                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0828n.06

                                           No. 08-2237                                    FILED
                                                                                      Dec 22, 2009
                          UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

CLARENCE SCOTT,

       Petitioner-Appellant,
                                                      ON APPEAL FROM THE UNITED
v.                                                    STATES DISTRICT COURT FOR THE
                                                      EASTERN DISTRICT OF MICHIGAN
MICHIGAN STATE;
BARBARA BOCK,

       Respondents-Appellees.                                           OPINION

                                               /


BEFORE:        MERRITT, CLAY, and MCKEAGUE, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Clarence Scott appeals an order entered by the district

court denying his motion for issuance of an absolute grant of the writ of habeas corpus pursuant to

28 U.S.C. § 2254, after the State failed to retry him within the period prescribed by his conditional

grant of habeas corpus. For the reasons set forth below, we AFFIRM the district court’s decision.

                                         BACKGROUND

       In 1995, a jury in the Recorder’s Court for the City of Detroit, Michigan convicted Petitioner

Clarence Scott of first-degree premeditated murder, first-degree felony murder, and possession of

a firearm during the commission of a felony. Petitioner was tried with a co-defendant, Isaac Collier,

Jr., who was convicted of felony murder. According to the Michigan Court of Appeals, the

convictions arose from
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       the shooting death of Elwin Lilley on April 2, 1994 near Metro Airport in Romulus.
       Defendants attempted to steal money from the victim while he was in his parked car
       in the parking lot of a McDonald’s restaurant. Scott, who had a sawed-off shotgun
       in the waistband of his pants, put the gun to the victim’s head and demanded money.
       After the victim started his car and attempted to drive away, Scott shot him in the
       head. Both defendants then took some items from the car. Collier then ran to a gas
       station and stole a getaway car.

People v. Collier, Nos. 184478 & 184480, 1997 Mich. App. LEXIS 1327, at *2 (Mich. Ct. App. May

30, 1997). The trial court sentenced Petitioner to mandatory life imprisonment without parole for

both first-degree premeditated murder and first-degree felony murder and two years for the felony

firearm conviction. Scott has completed his sentence for the felony firearm conviction. Based on

double jeopardy grounds, the Michigan Court of Appeals vacated Scott’s felony murder charge, but

affirmed his convictions for the felony firearm offense and premeditated murder. The Michigan

Supreme Court denied leave to appeal.

       On August 2, 1999, Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254,

alleging four grounds for relief, only one of which is relevant on appeal. Petitioner alleged that his

right to confrontation under the Sixth Amendment was violated by allowing a statement by Collier

to be read to the jury when Collier subsequently chose not to testify. The district court found that

“[t]he trial court violated the petitioner’s constitutional rights by allowing in evidence the pretrial

statement of a nontestifying co-defendant that incriminated the petitioner.” Thus, on January 13,

2003, it conditionally granted a writ of habeas corpus that required Michigan to either release Scott

from custody or bring him to trial within ninety days. We affirmed and the Supreme Court denied




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the State’s petition for a writ of certiorari on January 18, 2005. We issued the mandate on February

14, 2005, resetting the ninety-day period within which the new trial must commence.

       Although that ninety-day period ended on May 16, 2005, the State did not initiate

proceedings until May 18, 2005. The case proceeded through the system and a bond hearing was

held at which Petitioner’s release was considered in light of the newly weakened prosecution case.

Trial was scheduled to begin on September 20, 2005. However, Petitioner opted to plead guilty to

second-degree murder and possession of a firearm during the commission of a felony under an

agreement capping his sentence at twenty-eight years for the murder and two years for the felony

firearm offense. Scott recently moved to invalidate his plea, asserting that his counsel at the time

of the plea was ineffective and that the state court lacked jurisdiction to accept his guilty plea

because of its failure to commence trial proceedings within the ninety day period. Petitioner also

moved for an absolute grant of a writ of habeas corpus and a determination that he should be released

from prison because of the State’s noncompliance with the ninety-day deadline. The district court

denied Scott’s motion. Scott appeals.

                                          DISCUSSION

       A.      Standard of Review

       In a habeas proceeding, we review de novo the district court’s disposition of the habeas

petition. Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006).

       B.      Analysis




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       District courts generally favor conditional grants of the writ of habeas corpus because they

give the state “an opportunity to cure its constitutional errors” and “maintain comity among co-equal

sovereigns.” McKitrick v. Jeffreys, 255 F. App’x 74, 75-76 (6th Cir. 2007) (citing Hilton v.

