                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2007

Gibbs v. Frank
Precedential or Non-Precedential: Precedential

Docket No. 06-2725




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PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                  Case No: 06-2725

                   BARRY GIBBS,

                           Appellant

                           v.

             FREDERICK K. FRANK;
            DISTRICT ATTORNEY OF
           PIKE COUNTY; ATTORNEY
          GENERAL OF PENNSYLVANIA




    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
             District Court No. 99-CV-1627
    District Judge: The Honorable Edwin M. Kosik


                Argued June 28, 2007

    Before: SMITH,GREENBERG, Circuit Judges



                          1
                and POLLAK, District Judge *

                   (Filed: August 29, 2007)

Counsel:
              Mark A. Berman (argued)
              Hartman, Doherty, Rosa & Berman
              126 State Street
              First Floor
              Hackensack, New Jersey 07601
              Counsel for Appellant

              Thomas W. Corbett, Jr., Attorney General
              Richard A Sheetz, Jr., Executive Deputy
              Attorney General
              Amy Zapp, Chief Deputy Attorney General
              Christopher D. Carusone, Senior Deputy
              Attorney General (argued)
              Office of Attorney General
              Capital Litigation Unit
              16th Floor, Strawberry Square
              Harrisburg, PA 17120
              Counsel for Appellee
                  _____________________

                 OPINION OF THE COURT


       *
        The Honorable Louis H. Pollak, Senior District Judge
for the United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

                               2
                   _____________________

SMITH, Circuit Judge.

        Barry Gibbs appeals from the District Court’s April 27,
2006 judgment denying his application for release. The primary
issue presented in this appeal is whether the District Court
complied with this Court’s earlier mandate “to grant Gibbs’
petition for a writ of habeas corpus and require the state to either
release Gibbs or retry him within a specified time period.”
Gibbs v. Frank, 387 F.3d 268, 277 (3d Cir. 2004) (Gibbs I). The
District Court set this time period at 120 days, but Gibbs’ retrial
did not take place within that time frame. The District Court
excused this delay because it concluded that the delay was due
in large part to Gibbs’ own actions. The secondary issue
presented in this appeal is whether the District Court properly
interpreted its own order establishing the time period of 120
days to include an extension under state procedural rules for the
filing of several pre-trial motions. We agree that the District
Court complied with our prior mandate and properly exercised
its discretion in excusing the brief delay in the Pennsylvania
state court system. We will therefore affirm.

                                 I.

       Three times a jury has convicted Gibbs of the same




                                 3
criminal homicide.2 The Pennsylvania Supreme Court vacated
Gibbs’ first conviction after concluding that certain statements
he made to the police were induced in violation of his Fifth
Amendment rights. At Gibbs’ first trial, a government
psychiatrist who had conducted a court-ordered examination of
Gibbs testified about statements made by Gibbs to the
psychiatrist; the psychiatrist’s testimony was presented to rebut
Gibbs’ diminished capacity defense. At Gibbs’ second trial, the
government psychiatrist again testified about Gibbs’ statements.
But at the second trial Gibbs did not raise a diminished capacity
defense. Accordingly, on habeas corpus, this Court set aside
Gibbs’ second conviction, ruling that Gibbs’ statements to the
psychiatrist in a court-ordered examination were compelled, and
hence the presentation of the psychiatrist's testimony as part of
the government’s affirmative case—i.e., in a non-rebuttal
setting—violated Gibbs’ Fifth Amendment rights. In remanding
the case, this Court directed the District Court to enter an order
conditionally granting habeas relief unless Gibbs was retried




       2
        In March 1984, the Commonwealth of Pennsylvania
charged Barry Gibbs with, inter alia, criminal homicide for
shooting and killing a security guard named George Mehl. The
Commonwealth alleged that Gibbs shot Mehl after a woman
named Sharon Burke hired Gibbs to kill her husband, Wayne
Burke, who was also a security guard. Mehl was shot as he sat
beside Burke while they were at work. This murder forms the
factual basis for each of Gibbs’ three convictions.

