                                                                              FILED
                         NOT FOR PUBLICATION                                  OCT 16 2014
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                         FOR THE NINTH CIRCUIT                              U.S. COURT OF APPEALS




TODD M. HONEYCUTT,                               No. 14-16119

              Petitioner - Appellee,             D.C. No. 2:06-cv-00634-RLH-
                                                 GWF
  v.

BILL DONAT, Warden; ATTORNEY                     MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellants.



TODD M. HONEYCUTT,                               No. 14-16127

              Petitioner - Appellant,            D.C. No. 2:06-cv-00634-RLH-
                                                 GWF
  v.

BILL DONAT, Warden; ATTORNEY
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding
                     Argued and Submitted October 6, 2014
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, W. FLETCHER, and WATFORD, Circuit Judges.

      In a prior disposition, we reversed in part the district court’s order denying

petitioner Todd Honeycutt’s writ of habeas corpus, holding that Nevada had

violated Honeycutt’s Sixth Amendment right to counsel by admitting uncounseled

statements in Honeycutt’s joint trial for sexual assault, kidnapping, and solicitation

of murder. Honeycutt v. Donat, 535 F. App’x 624, 629 (9th Cir. 2013). We

remanded the case to the district court to determine the appropriate remedy.

Nevada appeals the district court’s subsequent order vacating Honeycutt’s

solicitation of murder conviction in addition to his sexual assault and kidnapping

convictions. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

      We review de novo a district court’s compliance with our mandate. United

States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000). With regard to matters

that have been decided, the court “cannot vary [the mandate], or examine it for any

other purpose than execution; or give any other or further relief; or review it, even

for apparent error, upon any matter decided on appeal; or intermeddle with it,

further than to settle so much as has been remanded.” In re Sanford Fork & Tool

Co., 160 U.S. 247, 255 (1895); see also Kellington, 217 F.3d at 1093 (quoting In re

Sanford). The district court is free to act, however, as to any issues that are not

“foreclosed by the mandate.” Kellington, 217 F.3d at 1092 (internal quotation and


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citation omitted). To distinguish matters that have been settled by this court from

matters that have not, the district court should “consider the opinion the mandate

purports to enforce as well as the procedural posture and substantive law from

which it arises.” Id. at 1093.

      We review a district court’s habeas remedy for abuse of discretion. Johnson

v. Uribe, 682 F.3d 1238, 1243, as amended by 700 F.3d 413 (9th Cir. 2012). If the

district court used the correct legal standard, its decision will not be disturbed

unless it was “illogical, implausible, or without support in inferences that may be

drawn from facts in the record.” Id. at 1243 n.5.

      In our prior mandate, we did not foreclose vacatur of Honeycutt’s

solicitation conviction as part of the remedy for the Sixth Amendment violation

that infected Honeycutt’s trial. The district court accordingly acted within its

discretion by vacating the solicitation conviction. Given the nature of the error at

issue in this case, it is clear that in any retrial of Honeycutt, Nevada will be

required to try separately the solicitation charges from the sexual assault and

kidnapping charges if it wishes to rely, in any way, on the evidence obtained in

violation of Massiah v. United States, 377 U.S. 201 (1964).

      AFFIRMED.




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