. at 490. However, exhaustion is not
an issue in this case. See infra pp. 14-15.
No. 10-3247 D’Ambrosio v. Bagley Page 9

consequences of non-compliance with a conditional writ, stating in her brief to this court
that “[a] different matter is presented . . . when the state fails to perform the condition
established in the conditional writ,” as then “the District Court retains jurisdiction to find
noncompliance and release the prisoner.” Thus, the case law cited by the warden does
not support her contention that the district court lacked jurisdiction to bar D’Ambrosio’s
reprosecution. In fact, precedent supports such jurisdiction.

The warden resists this conclusion—that the district court retained jurisdiction
to monitor the state’s compliance with the conditional writ in D’Ambrosio’s case—by
arguing that either the state’s compliance with the conditional writ or the vacatur of
D’Ambrosio’s convictions divested the district court of jurisdiction to issue an
unconditional writ. Both of these arguments lack merit in the context of this case.
Initially, the warden claimed that the state complied with the conditional writ when it
commenced proceedings against D’Ambrosio, such that the district court’s jurisdiction
had expired. However, the warden appears to have abandoned this argument in her reply
brief.4 Moreover, this argument lacks merit because the district court’s mandate
required that D’Ambrosio’s retrial be conducted (i.e., completed) within 180 days, not
merely that he be granted a new trial within that time period. The warden cites Davis
to support her argument for the state’s compliance, but that case involved a conditional
writ that hinged on granting a new trial, not conducting a new trial like the conditional
writ in D’Ambrosio’s case.5 See 421 U.S. 482. It is clear that the state never conducted
a new trial for D’Ambrosio, thus failing to comply with this portion of the writ.

4
The warden’s reply brief twice states flatly that when the district court issued its unconditional
writ on April 24, 2009, “it had jurisdiction to do so.”
5
Many of the cases that hinge on the granting of a new trial also involve periods of ninety days
or less in which to comply, which is obviously less than the 180-day period in this case. This makes sense
considering that the district court wanted the state to conduct a new trial against D’Ambrosio within this
time and not merely grant him one. In Patterson v. Haskins, 316 F.3d 596, 611 (6th Cir. 2003), this court
granted the defendant “a conditional writ of habeas corpus that [would] result in his release from prison
unless the state of Ohio commence[d] a new trial against him within 180 days from the date of [that]
opinion.” The state began proceedings against the defendant, but they ended in a mistrial, prompting the
state to commence a third trial against him. Patterson v. Haskins, 470 F.3d 645, 650 (6th Cir. 2006). The
defendant moved the district court for an unconditional writ, arguing that the state had failed to comply
with the conditional writ by not completing a new trial against him within 180 days. Id. However, this
court held that the state had complied with a “fair reading” of its initial opinion, which required only
commencement and not completion of proceedings. Id. at 668-69. A fair reading of the writ at issue in
D’Ambrosio’s case requires more than the mere grant of a new trial for compliance.
No. 10-3247 D’Ambrosio v. Bagley Page 10

The state also failed to satisfy the other alternative for compliance with the
conditional writ as it did not set aside D’Ambrosio’s conviction and sentences. Indeed,
the warden did not even contend, until oral argument at least, that the state had complied
with that alternative. Here, the state clearly chose to conduct a new trial, even though
it failed to do so, and there is no indication that the state at any point in time decided
instead to exercise the setting-aside alternative. Therefore, the state never complied with
the conditional writ in D’Ambrosio’s case, and the district court retained jurisdiction
over it. See Gentry, 456 F.3d at 692. The warden even conceded as much when seeking
from the district court an enlargement of time to retry D’Ambrosio.

At oral argument, the warden’s compliance argument morphed into a contention
that the district court’s jurisdiction was extinguished because D’Ambrosio’s convictions
were vacated. The warden relies on Eddleman v. McKee, 586 F.3d 409 (6th Cir. 2009),
in making this argument, but this case is distinguishable. In Eddleman, the district court
initially granted, and we upheld, a conditional writ, which required the state to release
the petitioner unless a date for a new trial was scheduled within forty-five days. Id. at
411. However, instead of retrying the petitioner, the state decided to vacate his
convictions, release him, and then rearrest him pursuant to the original information. Id.
In response, the petitioner moved for the district court to grant an unconditional writ
barring retrial, arguing that the state had failed to comply with the conditional writ. Id.
The district court initially denied this motion, but after the date for the petitioner’s trial
was delayed for almost a year, the petitioner renewed his motion and the district court
agreed to grant an unconditional writ barring his reprosecution. Id. at 411-12. On
appeal, the state challenged the district court’s jurisdiction to issue this unconditional
writ, claiming that the unconstitutional conviction had been vacated and that the
petitioner was being held pursuant to the information and not the conviction. Id. at 412.
We agreed with the state and reversed the district court’s ruling. Id. at 413. We
explained this holding as follows:

[T]he limitation [that a state prisoner be held pursuant to a state court
judgment] also means that, once the unconstitutional judgment is gone,
so too is federal jurisdiction under § 2254. . . . That a petitioner’s first
No. 10-3247 D’Ambrosio v. Bagley Page 11

trial was unconstitutional in some respect, generally does not mean he
can never be tried again. The power to “release” a prisoner under § 2254
normally is not a power to release him forever from the underlying
charge. It is the power, instead, only to release him from custody
pursuant to the unconstitutional judgment.

