                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 13a0259p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 MAURICE A. MASON,
                                                -
                           Petitioner-Appellant,
                                                -
                                                -
                                                    No. 11-4020
          v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 BETTY MITCHELL, Warden,
                                               N
                 Appeal from the United States District Court
                for the Northern District of Ohio at Cleveland.
              No. 1:99-cv-524—David A. Katz, District Judge.
                                 Argued: June 18, 2013
                        Decided and Filed: September 4, 2013
               Before: BOGGS, MOORE, and CLAY, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND LLP, Columbus,
Ohio, for Appellant. Seth P. Kestner, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Kort W. Gatterdam,
CARPENTER, LIPPS & LELAND LLP, Columbus, Ohio, for Appellant. Seth P.
Kestner, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
                                  _________________

                                       OPINION
                                  _________________

       KAREN NELSON MOORE, Circuit Judge. In a prior appeal, this court granted
Petitioner-Appellant Maurice Mason (“Mason”) a conditional writ of habeas corpus,
which the panel stated would “result in the vacation of his death sentence unless the state
of Ohio commences a new penalty-phase trial against him within 180 days from the date
that the judgment in this matter becomes final.” On remand, the district court entered


                                            1
No. 11-4020        Mason v. Mitchell                                                Page 2


its own conditional writ that recalculated the date on which the 180-day period for the
State to recommence proceedings against Mason—set by this court’s mandate—began.
The 180-day period set by this court expired, and no penalty-phase retrial had
commenced. Mason subsequently was removed from death row, and a new sentencing
proceeding was scheduled. Mason filed a motion in the district court arguing that the
State should be prevented from seeking the death penalty in the penalty-phase retrial
because it failed to comply with the deadline set by the court of appeals. The district
court denied Mason’s request for relief. On appeal, Mason argues that because the State
failed to comply with this court’s conditional writ, the State should be barred from
seeking the death penalty at the penalty-phase retrial. We conclude that the district court
erred by recalculating the beginning of the 180-day period without authority to do so.
Nonetheless, under this court’s precedents, the State is permitted to seek the death
penalty at the penalty-phase retrial, even though it did not comply with the conditional
writ granted by this court. The district court’s judgment is MODIFIED such that the
State may seek the death penalty at the penalty-phase retrial only if the penalty-phase
retrial commences within 180 days from the date that the mandate issues from this court
in this matter. We REMAND to the district court.

                                  I. BACKGROUND

       In June 1994, an Ohio jury found Petitioner-Appellant Maurice Mason guilty of
aggravated murder, rape, and having a weapon while under disability. See Mason v.
Mitchell (Mason I), 320 F.3d 604, 612–13 (6th Cir. 2003). Following the sentencing
phase of the trial, the trial court adopted the jury’s recommendation that Mason be
sentenced to death. Id. at 613. Mason’s conviction and sentence were affirmed on direct
appeal by the Ohio Court of Appeals in 1996 and by the Ohio Supreme Court in 1998.
See State v. Mason, 694 N.E.2d 932, 958 (Ohio 1998); State v. Mason, No. 9-94-45,
1996 WL 715480, at *33 (Ohio Ct. App. Dec. 9, 1996). Mason’s collateral attack on his
conviction in state court was unsuccessful. See Mason I, 320 F.3d at 613.

       In July 1999, Mason filed a petition in federal court for a writ of habeas corpus
under 28 U.S.C. § 2254, raising twenty-five claims for relief. The district court denied
No. 11-4020        Mason v. Mitchell                                               Page 3


the motion on all grounds, but on appeal we remanded to allow the district court to hold
“an evidentiary hearing regarding the claim of ineffective assistance of counsel at
sentencing.” Id. at 642. In October 2005, following the evidentiary hearing, the district
court denied Mason’s ineffective-assistance-of-counsel claim and dismissed his petition.
Mason v. Mitchell, 396 F. Supp. 2d 837, 858 (N.D. Ohio 2005).

       In an opinion filed on October 3, 2008, we reversed the district court’s decision
and held that the Ohio Supreme Court had unreasonably applied federal law when it
evaluated Mason’s claim that he received ineffective assistance of counsel. Mason v.
Mitchell (Mason II), 543 F.3d 766, 784–85 (6th Cir. 2008). We therefore granted Mason
a conditional writ of habeas corpus. Id. at 785. Our order stated:

       [W]e REVERSE the judgment of the district court, GRANT Mason a
       conditional writ of habeas corpus that will result in the vacation of his
       death sentence unless the state of Ohio commences a new penalty-phase
       trial against him within 180 days from the date that the judgment in this
       matter becomes final, and REMAND the case for further proceedings
       consistent with this opinion.

