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2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

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6 THOMAS HARSH, Case No. 2:17-cv-02069-MMD-NJK

7 Petitioner, ORDER v. 8 JO GENTRY, et al., 9 Respondents. 10 11 12 On July 29, 2021, the Court granted Petitioner Thomas Harsh’s petition for writ of 13 habeas corpus under

as to Ground 3 and ordered Harsh to be released 14 from parole for his possession of a stolen vehicle conviction. (ECF No. 70.) Respondents 15 seek reconsideration of the Court’s order granting habeas relief. (ECF No. 72.)1 16 In Ground 3 of his petition, Harsh alleged that his federal constitutional rights 17 were violated because the state district court did not allow his trial counsel to withdraw 18 based upon an irreconcilable conflict she had with Harsh. (ECF No. 22 at 17.) The Ninth 19 Circuit previously established a three-part test to determine whether an attorney-client 20 conflict rises to the level of being irreconcilable. See United States v. Moore,

1154, 1158-59 (1998). That test considers “(1) the extent of the conflict; (2) the adequacy 22 of the inquiry [by the state district court]; and (3) the timeliness of the motion.” Id. This 23 Court considered these three factors and determined that, based on “the complete 24 breakdown in Harsh’s relationship with his trial counsel and the state district court’s 25 insufficient inquiry into the conflict,” Harsh’s relationship with his trial counsel “fell short 26 of that required by the Sixth Amendment.” (ECF No. 70 at 10-12 (citing Schell v. Witek, 27

(9th Cir. 2000)).) Accordingly, this Court concluded that Harsh was 28 1 entitled to habeas corpus relief “because the Nevada Supreme Court’s determination 2 that Harsh failed to demonstrate that the district court erred was objectively 3 unreasonable,

(d).” (Id. at 12.) Respondents seek reconsideration of 4 this conclusion based on the Ninth Circuit’s decision in Carter v. Davis,

(2019).2 (ECF No. 72 at 2.) 6 In Carter, the Ninth Circuit explained it had previously “stated that ‘to compel one 7 charged with [a] grievous crime to undergo a trial with the assistance of an attorney with 8 whom he has become embroiled in irreconcilable conflict is to deprive him of the 9 effective assistance of any counsel whatsoever.’”

(citing Brown v. 10 Craven,

(9th Cir. 1970)). After determining that “the conclusion that 11 an irreconcilable conflict did not exist based on the disagreement between Carter and 12 [his counsel] was reasonable,” the Ninth Circuit then determined that “[e]ven if Carter 13 were successfully able to demonstrate a complete breakdown in communication or 14 prove that an irreconcilable conflict existed under the Moore factors, Carter’s 15 irreconcilable-conflict claim would still fail. This is because the Supreme Court has never 16 endorsed this line of precedent from our court.” Id. at 507-08. The Ninth Circuit 17 elaborated that the Supreme Court “has never held that an irreconcilable conflict with 18 one’s attorney constitutes a per se denial of the right to effective counsel. This proves 19 fatal to Carter’s claim because AEDPA conditions habeas relief on a determination that 20 the state-court decision unreasonably applied ‘clearly established Federal law’ as 21 pronounced by the U.S. Supreme Court.” Id. at 508 (citing

(d)(1)). 22 Rule 60(b) entitles the moving party to relief from judgment on several grounds, 23 including the catch-all category “any other reason that justifies relief.” Fed. R. Civ. P. 24 60(b)(6). This Court finds that the Ninth Circuit’s decision in Carter, which forecloses the 25

26 2 Respondents argue that they could not have previously presented Carter for this Court’s consideration because it was decided after their answer was filed. (ECF No. 72 27 at 2.) However, this is untrue. Respondents could have moved for leave to advise the 28 Court of relevant new authority. 1 || granting of relief on Ground 3 of Harsh’s petition, entitles Respondents to relief from the 2 || judgment previously entered on July 29, 2021. (ECF No. 71.) An amended order on 3 || Harsh’s petition will follow. 4 It is therefore ordered that Respondents’ motion for reconsideration (ECF No. 72) 5 || is granted. 6 It is further ordered that the Court’s order granting habeas corpus relief to Harsh 7 || (ECF No. 70), and the corresponding judgment (ECF No. 71) are vacated. 8 DATED THIS 23" Day of September 2021. 9 -——— 10 LIS 11 MIRANDA M. DU 1 CHIEF UNITED STATES DISTRICT JUDGE

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