     Case: 13-30914      Document: 00512812613         Page: 1    Date Filed: 10/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                      No. 13-30914                                 FILED
                                                                             October 23, 2014
                                                                              Lyle W. Cayce
ANDREW WEARY,                                                                      Clerk

                                                 Petitioner-Appellant,
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1793


Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
PER CURIAM:*
       The question before us is whether, where a state court attempts in good
faith to comply with a conditional writ of habeas corpus but fails to timely
satisfy the mandate’s conditions due to an inconsequential mistake, the district
court may grant the state court additional time to cure the mistake. We answer
that question affirmatively and hold that the district court acted within its
discretion in this case because any deviation the state court made from the
mandate’s conditions was de minimis in light of the mandate’s purpose.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 13-30914
                                               I.
       A jury convicted Andrew Weary of armed robbery and attempted first-
degree murder. He was sentenced as a multiple offender to a seventy-five-year
term of imprisonment for the armed robbery offense and a twenty-five-year
term of imprisonment for the attempted first-degree murder offense, to run
concurrently. Weary’s conviction and sentences were ultimately affirmed on
direct appeal. 1 Weary unsuccessfully sought state post-conviction relief.
       Weary applied for federal habeas relief under 28 U.S.C. § 2254. He
argued that he was constructively denied counsel, that he was denied the
effective assistance of counsel, that the evidence was insufficient to support the
armed robbery conviction, and that he was exposed to double jeopardy. The
district court granted a conditional writ of habeas corpus as to Weary’s double
jeopardy claim and dismissed with prejudice all other claims. It concluded that
the state courts’ denial of post-conviction relief was contrary to, or an
unreasonable application of, Supreme Court precedent because Weary’s
conviction and sentence for attempted first-degree murder may have rested on
an impermissible theory of attempted first-degree murder during the
commission of the armed robbery—the same armed robbery of which Weary
was also convicted. 2 The district court ordered that Louisiana release Weary
unless, within ninety days, the state court: (1) vacate the sentences imposed
for Weary’s armed robbery and attempted first-degree murder convictions; (2)




       1  State v. Weary, 826 So. 2d 654, 654 (La. Ct. App. 2002), cert. denied, 847 So. 2d 1228,
(La. 2003); State v. Weary, 930 So. 2d 1240, 1240 (La. Ct. App. 2006), cert. denied, 948 So. 2d
1076 (La. 2007).
        2 See Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (“When, as here, conviction of a

greater crime, murder, cannot be had without conviction of the lesser crime, robbery with
firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction
of the greater one.”).
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                                       No. 13-30914
vacate Weary’s conviction for one of the offenses; and (3) resentence Weary on
the remaining offense.
       The state court held a hearing in response to the district court’s mandate.
During the hearing, the state court first vacated both of Weary’s sentences.
The assistant district attorney then advised the state court that she would
nolle prosequi Weary’s charge for attempted first-degree murder. 3 The state
court accepted the assistant district attorney’s dismissal of the attempted first-
degree murder charge and resentenced Weary to a seventy-five-year term for
the armed robbery charge.
       Weary thereafter argued to the district court that the state court’s
actions did not comply with the district court’s mandate and sought
enforcement of the conditional habeas order, but his filing was misconstrued
as an appeal. On February 14, 2013, this court identified that Weary had
sought enforcement of the conditional writ of habeas, rather than appealing
the state court’s action, and dismissed the appeal.
       After being informed of this court’s ruling, Weary again moved the
district court to enforce its order granting a conditional writ of habeas. Weary
requested, in the form of a motion under Federal Rule of Civil Procedure
60(b)(2), (5), and (6), that the district court reopen the case, vacate its
conditional grant, and issue an absolute habeas writ. The district court
determined that no relief was possible under Rule 60(b), but it considered
Weary’s request for immediate release. It concluded that the assistant district
attorney’s nolle prosequi of the attempted murder charge was not equivalent
to a vacation of Weary’s conviction and, therefore, the state court had failed to
timely comply with the mandate. Having found that the state court had