Id. The State filed a petition for rehearing en banc, which subsequently was denied on
February 19, 2009. See 6th Cir. Order (Feb. 19, 2009). Our mandate issued on February
27, 2009. R. 238 (Mandate) (Page ID #2862). On March 25, 2009, the State filed a
motion to recall and stay the mandate pending the filing of a petition for a writ of
certiorari to the Supreme Court. We denied the motion to recall and stay the mandate
on May 6, 2009. See 6th Cir. Order (May 6, 2009). On May 18, 2009, following a
telephonic conference with the parties, the district court entered an order stating:

       In accordance with the Mandate Order from the Sixth Circuit, a
       conditional writ of habeas corpus is hereby granted as to Mason’s
       sentence of death. The Respondent shall either: (1) set aside Mason’s
       death sentence; or (2) conduct another mitigation hearing. This shall be
       done within 180 days from May 6, 2009, the date upon which the Court
       finds the judgment in this matter became final.

R. 242 (Dist. Ct. Order) (Page ID #2867).
No. 11-4020        Mason v. Mitchell                                               Page 4


       The State filed a petition with the Supreme Court for a writ of certiorari on July
20, 2009. On August 7, 2009, the district court granted a stay of the 180-day window
to commence a new penalty-phase trial pending the resolution of the petition for
certiorari. R. 246 (Dist. Ct. Order at 3) (Page ID #2877). The petition for certiorari was
denied on November 2, 2009, and the district court lifted its stay of the conditional writ
of habeas corpus on December 1, 2009. R. 249 (Dist. Ct. Order at 2) (Page ID #2882).

       The proceedings returned to state court, and a new sentencing hearing was
scheduled for February 16, 2010. On February 2, 2010, the Ohio Court of Common
Pleas ordered that Mason be removed from death-row housing because his death
sentence had been vacated. R. 253-1 (Judgment Entry) (Page ID #2895). Two days
later, on February 4, 2010, Mason filed a motion to prohibit the new sentencing
proceeding because the deadline for holding the hearing under this court’s conditional
writ had passed. See R. 252 (Mot. to Prohibit at 2) (Page ID #2883). The state trial
court denied this motion on December 13, 2010. R. 252-1 (Judgment Entry) (Page ID
#2889).

       The following day, December 14, 2010, Mason filed a motion in federal district
court, asking the district court to bar the State from seeking the death penalty as an
available sentence at the new penalty-phase hearing because “the State failed to adhere
to the 180 day mandate set forth by the United States Court of Appeals for the Sixth
Circuit.” R. 252 (Mot. to Prohibit at 1) (Page ID #2882). Mason argued that because
the State did not recommence a penalty-phase proceeding within the 180-day window
set by the order of the Sixth Circuit, the State should be barred from seeking the death
penalty at the subsequent sentencing proceeding. The State opposed the motion and
argued that the district court lacked jurisdiction to grant Mason the relief he requested.
R. 253 (Resp.’s Resp. to Mot. to Prohibit at 2) (Page ID #2893). The district court
denied Mason’s motion. R. 255 (Dist. Ct. Op. at 1) (Page ID #2923). Mason timely
appealed the district court’s order.
No. 11-4020         Mason v. Mitchell                                                 Page 5


                                  II. JURISDICTION

        The State argues that the district court lacked jurisdiction to grant Mason relief,
because the federal courts’ jurisdiction over Mason’s case ended once Mason’s
unconstitutional death sentence was vacated. See Resp. Br. at 17–18. The State is
correct to point out that federal courts may not exercise “continuing oversight of
subsequent state court proceedings following the state’s compliance with a grant of a
conditional writ of habeas corpus.” Girts v. Yanai, 600 F.3d 576, 581 (6th Cir. 2010).
However, “[a] federal district court retains jurisdiction to determine whether a party has
complied with the terms of a conditional order in a habeas case.” Gentry v. Deuth,
456 F.3d 687, 692 (6th Cir. 2006) (internal quotation marks omitted). The State’s
argument that the district court lacked jurisdiction to consider Mason’s motion fails,
because Mason’s claim is that the State failed to comply with the condition contained
in the conditional writ—that the State “commence[] a new penalty-phase trial against
[Mason] within 180 days from the date that the judgment in this matter becomes final.”
Mason II, 543 F.3d at 785. As we have explained, conditional writs “would be
meaningless” if a habeas court could not determine compliance with them and order
sanctions accordingly. Satterlee v. Wolfenbarger, 453 F.3d 362, 369 n.5 (6th Cir. 2006).
Thus, the district court retained jurisdiction to consider Mason’s motion.
See D’Ambrosio v. Bagley, 656 F.3d 379, 385–90 (6th Cir. 2011).

