                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0265p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                       X
                                Petitioner-Appellee, -
 CARRIE GENTRY,
                                                        -
                                                        -
                                                        -
                                                           No. 05-6273
             v.
                                                        ,
                                                         >
 DORIS DEUTH, Warden, Kentucky Correctional             -
                                                        -
                              Respondent-Appellant. -
 Institute for Women,

                                                        -
                                                      N
                         Appeal from the United States District Court
                      for the Western District of Kentucky at Paducah.
                     No. 03-00015—Edward H. Johnstone, District Judge.
                                       Argued: May 31, 2006
                                Decided and Filed: July 31, 2006
          Before: BOGGS, Chief Judge; and GIBBONS and GRIFFIN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: William Robert Long, Jr., OFFICE OF THE ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellant. Timothy G. Arnold, DEPARTMENT OF PUBLIC ADVOCACY,
Frankfort, Kentucky, for Appellee. ON BRIEF: William Robert Long, Jr., OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellant. Timothy G. Arnold, DEPARTMENT
OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
         BOGGS, Chief Judge. This is a case in which the district court granted a conditional writ
of habeas corpus after the petitioner had already been released from incarceration, but no party
challenges that order. Instead, the respondent-appellant Commonwealth of Kentucky challenges the
district court’s subsequent order rendering the conditional writ absolute in response to the appellee’s
motion to enforce, on the grounds that the commonwealth had failed to comply with the district
court’s conditions. By the express terms of this order, the district court nullified the petitioner-
appellee’s criminal conviction so that she would not suffer any collateral consequences as a result
of her felony conviction. For the reasons stated below, we affirm.




                                                  1
No. 05-6273           Gentry v. Deuth                                                          Page 2


                                                  I
        The facts of this case are not in dispute. On January 28, 1999, Carrie Gentry met Brian Pettit
at Ginger and Pickles, a bar in McCracken County, Kentucky. Both were drinking, though Gentry
claims that she was much more sober than her new friend. Gentry agreed to drive Pettit, in his 1991
Ford Mustang, to her apartment. Upon arriving at her home, however, Pettit wished to continue
listening to some new music that he had recently purchased, so Gentry agreed to keep driving so as
not to wake her daughter who was asleep in the apartment. While driving, Gentry failed to negotiate
a curve. The car crossed the center line, hit a bridge abutment, and flipped in the air. Both Pettit
and Gentry were ejected from the vehicle. Pettit died at the scene.
         Gentry was indicted by a grand jury for driving under the influence and manslaughter in the
second degree. During trial, the Commonwealth introduced, over Gentry’s objections, the testimony
of five expert witnesses – state employees testifying as to Gentry’s blood alcohol level and as to
physical evidence in the car that pointed to her as having been the driver – via two-way closed-
circuit television. Gentry was convicted and sentenced to five years in prison. Gentry’s appeals
were denied at all levels, including the United States Supreme Court. Gentry v. Kentucky, 537 U.S.
981 (2002) (denying cert.).
        Gentry filed the instant habeas petition on January 23, 2003. While her petition remained
pending, she was released from prison in July 2003. The district court denied her habeas petition
on March 18, 2004, holding that although the Commonwealth had violated Gentry’s Sixth
Amendment Confrontation Clause rights by employing the two-way closed-circuit system without
good cause, the error had been harmless. Gentry then filed a motion to alter or amend judgment, and
the district court subsequently changed its mind, holding that its prior harmless error analysis had
been inadequate. The court conditionally granted a writ of habeas corpus “if the Commonwealth
does not retry Gentry within ninety days of the entry of this judgment should appeal not be taken,
or within ninety days of any final opinion on appeal that affirms this revisited decision should an
appeal be taken by the respondent.” The order was entered on the docket on May 21, 2004.
Kentucky filed an appeal, but then dropped it voluntarily on July 14, 2004.
       On January 27, 2005, Gentry filed a motion asking the district court to enforce its May 2004
judgment by voiding the Commonwealth’s conviction so that she would not face any collateral
consequences as a result of having been convicted of a felony. The district court granted this motion
on July 21, 2005, converting the conditional grant of habeas into an absolute grant, and nullifying
the conviction. The Commonwealth thereafter filed a timely appeal from that order.