       3The Assitant District Attorney used the phrase “nolle pross,” which is a variant of
the phrase “nolle prosequi.” Nolle prosequi is a form of legal notice by a prosecutor that she
is abandoning or dismissing a prosecution. See BLACK’S LAW DICTIONARY 1070 (7th ed. 1999).
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attempted in good faith to comply, however, the district court granted the state
court an additional ninety days to cure the mistake by vacating one of Weary’s
convictions. The state court then ultimately did comply with the mandate by
vacating Weary’s attempted murder conviction and resentencing him on the
armed robbery conviction.
       On September 6, 2013, the district court certified to us a single question
under 28 U.S.C. 2253(c)(3). We granted a certificate of appealability (“COA”)
to determine:
       whether [the district court] should have ordered Weary released
       (or, in other words, found that his habeas petition was granted) as
       to his double jeopardy claim . . . because the [state court] had not
       complied with the [district court’s] mandate within 90 days, or
       whether it was appropriate in this narrow instance where double
       jeopardy was involved, for the [district court] to grant the [state
       court] 90 additional days to comply with its past judgment.

                                             II.
       We must first determine the proper standard of review. Louisiana
contends that we review the district court’s grant of additional time for abuse
of discretion. We agree. Habeas corpus is an equitable remedy. 4 Section 2243
directs the court entertaining a habeas application to “dispose of the matter as
law and justice require.” 5 Consistent with the equitable nature of section 2243,
the Supreme Court has interpreted it to confer on federal courts “broad
discretion in conditioning a judgment granting habeas relief.” 6 The Supreme
Court “has repeatedly stated that federal courts may delay the release of a




       4Schlup v. Delo, 513 U.S. 298, 319 (1995).
       528 U.S.C. § 2243.
      6 Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (internal quotation marks and citation

omitted).
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                                       No. 13-30914
successful habeas petitioner in order to provide the [s]tate an opportunity to
correct the constitutional violation found by the court.” 7
       Drawing on the Supreme Court’s guidance in this area, we have held in
an unpublished opinion that “when the district court actually imposes a
particular [habeas] remedy, we review the choice made for an abuse of
discretion.” 8 Similarly, several of our sister circuits have applied an abuse of
discretion standard in reviewing lower court modifications of conditional
habeas remedies. 9 In line with the foregoing, we adopt an abuse of discretion
standard in reviewing the district court’s actions here.
                                             III.
       We note from the outset that section 2253(c) “strictly limits our appellate
jurisdiction to the issue on which the applicant has been granted [a] COA.” 10
We therefore consider only the question presented in the COA: whether the
district court abused its discretion in granting additional time to the state
court to cure its mistake and comply with the conditional writ of habeas. Weary
claims that the district court instead should have ordered his immediate
release because the state court failed to meet the conditions of the mandate
before its expiration.
                                              A.
       Our consideration of this question begins with a derivation of the
mandate’s purpose. Weary argued, and the district court agreed, that his
convictions for armed robbery and attempted first-degree murder violated his



       7 Id. (citations omitted).
       8 Corte v. Johnson, No. 99-20475, 2000 WL 423443, at *2 (5th Cir. Apr. 7, 2000).
       9 See Harvest v. Castroi, 531 F.3d 737, 741 (9th Cir. 2008); Gibbs v. Frank, 500 F.3d

202, 206 (3rd Cir. 2007) (citing In re Cendent Corp. Prides Litig., 233 F.3d 188, 192 (3rd Cir.
2000)); Gentry v. Deuth, 456 F.3d 687, 697 (6th Cir. 2006); Gilmore v. Bertrand, 301 F.3d 581,
582-83 (7th Cir. 2002).
       10 Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir. 2012).

