                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1760
GREGORY MADEJ,
                                               Petitioner-Appellee,
                                 v.

KENNETH R. BRILEY, Warden,
Stateville Correctional Center,
                                           Respondent-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 98 C 1866—David H. Coar, Judge.
                          ____________
    SUBMITTED APRIL 5, 2004—DECIDED APRIL 21, 2004
                     ____________



 Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
   EASTERBROOK, Circuit Judge. Illinois sentenced Gregory
Madej to death for a murder committed in 1981. In 2002 the
district court issued a writ of habeas corpus requiring
Illinois to give Madej a new sentencing hearing within 60
days. United States ex rel. Madej v. Gilmore, 2002 U.S. Dist.
LEXIS 3807 (N.D. Ill.), reconsideration denied under the
name Madej v. Schomig, 223 F. Supp. 2d 968 (N.D. Ill.
2002). The effective date of this order is September 24,
2002, when the court denied the state’s request for reconsid-
2                                                No. 04-1760

eration and the decision became final. Hence the hearing
had to be held by November 25, 2002. The state filed a
notice of appeal, No. 02-3796, which it dismissed on Novem-
ber 8, 2002, with prejudice. See Fed. R. App. P. 42(b). Madej
dismissed his cross-appeal at the same time.
   The deadline for resentencing passed without action. On
January 10, 2003, the Governor of Illinois commuted
Madej’s capital sentence to life in prison without possibility
of parole. The Attorney General of Illinois asked the state’s
highest court to annul this commutation; that court held it
valid. See People ex rel. Madigan v. Snyder, 208 Ill. 2d 457,
804 N.E.2d 546 (2004). By then 16 months had passed since
the district court’s order, and the state still had not pro-
vided Madej with a new sentencing hearing. At a status
conference in state court on February 17, 2004, counsel for
Illinois took the position that the state is entitled to
disregard the federal court’s writ, because the commutation
gave Madej all the relief to which he is entitled. The state
judge expressed skepticism about this position and asked
the prosecutor to take the issue up with the federal judge.
  Illinois then asked the district judge to vacate the writ as
moot. He declined, observing that at a new hearing Madej
would be entitled to seek an ordinary life sentence—that is,
one from which parole is possible—in lieu of the natural-life
sentence that the Governor substituted for the death
penalty. Now Madej’s custodian (we have substituted the
current warden of his prison) asks for a writ of mandamus
that would compel the district judge to vacate the writ of
habeas corpus. The petition was filed jointly by the Attor-
ney General of Illinois and the State’s Attorney of Cook
County.
  Mandamus is unavailable, because the judge entered
an appealable order. The state’s motion was functionally
under Fed. R. Civ. P. 60(b), asserting a change in circum-
stances, though the state neglected to mention that rule (or
No. 04-1760                                                   3

indeed to supply any authority for the relief it sought). An
order denying relief requested under Rule 60(b) is final and
appealable. The state’s petition for mandamus contains the
information required by Fed. R. App. P. 3 for a notice of
appeal, so we treat the document as a notice of appeal.
   Review of a decision under Rule 60(b) is deferential, see
Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826 (7th Cir.
1985), and the district judge did not abuse his discretion.
The court held in 2002 that Madej had received ineffective
assistance of counsel at sentencing. One possible outcome
of a properly conducted proceeding would have been a
regular life sentence, leaving Madej eligible for parole.
(Madej has been convicted of a single murder, and under
Illinois law only multiple murder convictions foreclose the
possibility of a sentence with parole eligibility. 720 ILCS
5/9-1(b)(6), 730 ILCS 5/5-8-1(a)(1).) A full remedy for the
constitutional shortcoming at the original sentencing
hearing entails allowing Madej to seek that lower sentence
now. Although the state contends that the Governor’s com-
mutation bars that option as a matter of state law, the
Constitution supersedes any incompatible state principles.
  Illinois should count itself lucky that the district judge did
not hold the warden (or perhaps the prosecutor) in con-
tempt of court. The district judge ordered the state to act by
November 25, 2002, yet to this day the order has not been
carried out. It is irrelevant that the state believes the order
ineffectual. It is for the federal judiciary, not the Attorney
General of Illinois, to determine the force of such orders,
and even erroneous directives must be obeyed while they
are outstanding. See Pasadena City Board of Education v.
Spangler, 427 U.S. 424, 439-40 (1976).
  The order is indeed mistaken in one respect. A writ of
habeas corpus directs the petitioner’s release from unconsti-
tutional custody. When the constitutional error is curable,
the court often issues a conditional writ, of the form:
4                                               No. 04-1760

“Release the petitioner unless you do X within Y days.” The
district judge may have meant to issue such a writ, but the
actual language reads:
    [The court] orders that the state resentence [Madej]
    in a manner that comports with the individualized
    sentencing requirements of the Eighth Amendment
    within sixty (60) days of the date of this order.
This language does not leave the state the option of releas-
ing Madej or reducing his sentence to life imprisonment;
instead it directs the state to hold a new hearing whether
it wants to or not. Yet the writ of habeas corpus is designed
to free persons wrongly held, not to ensure that criminal
prosecutions continue in full vigor. A proper conditional
writ would have provided something along the lines of:
    Within 60 days, the state must either reduce
    Madej’s sentence to life imprisonment (with eligibil-
    ity for parole) or hold a new sentencing hearing.
That language would have made it pellucid that the com-
mutation does not avert the need for resentencing.
  When it dismissed its appeal with prejudice, the state
surrendered any opportunity to have the order’s language
converted to a standard conditional writ. Illinois must
comply with the unconditional order the district court has
entered. The order denying the state’s request for relief
under Rule 60(b) is affirmed, without prejudice to Madej’s
opportunity to ask the district judge for supplemental relief
(through the contempt process, a conditional writ of the
kind mentioned above, or both) if the state’s obduracy
continues.
No. 04-1760                                          5

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—4-21-04