                                                  II
        We review a district court’s disposition of a habeas petition de novo, and its findings of fact
for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). Questions of law or mixed
questions of law and fact are reviewed de novo. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.
2005). As this appeal is essentially predicated on a technical legal issue – whether the district court
possessed jurisdiction over the motion to enforce and the authority to nullify the Commonwealth’s
conviction – we must apply de novo review.
                                                  A
       The Commonwealth first argues that Gentry’s January 2005 motion to enforce should be
construed as a motion to alter or amend judgment pursuant to Rule 59 of the Federal Rules of Civil
Procedure and that such a motion would have been untimely as it was filed eight months after entry
of judgment. The state predicates this argument on its assertion that Gentry was asking for relief
that she had not been previously granted – relief from collateral consequences of her felony
conviction – and that such relief was extrinsic to the conditional writ. As such relief was ostensibly
No. 05-6273           Gentry v. Deuth                                                            Page 3


not granted by the district court’s May 2004 order, the state thus suggests that Gentry was essentially
asking the court to alter or amend its judgment pursuant to Civil Rule 59.
         The Commonwealth is wrong. In her January 2005 motion, Gentry clearly asked the district
court to enforce its May 2004 judgment, and she did not challenge or seek to amend that order. The
district court issued its May 2004 order “conditionally granting [the writ] if the Commonwealth does
not retry Gentry within ninety days of the entry of this judgment should not appeal be taken, or
within ninety days of any final opinion on appeal that affirms this revisited decision should an
appeal be taken by the respondent.” The Commonwealth unquestionably failed to grant Gentry a
new trial, and therefore it failed to abide by the condition that the district court had established. As
there was no need to release Gentry from incarceration, the only action required was to expunge
Gentry’s record of her unconstitutional felony conviction. The Commonwealth took no such action.
Gentry therefore filed her January 2005 motion asking for the essential relief contemplated by the
conditional order, for the court’s May 2004 order implicitly expected that the Commonwealth would
vacate the prior judgment pursuant to seeking a new trial, and thus the Commonwealth’s failure to
seek a new trial effectively circumvented the district court’s purpose. The motion was thus not filed
pursuant to Civil Rule 59, and it was not untimely.
                                                   B
        The Commonwealth next argues that the district court did not retain jurisdiction to hear this
matter. Again, the Commonwealth is incorrect. In the first place, the sole distinction between a
conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless and
until the state fails to perform the established condition, at which time the writ springs to life. See
Smith v. Lucas, 9 F.3d 359, 366-67 (5th Cir. 1993); McQuillion v. Duncan, 253 F. Supp.2d 1131,
1134 (C.D. Cal. 2003). District courts rightly favor conditional grants, which provide states with
an opportunity to cure their constitutional errors, out of a proper concern for comity among the co-
equal sovereigns. “[C]ourts may delay the release of a successful habeas petitioner in order to
provide the State an opportunity to correct the constitutional violation found by the court.” Hilton
v. Braunskill, 481 U.S. 770, 775 (1987). Absolute grants are therefore generally limited to situations
where the nature of the error is simply incurable, such as a conviction under an unconstitutional
statute. See, e.g., Staley v. Jones, 108 F. Supp. 2d 777, 788 (W.D. Mich. 2000), rev’d on other
grounds, 239 F.3d 769 (6th Cir. 2001). Conditional grants of writs of habeas corpus are final orders,
Phifer v. Warden, United States Pen., Terre Haute, Ind., 53 F.3d 859, 862 (7th Cir. 1995), exactly
like absolute grants, and they ordinarily and ideally operate automatically, that is, without the need
for the district court to act further.