Id.

Eddleman is different from this case because D’Ambrosio’s conviction was not
“vacated” as the habeas petitioner’s in Eddleman was. The unconstitutional judgment
against D’Ambrosio was still subject to the district court’s jurisdiction when the district
court granted the unconditional writ. In Eddleman the petitioner had not only been
rearraigned and afforded a bond hearing, but “counsel for both [the petitioner] and the
State represented to the court, and the court itself agreed, that [the petitioner’s]
unconstitutional conviction had been vacated.”6 Id. at 412. These circumstances led us
to conclude that the vacatur of Eddleman’s conviction had divested the district court of
jurisdiction. Id. Even though the state court judge in D’Ambrosio’s case used the term
“vacate” on occasion during D’Ambrosio’s pretrial proceedings when referring to his
prior charges, the record clearly demonstrates that neither D’Ambrosio nor the
prosecution truly intended for those charges to be vacated as the parties did in Eddleman.
Merely using the term “vacate” in reference to D’Ambrosio’s prior convictions is not
enough. The district court appears to have used this term to express that D’Ambrosio’s
prior conviction would not be used against him in his new trial;7 because that conviction
was ruled unconstitutional, it was nullified and should have no bearing on his future
prosecution. See Gall v. Scroggy, 603 F.3d 346, 356 (6th Cir. 2010). Neither the district
court nor the state appeared to use this term in the manner suggested by Eddleman.

6
In so ruling, we recognized that “it [was] true, as [the petitioner] point[ed] out, that ‘the record
in the trial court is devoid of any written order [confirming that his prior conviction had been vacated],’
and the better practice certainly would have been for the state court to have entered a written order,” but
we held that “[t]he record makes clear, nonetheless, that [the petitioner’s] conviction was vacated.”
Eddleman, 586 F.3d at 412 (citation omitted).
7
For instance, when the state argued at the bail hearing for D’Ambrosio’s new trial that “giving
bail to a man on death row is unheard of,” the state court noted the following: “The court agrees. [But]
Mr. D’Ambrosio is not on death row. His conviction is vacated. The Defendant stands before the court
today as he did in his October 14th, 1988 arraignment with no prior felony record.” In using the term
“vacate,” the court appeared merely to be conveying that D’Ambrosio’s prior conviction, which was
declared unconstitutional by this court, would not be held against him in his retrial proceedings.
No. 10-3247 D’Ambrosio v. Bagley Page 12

Looking at the whole course of conduct counsels against finding that
D’Ambrosio’s convictions were “vacated.” For example, in her initial brief to this court,
the warden acknowledged that the state had chosen the retrial option, stating that
“[w]hen retrial proceedings commenced in State court, . . . the State was proceeding
with the retrial option afforded under the conditional writ issued by the District Court.”
In addition, if the state had considered D’Ambrosio’s conviction to have been vacated,
then the prosecution would have had no need to move the district court for an
enlargement of time to retry D’Ambrosio, as it did on March 4, 2009.8 Moreover, the
prosecution filed a request for retrial with the state court on September 30, 2008,
notifying that court that the prosecution had to either set aside D’Ambrosio’s conviction
and sentence or conduct another trial within 180 days, and signifying that it was
choosing the latter course of action. Statements of confused parties and judges do not
vacate convictions. 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. The state has failed to submit any proof
that D’Ambrosio’s record was expunged or that the district court or state took any action
to actually vacate D’Ambrosio’s convictions. The totality of these circumstances
demonstrates that D’Ambrosio’s convictions were never “vacated” as Eddleman’s
convictions were. Thus, the district court continued to retain jurisdiction over
D’Ambrosio’s case.