                                4
“within a specified time period.” Gibbs I, 387 F.3d at 277.3

        The District Court received the certified order in lieu of
the formal mandate from this Court on November 17, 2004.
That Court issued an order on November 18, 2004 directing the
Commonwealth to either release Gibbs or retry him “within 120
days in accordance with the Third Circuit Court’s directive.”
The District Court noted that 120 days would run on March 18,
2005. Earlier in November, Gibbs had written to his former
state counsel from the first trial, Ronald M. Bugaj, informing
him that the Third Circuit had granted him a new trial, that the
state was petitioning for a rehearing and then certiorari, and that
although he had a lawyer for his appeal, a new lawyer would
have to be appointed for his retrial. Gibbs indicated that Bugaj
should notify him if Bugaj was interested in representing him.
On November 12, before the District Court issued its order,
Bugaj responded to the letter, expressing an interest in the case.
In late November, Gibbs wrote Attorney Bugaj and suggested
that Bugaj contact Mark A. Berman, who represented him
before the Third Circuit in Gibbs I, on how to proceed.

     In late December, Berman wrote to Judge Joseph F.
Kameen of the Court of Common Pleas of Pike County, stating


       3
       For a detailed factual background of Gibbs’ case (which
we do not consider necessary to the disposition of this appeal),
see Gibbs I, 387 F.3d at 270-71; Pennsylvania v. Gibbs, 553
A.2d 409 (Pa. 1989).

                                5
that counsel should be appointed for Gibbs “immediately,” and
that Bugaj was willing to take the appointment. Judge Kameen
was unaware of the District Court’s order to retry Gibbs because
it had been electronically served only on the parties. This
contact by Bugaj was, therefore, the first indication to the state
court that Gibbs would need new counsel to be appointed for a
retrial. In January 2005, Judge Kameen wrote to the Chief
Public Defender, directing that a public defender undertake the
representation of Gibbs at his trial, which was set for March 7,
2005. Assistant Public Defender Robert F. Bernathy was
designated. Shortly thereafter, Gibbs wrote to Bugaj advising
of the appointment of Bernathy and stating that he wrote to the
Public Defender objecting to the appointment. In mid-February,
the Commonwealth filed a motion objecting to the appointment
of Public Defender Bernathy because his father had been part of
the original team of Pennsylvania State Police troopers
investigating the homicide more than two decades earlier.

       On February 24, 2005, Gibbs filed a pro se motion for
appointment of counsel in the Pike County Court of Common
Pleas, outlining the history of the case and claiming that he had
a conflict with the public defender because the public defender
had supposedly ineffectively represented him at earlier trials.
Four days later, the public defender filed a motion to withdraw
as Gibbs’ counsel.

      On March 4, 2005, Judge Kameen granted the motion to
withdraw, and appointed Bugaj and an associate to represent

                                6
Gibbs. On March 7, 2005, the day the trial was scheduled to
begin, Bugaj moved to continue the trial until May 2, 2005 so
that he could file pretrial motions. During the hearing on that
motion the prosecutor stated that “the Commonwealth is ready
to proceed today,” but conceded that it had no objection to the
continuance. The defense was given until April 1, 2005 to file
its pretrial motions. On April 1, the defense filed an omnibus
motion, asserting several issues. The defense also made an oral
motion for Judge Harold Thomson to recuse himself because he
had presided over the first two trials. After the defense filed a
written recusal motion, Judge Thomson recused himself on
April 28. Judge Kameen ruled on the omnibus motion in an
opinion on May 20, 2005. He noted that the continuances
previously granted had been at the request of the defense, and
that 10 pre-trial motions had also been filed. Because many of
the issues raised by the defense had previously been determined
by the trial court, Judge Kameen comprehensively addressed
only four issues: a motion to suppress specific evidence; two
motions to dismiss charges; and a motion for release on nominal
bail because Gibbs was not going to be tried within the 120 days
(which was March 18, 2005) set by the District Court.

       In early May 2005, the District Court docketed a letter by
Bugaj’s associate that stated that Gibbs wished to file an
application for release based upon the Commonwealth’s
violation of the previous order that Gibbs be tried within 120
days. The attorney requested that counsel be appointed to
represent Gibbs in these federal court proceedings. On May 9,

                               7
2005, the District Court appointed Berman to represent Gibbs in
any further proceedings. One day later, Berman prepared an
“Application for Release” that asserted that the Commonwealth
had disregarded the order of the District Court and “deliberately
acted in a manner that made it impossible for such a trial to take
place.” For reasons not clear from the record before us, the
Application was not docketed until March 6, 2006. By order
dated April 27, 2006, the District Court denied Gibbs’
application for release. This appeal followed.4

                               II.

