                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0236n.06

                                          No. 13-6648
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                        Mar 31, 2015
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


DERRY LOVINS,                                           )
                                                        )
       Petitioner-Appellant,                            )
                                                        )
                                                               ON APPEAL FROM THE
               v.                                       )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE WESTERN
TONY PARKER, Warden,                                    )
                                                               DISTRICT OF TENNESSEE
                                                        )
       Respondent-Appellee.                             )
                                                        )
                                                        )


BEFORE: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge. Our court previously issued a conditional writ of habeas corpus

for the release of petitioner Derry Lovins. However, the State of Tennessee failed to comply

with the writ within 180 days. Thereafter, Lovins filed a motion in the United States District

Court for the Western District of Tennessee to enforce the writ and to prohibit the state from

rearresting and resentencing him. The district court ordered Lovins’s release but declined further

relief. Subsequently, the state rearrested Lovins and resentenced him. In this appeal, Lovins

asks us to void his rearrest and resentencing. We decline to do so and affirm the district court

because Lovins has not shown that his case presents “extraordinary circumstances” warranting

exceptional relief.
No. 13-6648
Lovins v. Parker


                                                I.

       In 2002, a Tennessee state court jury convicted Lovins of second-degree murder. Lovins

v. Parker, 712 F.3d 283, 289 (6th Cir. 2013). At sentencing, the state trial judge identified

various aggravating factors and enhanced Lovins’s sentence from twenty to twenty-three years.

Although Lovins did not file an appeal, the state court of appeals later granted his delayed

application for permission to appeal. Lovins v. State, No. W2005-01446-CCA-R3-PC, 2007 WL

2700097, at *1 (Tenn. Crim. App. Sept. 14, 2007), perm. app. denied (Tenn. Feb. 25, 2008). The

state courts ultimately affirmed Lovins’s conviction and sentence and denied his petition for

post-conviction relief. Id.

       Lovins subsequently filed a petition for writ of habeas corpus with the federal district

court. The district court denied his petition. We affirmed the district court’s denial with respect

to Lovins’s conviction but reversed with respect to his sentence, holding that Blakely v.

Washington, 542 U.S. 296 (2004), applied retroactively to his case. Lovins, 712 F.3d at 300−02,

304. Accordingly, we issued a conditional writ of habeas corpus directing Lovins’s release if the

State of Tennessee did not initiate proceedings within 180 days to either resentence Lovins to the

presumptive statutory sentence of twenty years or provide him with a new sentencing hearing

consistent with his Sixth Amendment right to trial by jury. Id. at 305.

       The state admittedly failed to act within 180 days. Over a month after the deadline,

Lovins filed an emergency motion in the district court to enforce our conditional writ. He further

asked the court to prohibit the state from rearresting and resentencing him. After a hearing and

supplemental briefing, the district court ordered Lovins released but denied his request to

prohibit the state from rearresting and resentencing him. Lovins was released but immediately



                                                -2-
No. 13-6648
Lovins v. Parker


rearrested. He has since been resentenced to twenty years. On appeal, Lovins asks us to void his

rearrest and resentencing.

                                                  II.

       The narrow issue before us is whether the State of Tennessee should be barred from

rearresting and resentencing Lovins because its failure to comply with the terms of our writ of

habeas corpus was “inexcusable.” Our court reviews a district court’s decision to grant or deny a

writ of habeas corpus de novo and reviews its factual findings for clear error. Girts v. Yanai, 600

F.3d 576, 583 (6th Cir. 2010). We review de novo the legal conclusion of whether those facts

rise to the level of “extraordinary circumstances” warranting an order barring reprosecuting. Id.

       “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.” Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir.

2006) (internal quotation marks omitted). However, “[t]he 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.’” D’Ambrosio v. Bagley, 656 F.3d 379, 383

(6th Cir. 2011) (quoting Satterlee, 453 F.3d at 370). A habeas court “may forbid reprosecution”

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.” Satterlee, 453 F.3d at 370 (internal quotation

marks and alterations omitted).

       On appeal, Lovins argues that barring his rearrest and resentencing is mandated because

the state inexcusably failed to meet the 180-day deadline, the state twice failed to file the

complete state court record in federal district court, and principles of equity weigh in his favor.

                                                 -3-
No. 13-6648
Lovins v. Parker


The state responds that such an exceptional remedy is not warranted because the state’s

omissions were inadvertent, and Lovins has not been prejudiced because his underlying

conviction is valid. We agree with the district court that the facts of this case do not rise to the

level of “extraordinary circumstances.”