        Nevertheless, district courts retain jurisdiction to execute a lawful judgment when it becomes
necessary. “If the state complies with its order, the petitioner will not be released; if the state fails
to comply with its order, release will occur. Ordinarily, the only task that remains for the district
court is the execution of judgment.” Ibid. “A federal district court retains jurisdiction to determine
whether a party has complied with the terms of a conditional order in a habeas case. A state’s failure
to timely cure the error identified by a federal district court in its conditional habeas order justifies
the release of the petitioner.” Satterlee v. Wolfenbarger, No. 03-71682-DT, 2005 U.S. Dist. LEXIS
25874, at *6 (E.D. Mich. Oct. 19, 2005) (internal citations omitted) (vacating petitioner’s
conviction), aff’d in part, __ F.3d __ (6th Cir. 2006). See also Santos-Rosario v. Renico,
05-CV-70456, 2006 U.S. Dist. LEXIS 14074, at *3-4 (E.D. Mich. March 30, 2006) (denying writ
even though the state failed to comply with the precise terms of the district court’s conditions
because the state had substantially complied with the conditions). On the other hand, when a state
meets the terms of the habeas court’s condition, thereby avoiding the writ’s actual issuance, the
habeas court does not retain any further jurisdiction over the matter. Pitchess v. Davis, 421 U.S.
482, 490 (1975) (per curiam) (noting “[n]either Rule 60 (b), 28 U.S.C. § 2254, nor the two read
No. 05-6273           Gentry v. Deuth                                                            Page 4


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.”).
         As Gentry had been released from prison prior to the district court’s order, the
Commonwealth obviously had no duty under the district court’s order to take any action with respect
to her person. However, Gentry’s status as a convicted felon apparently remained in force, as the
Commonwealth did not nullify her conviction, and thus her January 2005 motion reasonably asked
the court to enforce its order by making the conditional writ absolute. Therefore, we find that the
district court retained jurisdiction to enforce its conditional grant of a writ of habeas corpus.
                                                  C
        Next, the Commonwealth argues that Gentry’s January 2005 motion was moot because the
essential object of the conditional habeas writ – release of the person of the petitioner – had already
been met, claiming
       the condition for granting the writ occurred and Gentry, who had already completed
       service of her sentence, was entitled to be released from custody. The district court’s
       judgment did not void or otherwise vacate the state court’s judgment of conviction
       nor did it place any other duty or condition on the Commonwealth.
Appellant’s Br. at 15-16. Thus, the Commonwealth argues, “once the condition occurred and
Gentry was released from custody there ceased to be a case in [sic] controversy.” Ibid. This simply
misstates the law respecting habeas relief, for it muddies the clear distinction between a habeas
petition challenging a conviction, and one challenging the particularities of sentencing.
        Article III, Section 2 of the United States Constitution authorizes the federal judiciary only
to hear cases or controversies, and therefore federal courts may not exercise jurisdiction when the
controversy has been mooted, that is to say, when the “issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Los Angeles County v. Davis, 440 U.S.
625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). See also Stewart v.
Blackwell, 444 F.3d 843, 855-56 (6th Cir. 2006). Although the Supreme Court had seemed to limit
habeas relief to “the body of the petitioner” in Fay v. Noia, 372 U.S. 391, 430-31 (1963), a stance
that was in line with the writ’s historical function of releasing prisoners from incarceration, the
Court subsequently expanded the writ’s scope in Carafas v. LaVallee, 391 U.S. 234, 237 (1968),
stating that the petitioner’s challenge was not mooted by his release from incarceration prior to his
hearing because, “in consequence of his conviction, he cannot engage in certain businesses; he
cannot serve as an official of a labor union for a specified period of time; he cannot vote in any
election held in New York State; he cannot serve as a juror.” Ibid. Therefore, “[o]n account of these
‘collateral consequences,’ the case is not moot.” Id. at 237-38. The Court reached a similar decision
a few weeks later in Sibron v. New York, 392 U.S. 40 (1968), in which the petitioner had been
released prior to argument in the state intermediate appellate court. Therefore the Supreme Court
has found that the appropriate remedy for a writ of habeas corpus issued pursuant to an unlawful
criminal conviction includes relief not only from the conviction’s direct consequences (e.g.
incarceration), but also from its collateral consequences. Id. at 55-58.