      The District Court had continuing jurisdiction under 28
U.S.C. §§ 1331 and 2254 over Gibbs’ application for release
from confinement. See Mickens-Thomas v. Vaughn, 355 F.3d
294, 303 (3d Cir. 2004); Phifer v. Warden, 53 F.3d 859, 865
(7th Cir. 1995) (declaring that District Court had continuing


       4
        Gibbs’ third trial did not commence until June 20, 2005.
The Pike County Court docket indicates that Gibbs was found
guilty of counts I (criminal homicide), II (criminal conspiracy
engaging in criminal homicide), III (criminal conspiracy
engaging in aggravated assault), and IV (aggravated assault).
Gibbs was sentenced to 10 to 20 years for homicide, 5 to 10
years for conspiracy to commit homicide, 5 to 10 years for
conspiracy to commit aggravated assault, and 5 to 10 years on
aggravated assault. The sentences are to run consecutively, with
credit for time served since March 29, 1984.

                                8
jurisdiction to address alleged noncompliance with conditional
writ of habeas corpus). Because Gibbs’ notice of appeal is from
a final order denying his application to make the conditional writ
absolute and to release him, we exercise jurisdiction pursuant to
28 U.S.C. § 1291. The Commonwealth contends that we lack
jurisdiction because a certificate of appealability (“COA”) has
not been granted.          Our analysis in Mickens-Thomas
demonstrates, however, that we have jurisdiction.

        In Mickens-Thomas, 355 F.3d at 303, we revisited the
issue of whether an ex post facto violation had occurred on
remand as a result of the Pennsylvania Board of Probation and
Parole’s conduct with regard to Mickens-Thomas’ renewed
parole application. We noted that we had found a violation in
the first appeal and remanded the matter for the Board to rectify
the violation. See Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d
Cir. 2003). We observed that our mandate in the first appeal, as
set forth in several paragraphs of the opinion, “could not be
clearer.” Mickens-Thomas, 355 F.3d at 302. Yet the Board’s
conduct once the matter was remanded was again deficient.

       After relating the factual history of the case, we
considered whether we had jurisdiction. We noted that, even
though no COA had been granted by the District Court,
Mickens-Thomas’ notice of appeal constituted a request for a
COA under Federal Rule of Appellate Procedure 22(b)(1). We
further stated that, “[o]f utmost importance, this Court has
continuing jurisdiction over this appeal to determine whether the

                                9
Board has complied with the District Court’s remand order and
our remand mandate.” Id. at 303. As support we cited Phifer,
53 F.3d at 865. In Phifer, the Seventh Circuit declared that
“[w]hen a habeas petitioner alleges noncompliance with a
conditional order [granting habeas relief], jurisdiction exists for
the purpose of determining whether the state acted in accordance
with the court’s mandate.” Id. The Court explained that the
district court’s jurisdiction to address Phifer’s claim “was
encompassed in the same power that would have enabled the
court to release Phifer.” Id.

        The procedural posture of this case brings it within the
Mickens-Thomas doctrine, giving us jurisdiction over this
appeal. At issue here is whether the District Court properly
executed, and whether the state court properly followed, this
Court’s conditional writ of habeas corpus. We exercise plenary
review over whether the District Court correctly interpreted the
instructions of our prior opinion. See Cooper Distrib. Co., Inc.
v. Amana Refrigeration, Inc., 180 F.3d 542, 546 (3d Cir. 1999);
Snow-Erlin v. United States, 470 F.3d 804, 807 (9th Cir. 2006)
(citation omitted). We review a district court’s interpretation of
its own order for abuse of discretion. Cf. In re Cendant Corp.
Prides Litig., 233 F.3d 188, 192 (3d Cir. 2000) (“We review the
District Court’s modification of its own order establishing a
deadline for abuse of discretion.”).