        Mason’s subsequent removal from death row by the State does not render the
federal court powerless to enforce the full meaning of the conditional writ. See
Satterlee, 453 F.3d at 369 n.5. We recognize that a state’s compliance with a conditional
writ through the vacatur of a petitioner’s unconstitutional conviction or sentence within
the window of time permitted by the habeas court’s order generally will divest the court
of jurisdiction. See Eddleman v. McKee, 586 F.3d 409, 413 (6th Cir. 2009). However,
if a state fails to release the petitioner from the unconstitutional judgment within the time
period prescribed by the conditional writ, the habeas court has jurisdiction to consider
the noncompliance and impose sanctions. See D’Ambrosio, 656 F.3d at 389–90; Phifer
v. Warden, 53 F.3d 859, 865 (7th Cir. 1995) (“A conditional order’s framework
No. 11-4020           Mason v. Mitchell                                                        Page 6


contemplates that a district court will eventually make an assessment concerning
compliance with its mandate.”). And in conjunction with a determination of whether the
state complied with a conditional writ, the habeas court may determine whether to bar
reprosecution. See D’Ambrosio, 656 F.3d at 389–90. Accordingly, the district court in
this case had jurisdiction to consider whether the State complied with the conditional
writ and whether the death penalty may be sought at the penalty-phase retrial. In turn,
we have jurisdiction to consider the district court’s judgment.

                                         III. ANALYSIS

        We review de novo “the district court’s legal conclusion that the state has
complied with the terms of [a conditional] writ.” Patterson v. Haskins, 470 F.3d 645,
668 (6th Cir. 2006). “[H]owever, the district court’s factual findings will not be
disturbed unless they are clearly erroneous.” Girts, 600 F.3d at 583.

        Mason argues that the State failed to comply with this court’s conditional writ.
We agree with Mason that the relevant order was that of this court. Under the mandate
rule, “‘the trial court must proceed in accordance with the mandate and the law of the
case as established on appeal. The trial court must implement both the letter and the
spirit of the mandate, taking into account the appellate court’s opinion and the
circumstances it embraces.’” Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 549
(6th Cir. 2004) (quoting United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)).
The district court failed entirely to do so here. The district court thus erred when it
considered its order as the relevant conditional writ, rather than the conditional writ
granted by this court.1 According to our mandate, the 180-day clock for the State to
commence a new penalty-phase trial ran from “the date that the judgment in this matter
bec[ame] final.” Mason II, 543 F.3d at 785.




        1
          The district court considered Mason’s motion under the standards of Rule 59, which addresses
motions to alter or amend the district court’s judgment. Fed. R. Civ. P. 59(e). In our view, Mason’s
motion more appropriately should be construed as a motion to enforce this court’s conditional writ, the
operative mandate. See Gentry, 456 F.3d at 691.
No. 11-4020            Mason v. Mitchell                                                          Page 7


         A conditional writ of habeas corpus is a final order, and thus judgment in this
matter was final when the conditional writ became effective. See Gentry, 456 F.3d at
692 (“Conditional grants of writs of habeas corpus are final orders, . . . and they
ordinarily and ideally operate automatically, that is, without the need for the district
court to act further.”); Phifer, 53 F.3d at 862. We filed our opinion granting the
conditional writ on October 3, 2008. See Mason II, 543 F.3d at 766. Because the State
timely filed a petition for rehearing following the filing of the panel’s opinion, the
issuance of this court’s mandate was stayed until seven days after the denial of the
petition for rehearing. See Fed. R. App. P. 41(b). We denied the State’s petition for
rehearing on February 19, 2009, see 6th Cir. Order (Feb. 19, 2009), and the mandate
issued on February 27, 2009, as indicated on the district court’s docket, and as
acknowledged by the district court, see R. 238 (Mandate) (Page ID #2862); R. 242 (Dist.
Ct. Order) (Page ID #2867). When the mandate issued, this court’s writ became
effective and the judgment became final. See Fed. R. App. P. 41(c). Thus, the 180-day
clock for the conditional writ began to run on February 27, 2009.2 Cf. Jells v. Mitchell,
No. 1:98 CV 02453, 2011 WL 1257306, at *6–*7 (N.D. Ohio Mar. 31, 2011)
(interpreting “the date that this judgment becomes final” for purposes of a conditional
writ as the date on which the mandate from the court of appeals issued).