        We have followed this precedent, as we must. In Abela v. Martin, 380 F.3d 915, 921 (6th
Cir. 2004), we held, in part, that a petitioner’s “release from custody and the subsequent conclusion
of his parole term, after the filing of his habeas petition [challenging his conviction], do not render
moot his appeal from the district court’s denial of the petition” because “of the continuing collateral
consequences to a wrongful criminal conviction.” Ibid. (citing Spencer v. Kemna, 523 U.S. 1, 8
(1998)). Similarly, in Brewer v. Dahlberg, 942 F.2d 328, 335 (6th Cir. 1991), we held that a
petitioner’s challenge to his parole status, rather than a challenge to a parole revocation and
No. 05-6273            Gentry v. Deuth                                                            Page 5


consequent incarceration for parole violation, meant that his case was not rendered moot simply
because he was no longer imprisoned for his parole revocation. In Green v. Arn, 839 F.2d 300, 301-
02 (6th Cir. 1988), we concluded that a habeas petition was not mooted by the petitioner’s release
from prison prior to the court’s determination, for the petitioner could still face “significant
collateral consequences flow[ing] from a criminal conviction.” See also Stotts v. Perini, 427 F.2d
1296, 1297 (6th Cir. 1970) (“Petitioner’s action is not mooted by his release from custody, because
‘disabilities’ may still result from the conviction which he is attacking.”).
        The Commonwealth mistakenly relies on a line of decisions that addresses habeas petitions
attacking the sentence rather than the conviction. Post-release habeas petitions challenging the
conditions of confinement are almost necessarily moot, for courts normally cannot offer any habeas
redress in such circumstances. As the Spencer Court noted:
        Once the convict’s sentence has expired, however, some concrete and continuing
        injury other than the now-ended incarceration or parole – some “collateral
        consequence” of the conviction – must exist if the suit is to be maintained. In recent
        decades, we have been willing to presume that a wrongful criminal conviction has
        continuing collateral consequences (or, what is effectively the same, to count
        collateral consequences that are remote and unlikely to occur).
Spencer v. Kemna, 523 U.S. at 7-8 (citations omitted). The Court in Lane v. Williams, 455 U.S. 624
(1982), found moot the habeas petitions of defendants who had pled guilty to a felony pursuant to
a plea agreement. The petitioners in that case challenged their incarceration for parole violation
after they had served their sentences, and they alleged that they had been unaware that their plea
bargains had included a term of parole. The district court granted them specific performance of their
plea agreement by declaring void the mandatory parole terms. The Supreme Court then held that
their petition was moot because they had been released during the petition’s pendency, and because
their petition attacked only their sentences. Id. at 630-31. See also Parker v. Ellis, 362 U.S. 574
(1960). In Diaz v. Kinkela, 253 F.3d 241, 243-44 (6th Cir. 2001), the petitioner, while serving a
prison sentence for a matter unrelated to his later petition, was convicted by the parole board for
felonious assault and possessing a dangerous weapon while in detention, and his term of
incarceration was increased by 90 days under Ohio’s “bad acts” statute. The petitioner challenged
that “bad acts” conviction and his additional 90-day sentence, but, before the district court could
hear his case, he was released from prison, and Ohio’s Supreme Court found the “bad acts” statute
to be unconstitutional. Id. at 243. The district court thereafter denied his petition, and we affirmed,
because the challenged conviction had already been nullified, and the court found moot his sole
surviving challenge to the additional 90 days of imprisonment because he had long since been
released from prison. Id. at 243-44.
         With respect to injury, an essential element of a live controversy, the law does not require
a habeas petitioner to prove by a preponderance of the evidence that she may face collateral
consequences of her unconstitutional felony conviction, for the disabilities consequent to a felony
conviction are legion, and patently obvious in many cases. Indeed, as we have already noted, the
Supreme Court has acknowledged that it has allowed federal courts to presume the existence of
collateral consequences “in recent decades.” Spencer, 523 U.S. at 8. Moreover, in the case before
us, the petitioner has pointed to Kentucky statutes that, on their face and as a matter of law, strip her,
as a felon, of certain rights and privileges, including, inter alia, the right to vote and certain driving
privileges. See Ky. Const. § 145 (stripping felons of the right to vote); Ky. Const. § 150 (restricting
felons from holding public office); Ky. Rev. Stat. Ann. § 29A.080(2)(e) (2006) (disallowing felons
from serving on juries); Ky. Rev. Stat. Ann. § 527.040 (2006) (disallowing felons from possessing
firearms); Ky. Rev. Stat. Ann. § 189A.070 (2006) (revoking driver’s license pending alcohol
treatment program); Ky. Rev. Stat. Ann. § 532.080 (2006) (making felons eligible for persistent
felony offender charges). There are also well-known collateral consequences of a felony conviction
No. 05-6273           Gentry v. Deuth                                                         Page 6


under federal law of which we take judicial notice. See, e.g., 18 U.S.C. § 922(g) (disallowing felons
from possessing firearms). Therefore, to the extent that she was required to make a minimal
showing of possible collateral consequences of her unconstitutional criminal conviction, Gentry has
done so.