                                10
                                III.

       Gibbs argues that he should be permanently released
because the Commonwealth failed to comply with the court
order to afford him a trial within 120 days.5 The first question

       5
         We are not free to review the propriety of the state court
ruling during Gibbs’ third trial, which allowed the
Commonwealth to introduce testimony of a defense expert who
was appointed prior to Gibbs’ first trial in 1984 to explore the
possibility of a mental infirmity defense. See Gibbs I, 387 F.3d
at 271. Gibbs I held that the admission by the prosecution of
statements made by Gibbs to a government psychiatrist during
a court-ordered examination were compelled and therefore
violated his Fifth Amendment rights. This testimony was
offered in the first trial to rebut Gibbs’ diminished capacity
defense, a defense he did not raise during the second trial. On
appeal, Gibbs tries to place the admission of testimony of his
own expert on equal footing to that of the testimony by the
prosecution’s expert. Gibbs I did not address this issue, and it
falls outside the purview of the holding in Gibbs I. Indeed, in
Gibbs I, we recognized the different Fifth Amendment
implications for testimony of state experts versus testimony of
defense experts. See id. at 274.
        It is well-settled that we may not address an issue if it has
not been exhausted. Gibbs now makes a direct challenge on this
appeal to the admission of his expert’s testimony. See 28 U.S.C.
§ 2254(b)(1)(A). Our continuing jurisdiction extends only to
whether the District Court exercised proper discretion in
fulfilling our mandate to require the Commonwealth to either

                                11
we address is whether the District Court properly interpreted the
instructions of Gibbs I “to grant Gibbs’ petition for a writ of
habeas corpus and require the state to either release Gibbs or
retry him within a specified time period.” Gibbs I, 387 F.3d at
277. The District Court’s November 18, 2004 order directed the
Commonwealth to either release Gibbs or retry him “within 120
days in accordance with the Third Circuit Court’s directive.”
The District Court selected this time frame in part because
Pennsylvania state criminal procedure uses 120 days.
Pennsylvania Rule of Criminal Procedure 600(D)(1) states that
“[w]hen a trial court has granted a new trial and no appeal has
been perfected, the new trial shall commence within 120 days
after the date of the order granting a new trial, if the defendant
is incarcerated on that case.” We note at the outset that the
Gibbs I instruction did not require the 120-day time period



release Gibbs or retry him within a specified time period.
Gibbs’ appeal raises both this issue as well as the propriety of
the state court’s admission of statements by the defense expert.
However, “[e]xhaustion requires that petitioner present in
substance the same claim he is now seeking to have the federal
courts review.” Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.
2004). As the record before us indicates that Gibbs did not at
the time of the filing of this appeal seek state court review of the
admission of these statements, we will not address this issue
here. See Parker v. Kelchner, 429 F.3d 58, 61-62 (3d Cir.
2005). In essence, we are dismissing Gibbs’ habeas petition
without prejudice.

                                12
decreed by the District Court. Our mandate was only that retrial
take place within a “specified time period.” Implicit in
“specified,” however, is a reasonableness requirement. See, e.g.,
Richmond v. Lewis, 506 U.S. 40, 52 (1992) (directing District
Court to enter a conditional order granting habeas unless the
State corrected the constitutional error within a reasonable
period of time); Boles v. Stevenson, 379 U.S. 43, 46 (1964)
(remanding “to the District Court to allow the State a reasonable
time to afford Stevenson a hearing or a new trial, failing which
Stevenson is entitled to his release”); Rogers v. Richmond, 365
U.S. 534, 549 (1961) (“The case is remanded to the Court of
Appeals to be held in order to give the State opportunity to retry
petitioner, in light of this opinion, within a reasonable time.”);
Dowd v. U.S. ex rel. Cook, 340 U.S. 206, 210 (1951) (directing
the Court to enter the appropriate order to “allow the State a
reasonable time in which to afford respondent the full appellate
review he would have received but for the suppression of his
papers, failing which he shall be discharged”). The District
Court’s selection of 120 days was eminently reasonable. See
Pazden v. Maurer, 424 F.3d 303, 319 (3d Cir. 2005) (reversing
a district court’s denial of federal habeas relief and remanding
“with instructions to grant the writ if the defendant is not retried
in 180 days”); Slutzker v. Johnson, 393 F.3d 373, 390 (3d Cir.
2004) (120 days); Holloway v. Horn, 355 F.3d 707, 730 (3d Cir.
2004) (120 days).

      The second issue we address is whether the District Court
abused its discretion by interpreting its own time period of 120

                                13
days to include a reasonable period of excusable delay. This
issue breaks down into two sub-issues, one primarily legal and
the other primarily factual.