This case is further complicated by the fact that the district court did not bar
D’Ambrosio’s reprosecution when it initially granted the unconditional writ of habeas
corpus, but D’Ambrosio’s use of Rule 60(b) resolves any further jurisdictional
questions.9 The district court did not bar D’Ambrosio’s reprosecution until he moved

8
At oral argument, counsel for the warden contended that the prosecution merely made this
motion as a matter of comity. However, within the motion the prosecution acknowledged the 180-day
deadline and its need to comply with it. This suggests that the prosecution was not merely making this
motion as a matter of comity, but because it had chosen the retrial option and knew that it was about to
violate the mandate of the conditional writ.
9
Federal Rule of Civil Procedure 60(b) states:
On motion and just terms, the court may relieve a party or its legal representative from
a final judgment, order, or proceeding for the following reasons:
No. 10-3247 D’Ambrosio v. Bagley Page 13

for relief from the judgment granting the original unconditional writ, which fact could
suggest that the district court was acting after the unconstitutional conviction was
dispensed with and when the district court no longer had subject-matter jurisdiction.
However, D’Ambrosio sought relief from the district court’s judgment permitting
reprosecution through Rule 60(b), and this court has described such a motion as follows:

It has been long established that no independent federal jurisdictional
basis is needed to support a Rule 60(b) motion proceeding. A Rule 60(b)
motion is considered a continuation of the original proceeding. “If the
district court had jurisdiction when the suit was filed, it has jurisdiction
to entertain a Rule 60(b) motion. This jurisdiction is not divested by
subsequent events.”

Charter Twp. of Muskegon v. City of Muskegon, 303 F.3d 755, 762 (6th Cir. 2002)
(quoting 12 James W. Moore, et al., Moore’s Federal Practice § 60.61 (3d ed. 1997)).
This supports the district court’s continuing jurisdiction over its grant of an
unconditional writ of habeas corpus pursuant to a Rule 60(b) motion as long as it had
jurisdiction to grant the unconditional writ in the first place, which it did here.

Though in Davis the Supreme Court stated that “[n]either 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,” 421 U.S. at 490, the district court in that case barred reprosecution in conjunction
with an unconditional writ of habeas corpus, which came after the state court had
complied with the conditional writ. The state court never complied with the conditional
writ in D’Ambrosio’s case.

Moreover, allowing the district court to use Rule 60(b) to bar D’Ambrosio’s
reprosecution does not present the same sort of exhaustion issues seen in Davis and

....
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
....
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
No. 10-3247 D’Ambrosio v. Bagley Page 14

Fisher. The petitioners in both Davis and Fisher based their requests for an
unconditional writ, which came after the conditional writ had been complied with, on
a new claim. In Davis, the petitioner was granted a conditional writ on a Brady claim,
but argued for the grant of an unconditional writ because of the destruction of certain
evidence unconnected to the Brady claim. In Fisher, the petitioner was granted a
conditional writ on a Confrontation Clause claim, but based his argument for an
unconditional writ on a speedy trial violation. D’Ambrosio, however, based his entire
argument for an unconditional writ on the Brady claim which formed the basis of the
conditional writ, the state’s failure to comply with the conditional writ, and the events
occurring between the time the district court granted the conditional writ and the time
it granted the unconditional writ; he did not base his argument on events occurring after
the district court granted the unconditional writ and unconnected to the conditional
writ.10 Further, in raising the issue of Espinoza’s death in his Rule 60(b) motion,
D’Ambrosio was not seeking an unconditional writ barring reprosecution of a new and
never-before-raised due process claim, but was instead seeking the modification—in
order to bar reprosecution—of the unconditional writ based on the Brady violation and
the failure to comply with the conditional writ. This is the sort of argument envisioned
by the “extraordinary circumstances” standard, which permits barring reprosecution “if
the state’s delay is likely to prejudice the petitioner’s ability to mount a defense at trial.”
Satterlee, 453 F.3d at 370. D’Ambrosio argued that the loss of a key witness was a
collateral consequence of the state’s noncompliance with the original writ based on the
Brady violation that had occurred but was not known to the court or the parties when the
court originally issued its unconditional writ, and that this constituted the sort of
“extraordinary circumstances” sufficient to bar reprosecution. The district court had
jurisdiction to make this determination.11

10
D’Ambrosio sought relief from the district court’s unconditional writ without a bar of
reprosecution because of a key witness’s death. The key witness died after the expiration of the time
period within which the state court was supposed to retry D’Ambrosio. But the death did not occur after
the district court’s initial grant of an unconditional writ.
11
Of course whether “extraordinary circumstances” that warrant barring reprosecution actually
existed is an issue beyond the scope of this appeal because the warden has not challenged the merits of this
determination. See infra Part II.C.
No. 10-3247 D’Ambrosio v. Bagley Page 15

It is also significant that in Satterlee and Girts the district court did not make its
determination regarding whether to bar reprosecution at the same time that it decided to
grant an unconditional writ of habeas corpus. Instead, both cases required some
clarification by the district court as to whether it intended to bar reprosecution after it
had granted the unconditional writ. See Satterlee, 453 F.3d at 370; Girts, 600 F.3d at
579-80. In fact, in Satterlee this court remanded the case to the district court—after we
affirmed the grant of an unconditional writ and the expungement of the petitioner’s
record—for a determination as to reprosecution. 453 F.3d at 370. Had the district court
lacked jurisdiction to consider this question it would have been inappropriate for this
court to order such a remand. These decisions suggest instead that a determination
regarding reprosecution is connected to the unconditional writ, and any determination
to issue the writ, including a ruling on a Rule 60(b) motion for relief from judgment,
necessarily involves contemplation of whether to bar reprosecution. Thus, the district
court had subject-matter jurisdiction to vacate part of its original judgment, grant the
unconditional writ, and bar D’Ambrosio’s reprosecution.