         The district court entered a stay of the proceedings on August 7, 2009, while the
State petitioned the Supreme Court for a writ of certiorari.3 See R. 246 (Dist. Ct. Order)
(Page ID #2875). At this point, 161 days had elapsed. The stay was lifted on December
1, 2009 and thus, the State had 19 more days, until December 20, 2009, to commence
the penalty-phase retrial under the district court’s computation. See R. 249 (Order
Lifting Stay) (Page ID #2881). The State failed to do so; as of December 20, 2009,




         2
         Indeed, the State seems to have been aware that the clock began to run when this court’s
mandate issued, as indicated in the State’s untimely motion to recall the mandate. See Mot. to Recall.
         3
           We do not believe that the district court had the power to stay the proceedings in light of our
mandate establishing the 180-day clock. The district court’s stay pending the certiorari process in effect
contradicted our prior order denying the State’s motion to recall and stay the mandate pending a petition
for certiorari.
No. 11-4020         Mason v. Mitchell                                                Page 8


Mason’s death sentence had not been vacated. Accordingly, the State did not comply
with this court’s conditional writ.

        In granting the conditional writ, we held that the ineffective assistance of counsel
during Mason’s penalty-phase trial rendered Mason’s death sentence unconstitutional.
The conditional writ provided the State with “‘a window of time within which it might
cure the . . . error.’” Satterlee, 453 F.3d at 369 (quoting Phifer, 53 F.3d at 864–65).
“When the state fails to cure the error, i.e., when it fails to comply with the order’s
conditions, a conditional grant of a writ of habeas corpus requires the petitioner’s release
from custody.” Id. (internal quotation marks omitted). Accordingly, because the State
failed to comply with our writ’s conditions, our order required that Mason’s
unconstitutional death sentence be vacated. In this case, however, this consequence has
already occurred, because the State vacated Mason’s death sentence on February 2,
2010.

        Mason argues that an additional consequence should attach to the State’s failure
to comply, namely that the State should not be permitted to seek the death penalty at the
new penalty-phase trial. In general, when “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.” Id. at 370 (internal
quotation marks omitted). Nonetheless, “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.” Id. (internal quotation
marks and alteration omitted); see D’Ambrosio, 656 F.3d at 383–84 (citing same
standard). Extraordinary circumstances also may include when retrial itself would
violate a petitioner’s constitutional rights. See Foster v. Lockhart, 9 F.3d 722, 727 (8th
Cir. 1993). “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 released.” Randy Hertz & James S. Liebman, 2–3
Federal Habeas Corpus Practice & Procedure § 33.3 (LexisNexis 2012). We have held
No. 11-4020           Mason v. Mitchell                                                       Page 9


that even when the state “undoubtedly did almost nothing to retry [the petitioner] during
the 180-day period,” retrial would not be barred, although the court noted that the State’s
conduct was “troubling” and that the State “suffered no practical consequence” for
failing to abide by the 180-day condition. Girts, 600 F.3d at 584–85.

        In this case, there is no evidence that the State engaged in the kind of “substantial
inequitable conduct,” such as “wrongfully retaining and delaying the production of . . .
exculpatory evidence” that may justify barring retrial under the extraordinary-
circumstances standard. D’Ambrosio, 656 F.3d at 383 (internal quotation marks
omitted). Rather, the State scheduled the new penalty-phase trial for February 16, 2010,
see Pet. Br. at 3, two-and-a-half months after its petition for a writ of certiorari from the
Supreme Court was denied and within the permissible 180-day time-frame as
erroneously stated by the district court.4 Further, contrary to Mason’s contention, see
Pet. Reply Br. at 2–3, the reimposition of the death penalty would not be a double
jeopardy violation, because in Mason’s case there has been no “acquittal” regarding the
imposition of the death penalty. See, e.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 109
(2003) (“[T]he touchstone for double-jeopardy protection in capital-sentencing
proceedings is whether there has been an ‘acquittal.’”); Poland v. Arizona, 476 U.S. 147,
154 (1986) (explaining that the double-jeopardy bar attaches only if, at the first capital
sentencing hearing, the sentencer or reviewing court “hold[s] that the prosecution had
‘failed to prove its case’ that petitioners deserved the death penalty”). Thus, following
this court’s precedents, we conclude that the State of Ohio is not barred from seeking the
death penalty in the new penalty-phase trial against Mason, even though the State failed
to recommence the sentencing proceeding within this court’s 180-day deadline.




        4
          The district court’s order stated that the 180-day clock began on May 6, 2009. When the stay
was granted on August 7, 2009, 93 days had elapsed. Therefore, when the stay was lifted on December
1, 2009, 87 days remained, and thus the 180-day window according to the district court’s erroneous
calculations ended on February 26, 2010.
No. 11-4020        Mason v. Mitchell                                           Page 10


                                IV. CONCLUSION

       For the foregoing reasons, we MODIFY the judgment of the district court. The
State may seek the death penalty at the penalty-phase retrial only if the penalty-phase
retrial commences within 180 days from the date that the mandate issues from this court
in this matter. We REMAND to the district court.