       The legal sub-issue is whether the District Court had any
discretion to excuse the Commonwealth from strictly complying
with the District Court’s initial 120-day time period. We hold
that, so long as its actions are reasonable under the
circumstances, a district court has the authority to alter the time
period it originally sets for retrial to commence pursuant to a
grant of conditional habeas relief. In Schlup v. Delo, 513 U.S.
298, 319 (1995), the Supreme Court acknowledged that it has
“adhered to the principle that habeas corpus is, at its core, an
equitable remedy.” As an equitable remedy, a federal court has
wide latitude in setting the time period for conditional relief.
See Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (stating that
“a court has broad discretion in conditioning a judgment
granting habeas relief”).

        Consistent with the Supreme Court’s observations in
Hilton and Schlup, the Seventh Circuit recognized in Phifer, 53
F.3d at 864-65, that “[c]onditional orders are essentially
accommodations accorded to the state. They represent a district
court’s holding that a constitutional infirmity justifies [the]
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. Failure to cure that error, however,
justifies the district court’s release of the petitioner.” The

                                14
Seventh Circuit in Phifer further noted that “[a] conditional
order’s framework contemplates that a district court will
eventually make an assessment concerning compliance with its
mandate.” Id. at 865; see also Smith v. Lucas, 9 F.3d 359, 366-
67 (5th Cir. 1993) (“In the conditional writ cases, the federal
court has determined that it has the authority to order immediate
release of the prisoner as a result of the federal law violation; the
court chooses, however, to delay the writ to allow the state to
correct the problem as best it can.”).

        In light of the broad discretion a district court possesses
in fashioning a conditional order, the Seventh Circuit in Gilmore
v. Bertrand stated that it logically follows that this discretion
“includes the ability to grant the state additional time beyond the
period prescribed in a conditional writ to cure a constitutional
deficiency.” 301 F.3d 581, 583 (7th Cir. 2002) (per curiam); see
also Chambers v. Armontrout, 16 F.3d 257, 261 n.2 (8th Cir.
1994) (noting that the District Court did not err by granting
additional time to retry the prisoner, particularly since there was
“some evidence that the delay in retrial had been attributable at
least in part to the defense”); Moore v. Zant, 972 F.2d 318, 321
(11th Cir. 1992) (concluding that the court could give the state
additional time to correct a constitutional violation even after
delay of more than 20 months); Frazier v. Roberts, 441 F.2d
1224, 1229 (8th Cir. 1971) (instructing the District Court that it
should order retrial within 30 days or within a reasonable
extension of such period).



                                 15
        We agree with the Seventh Circuit’s holding in Gilmore,
as it is in accord with the Supreme Court’s jurisprudence
regarding the broad discretion given to district courts in
fashioning habeas relief. Gibbs attempts to distinguish Gilmore
because, in that case, the state made a motion to the federal
district court for an extension, whereas in this case, the state
never made a motion in District Court for additional time to
retry Gibbs. This distinction in this context has no legal
significance. To begin, it is not even clear that, in Gilmore, the
state had made its motion prior to the passing of the deadline.
301 F.3d at 582 (“After the State failed to meet the 120-day
deadline, the district court granted its motion for a 45-day
extension of the stay.”). Second, and more importantly, it is of
no moment whether the Commonwealth seeks an extension
directly from the District Court during the initial deadline or, as
happened here, provides a post hoc justification for the trial
delay. Such a maneuver may be strategically unwise from the
Commonwealth’s perspective because of the broad discretion
afforded to a district court in conditioning (and granting) habeas
relief. See Grasso v. Norton, 520 F.2d 27, 37-38 (2d Cir. 1975).
Nonetheless, we fail to see why a post-deadline justification
offered by the state for the delay in a prisoner’s retrial should be
categorically rejected as a legal matter. The broad discretion
inherent in a district court’s habeas powers include the ability to
evaluate whether the Commonwealth has provided a legitimate
reason for its delay in retrying a defendant subject to a
conditional habeas writ.



                                16
       The factual sub-issue, then, is whether the District Court
abused its discretion in making the factual findings that led it to
excuse the delay in Gibbs’ state trial. Gibbs argues that the
District Court “blamed [him] for delaying his own retrial by
scheming to delay the appointment of counsel in his own behalf.
The district court’s finding is not even supported by the
inadequate record before it, which in any event should have
been supplemented by an evidentiary hearing.” Appellant’s Op.
Br. 28-29. We disagree. The actual findings of the District
Court were balanced in assigning blame between the
Commonwealth and Gibbs, and the record before the District
Court provided ample support for its findings.