B.

The warden also asserts that the district court was without Article III jurisdiction
when it issued the unconditional writ barring D’Ambrosio’s reprosecution, but this claim
is illogical. Article III jurisdiction requires only the existence of a “case or controversy.”
“This case-or-controversy requirement subsists through all stages of federal judicial
proceedings[, which means that] [t]he parties must continue to have a personal stake in
the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78 (1990)) (internal quotation marks
omitted). The warden suggests that because D’Ambrosio held both an unconditional
writ and an order for expungement when he invoked the jurisdiction of the district court,
his claim was moot. But D’Ambrosio certainly still had a personal interest in an issue
that was capable of determination by the district court—that is, whether he could be
reprosecuted.
No. 10-3247 D’Ambrosio v. Bagley Page 16

The warden cannot rely on the fact that D’Ambrosio was no longer incarcerated
when he sought relief from the district court’s judgment granting the unconditional writ
and permitting his reprosecution. This court and the United States Supreme Court have
consistently held that a habeas petition can still be maintained after a prisoner is no
longer detained as long as some “collateral consequence” of the conviction still exists.
See, e.g., id. at 7-9; Gentry, 456 F.3d at 693-95. Here, that collateral consequence would
be the risk of reprosecution, which is a risk that is both unique to the granting of
appellate relief and highly likely to occur in D’Ambrosio’s case. Accordingly, the
district court clearly had Article III jurisdiction to resolve D’Ambrosio’s request for
relief from the initial ruling on his reprosecution.

C.

After establishing jurisdiction, the next step in analyzing the propriety of barring
D’Ambrosio’s reprosecution would be to determine whether the district court abused its
discretion in doing so. However, the warden does not challenge the district court’s
exercise of discretion in her appeal to this court.

III.

For these reasons, we affirm the district court’s judgment granting an
unconditional writ of habeas corpus and barring D’Ambrosio’s reprosecution.
No. 10-3247 D’Ambrosio v. Bagley Page 17

_________________

DISSENT
_________________

BOGGS, Circuit Judge, dissenting. For more than twenty years, the State of
Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio.
In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, 373 U.S.
83 (1963), an error that later came back to bite it in federal habeas review. D’Ambrosio
v. Bagley, 527 F.3d 489 (6th Cir. 2008). Then, after D’Ambrosio was issued a
conditional writ of habeas corpus, the state misunderstood the district court’s clear,
binary order and attempted to simultaneously comply with both of the two alternatives
it was given: retry D’Ambrosio within 180 days or vacate his conviction and release
him. After failing to complete only the prompt-retrial option, the hapless state marched
back to district court and, making D’Ambrosio’s argument for him, conceded that it
failed to comply with the conditional writ. Ever since, the state has asserted a variety
of confused jurisdictional arguments in both the district court and in this court, and it is
now in the position where it may have to let a man it believes to be a murderer go
forever free. Whether D’Ambrosio deserves that windfall I cannot say, although, after
more than twenty years of bungling his criminal proceedings, surely the state deserves
that penalty. But this is a case about jurisdiction. Whatever the equities in
D’Ambrosio’s favor, the state of Ohio—by sheer luck and nothing more—managed to
do just enough to strip the district court of its power to decide the issue. Accordingly,
I would reverse the district court and dismiss the case.

I

Because the state of Ohio vacated D’Ambrosio’s unconstitutional conviction and
released him from any confinement pursuant to that conviction, thereby complying with
the district court’s conditional writ of habeas corpus, the district court lacked jurisdiction
to issue an unconditional writ. In my view, the majority commits two major errors in
coming to an opposite conclusion.
No. 10-3247 D’Ambrosio v. Bagley Page 18

