2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JEFF N. ROSE, Case No. 3:13-cv-00267-MMD-EJY

7 Petitioner, ORDER v. 8 CHARLES DANIELS, et al., 9 Respondents. 10 11 I. SUMMARY 12 This Court granted Respondents’ motion to reopen Jeff N. Rose’s

13 petition for writ of habeas corpus for a limited purpose. (ECF No. 89.) That is, for 14 Respondents to file their Motion for This Court to Vacate the Order Granting Release 15 Pursuant to Fed. R. App. P. 23 and to Find the Judgment Satisfied Pursuant to Fed. R. 16 Civ. P. 60(5) (ECF No. 88 (“Motion”).1 Rose opposed the Motion (ECF No. 90), and 17 Respondents replied (ECF No. 91). For the reasons discussed herein, the Court grants 18 the Motion. Accordingly, the Court vacates the order of conditions and release (ECF Nos. 19 56, 57), releases U.S. Probation from supervising Rose, releases the Appearance Bond 20 (ECF No. 58), and finds the conditional writ and judgment satisfied. 21 II. BACKGROUND 22 The Court denied Rose’s first amended petition. (ECF No. 44.) On appeal, the 23 United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and 24 remanded with instructions to conditionally grant the writ pending a new trial. (ECF No. 25 48.) Respondents moved for a panel rehearing or rehearing en banc, which the appeals 26 27 1While Respondents title their motion as one to vacate the order granting release, 28 the relief they actually seek is that this Court vacate its order setting conditions of release and release U.S. Probation from supervising Rose. (ECF No. 88 at 3-7.) 2 mandate while Respondents pursued a petition for writ of certiorari in the U.S. Supreme 3 Court. (ECF No. 51.) 4 Meanwhile, in March 2020, Rose filed an emergency motion with the Ninth Circuit 5 to be released from the custody of the Nevada Department of Corrections while 6 Respondents challenged the grant of habeas relief in the Supreme Court. (ECF No. 54.) 7 Part of Rose’s argument was that his underlying medical conditions put him at high risk of 8 contracting COVID-19 in prison. In April 2020, the Ninth Circuit granted Rose’s motion and 9 released him under Federal Rule of Appellate Procedure 23. The appellate court 10 remanded to this Court for the limited purpose of conducting a bond hearing to determine 11 the bond and conditions of Rose’s release. (Id.) On April 13, 2020, this Court held a 12 hearing setting bond, directed U.S. Probation to supervise Rose, and set forth the 13 conditions for release, including GPS location monitoring and home detention. (ECF No. 14 56.) The Court issued the Appearance Bond and Order Setting Conditions of Release the 15 same day. (ECF No. 57.) 16 The Supreme Court docketed Respondents’ certiorari petition in May 2020. (ECF 17 No. 60.) The petition was denied on October 5, 2020 (ECF No. 62), and the Ninth Circuit 18 issued its mandate on October 6, 2020 (ECF No. 63). This Court then, under the Ninth 19 Circuit’s order reversing in part, vacated its order addressing the petition in part as to the 20 denial of relief on Ground 1 (ECF No. 44), reopened the case, and conditionally granted 21 Ground 1. (ECF No. 65.) This Court also vacated the state judgment of conviction and 22 ordered Rose “released from all forms of custody and all other restrictions and 23 consequences that flowed from said judgment within 30 days of entry of this order, unless” 24 the Respondents filed an election to retry within 30 days, and jury trial commenced within 25 120 days, subject to modification. (Id. at 1-2.) The Court ordered Rose would “continue on 26 release subject to the same conditions imposed (ECF Nos. 56, 57) pending, inter alia, 27 Respondents’ notice of election.” (ECF No. 65 at 1-2.) The parties have since stipulated 28 several times to amend or alter the judgment to give the county prosecutor and defense 2 (ECF Nos. 68-78, 80-81.) Respondents now inform the Court that Rose’s retrial in the 3 Eighth Judicial District Court, Clark County, Nevada is scheduled to start on July 31, 2023. 4 (ECF No. 87 at 2.) Rose also was recently arrested by Clark County law enforcement and 5 taken into custody on new state charges in Las Vegas. (ECF No. 86.) 6 III. DISCUSSION 7 Respondents now ask this Court to vacate the order setting conditions of release 8 and to find the judgment satisfied under Fed. R. Civ. P. 60(5). (ECF Nos. 87, 88.) They 9 argue that Fed. R. App. P. 23(c) no longer applies to Rose and ask the Court to deem the 10 conditional writ satisfied because Rose was released from state custody on the vacated 11 judgment and his retrial is scheduled for July 2023. 12 Fed. R. App. P. 23(c) provides: 13 While a decision ordering the release of a prisoner is under review, the prisoner must—unless the court or judge rendering the decision, or the 14 court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise—be released on personal recognizance, with or 15 without surety. 16 Respondents argue that because the Ninth Circuit’s order instructing this Court to issue a 17 conditional writ pending a new trial is no longer under review, Rule 23(c) no longer applies. 18 Respondents also argue that the scope of this Court’s appearance bond and order 19 setting conditions of release was satisfied when they filed the notice of intent to retry. They 20 argue that no basis exists currently for this Court to continue oversight of Rose’s custody 21 through U.S. Probation and that the proper court to determine Rose’s custody status 22 pending retrial is the state trial court presiding over Rose’s retrial. They also point out that 23 the final judgment here does not provide for the continued release of Rose under federal 24 court supervision. (ECF No. 66.) 25 Rose counters that the request for his release comes years too late. (ECF No. 90.) 26 He urges that Respondents have forfeited their right to seek vacation. Respondents filed 27 notice of retrial in October 2020. Rose argues that Respondents wanted to take advantage 28 of Rose’s continued supervision up until recently and now that they don’t, they seek to 2 provides that the State had to either release Rose or retry him. (ECF No. 66.) 3 The Court concludes that Rule 23(c) no longer applies to Rose. His state-court 4 retrial is scheduled for July 2023. A conditional-release order will not “permit a federal 5 habeas court to maintain a continuing supervision over a retrial conducted pursuant to a 6 conditional writ granted by the habeas court.” Pitchess v. Davis,