        The instant petitioner raised a live and viable challenge to her felony conviction. Abela,
Spencer, and the entire line of decisions dating back to Carafas, thus control this case. As such, the
law obligates us to hold that Gentry’s challenge to her conviction and its attendant direct and
collateral consequences is not mooted simply by the fact of her prior release.
                                                  D
         Focusing on the fact that the petitioner in Diaz had proposed as a remedy that we reduce his
post-release control by 90 days, which we dismissed because he had not exhausted it in the state
courts, the Commonwealth claims that Diaz mandates that we require the instant petitioner to
exhaust her potential challenges to the collateral consequences of her conviction before we can
address them. Yet the Commonwealth has misunderstood our analysis in Diaz. In the first place,
as noted above, the petitioner in Diaz ultimately presented no viable challenge because his “bad
acts” conviction had already been nullified as unconstitutional by the state supreme court before the
district court could review his petition, and because he had long since been released from all
confinement, including that arising from his “bad acts” sentence. As the district court was left with
no possible remedy, his petition was moot. We then dismissed the Diaz petitioner’s proposed
remedy of reducing his post-release control by 90 days because that remedy was extrinsic to his
petition, for the petitioner’s period of post-release control had been determined by his unchallenged
felony conviction, not by his “bad acts” conviction or sentence. Diaz v. Kinkela, 253 F.3d 241.
Therefore, the proposed remedy raised a legal question independent of the habeas petition, and so
the petitioner in Diaz had failed to exhaust his challenge with respect to that issue as required,
requiring us to dismiss his suit.
        Turning to our case, we have already noted that a successful habeas challenge to an
unconstitutional conviction necessitates relief not only from any present incarceration arising from
that conviction, but also from any collateral consequences thereof. Therefore, Gentry’s challenge
to the collateral consequences of her conviction was implied by her original petition challenging her
conviction as unconstitutional, and as she had successfully exhausted her claim before bringing her
habeas petition in the first place, she also met all exhaustion requirements with respect to the
collateral consequences of that challenged conviction.
         Successful habeas petitioners are entitled to the appropriate benefit of the writ, and we
cannot require them to exhaust their claims anew in order to receive that benefit. To mandate that
a petitioner who has obtained a writ of habeas corpus with respect to her unconstitutional conviction
independently challenge the attempted imposition of collateral consequences of her unconstitutional
conviction in state judiciaries, either in toto or seriatim, would, at a minimum, entail a uselessly
formal acknowledgment of the states’ sovereignty, for states could not constitutionally enforce those
collateral consequences. Indeed, the Commonwealth itself implicitly acknowledges this problem
in that it failed to raise any merits defense of its potential imposition of criminal collateral
consequences against Gentry. Even more perniciously, under the Commonwealth’s proposal, a less
ethical state might find itself able in practice to impose collateral consequences of unlawful
convictions when successful habeas petitioners find the task of challenging the attempted imposition
of those consequences too onerous or intimidating. But a government under the law simply could
not long remain under the law by acting in such a manner. Therefore, we hold that the petitioner
is not required to exhaust anew her challenge to the collateral consequences of her unconstitutional
conviction.
No. 05-6273            Gentry v. Deuth                                                            Page 7


                                                   E
         Finally, the Commonwealth asserts that the district court did not possess lawful authority to
nullify the petitioner’s conviction. Relatedly, the state argues that federal courts cannot nullify state
court decisions when “less drastic means of preventing enforcement of collateral consequences
exists.”