First, the majority erroneously considers compliance with the precise terms of
the conditional-writ order to be the primary jurisdictional inquiry, and in doing so loses
the forest for the trees. It is worth reviewing what exactly a conditional writ is. When
a federal court holds that a prisoner’s sentence is unconstitutional, the prisoner is
instantly entitled to an unconditional writ of habeas corpus—immediate release and
vacation of the conviction. However, as a convenience to the state, the federal court may
instead issue a conditional writ, which delays the issuance of the unconditional writ so
that the state has an opportunity to cure its own constitutional violation. Wilkinson v.
Dotson, 544 U.S. 74, 86–87 (2005) (Scalia, J., concurring); Hilton v. Braunskill, 481
U.S. 770, 775 (1987); Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006). The backdrop
of a conditional writ, then, is the release and vacation provided by an unconditional writ,
which fully vindicates the prisoner’s constitutional rights, and the sole purpose of a
conditional writ is to afford the state a period of time to accomplish that result on its own
before the district court must directly interfere with the state’s judgment. Federal courts’
preference for conditional writs is obvious in light of the concepts of federalism
embodied in the structure of federal habeas corpus. See 28 U.S.C. § 2254; Coleman v.
Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism. It concerns the
respect that federal courts owe the States . . . when reviewing the claims of state
prisoners in federal habeas corpus.”); see generally Younger v. Harris, 401 U.S. 37, 44-
45 (1971) (“‘Our Federalism’ . . . [is] a system in which . . . the National Government,
anxious though it may be to vindicate and protect federal rights and federal interests,
always endeavors to do so in ways that will not unduly interfere with the legitimate
activities of the States.”).

With that in mind, the fundamental question for a district court when considering
whether the conditional writ has been complied with is whether the state has fully
vindicated the prisoner’s rights, thereby rendering an unconditional writ unnecessary.
Indeed, what an unconditional writ accomplishes—release from unconstitutional
custody—is precisely what a conditional writ encourages the state to accomplish on its
own, and if a state accomplishes this goal, the mission of the district court is at an end.
A district court could not, for example, issue a conditional writ that required the state
No. 10-3247 D’Ambrosio v. Bagley Page 19

both to vacate the conviction and to conduct a new trial within a certain period of time.
By subjecting the state to more federal intrusion than would an unconditional writ, such
a conditional writ would not be an “accommodation[] accorded to the state.” Satterlee
v. Wolfenbarger, 453 F.3d 362, 369 (6th Cir. 2006). More significantly, such an order
would do more than vindicate the prisoner’s constitutional rights and, because it would
usurp from the state courts the power to ensure, in the first instance, that a new state trial
complies with constitutional standards, it would also run squarely into the exhaustion
problems addressed by Pitchess v. Davis, 421 U.S. 482 (1975), which held that a district
court lacks authority to supervise a retrial conducted pursuant to a conditional writ of
habeas corpus. Id. at 490.

Because a vacation of an unconstitutional conviction fully vindicates a prisoner’s
rights, it necessarily complies with a conditional writ—even if the writ does not
explicitly provide vacation as an option. Pickens v. Howes, 549 F.3d 377, 379, 384 (6th
Cir. 2008) (holding that, where conditional writ required the state to allow the prisoner
to withdraw his guilty plea, the prisoner’s constitutional rights “were fully vindicated by
the state court’s decision vacating his . . . conviction.”). As a result, although there is
no question that a district court retains jurisdiction to determine whether the conditional
writ has been complied with, Gentry v. Deuth, 456 F.3d at 692, the scope of that inquiry
is limited by the threshold question of whether there exists an unconstitutional
conviction. Eddleman follows from this straightforward principle, holding that, where
the state has vacated the unconstitutional conviction, it has ipso facto complied with the
conditional writ and the district court’s jurisdiction is at an end. See Eddleman v.
McKee, 586 F.3d 409, 413 (6th Cir. 2009). Accordingly, without first considering
whether D’Ambrosio’s conviction had been vacated, Pitchess and Fisher cannot be
distinguished on the grounds that, in those cases, the state complied with the conditional
writ.

Second, when later considering whether the state had vacated D’Ambrosio’s
conviction, the majority erroneously focuses on the state’s confused arguments and
actions before the district court. To be sure, the state conceded through its actions that
No. 10-3247 D’Ambrosio v. Bagley Page 20

the district court had jurisdiction to issue the unconditional writ. But that is neither here
nor there. Independent of the state’s concession, the district court had “an independent
obligation to investigate and police the boundaries of [its]own jurisdiction,” and “no
action of the parties can confer subject-matter jurisdiction upon a federal court” where
it is lacking. In re Cassim, 594 F.3d 432, 439 (6th Cir. 2010) (quoting Douglas v. E.G.
Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir. 1998)); Ins. Corp. of Ireland v.
Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702 (1982). The prosecution’s
actions and beliefs do not settle the question, and that conclusion is punctuated in this
case, where the prosecution’s understanding of the legal landscape has been consistently
faulty.

Notwithstanding the state’s confused representations to the district court and to
this court, it is clear that D’Ambrosio’s conviction had been vacated prior to the issuance
of the unconditional writ. Contrary to the majority’s suggestion that the state-court
judge merely used the term “vacate” on occasion and to no real effect, the record
manifests that both the state court and the parties involved were in agreement that the
unconstitutional conviction had been vacated and treated it as such, thereby placing this
case squarely within the holding of Eddleman. 586 F.3d at 412.