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rights under the Double Jeopardy Clause of the Fifth Amendment, which
protects against multiple punishments for the same offense. 11 Specifically, the
jury charge at Weary’s trial asserted alternative theories of attempted first-
degree murder, one of which arose under Louisiana’s felony-murder doctrine
and was predicated on Weary’s commission of the armed robbery. Because the
jury was issued a general verdict form, meaning that it did not specify the
theory under which it found Weary guilty, the district court concluded that
Weary’s attempted first-degree murder conviction may have impermissibly
rested on the felony-murder theory—a theory based on the same armed
robbery of which Weary was also convicted. 12
       The district court granted Weary’s habeas petition with regard to his
double jeopardy claim, but it placed explicit conditions on that grant to allow
the state court an opportunity to remedy the double jeopardy violation. The
mandate afforded the state court ninety days to: (1) vacate both of Weary’s
sentences; (2) vacate one of Weary’s convictions; and (3) resentence Weary on
the remaining offense. In short, the purpose of the district court’s mandate was
to delay Weary’s release so that the state court could resentence Weary for one
of his two convictions in a constitutionally permissible manner.
                                             B.
       We next consider the state court’s actions in attempting to comply with
the district court’s mandate. The mandate first directed the state court to
vacate both of Weary’s sentences, which the state court did. The mandate then
directed the state court to vacate one of Weary’s convictions. Weary argues,
and the district court agrees, that the state court did not comply with this


       11 Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)).
       12 See Leary v. U.S., 395 U.S. 6, 31–32 (1969) (“[W]hen a case is submitted to the jury

on alternative theories the unconstitutionality of any of the theories requires that the
conviction be set aside.”) (citing Stromberg v. California, 283 U.S. 359 (1931)).
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second requirement. It appears to us, however, that the state court made a
good faith attempt to do so. Rather than vacating one of Weary’s convictions,
the state court accepted the assistant district attorney’s dismissal by nolle
prosequi of Weary’s first-degree murder charge. The mandate lastly directed
the state court to resentence Weary on the remaining offense, which the state
court did. 13
                                              C.
       Finally, we consider the extent of the state court’s noncompliance with
the mandate in light of the mandate’s purpose. The district court concluded
that the state court failed to meet the mandate’s second condition because it
accepted the assistant district attorney’s nolle prosequi of one of Weary’s
sentences rather than vacating one of Weary’s sentences. In Louisiana, a nolle
prosequi functions to “discharge the particular indictment, bill of information,
or affidavit” upon which it is ordered. 14 The district attorney’s discretion to
grant a nolle prosequi becomes statutorily constrained once the defendant has
been convicted, 15 but the district attorney may nonetheless enter a nolle
prosequi after a verdict with the consent of the court, and the court may
dismiss the conviction and then impose a sentence on any remaining counts. 16
Thus, though it operated under a different procedural label, the nolle prosequi
in this case functioned much like the vacation of one of Weary’s convictions
would have—namely, it eliminated the basis of Weary’s claimed constitutional



       13   The district court expressed uncertainty as to whether the state court had
resentenced Weary for the armed robbery conviction or, rather, had “maintain[ed]” Weary’s
prior sentence after vacating it. This distinction does not appear to be raised in the COA, and
therefore we do not address it here. In any event, the district court gave specific instructions
for the state court to resentence Weary on the remaining conviction after curing its mistake,
and the state court ultimately did so.
        14 State v. Norwood, 351 So. 2d 122, 124 (La. 1977).
        15 See LA. CODE CRIM. PROC. ANN. art. 691, 693.
        16 State v. Perry, 116 La. 231, 233 (La. 1906) (citations omitted).

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defect. 17 We conclude that the nolle prosequi in this case constituted a de
minimis departure from the district court’s mandate. 18
       Having determined that any deviation the state court made from the
mandate’s conditions was de minimis in light of the mandate’s purpose, we
hold that the district court acted within its discretion in granting the state
court additional time to cure the mistake. AFFIRMED.




       17  See U.S. v. Bass, 310 F.3d 321, 330 (5th Cir. 2002) (noting in a double jeopardy
situation that the “vacatur of [one of the petitioner’s convictions] eliminate[d] the basis of
[the] claimed constitutional defect.”).
        18 The parties have not identified a consequential distinction between nolle prosequi

and vacation in the narrow double jeopardy context examined here. Our holding does not
address the relationship between nolle prosequi and vacation in any other context.
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