         The Commonwealth is wrong in its assertion that federal courts, pursuant to the issuance of
a writ of habeas corpus, lack the proper authority to nullify an unconstitutionally obtained state
criminal conviction. To hold otherwise would be incongruent with the writ’s historical purpose and
with the will of Congress, which has seen fit to empower the federal courts to dispose of habeas
matters “as law and justice require.” 28 U.S.C. § 2243. Accordingly, we have held that federal
courts have been given “broad discretion in fashioning [habeas corpus] relief.” Gall v. Parker, 231
F.3d 265, 335 (6th Cir. 2000). While the courts have heretofore had little occasion to speak directly
to the district court’s authority to nullify an unlawful state conviction, see, e.g., Heck v. Humphrey,
512 U.S. 477, 486-87 (1994) (“in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a [42 U.S.C.] § 1983 plaintiff must prove that the conviction or sentence has
been . . . . [inter alia] called into question by a federal court’s issuance of a writ of habeas corpus”),
nevertheless the law is absolutely clear that the writ releases the successful petitioner from the
state’s custody, and, as we have discussed above, such release includes relief from the conviction’s
collateral consequences when it was the conviction itself that was found to be unconstitutional. As
a practical, logical, and necessary matter, relief from the collateral consequences of an
unconstitutionally obtained state criminal conviction effectively requires expungement of the
conviction from the petitioner’s record, and expungement of the record implies nullification of the
unconstitutional conviction. See Satterlee v. Wolfenbarger, __ F.3d __, slip op. at 7 (“It appears that
we have never expressly addressed whether habeas courts have the power to order the expungement
of the record of a conviction. We conclude that they do.”); Ward v. Wolfenbarger, 340 F. Supp. 2d
773, 776 (E.D. Mich. 2004) (“A federal district court has the authority, in a habeas corpus
proceeding, to order the expungement of a habeas petitioner’s criminal records against all persons
who maintain custody of such records.” (citations and internal quotation marks omitted)). Put
another way, a state acts ultra vires when it obtains a criminal conviction in violation of the United
States Constitution, and ultra vires acts bear no legitimate force in a government under the law. A
public act without legitimate force is indistinct under the law from an act that never was, or an act
that has been voided. Therefore, we hold that the district court acted within its constitutional
authority when it nullified the petitioner’s unlawful criminal conviction.
         In so holding, however, we note that the fact that the writ nullifies the criminal conviction
does not necessarily reverse that conviction, for the writ does not itself generally preclude the
Commonwealth from retrying the petitioner if it can otherwise do so lawfully. Nullification is thus
akin to a non-prejudicial dismissal. See Rimmer v. Fayetteville Police Dept., 567 F.2d 273, 277 (4th
Cir. 1977) (“While the state court judgment is neither reversed nor vacated, the prisoner is released
and the state court judgment authoritatively declared void. Thereafter, the state court judgment
should have no preclusive effect.”); Smith v. Spina, 477 F.2d 1140, 1147-48 (3d Cir. 1973)
(“Although this court has ordered that a writ of habeas corpus issue, such action is not the equivalent
of a reversal of a state conviction. Only the Supreme Court has power, on direct appeal, to reverse
a state judgment of conviction.”); Rosa v. McCray, 03 CIV 4643 (GEL), 2004 U.S. Dist. LEXIS
24772, at *16 (S.D.N.Y. Dec. 8, 2004) (“Short of an order barring retrial, however, which is only
appropriate in ‘extraordinary’ circumstances, even an order requiring release of a petitioner does not
prohibit the reprosecution of the petitioner. 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.”) (citations and internal quotation marks
omitted) (granting writ), rev’d on other grounds, 396 F.3d 210 (2d Cir. 2005).
No. 05-6273           Gentry v. Deuth                                                           Page 8


         Moreover, the Commonwealth is wrong in its suggestion that the district court should have
pursued an option “less drastic” than nullifying the conviction in order to provide the petitioner with
an appropriate and effective remedy. Having correctly issued the writ, the choice of habeas remedy
lies within the district court’s sound discretion, see Hilton, 481 U.S. at 775 (noting that “a court has
broad discretion in conditioning a judgment granting habeas relief”), though, of course, “a federal
district court . . . should give careful consideration to the appropriate demands of comity in
effectuating its habeas corpus decree.” Parisi v. Davidson, 405 U.S. 34, 46 (1972). As it took action
only after the Commonwealth had decided, by its inaction, not to provide the petitioner with
appropriate relief, and as its ultimate choice of remedy lay squarely within its constitutional
authority, the district court did not abuse its discretion by nullifying the Commonwealth’s
unconstitutional conviction.
                                                  III
       For the reasons stated above, we AFFIRM.