On October 23, 2008, D’Ambrosio was transferred from the state penitentiary in
Youngstown to Cuyahoga County Jail, pending the result of the retrial. On February 17,
2009, D’Ambrosio filed a motion in state court to set bail, stating: “Defendant is being
held in jail without bail, pending trial of this case. At his arraignment on October 14,
1988, bail was set at $200,000, cash. He was convicted and sentenced, but the
conviction was later vacated.” In its brief in opposition to D’Ambrosio’s motion, filed
on February 20, 2009, the prosecution conceded that D’Ambrosio was no longer being
held pursuant to an existing conviction and sentence. Although the prosecution did not
use the term “vacated” in its brief, it agreed that the conviction had been “overturned”
and no longer had any effect.

More to the point, the state court was also in agreement that the conviction had
been vacated. In its February 24, 2009, order granting bail, the state court twice noted
No. 10-3247 D’Ambrosio v. Bagley Page 21

that D’Ambrosio’s conviction had been vacated, not in mere passing, but as the primary
justification of its decision on the matter. The state court rejected the prosecution’s
argument that the presumption of guilt was great in light of his prior conviction solely
because “[t]hat conviction has since been vacated.” In deciding to grant bail, the state
court also explicitly relied on the fact that D’Ambrosio had no prior felony record: “[t]he
defendant stands before the court today as he did at his October 14, 1988 arraignment,
with no prior felony record.”

In my view, as of February 24, 2009, all the parties were in agreement that
D’Ambrosio’s conviction had been vacated, and they were correct—the record reflects
that the prior conviction had no continuing effect by this time. Indeed, shortly after the
state court’s order, D’Ambrosio made bail and was released, pending the outcome of his
retrial—activity clearly inconsistent with a conclusion that he remained in custody
pursuant to an unconstitutional conviction, as opposed to a new indictment. Therefore,
because D’Ambrosio’s prior conviction was no more, the district court lacked
jurisdiction to issue the unconditional writ.

II

Because I would hold that the district court lacked jurisdiction to issue the
unconditional writ, as a matter of course, I would hold that it lacked jurisdiction to
revisit its order, pursuant to a Rule 60(b) motion, and change its mind as to whether
reprosecution should be barred. See Charter Tp. of Muskegon v. City of Muskegon, 303
F.3d 755, 762 (6th Cir. 2002) (“A Rule 60(b) motion is considered a continuation of the
original proceeding. If the district court had jurisdiction when the suit was filed, it has
jurisdiction to entertain a Rule 60(b) motion.”) (internal quotation omitted). However,
I would reach the same outcome, albeit on non-jurisdictional grounds, even if I agreed
that the district court had jurisdiction to issue the unconditional writ.

Pitchess makes clear that Rule 60(b) cannot be used to circumvent section 2254’s
exhaustion requirement, and its holding directly controls this case. Although exhaustion
is non-jurisdictional in nature, White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005), it
similarly bars access to federal courts unless expressly waived by the state, 28 U.S.C.
No. 10-3247 D’Ambrosio v. Bagley Page 22

§ 2254(b)(3), and there can be no question that the state did not so waive it here.1 In
Pitchess, the district court granted the petitioner a conditional writ that ordered the state
to commence a retrial, and the state began retrial proceedings, in full compliance with
the conditional writ. 421 U.S. at 483–84. During this time, the petitioner discovered
that crucial evidence had been destroyed prior to the issuance of the conditional writ.
Id. at 484. The petitioner then returned to federal court and requested, pursuant to Rule
60(b), an order barring reprosecution. Id. at 485. The district court granted the order
and the Ninth Circuit affirmed, reasoning that, because the district court would have
granted the requested relief if it had known about the destroyed evidence at the time it
issued the conditional writ, Rule 60(b) justified the grant of relief after the fact. Id. at
485–86, 489. That justification was flatly rejected by the Supreme Court, which held
that Rule 60(b) does not alter the statutory exhaustion requirement that applies to habeas
proceedings:

Respondent failed to exhaust available state remedies on the claim which
formed the basis for the unconditional writ, and he is entitled to no relief
based upon a claim with respect to which state remedies have not been
exhausted. Neither 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.

Id. at 490. The key language—“[n]either Rule 60(b), 28 U.S.C. § 2254, nor the two read
together”—is in reality just as applicable to this case as it sounds, and the majority’s
attempts to distinguish Pitchess simply fall flat.