       In its memorandum, the District Court acknowledged that
the Court of Common Pleas of Pike County was unaware of the
remand for retrial until December 30, 2004, when Gibbs’
attorney wrote to Judge Kameen.6 The District Court also


       6
         One troubling aspect of this case is that the
Commonwealth did not inform the Court of Common Pleas of
Pike County of the time frame for Gibbs’ retrial. The District
Court ordered retrial on November 18, 2004, but several weeks
passed before Gibbs’ counsel, Mark Berman, told the Court of
Common Pleas about the conditional writ. We know of no
official notification procedure within this circuit for informing
state courts when an appellate or district court has issued a
conditional writ of habeas corpus. As a consequence, service of
the District Court opinion and judgment was effected upon only

                                17
recognized that it was “out of the loop with respect to any state
court proceedings after its Order of November 18, 2004 until the
letter from Mr. Bugaj on May 2, 2005.” The District Court cited
Gibbs’ efforts to object to the appointment of a public defender
so that he could have his own counsel instead. Shortly after the
Commonwealth became aware that the public defender’s father
was a police officer involved in the initial investigation of the
homicide, it filed a motion objecting to the appointment. Gibbs
followed suit. The District Court also noted that Gibbs’ counsel
requested a continuance on the day the trial was to begin. The


the parties to this habeas action.
        The interests of comity strongly counsel that the issuance
of a conditional writ of habeas corpus by a federal court be
conveyed promptly to the state trial court that must rectify the
constitutional deprivation. In future conditional writ cases, we
believe that it is appropriate for the State or Commonwealth to
bear the burden of informing state courts about the necessity of
a retrial promptly after the conditional writ is issued.
Nonetheless, in an effort to avoid notification problems, we
observe that a district court could easily require the State or
Commonwealth to timely serve the state trial court with a copy
of the opinion and judgment containing the conditional writ, and
then file a certificate notifying the District Court that it has
fulfilled its service requirement. While Gibbs suffered no
prejudice in this case because of the multi-week delay, there is
no guarantee that a petitioner granted relief in a future habeas
proceeding will have an attorney as conscientious as Mr.
Berman.

                               18
transcript of the hearing on the motion indicated that the
Commonwealth was ready to proceed but had no objection to
defense counsel’s request for a continuance.                 The
Commonwealth tried Gibbs in June 2005, after Gibbs filed—and
the state court ruled upon—his omnibus motion. The District
Court concluded that “the state did not request additional time,
presumably because the state court scheduled retrial for March
7, 2005, well within the March 18, 2005 timetable, and before
the defense found it necessary to seek a continuance of the trial
date compelled by events wholly attributable to the
circumstances making it impossible to adhere to the March 7
trial date.” We see nothing in the record that contradicts this
statement.

        The District Court also noted that it directed retrial in 120
days based in part on Pennsylvania Rule of Criminal Procedure
600(D)(1), which mandates a new trial within 120 days after the
date of the order granting a new trial, if the defendant is
incarcerated and if no appeal has been perfected. Pennsylvania
Rule of Criminal Procedure 600(C)(3)(b) further states that “[i]n
determining the period for commencement of trial, there shall be
excluded therefrom ... such period of delay at any stage of the
proceedings as results from ... any continuance granted at the
request of the defendant or the defendant’s attorney.” 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); Henderson
v. Frank, 155 F.3d 159, 168 (3d Cir. 1998). Here, the District

                                 19
Court looked in part to analogous state court rules to conclude
that it “is empowered to exercise some discretion in excusing
the untimeliness of the retrial.” The District Court’s invocation
of Pennsylvania state rules as a basis for exercising its broad
habeas discretion further supports our conclusion that it properly
excused the delay in retrying Gibbs. Any delay brought about
by a continuance request from the defense should not be
included in the 120-day time frame.

       For these reasons, we refuse to conclude that the District
Court made its factual finding on a “clearly erroneous
assessment of the evidence.” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990). We will therefore affirm the
judgment of the District Court denying Gibbs’ application for
release.




                               20