       Three facts weigh against granting exceptional relief. First, the state’s failure to comply

with the conditional writ, while troubling, was not committed in bad faith. The state asserted

that it failed to act due to miscommunication between state entities. Second, the state’s error

lasted a relatively short period of time, and the state quickly complied with the writ after the

error was brought to its attention. Finally and importantly, Lovins’s conviction is valid. Only

the length of his sentence is at issue. At the time of release, Lovins had served approximately

eleven years and six months of a twenty-three-year sentence.          Accordingly, when he was

resentenced to twenty years, he had not served time on an invalid conviction or served more than

the statutory maximum of twenty years. Similarly, because his conviction was not at issue, the

state’s delay was not “likely to prejudice the petitioner’s ability to mount a defense at trial.”

Satterlee, 453 F.3d at 370 (internal quotation marks omitted).

       Lovins argues that his case presents extraordinary circumstances because the state’s error

was more egregious than in Girts, a comparable case. There, the petitioner was twice convicted

of the murder of his wife. 600 F.3d at 578. Both convictions were subsequently overturned due

to prosecutorial misconduct, the first on direct appeal and the second before our court on habeas

review. Girts v. Yanai, 501 F.3d 743, 761 (6th Cir. 2007). We granted a conditional writ,

directing the release of the petitioner from custody if he was not retried within 180 days. Id.

Failing to retry him by the deadline, the state released him but subsequently rearrested him.

Girts, 600 F.3d at 578. The petitioner asked us to bar reprosecution, but we declined, despite

                                                -4-
No. 13-6648
Lovins v. Parker


“multiple instances of prosecutorial misconduct,” because the relevant facts “[did] not rise to the

level of ‘extraordinary circumstances’ contemplated in Satterlee.” Id. at 586; see also id. at 584

n.5 (“[A] long prison term or even two instances of prosecutorial misconduct do not

automatically lead to barring retrial.”). Like Lovins, Girts argued that the state’s failure to act

within the deadline was “inexcusable.”       Id. at 585.    Although our court found the state’s

misconduct “troubling,” it observed that the parties had not presented, and the court had not

independently found, cases in which retrial was barred in a similar situation. Id. Rather, the

precedent supported that even after a state fails to retry a petitioner during the period provided by

the conditional writ, the state “routinely” retains the opportunity to retry the petitioner following

release. Id.

       Lovins emphasizes that in Girts, unlike in this case, the state technically complied with

the conditional writ by seeking an extension before the deadline and releasing Girts at the new

deadline. See id. at 585 n.6 (“It is crucial to our analysis that the state requested and was granted

an extension. Therefore, the state was technically always compliant with court orders. Absent

the extension, the continued incarceration of Petitioner on the improper conviction may have

presented extraordinary circumstances.”) In Lovins’s case, by contrast, the state did not comply

with the writ because it neglected to release Lovins at the deadline and did not seek an extension.

It was not until Lovins filed an emergency motion to enforce the writ―approximately fifty-one

days after the deadline―that the state was aware of its error. Ultimately, the state was tardy by

fifty-six days. Nevertheless, this distinction does not compel us to bar Lovins’s rearrest and

resentencing because Lovins was never incarcerated on an improper conviction or likely to be




                                                 -5-
No. 13-6648
Lovins v. Parker


prejudiced in his defense against reprosecution.1 Accordingly, his case does not present the

same concerns that troubled our court in Girts.

         Finally, Lovins argues that principles of equity weigh in his favor. Specifically, he

contends that denying him relief would allow the state to act with impunity. Although a relevant

consideration, our default rule is that a state may retry a defendant after his release, absent

extraordinary circumstances. In light of the aforementioned facts that weigh against exceptional

relief, Lovins’s equitable arguments are not compelling. Moreover, we have previously favored

remedies that “restore [a petitioner] to the position in which he would have been had the

deprivation not occurred.” Satterlee, 453 F.3d at 370 n.7 (internal quotation marks omitted).

Applied here, the remedy best tailored to Lovins’s constitutional injury is to reduce his sentence

to the twenty years that he would have received absent the Blakely violation, not prohibiting

rearrest and resentencing altogether. We therefore agree with the district court that this case does

not present “extraordinary circumstances” warranting exceptional relief.

                                                         III.

         For these reasons, we affirm the judgment of the district court.




         1
          We note, however, that Satterlee leaves open the possibility that a state’s “inexcusable” failure to act by
the deadline imposed by the court could be a sufficient basis alone to bar reprosecution. 453 F.3d at 370 (holding
that “extraordinary circumstances” warranting a bar on reprosecution include “when the state inexcusably,
repeatedly, or otherwise abusively fails to act within the prescribed time period”) (internal quotation marks omitted).

                                                         -6-