First, the majority argues that, in Pitchess, the state had complied with the
conditional writ, whereas here, the State of Ohio did not. Even assuming that statement
were true, it makes no difference. To be sure, the state’s purported failure to comply
with the conditional writ does impact the question of whether the district court had
jurisdiction to issue the unconditional order—if the conviction remains in effect, then

1
In its brief, the state heavily relies on Pitchess and its holding regarding exhaustion. Appellant’s
Br. at 18–20. That the state appeared to mistakenly conclude that Pitchess was about jurisdiction is not
an express waiver of the exhaustion arguments it included in its brief, and, in any case, this court may
consider the issue sua sponte. See Granberry v. Greer, 481 U.S. 129, 133–34 (1987).
No. 10-3247 D’Ambrosio v. Bagley Page 23

the district court retains jurisdiction. However, any failure to comply with the initial
conditional writ has absolutely no bearing on the question of the district court’s authority
to issue a new order after the unconditional writ has issued. Indeed, it is the fact that the
state in Pitchess complied with the conditional writ that makes it on point with this case.
In Pitchess, the state’s compliance with the conditional order is what vindicated the
prisoner’s rights—as though an unconditional writ has issued—and ended the district
court’s continued authority over the matter. Here, the unconditional writ, in fact, issued.
There is absolutely no question that, at the time D’Ambrosio filed his Rule 60(b) motion,
his constitutional rights had been fully vindicated. Accordingly, at the time the motions
were filed, D’Ambrosio was in the exact same position as the petitioner in Pitchess. Any
issues with the earlier conditional writ are simply irrelevant.

Second, the majority argues that, because D’Ambrosio based his argument for
barring reprosecution on the Brady claim that formed the basis of the conditional writ
and not on events that occurred after the district court granted the unconditional writ, this
case “does not present the same sort of exhaustion issues” as Pitchess. That attempted
distinction is both factually and legally incorrect. A reading of the Pitchess opinion
makes clear, just as is the case here, the requested relief was based on events that
occurred before the district court’s original order. Indeed, the majority’s prior-events
argument was the precise justification put forth by the Ninth Circuit—and resoundingly
rejected by the Supreme Court. Next, D’Ambrosio certainly did not premise his
argument for barring reprosecution on the same Brady claim that had resulted in the
earlier habeas relief. In his Rule 60(b) motion, D’Ambrosio’s argument was not that the
state withheld exculpatory information in his 1988 trial, but rather that, without the
ability to cross-examine the state’s dead witness, he could not mount an adequate
defense at retrial. That is not the old Brady claim. It is an entirely new substantial-delay
claim. See United States v. Marion, 404 U.S. 307, 324 (1971) (noting that “the Due
Process Clause of the Fifth Amendment would require dismissal of the indictment if it
were shown at trial that the pre-indictment delay in this case caused substantial prejudice
to [the defendant’s] rights to a fair trial,” and distinguishing such a claim from Brady).
No. 10-3247 D’Ambrosio v. Bagley Page 24

D’Ambrosio did not present this claim to the state courts and, as a result, the district
court was without authority to consider it. Pitchess, 421 U.S. at 489–90.

D’Ambrosio made the argument—which the majority appears to buy in full—that
his new claim is actually the old claim because there is a causal connection between the
two. True, D’Ambrosio’s new claim was in some sense caused by the state’s 1988
violation of Brady: had the state done things correctly the first time around, the witness
would have been alive and available for an effective cross examination (assuming no
other judicial interruption with a concomitant delay). Of course, that is the case every
time there is any problem with a retrial, yet federal courts may not review even such
connected issues until the new judgment is final and such issues are raised in a new
habeas petition following an unsuccessful resort to all available state remedies. See
Pitchess, 421 U.S. at 486–87; 28 U.S.C. §§ 2241, 2254. In the same sense, the new
claim was affected by the state’s failure to commence a trial within 180 days: had it done
so, the witness might not have expired before the retrial. But that speaks only to,
perhaps, the state’s culpability; it does not somehow convert D’Ambrosio’s unexhausted,
new claim—based upon different facts and legal standards—into his old Brady claim.
Further, that sort of causation was equally at issue in Eddleman, where the petitioner’s
Rule 60(b) motion argued that he was prejudiced by the state’s delay in conducting his
retrial, in violation of the conditional writ. Although the causation argument
D’Ambrosio makes here was equally applicable in Eddleman, this court held that “the
district court proceeded effectively to adjudicate a speedy-trial claim that had never been
presented to, much less ruled upon by, the Michigan state courts. With due respect, the
district court acted out of turn in doing so.” 586 F.3d at 413. That holding applies with
full force here.