(1975). 7 The Court agrees with Respondents that vacating the order setting conditions of release 8 and issuing a conditional writ that gives Nevada the opportunity to retry Petitioner puts 9 Rose back in the position of a pretrial detainee. So any determinations on pretrial 10 release—including decisions about bail and conditions of release—should be made by the 11 state trial court judge. Rose’s recent arrest by county law enforcement was not based 12 upon the convictions that were the subject of his federal habeas petition but was based 13 on an ongoing investigation into new crimes. Rose is not in state custody in relation to the 14 charges for which his retrial is scheduled in July. District courts have broad discretion in 15 conditioning a judgment granting relief in a habeas matter. Hilton v. Braunskill,

770, 775 (1987). The state has set a retrial date in July 2023. This Court finds the judgment 17 satisfied. 18 IV. CONCLUSION 19 It is therefore ordered that Respondents’ Motion for This Court to Vacate the Order 20 Granting Release Pursuant to Fed. R. App. P. 23 and to Find the Judgment Satisfied 21 Pursuant to Fed. R. Civ. P. 60(5) (ECF No. 88) is granted. 22 It is further ordered that this Court’s order dated April 13, 2020, setting conditions 23 of release (ECF No. 56) is vacated. 24 It is further ordered that the appearance bond (ECF No. 58) is released. 25 It is further ordered that U.S. Probation is released from supervising Petitioner. 26 It is further ordered that the final judgment entered in this case in October 2020 is 27 satisfied. It remains the Court’s intention that the final judgment is subject to a possible 28 1 later motion to reopen the matter to enter an unconditional writ if then warranted, as a 2 || matter of enforcement of the judgment. 3 It is further ordered that the Clerk of Court substitute Nevada Department of 4 || Corrections Director James Dzurenda for Respondent Charles Daniels. 5 It is further ordered that the Clerk of Court provide a copy of this order to the Clerk 6 || of the Eighth Judicial District Court, in connection with that court’s Case No. 02C188264. 7 It is further ordered that the Clerk of Court close this case. 8 DATED THIS 23 Day of May 2023.

10 Pe MIRANDA M. DU 11 CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28