Braunskill, 481 U.S. 770, 775 (1987)). “[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, 481 U.S. at 775 (citations omitted). As the Seventh Circuit has noted,

“[c]onditional orders are essentially accommodations accorded to the state. They represent a district

court’s holding that a constitutional infirmity justifies petitioner’s release. The conditional nature

of the order provides the state with a window of time within which it might cure the constitutional

error.” Phifer v. Warden, 53 F.3d 859, 864-65 (7th Cir. 1995).

       “[T]he sole distinction between a conditional grant 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.” Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.

2006). When the state fails to comply with the order’s conditions, “[a] conditional grant of a writ

of habeas corpus requires the petitioner’s release from custody.” Satterlee, 453 F.3d at 369

(alteration in original) (citing Fisher v. Rose, 757 F.2d 789, 791 (6th Cir. 1985)); accord, Wilkinson

v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J., concurring) (“Conditional writs enable habeas courts

to gives States time to replace an invalid judgment with a valid one, and the consequence when they

fail to do so is always release.”). However, not all instances of noncompliance by the state result in

a prisoner’s immediate release. The district court may make exceptions where the State has


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“substantially complied” with the terms of the order. McKitrick, 255 F. App’x at 76. When a

petitioner alleges noncompliance, the district court must make a finding regarding the sufficiency

of the action taken by the state and determine whether the petitioner is prejudiced by the

noncompliance. Id.

        Petitioner argues that the State failed to substantially comply with the conditional grant of

the writ and that he is, therefore, entitled to an absolute grant of the writ of habeas corpus barring

re-trial by the State. The State argues that it substantially complied with the conditional grant of the

writ because the first hearing regarding the trial proceedings was conducted two days after the

ninety-day deadline and the case proceeded in an ordinary fashion from thereon. The district court

concluded that the State failed to substantially comply.

        We disagree. The first hearing in the trial court occurred on May 18, a mere two days after

the deadline imposed by the district court and Scott’s case proceeded through the system in typical

fashion thereafter. Scott does not allege that he was in any way prejudiced by the two day delay nor

is there any indication that he was prejudiced. Moreover, as long as a prisoner does not remain in

custody pursuant to a constitutionally defective conviction, “the state is not precluded from

rearresting [him] and retrying him under the same indictment.” Satterlee, 453 F.3d at 370 (quoting

Fisher, 757 F.2d at 791); see Wilkinson, 544 U.S. at 83 (“[A] case challenging a sentence seeks a

prisoner’s ‘release’ in the only pertinent sense: It seeks invalidation . . . of the judgment authorizing

the prisoner’s confinement; the fact that the State may seek a new judgment (through a new trial or

a new sentencing proceeding) is beside the point.”). Here, Petitioner was never released from


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custody and re-arrested, but a bond hearing was held at which Petitioner’s release was considered

in light of the newly weakened prosecution case. As a result, beginning on May 18, 2005, Scott was

in custody not because of the constitutionally defective conviction, but because of the charges for

which the State intended to retry him.

        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 the

petitioner’s reprosecution. Satterlee, 453 F.3d at 370 (quoting 2 Randy Hertz & James S. Liebman,

Federal Habeas Corpus Practice and Procedure § 33.3, at 1685-86 (5th ed. 2005)). This extreme

remedy is not intended for routine use. See Cave v. Singletary, 84 F.3d 1350, 1359 (11th Cir. 1996)

(Kravitch, J., dissenting) (“[T]o recognize that this extreme remedy is authorized is not to condone

its routine use; habeas courts must exercise discretion.”). “[T]he mere fact that a new trial has not

been held within the time period for which continued imprisonment was authorized cannot, by itself,

justify the court in doing anything more than ordering the prisoner released once the prescribed time

for keeping him in prison has expired.” Flenoy v. Russell, No. 89-3326, 1990 WL 61114, at *3 (6th

Cir. May 8, 1990).

        In this case, there are no extraordinary circumstances to justify barring retrial by the State.

The State substantially complied with the conditional grant of the writ and there is nothing in the

record to suggest that its failure to act within the ninety-day deadline was abusive. Petitioner has not




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alleged any prejudice caused by the State’s delay and there is no indication that his constitutional

rights were further infringed. For these reasons, we AFFIRM the district court’s decision.




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