The majority’s reliance on Satterlee and Girts is misguided. Notably, because
the Supreme Court’s decision in Pitchess is precisely on point, even if those cases stand
for the proposition the majority credits them with, they are wrongly decided to the extent
they conflict with Pitchess. But that is a non-issue, because, contrary to the majority’s
assertion, Satterlee and Girts neither hold nor suggest that a district court may issue new
No. 10-3247 D’Ambrosio v. Bagley Page 25

orders or materially amend old ones once an unconditional writ has been granted and
complied with. In Satterlee, the district court granted an unconditional writ that released
the prisoner from custody. Satterlee, 453 F.3d at 365. The state appealed, and this court
affirmed the grant of the unconditional writ, remanding to the district court to clarify
whether its pre-release order was intended to allow the state to reprosecute, which was
not made clear in the court’s initial order. 453 F.3d at 370 (“[W]e instruct the district
court to clarify on remand which of these meanings it intended, and if it meant to forbid
reprosecution, to justify its conclusion.”) (emphasis supplied). The Satterlee court, then,
did not suggest that a district court may issue a new order after the conviction has been
vacated, but only that it can clear up an earlier, vague decision. And in Girts, this court
similarly held that the district court could clarify its order granting an unconditional writ,
where two days later and hours after the release of the petitioner, the court explained that
it did not intend to bar reprosecution in that initial order, and that explanation was not
contrary to the text of the initial order. Girts v. Yanai, 600 F.3d 576, 581 (6th Cir. 2010).
Here, on the other hand, the district court first issued an order that explicitly declined to
bar reprosecution and then later, after the conviction had been vacated, issued a new
order barring reprosecution. This is fundamentally at odds with Girts, which explicitly
recognized the applicability of Pitchess and made the narrow scope of its holding
abundantly clear:

We do not hold that a district court can materially amend its judgment
after the state has released a petitioner, and we acknowledge binding
Supreme Court authority that a habeas court does not maintain
“continuing supervision over a retrial conducted pursuant to a conditional
writ granted by the habeas court.” Pitchess v. Davis, 421 U.S. 482, 490
(1975). In the unique factual setting of this case, we simply read the
November 5, 2008 order as clarifying the November 3, 2008 order, in
which the district court granted an unconditional writ and in which the
district court was free to decide whether to bar retrial.

600 F.3d at 582. Neither Girts nor Satterlee, then, can be read to allow a district court
to issue new orders after the underlying conviction has been vacated, but rather that the
district court retains only the power to elucidate an earlier, vague decision. The Girts
court noted that the limits of this clarification power must fall short of “materially
No. 10-3247 D’Ambrosio v. Bagley Page 26

amend[ing]” an earlier judgment, which is precisely what the district court did here.
Accordingly, even if I agreed that the district court retained jurisdiction to grant the
unconditional writ, I would reverse its later order barring reprosecution pursuant to
Pitchess—that order blatantly exercises exactly the type of “continuing supervision”
barred by Pitchess and contemplated by Girts.

III

The majority correctly notes that the warden does not challenge the district
court’s order as an abuse of discretion. That, in my view, was bad strategy, albeit
consistent with the state’s body of conduct over the past twenty-odd years. In any case,
the issue was neither briefed nor otherwise raised by either party, and that is sufficient
to end the inquiry. I note that it is far from apparent to me that the death of the
prosecution’s star witness before D’Ambrosio’s retrial prejudiced him to such an extent
that the extreme measure of barring the retrial altogether was justified. At first blush,
the witness’s death appears to be beneficial to D’Ambrosio, particularly in light of the
state court’s decision not to allow the witness’s prior testimony to be presented at the
retrial. Further, even if D’Ambrosio were to be greatly prejudiced at retrial by the state’s
misconduct, he could bring that due-process claim to the state courts on direct review.
Because any potential prejudice appears to be curable through the ordinary process, the
district court’s decision to bar reprosecution is, if not an abuse of discretion, at least
highly suspect. Scott v. Bock, 576 F. Supp. 2d 832, 837–38 (E.D. Mich. 2008) (“As the
term ‘extraordinary’ applies, courts should . . . bar[] reprosecution sparingly, reserving
this drastic remedy for the most outrageous cases . . . . Unless the constitutional violation
is not redressable at a new trial, or the second trial would be especially unjust, the bar
on reprosecution is difficult to justify.”) (citations omitted).

IV

In my view, the majority’s opinion is unmoored from both the facts of this case
and the applicable case law of both this circuit and the Supreme Court. Moreover, I find
particularly troubling that the majority opinion permits federal courts to order habeas
relief not only based on the conditions leading to an underlying conviction, but also
No. 10-3247 D’Ambrosio v. Bagley Page 27

based on the conditions of an ongoing state criminal proceeding. Because habeas relief
may be granted only from final criminal judgments, and only under narrow
circumstances, see 28 U.S.C. §§ 2241, 2254, I remain unconvinced that federal courts,
under the cloak of habeas jurisdiction, have the authority to interfere with a state’s
ongoing prosecutorial efforts, and that is precisely what the district court did here. I
therefore respectfully dissent.